APPEAL,CASREF,ECF,LEAD,MOTREF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:19-cv-07777-GBD-OTW

State of New York et al v. United States Department of Homeland Security et al Assigned to: Judge George B. Daniels Referred to: Magistrate Judge Ona T. Wang Related Case: 1:19-cv-07993-GBD-OTW Cause: 28:2201 Constitutionality of State Statute(s)

Date Filed: 08/20/2019 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff State of New York

represented by Amanda Marie Meyer New York State Office of The Attorney General 28 Liberty Street 20th Floor New York, NY 10005 212-416-6225 Fax: 212-416-6030 Email: amanda.meyer@ag.ny.gov ATTORNEY TO BE NOTICED

Elena Stacy Goldstein New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 212-416-6201 Fax: 212-416-6030 Email: elena.goldstein@ag.ny.gov ATTORNEY TO BE NOTICED

Matthew Colangelo New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 212 416 6057 Fax: 212 416 6007 Email:

Plaintiff City of New York

Matthew.Colangelo@ag.ny.gov ATTORNEY TO BE NOTICED
Ming-Qi Chu NYS Office of the Attorney General 28 Liberty Street New York, NY 10005 212-416-8689 Email: ming-qi.chu@ag.ny.gov ATTORNEY TO BE NOTICED
Abigail Everett Rosner Office of The Attorney General(NYS) 28 Liberty Street, 21st Floor New York, NY 10005 212-416-8922 Fax: 212-416-6007 Email: abigail.rosner@ag.ny.gov ATTORNEY TO BE NOTICED
represented by Tonya Jenerette Corporation Counsel, Special Federal Litigation Division 100 Church Street New York, NY 10007 (212)-788-0993 Fax: (212)-788-0367 Email: tjeneret@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia C. Weaver New York City Law Department 100 Church Street Rm 20-096 New York, NY 10007 212-356-0408 Email: cweaver@law.nyc.gov ATTORNEY TO BE NOTICED
Doris F. Bernhardt New York City Law Department 100 Church Street Room 6-188 New York, NY 10007

Plaintiff State of Connecticut

(212) 788-0996 Fax: (212) 227-1633 Email: dbernhar@law.nyc.gov ATTORNEY TO BE NOTICED
Hope Lu New York City Law Department 100 Church Street New York, NY 10007 212-356-2294 Email: hlu@law.nyc.gov ATTORNEY TO BE NOTICED
Melanie Calandra Teresa Ash New York City Law Department 100 Church Street Ste 20-086 New York, NY 10007 212-356-2276 Fax: 212-356-2038 Email: mash@law.nyc.gov ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Perry Office of the Attorney General, Connecticut 55 Elm Street Hartford, CT 06106 860-808-5372 Email: joshua.perry@ct.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff State of Vermont
Plaintiff Make the Road New York

Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Julio A Thompson State of Vermont Office of The Attorney General 109 State Street Montpelier, VT 05609 (802)-828-5519 Email: julio.thompson@vermont.gov LEAD ATTORNEY
Benjamin Daniel Battles Office of the Attorney General 109 State Street Montpelier, VT 05609 802-828-5500 Email: benjamin.battles@vermont.gov ATTORNEY TO BE NOTICED
Eleanor Laurel Pullin Spottswood Office of the Attorney General 109 State Street Montpelier, VT 05609 802-828-3178 Fax: 802-828-3187 Email: eleanor.spottswood@vermont.gov ATTORNEY TO BE NOTICED
Elena Stacy Goldstein (See above for address) ATTORNEY TO BE NOTICED
Matthew Colangelo (See above for address) ATTORNEY TO BE NOTICED
represented by Amy Bowles Paul, Weiss, Rifkind, Wharton &

Garrison 1285 Avenue of The Americas New York, NY 10019 212-373-3000 Email: abowles@paulweiss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew James Ehrlich Paul Weiss (NY) 1285 Avenue of the Americas New York, NY 10019 (212) 373-3166 Fax: 212.373-0166 Email: aehrlich@paulweiss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittany Thomas Center for Constitutional Rights 666 Broadway FL 7 New York, NY 10012 816-286-9315 Email: bthomas@ccrjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Shiah Sinnreich Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of The Americas New York, NY 10019 212-373-3000 Email: dsinnreich@paulweiss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elana Rose Beale Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019-6064 212-373-3000 Email: ebeale@paulweiss.com LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Ghita Schwarz Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212-614-6445 Fax: 212-614-6422 Email: gschwarz@ccrjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hasan Shafiqullah Hasan Shafiqullah The Legal Aid Society 199 Water Street, 3rd Floor New York, NY 10002 212-577-3965 Fax: 646-616-9232 Email: hhshafiqullah@legal-aid.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Hillel Hurwitz Paul, Weiss, Rifkind, Wharton & Garrison LLP (NYC) 1285 Avenue of the Americas New York, NY 10019 212-373-3254 Fax: 212-492-0254 Email: jhurwitz@paulweiss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Mary Kelleher The Legal Aid Society (Civil Div. NYC) 199 Water Street 3rd Floor New York, NY 10038 212 440-4275 Fax: 212 509-8941 Email: kkelleher@legal-aid.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff African Services Committee

Robert Joseph O'Loughlin , III Paul, Weiss, Rifkind, Wharton & Garrison LLP (NYC) 1285 Avenue of the Americas New York, NY 10019 212-373-3343 Fax: 212-492-0343 Email: roloughlin@paulweiss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Craig Herzog Paul Weiss (NY) 1285 Avenue of the Americas New York, NY 10019 (212)-373-3317 Fax: (212)-492-0317 Email: sherzog@paulweiss.com TERMINATED: 02/18/2020 LEAD ATTORNEY
Susan Joan Cameron The Legal Aid Society Law Reform Unit 199 Water Street New York, NY 10038 212-298-3253 Fax: 646-924-3563 Email: scameron@legal-aid.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Elizabeth Welber The Legal Aid Society 199 Water Street New York, NY 10038 212-577-3320 Fax: 646-616-4018 Email: sewelber@legal-aid.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amy Bowles (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Andrew James Ehrlich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittany Thomas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Shiah Sinnreich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hasan Shafiqullah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Hillel Hurwitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Mary Kelleher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Joseph O'Loughlin , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Asian American Federation

Steven Craig Herzog (See above for address) TERMINATED: 02/18/2020 LEAD ATTORNEY
Susan Joan Cameron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Elizabeth Welber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amy Bowles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew James Ehrlich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittany Thomas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Shiah Sinnreich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Catholic Charities Community Services (Archdiocese of New York)

Hasan Shafiqullah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Hillel Hurwitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Mary Kelleher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Joseph O'Loughlin , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Craig Herzog (See above for address) TERMINATED: 02/18/2020 LEAD ATTORNEY
Susan Joan Cameron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amy Bowles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew James Ehrlich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittany Thomas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Shiah Sinnreich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hasan Shafiqullah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Hillel Hurwitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen Mary Kelleher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Joseph O'Loughlin , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Craig Herzog (See above for address) TERMINATED: 02/18/2020 LEAD ATTORNEY
Susan Joan Cameron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Catholic Legal Immigration Network, Inc.

Susan Elizabeth Welber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amy Bowles (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew James Ehrlich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittany Thomas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Shiah Sinnreich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elana Rose Beale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hasan Shafiqullah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Hillel Hurwitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
United States Department of Homeland Security

Kathleen Mary Kelleher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Joseph O'Loughlin , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Craig Herzog (See above for address) TERMINATED: 02/18/2020 LEAD ATTORNEY
Susan Joan Cameron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Elizabeth Welber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ethan Price Davis King & Spalding LLP 101 Second Street Suite 1000 San Francisco, CA 94105 415-318-1228 Email: edavis@kslaw.com TERMINATED: 09/08/2020 LEAD ATTORNEY PRO HAC VICE
Joshua Kolsky Department of Justice 1100 L Street NW Washington, DC 20005 202-305-7664 Email: joshua.kolsky@usdoj.gov

Defendant Secretary Kevin K. McAleenan in his official capacity as Acting Secretary of the United States Department of Homeland Security agent of Acting Secretary of the United States Department of Homeland Security
Defendant United States Citizenship and Immigration Services

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Soskin DOJ-Civ 1100 L Street NW Washington, DC 20005 202-353-0533 Email: eric.soskin@usdoj.gov ATTORNEY TO BE NOTICED
Keri Lane Berman DOJ-Civ 1100 L Street NW Ste 11206 Washington, DC 20005 202-305-7538 Email: keri.l.berman@usdoj.gov ATTORNEY TO BE NOTICED
represented by Ethan Price Davis (See above for address) TERMINATED: 09/08/2020 LEAD ATTORNEY PRO HAC VICE
Joshua Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Soskin (See above for address) ATTORNEY TO BE NOTICED
Keri Lane Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Ethan Price Davis (See above for address) TERMINATED: 09/08/2020 LEAD ATTORNEY

Defendant Director Kenneth T. Cuccinelli II in his official capacity as Acting Director of United States Citizenship and Immigration Service
Defendant United States of America

PRO HAC VICE
Joshua Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Soskin (See above for address) ATTORNEY TO BE NOTICED
Keri Lane Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Ethan Price Davis (See above for address) TERMINATED: 09/08/2020 LEAD ATTORNEY PRO HAC VICE
Joshua Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Soskin (See above for address) ATTORNEY TO BE NOTICED
Keri Lane Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Ethan Price Davis (See above for address) TERMINATED: 09/08/2020 LEAD ATTORNEY PRO HAC VICE
Joshua Kolsky (See above for address) LEAD ATTORNEY

Defendant Ken Cuccinelli in his official capacity as Acting Director of United States Citizenship and Immigration SErvices
Defendant Chad F. Wolf
ADR Provider Immigration Reform Law Institute

ATTORNEY TO BE NOTICED
Eric Soskin (See above for address) ATTORNEY TO BE NOTICED
Keri Lane Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Eric Soskin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ethan Price Davis (See above for address) TERMINATED: 09/08/2020 LEAD ATTORNEY PRO HAC VICE
Joshua Kolsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keri Lane Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Keri Lane Berman (See above for address) ATTORNEY TO BE NOTICED
represented by Roger A Levy Roger A. Levy 854 Fulton Street Flr 1 NY Brooklyn, NY 11231 718-622-8150

Interested Party Asian Americans Advancing Justice/Asian American Legal Defense and Education Fund/National Women's Law Center
Interested Party American Civil Liberties Union

Fax: 718-622-8152 Email: r.levy@levynau.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anne Elise Li Crowell & Moring LLP (NYC) 590 Madison Avenue New York, NY 10022 (212)-895-4279 Fax: (212)-223-4134 Email: ali@crowell.com ATTORNEY TO BE NOTICED
Jared Alexander Levine Crowell & Moring LLP (NYC) 590 Madison Avenue New York, NY 10022 (212)-803-4075 Fax: (212)-223-4134 Email: jared.levine@troutman.com ATTORNEY TO BE NOTICED
represented by Sarah M. Ray Latham & Watkins LLP 505 Montgomery Street Suite 2000 San Francisco, CA 94111 415-391-0600 Fax: 415-395-8095 Email: sarah.ray@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague Latham & Watkins LLP 505 Montgomery Street Suite 2000 San Francisco, CA 94111 415-391-0600 Email: charles.sprague@lw.com ATTORNEY TO BE NOTICED

Interested Party Center for Public Representation
Interested Party American Association of People with Disabilities
Interested Party Association of University Centers on Disabilities

Kyle A. Virgien Latham & Watkins LLP 505 Montgomery Street Suite 2000 San Francisco, CA 94111 415-391-0600 Fax: 415-395-8095 Email: kyle.virgien@lw.com ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague

Interested Party Autistic Self Advocacy Network
Interested Party Civil Rights Education and Enforcement Center
Interested Party Coelho Center for Disability Law, Policy and Innovation

(See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED

Interested Party Disability Rights Advocates
Interested Party Disability Rights Education and Defense Fund
Interested Party Disability Rights New York

Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED

Interested Party Judge David L. Bazelon Center for Mental Health Law
Interested Party Little Lobbyists
Interested Party Mental Health America
Interested Party

represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED

National Association of Councils on Developmental Disabilities
Interested Party National Council on Independent Living
Interested Party National Disability Rights Network
Interested Party National Federation of the Blind

represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY

Interested Party New York Civil Liberties Union
Interested Party The Arc of the United States
Interested Party United Spinal Association

ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague (See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah M. Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles F. Sprague

Interested Party Fiscal Policy Institute

(See above for address) ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) ATTORNEY TO BE NOTICED
represented by Alexandra B. Plutshack Latham & Watkins LLP 505 Montgomery Street Suite 2000 San Francisco, CA 94111 415-391-0600 Email: alexandra.plutshack@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittany N. Lovejoy Latham & Watkins, LLP (SanFran) 505 Montgomery Street, Ste. 2000 San Francisco, CA 94111 (415)-391-0600 Fax: (415)-395-8095 Email: brittany.lovejoy@lw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny Latham & Watkins, LLP (SanFran) 505 Montgomery Street, Ste. 2000 San Francisco, CA 94111 415-391-0600 Fax: 415-395-8095 Email: sadik.huseny@lw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tess L. Curet Latham & Watkins LLP 505 Montgomery Street Suite 2000 San Francisco, CA 94111 415-391-0600

Interested Party Presidents' Alliance on Higher Education and Immigration
Interested Party Economic Progress Institute

Email: tess.curet@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra B. Plutshack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittany N. Lovejoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tess L. Curet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra B. Plutshack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittany N. Lovejoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Interested Party Oasis Legal Services
Interested Party Community Action Marin

Tess L. Curet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra B. Plutshack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittany N. Lovejoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tess L. Curet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra B. Plutshack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittany N. Lovejoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Interested Party Child Care Law Center
Interested Party Boundless Immigration

Tess L. Curet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra B. Plutshack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittany N. Lovejoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tess L. Curet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra B. Plutshack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittany N. Lovejoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) LEAD ATTORNEY PRO HAC VICE

Interested Party National Center for Law and Economic Justice
Interested Party Virginia Interfaith Center for Public Policy

ATTORNEY TO BE NOTICED
Tess L. Curet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra B. Plutshack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittany N. Lovejoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tess L. Curet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra B. Plutshack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittany N. Lovejoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) LEAD ATTORNEY

Interested Party Kids Forward
V. Amicus Justice in Aging

PRO HAC VICE ATTORNEY TO BE NOTICED
Tess L. Curet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexandra B. Plutshack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brittany N. Lovejoy (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tess L. Curet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Russell Laurence Hirschhorn Proskauer Rose LLP (NYC) 11 Times Square New York, NY 10036 212.969.3286 Fax: 212.969.2900 Email: rhirschhorn@proskauer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny Chan

Amicus American Society on Aging

Justice in Aging 3660 Wilshire Blvd Suite 718 Los Angeles Los Angeles, CA 90010 213-375-3559 Email: dchan@justiceinaging.org ATTORNEY TO BE NOTICED
Natalie Kean Justice in Aging 1444 Eye St. NW, Suite 1100 Washington, DC 20005 202-621-1038 Email: nkean@justiceinaging.org ATTORNEY TO BE NOTICED
Owen T. Masters Proskauer Rose LLP 1001 Pennsylvania Ave. N.W. Suite 600 South Washington, DC 20004 202-416-6828 Email: omasters@ftc.gov TERMINATED: 06/01/2020
Regan Bailey Justice in Aging 1444 I Street, NW Ste 1100 Washington, DC 20005 202-552-6743 Email: rbailey@justiceinaging.org ATTORNEY TO BE NOTICED
represented by Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny Chan (See above for address) ATTORNEY TO BE NOTICED
Natalie Kean

Amicus Caring Across Generations
Amicus Jewish Family Service of Los Angeles

(See above for address) ATTORNEY TO BE NOTICED
Owen T. Masters (See above for address) TERMINATED: 06/01/2020
Regan Bailey (See above for address) ATTORNEY TO BE NOTICED
represented by Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny Chan (See above for address) ATTORNEY TO BE NOTICED
Natalie Kean (See above for address) ATTORNEY TO BE NOTICED
Owen T. Masters (See above for address) TERMINATED: 06/01/2020
Regan Bailey (See above for address) ATTORNEY TO BE NOTICED
represented by Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny Chan (See above for address) ATTORNEY TO BE NOTICED
Natalie Kean (See above for address)

Amicus The National Asian Pacific Center on Aging
Amicus National Council on Aging

ATTORNEY TO BE NOTICED
Owen T. Masters (See above for address) TERMINATED: 06/01/2020
Regan Bailey (See above for address) ATTORNEY TO BE NOTICED
represented by Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny Chan (See above for address) ATTORNEY TO BE NOTICED
Natalie Kean (See above for address) ATTORNEY TO BE NOTICED
Owen T. Masters (See above for address) TERMINATED: 06/01/2020
Regan Bailey (See above for address) ATTORNEY TO BE NOTICED
represented by Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny Chan (See above for address) ATTORNEY TO BE NOTICED
Natalie Kean (See above for address) ATTORNEY TO BE NOTICED

Amicus National Hispanic Council on Aging
Amicus MAZON

Owen T. Masters (See above for address) TERMINATED: 06/01/2020
Regan Bailey (See above for address) ATTORNEY TO BE NOTICED
represented by Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny Chan (See above for address) ATTORNEY TO BE NOTICED
Natalie Kean (See above for address) ATTORNEY TO BE NOTICED
Owen T. Masters (See above for address) TERMINATED: 06/01/2020
Regan Bailey (See above for address) ATTORNEY TO BE NOTICED
represented by Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny Chan (See above for address) ATTORNEY TO BE NOTICED
Natalie Kean (See above for address) ATTORNEY TO BE NOTICED

Amicus PHI
Amicus Congressional Tri-Caucus
Amicus Health Law Advocate et al.

Owen T. Masters (See above for address) TERMINATED: 06/01/2020
Regan Bailey (See above for address) ATTORNEY TO BE NOTICED
represented by Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denny Chan (See above for address) ATTORNEY TO BE NOTICED
Natalie Kean (See above for address) ATTORNEY TO BE NOTICED
Owen T. Masters (See above for address) TERMINATED: 06/01/2020
Regan Bailey (See above for address) ATTORNEY TO BE NOTICED
represented by Caroline Herman Bullerjahn Goodwin Procter, LLP (Boston) 100 Northern Avenue Boston, MA 02210 (617) 570-1359 Fax: (617) 523-1231 Email: cbullerjahn@goodwinprocter.com ATTORNEY TO BE NOTICED
represented by Kristyn DeFilipp Foley Hoag LLP Seaport World Trade Center West

Amicus NHLP; FRAC; CLASP, et al.
Amicus American Academy of Pediatrics

155 Seaport Boulevard Boston, MA 02210 617-832-1218 Email: kbuncedefilipp@foleyhoag.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Victor Haohan Yu Keker, Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111 415-962-8859 Email: VYu@keker.com ATTORNEY TO BE NOTICED
represented by Krumplitsch Susan DLA Piper LLP (US) 2000 University Avenue Palo Alto, CA 94303 650-833-2440 Fax: 650-687-1230 Email: susan.krumplitsch@us.dlapiper.com TERMINATED: 06/03/2020 LEAD ATTORNEY
Elizabeth L. Stameshkin Cooley LLP 5 Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306 (650) 843-5000 Fax: (650) 849-7400 Email: lstameshkin@cooley.com ATTORNEY TO BE NOTICED
Kaitland Mccann Kennelly Cooley LLP 55 Hudson Yards New York, NY 10001 212-479-6643

Amicus American Medical Association
Amicus American College of Physicians
Amicus New York State American Academy of Pediatrics

Email: kkennelly@cooley.com ATTORNEY TO BE NOTICED
represented by Krumplitsch Susan (See above for address) TERMINATED: 06/03/2020 LEAD ATTORNEY
Elizabeth L. Stameshkin (See above for address) ATTORNEY TO BE NOTICED
Kaitland Mccann Kennelly (See above for address) ATTORNEY TO BE NOTICED
represented by Krumplitsch Susan (See above for address) TERMINATED: 06/03/2020 LEAD ATTORNEY
Elizabeth L. Stameshkin (See above for address) ATTORNEY TO BE NOTICED
Kaitland Mccann Kennelly (See above for address) ATTORNEY TO BE NOTICED
represented by Krumplitsch Susan (See above for address) TERMINATED: 06/03/2020 LEAD ATTORNEY
Elizabeth L. Stameshkin (See above for address) ATTORNEY TO BE NOTICED
Kaitland Mccann Kennelly (See above for address) ATTORNEY TO BE NOTICED

Amicus Deans, Chairs, and Scholars
Amicus American Public Health Association

represented by Christopher John Frisina Quarles & Brady, LLP 1701 Pennsylvania Ave., N.W. Suite 700 Washington, DC 20006 202-372-9515 Fax: 202-372-9578 Email: christopher.frisina@quarles.com TERMINATED: 06/08/2020 LEAD ATTORNEY
Edward Todd Waters Feldesman Tucker Leifer Fidell LLP Healthcare 1129 20th Street, N.W., Ste 400 Washington, DC 20036 202-466-8960 Fax: 202-293-8103 Email: ewaters@ftlf.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip A Escoriaza Feldesman Tucker Leifer Fidell, LLP 1129 20th Street N.W., Fourth Floor Suite 400 Washington Washington, DC 20036 202-466-8960 Fax: 202-293-8103 Email: pescoriaza@ftlf.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher John Frisina (See above for address) TERMINATED: 06/08/2020 LEAD ATTORNEY
Edward Todd Waters

Amicus American Academy of Nursing
Amicus United States House of Representatives

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip A Escoriaza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher John Frisina (See above for address) TERMINATED: 06/08/2020 LEAD ATTORNEY
Edward Todd Waters (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip A Escoriaza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Douglas Neal Letter U.S. House of Representatives 219 Cannon HOB Washington, DC 20515 202-225-9700 Email: douglas.letter@mail.house.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Grogg U.S. House of Representatives 219 Cannon House Office Building Washington, DC 20515 202-225-9700 Email: adam.grogg@mail.house.gov TERMINATED: 10/08/2020
Megan Barbero

Amicus Public Justice Center

Office of General Counsel Poc James, Melissa Office of General Counsel Cannon House Office Building, Ste 219 Washington, DC 20515 202-225-9700 Email: megan.barbero@mail.house.gov ATTORNEY TO BE NOTICED
Rene Kathawala Orrick, Herrington & Sutcliffe LLP (NYC) 51 West 52nd Street New York, NY 10019 212-506-5000 Fax: 212-506-5151 Email: rkathawala@orrick.com ATTORNEY TO BE NOTICED
Todd Barry Tatelman U.S. House of Representatives 219 Cannon House Office Building Washington, DC 20515 202-225-9700 Email: todd.tatelman@mail.house.gov ATTORNEY TO BE NOTICED
William Havemann Office of General Counsel 219 Cannon House Office Building Washington, DC 20515 202-225-9700 Email: will.havemann@mail.house.gov ATTORNEY TO BE NOTICED
represented by Monisha Cherayil Public Justice Center One North Charles Street Suite 200 Baltimore, MD 21201 410-625-9409

Amicus
Constitutional Accountability Center Constitutional Accountability Center 1200 18th Street NW Suite 501 Washington, DC 20036 202-296-6889

Email: cherayilm@publicjustice.org ATTORNEY TO BE NOTICED
represented by David H. Gans Constitutional Accountability Center 1200 18th Street, Nw, Suite 501 Washington, DC 20036 202-296-6889 x307 Fax: (202)-296-6985 Email: david@theusconstitution.org ATTORNEY TO BE NOTICED

Date Filed 08/20/2019
08/20/2019 08/20/2019 08/20/2019 08/20/2019 08/20/2019
08/20/2019

# Docket Text
1 FILING ERROR - DEFICIENT PLEADING - FILER ERROR FILED AGAINST PARTY ERROR -COMPLAINT against All Defendants. (Filing Fee $ 400.00, Receipt Number ANYSDC17457561)Document filed by STATE OF NEW YORK.(Rosner, Abigail) Modified on 8/21/2019 (pne). (Entered: 08/20/2019)
2 CIVIL COVER SHEET filed. (Rosner, Abigail) (Entered: 08/20/2019)
3 NOTICE OF APPEARANCE by Eleanor Laurel Pullin Spottswood on behalf of STATE OF VERMONT. (Spottswood, Eleanor) (Entered: 08/20/2019)
4 NOTICE OF APPEARANCE by Matthew Colangelo on behalf of STATE OF NEW YORK. (Colangelo, Matthew) (Entered: 08/20/2019)
5 NOTICE OF APPEARANCE by Elena Stacy Goldstein on behalf of STATE OF NEW YORK. (Goldstein, Elena) (Entered: 08/20/2019)
6 REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of Homeland Security, re: 1 Complaint. Document filed by CITY OF NEW YORK, STATE OF CONNECTICUT, STATE OF NEW YORK, STATE OF VERMONT. (Rosner, Abigail) (Entered: 08/20/2019)
7 FILING ERROR - DEFICIENT SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Kevin K. McAleenan, in his official capacity as Acting Secretary of the United States Department of Homeland Security, re: 1 Complaint. Document filed by CITY OF NEW YORK, STATE OF

08/20/2019 08/20/2019
08/20/2019 08/20/2019 08/20/2019 08/21/2019
08/21/2019
08/21/2019 08/21/2019

CONNECTICUT, STATE OF NEW YORK, STATE OF VERMONT. (Rosner, Abigail) Modified on 8/21/2019 (pne). (Entered: 08/20/2019)
8 REQUEST FOR ISSUANCE OF SUMMONS as to United States Citizenship and Immigration Services, re: 1 Complaint. Document filed by CITY OF NEW YORK, STATE OF CONNECTICUT, STATE OF NEW YORK, STATE OF VERMONT. (Rosner, Abigail) (Entered: 08/20/2019)
9 REQUEST FOR ISSUANCE OF SUMMONS as to Kenneth T. Cuccinelli II, in his official capacity as Acting Director of United States Citizenship and Immigration Services, re: 1 Complaint. Document filed by CITY OF NEW YORK, STATE OF CONNECTICUT, STATE OF NEW YORK, STATE OF VERMONT. (Rosner, Abigail) (Entered: 08/20/2019)
10 REQUEST FOR ISSUANCE OF SUMMONS as to United States of America, re: 1 Complaint. Document filed by CITY OF NEW YORK, STATE OF CONNECTICUT, STATE OF NEW YORK, STATE OF VERMONT. (Rosner, Abigail) (Entered: 08/20/2019)
11 NOTICE OF APPEARANCE by Amanda Marie Meyer on behalf of STATE OF NEW YORK. (Meyer, Amanda) (Entered: 08/20/2019)
12 NOTICE OF APPEARANCE by Ming-Qi Chu on behalf of STATE OF NEW YORK. (Chu, Ming-Qi) (Entered: 08/20/2019)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The aboveentitled action is assigned to Judge George B. Daniels. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (pne) (Entered: 08/21/2019)
Magistrate Judge Ona T. Wang is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (pne) (Entered: 08/21/2019)
Case Designated ECF. (pne) (Entered: 08/21/2019)
***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Abigail Everett Rosner to RE-

08/21/2019
08/21/2019
08/21/2019 08/21/2019 08/21/2019 08/21/2019 08/21/2019

FILE Document No. 1 Complaint,. The filing is deficient for the following reason(s): the All Defendant radio button was selected; all filers were selected for the pleading; the pleading was not signed by the filing attorney. Re-file the pleading using the event type Complaint found under the event list Complaints and Other Initiating Documents - attach the correct signed PDF - select the individually named filer/filers - select the individually named party/parties the pleading is against. (pne) (Entered: 08/21/2019)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Abigail Everett Rosner. The party information for the following party/parties has been modified: State of New York, City of New York, State of Connecticut, State of Vermont, Kevin K. McAleenan, Kenneth T. Cuccinelli II, United States of America. The information for the party/parties has been modified for the following reason/reasons: party name was entered in all caps; party text was omitted. (pne) (Entered: 08/21/2019)
***NOTICE TO ATTORNEY REGARDING CIVIL CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Abigail Everett Rosner. The following case opening statistical information was erroneously selected/entered: Cause of Action code 05:551; Fee Status code due (due). The following correction(s) have been made to your case entry: the Cause of Action code has been modified to 28:2201; the Fee Status code has been modified to pd (paid). (pne) (Entered: 08/21/2019)
13 ELECTRONIC SUMMONS ISSUED as to Kenneth T. Cuccinelli II. (pne) (Entered: 08/21/2019)
14 ELECTRONIC SUMMONS ISSUED as to United States Department of Homeland Security. (pne) (Entered: 08/21/2019)
15 ELECTRONIC SUMMONS ISSUED as to United States Citizenship and Immigration Services. (pne) (Entered: 08/21/2019)
16 ELECTRONIC SUMMONS ISSUED as to United States of America, U.S. Attorney and U.S. Attorney General. (pne) (Entered: 08/21/2019)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Abigail Everett Rosner to RE-FILE Document No. 7 Request for Issuance of Summons,. The filing is deficient for the following reason(s): party name in the 'To' field on the summons request PDF contains a typographical error. Re-file the document using the event type Request for Issuance of Summons found under the event

08/21/2019
08/21/2019 08/21/2019 08/21/2019 08/22/2019 08/22/2019 08/23/2019 08/27/2019
08/28/2019 08/28/2019

list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (pne) (Entered: 08/21/2019)
17 COMPLAINT against Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America. Document filed by State of Connecticut, City of New York, State of New York, State of Vermont.(Colangelo, Matthew) (Entered: 08/21/2019)
18 REQUEST FOR ISSUANCE OF SUMMONS as to Kevin K. McAleenan, re: 17 Complaint,. Document filed by State of New York. (Colangelo, Matthew) (Entered: 08/21/2019)
19 NOTICE OF APPEARANCE by Cynthia C. Weaver on behalf of City of New York. (Weaver, Cynthia) (Entered: 08/21/2019)
20 NOTICE OF APPEARANCE by Melanie Calandra Teresa Ash on behalf of City of New York. (Ash, Melanie) (Entered: 08/21/2019)
21 NOTICE OF APPEARANCE by Doris F. Bernhardt on behalf of City of New York. (Bernhardt, Doris) (Entered: 08/22/2019)
22 ELECTRONIC SUMMONS ISSUED as to Kevin K. McAleenan. (dnh) (Entered: 08/22/2019)
23 NOTICE OF APPEARANCE by Hope Lu on behalf of City of New York. (Lu, Hope) (Entered: 08/23/2019)
24 INITIAL PRETRIAL CONFERENCE: Initial Conference set for 9/24/2019 at 09:30 AM in Courtroom 11A, 500 Pearl Street, New York, NY 10007 before Judge George B. Daniels, as further set forth in this order. (Signed by Judge George B. Daniels on 8/27/2019) (jwh) (Entered: 08/27/2019)
25 NOTICE OF APPEARANCE by Tonya Jenerette on behalf of City of New York. (Jenerette, Tonya) (Entered: 08/28/2019)
26 CERTIFICATE OF SERVICE. All Defendants. Service was made by Mail. Document filed by State of Connecticut, City of New York, State of New York, State of Vermont. (Attachments: # 1 Exhibit Mailing Labels, # 2 Exhibit Tracking information for United States of America, # 3 Exhibit Tracking information for Kevin K. McAleenan, # 4 Exhibit Tracking information for Kenneth T. Cuccinelli II, # 5 Exhibit Tracking information for United States Citizenship and Immigration Services, # 6 Exhibit Tracking information for United States Department of

08/29/2019 09/03/2019 09/04/2019 09/04/2019
09/06/2019
09/06/2019 09/06/2019
09/09/2019 09/09/2019

Homeland Security, # 7 Exhibit Tracking information for Civil-Process Clerk)(Rosner, Abigail) (Entered: 08/28/2019)
27 NOTICE OF APPEARANCE by Benjamin Daniel Battles on behalf of State of Vermont. (Battles, Benjamin) (Entered: 08/29/2019)
28 LETTER MOTION for Leave to File Excess Pages addressed to Judge George B. Daniels from Elena Goldstein dated September 3, 2019. Document filed by State of New York.(Goldstein, Elena) (Entered: 09/03/2019)
29 NOTICE OF APPEARANCE by Joshua Kolsky on behalf of Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America. (Kolsky, Joshua) (Entered: 09/04/2019)
30 LETTER RESPONSE to Motion addressed to Judge George B. Daniels from Joshua M. Kolsky dated September 4, 2019 re: 28 LETTER MOTION for Leave to File Excess Pages addressed to Judge George B. Daniels from Elena Goldstein dated September 3, 2019. . Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America. (Kolsky, Joshua) (Entered: 09/04/2019)
31 ORDER terminating 28 Letter Motion for Leave to File Excess Pages. The page limit for Plaintiffs' memorandum of law in support of their motion for a preliminary injunction is extended to 40 pages. The initial conference scheduled for 9/24/2019 at 9:30 a.m. shall be held at 10:30 a.m. (Signed by Judge George B. Daniels on 9/6/2019) (tro) (Entered: 09/06/2019)
Set/Reset Hearings: Initial Conference set for 9/24/2019 at 10:30 AM before Judge George B. Daniels. (tro) (Entered: 09/06/2019)
32 ORDER: The page limit for Plaintiffs' memorandum of law in support of their motion for a preliminary injunction is extended to 40 pages. The initial conference scheduled for September 24, 2019 at 9:30 am shall be held at 10:30 am. SO ORDERED. (Initial Conference set for 9/24/2019 at 10:30 AM before Judge George B. Daniels.) (Signed by Judge George B. Daniels on 9/6/2019) (jca) (Entered: 09/06/2019)
33 MOTION for Preliminary Injunction . Document filed by State of New York.(Goldstein, Elena) (Entered: 09/09/2019)
34 DECLARATION of Elena Goldstein in Support re: 33 MOTION for Preliminary Injunction .. Document filed by State of New York.

09/09/2019 09/10/2019
09/10/2019

(Attachments: # 1 Exhibit Declaration of Ryan Allen, # 2 Exhibit Declaration of Steven Banks, # 3 Exhibit Declaration of Oxiris Barbot, # 4 Exhibit Declaration of Lisa M. David, # 5 Exhibit Declaration of Sabrina Fong, # 6 Exhibit Declaration of Deidre S. Gifford, # 7 Exhibit Declaration of Laura V. Gonzalez-Murphy, # 8 Exhibit Declaration of Barbara C. Guinn, # 9 Exhibit Declaration of David Dyssegaard Kallick, # 10 Exhibit Declaration of Mitchell Katz, # 11 Exhibit Declaration of Leighton Ku, # 12 Exhibit Declaration of Martha Maksym, # 13 Exhibit Declaration of Seila Mosquera-Bruno, # 14 Exhibit Declaration of Bitta Mostofi, # 15 Exhibit Declaration of John Paul Newton, # 16 Exhibit Declaration of Diane Whitmore Schanzenbach, # 17 Exhibit Declaration of RuthAnne Visnauskas, # 18 Exhibit Declaration of Richard M. Williams, # 19 Exhibit Declaration of Howard A. Zucker, # 20 Exhibit American Civil Liberties Union Comment Letter, # 21 Exhibit Asian Americans Advancing Justice Comment Letter, # 22 Exhibit City of Chicago et al. Comment Letter, # 23 Exhibit Disability Rights and Education & Defense Fund Comment Letter, # 24 Exhibit Legal Aid Society Comment Letter, # 25 Exhibit National Immigration Law Center Comment Letter, # 26 Exhibit New York Department of Health Comment Letter, # 27 Exhibit New York Department of State Comment Letter, # 28 Exhibit New York Immigration Coalition Comment Letter, # 29 Exhibit New York Office of Temporary and Disability Assistance Comment Letter, # 30 Exhibit New York State Homes and Community Renewal Comment Letter, # 31 Exhibit State of Virginia et al. Comment Letter)(Goldstein, Elena) (Entered: 09/09/2019)
35 MEMORANDUM OF LAW in Support re: 33 MOTION for Preliminary Injunction . . Document filed by State of New York. (Goldstein, Elena) (Entered: 09/09/2019)
36 NOTICE OF APPEARANCE by Russell Laurence Hirschhorn on behalf of Justice in Aging, American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, The National Asian Pacific Center on Aging, National Council on Aging, National Hispanic Council on Aging, MAZON, PHI. (Hirschhorn, Russell) (Entered: 09/10/2019)
37 MOTION for Owen T. Masters to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17576640. Motion and supporting papers to be reviewed by Clerk's Office staff. Document 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

09/10/2019
09/10/2019 09/10/2019 09/10/2019 09/10/2019 09/10/2019

Asian Pacific Center on Aging. (Attachments: # 1 Text of Proposed Order)(Masters, Owen) (Entered: 09/10/2019)
38 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Denny Chan to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17576806. Motion and supporting papers to be reviewed by Clerk's Office staff. Document 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 Text of Proposed Order)(Chan, Denny) Modified on 9/11/2019 (wb). (Entered: 09/10/2019)
39 MOTION for Natalie Kean to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17576922. Motion and supporting papers to be reviewed by Clerk's Office staff. Document 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 Text of Proposed Order)(Kean, Natalie) (Entered: 09/10/2019)
40 MOTION for Leave to File Brief of Amici Curiae . Document 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 Memorandum in Support, # 2 Proposed Brief, # 3 Text of Proposed Order)(Hirschhorn, Russell) (Entered: 09/10/2019)
41 NOTICE OF APPEARANCE by Jared Alexander Levine on behalf of Asian Americans Advancing Justice/Asian American Legal Defense and Education Fund/National Women's Law Center. (Levine, Jared) (Entered: 09/10/2019)
42 NOTICE OF APPEARANCE by Anne Elise Li on behalf of Asian Americans Advancing Justice/Asian American Legal Defense and Education Fund/National Women's Law Center. (Li, Anne) (Entered: 09/10/2019)
43 LETTER MOTION to File Amicus Brief addressed to Judge George B. Daniels from Jared A. Levine, Esq. dated 9/10/2019. Document filed by Asian Americans Advancing Justice/Asian American Legal Defense and Education Fund/National Women's Law Center. (Attachments: # 1 Proposed amicus brief)(Levine, Jared) (Entered: 09/10/2019)

09/11/2019 09/11/2019 09/11/2019
09/11/2019 09/11/2019
09/11/2019

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 39 MOTION for Natalie Kean to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC17576922. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 09/11/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 37 MOTION for Owen T. Masters to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17576640. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 09/11/2019)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 38 MOTION for Denny Chan to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17576806. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from Supreme Court of California;. Re-file the motion as a Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order.. (wb) (Entered: 09/11/2019)
44 ORDER FOR ADMISSION PRO HAC VICE granting 37 Motion for Owen T. Masters to Appear Pro Hac Vice. (Signed by Judge George B. Daniels on 9/11/2019) (mro) (Entered: 09/11/2019)
45 ORDER. Upon consideration of amici Asian Americans Advancing Justice / AAJC, Asian American Legal Defense and Education Fund, National Women's Law Center, and 57 other organizations' motion for leave to file an amici curiae brief in support of Plaintiffs, (ECF No. 43), it is hereby ORDERED that the motion is GRANTED. So ordered. Granting 43 LETTER MOTION to File Amicus Brief addressed to Judge George B. Daniels from Jared A. Levine, Esq. dated 9/10/2019. Document filed by Asian Americans Advancing Justice/Asian American Legal Defense and Education Fund/National Women's Law Center. (Signed by Judge George B. Daniels on 9/11/2019) (rjm) (Entered: 09/11/2019)
46 ORDER granting 40 Motion for Leave to File Document. Upon consideration of amici Justice in Aging, American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, The National Asian Pacific Center on Aging, National Council on Aging,

09/11/2019 09/11/2019 09/11/2019 09/11/2019 09/11/2019 09/11/2019

National Hispanic Council on Aging, MAZON, and PHI's motion for leave to file an amici curiae brief in support of Plaintiffs, (ECF No. 40), it is hereby ORDERED that the motion is GRANTED. SO ORDERED. (Signed by Judge George B. Daniels on 9/11/2019) (kv) (Entered: 09/11/2019)
47 MOTION to File Amicus Brief . Document filed by Congressional TriCaucus. (Attachments: # 1 Proposed Amicus Brief, # 2 Text of Proposed Order)(Bullerjahn, Caroline) (Entered: 09/11/2019)
48 MOTION for Kristyn Marie DeFilipp to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17583210. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Health Law Advocate et al.. (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(DeFilipp, Kristyn) (Entered: 09/11/2019)
49 MOTION for Justin J. Lowe to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17583392. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Health Law Advocate et al.. (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(DeFilipp, Kristyn) (Entered: 09/11/2019)
50 MOTION for Wendy Ellen Parmet to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17583428. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Health Law Advocate et al.. (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(DeFilipp, Kristyn) (Entered: 09/11/2019)
51 MOTION for Andrew London to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17583487. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Health Law Advocate et al.. (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(DeFilipp, Kristyn) (Entered: 09/11/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 49 MOTION for Justin J. Lowe to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17583392. Motion and supporting papers to be reviewed by Clerk's Office staff., 48 MOTION for Kristyn Marie DeFilipp to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17583210. Motion and supporting papers to be reviewed by Clerk's Office staff., 50 MOTION for Wendy Ellen Parmet to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17583428. Motion and supporting papers to be reviewed by Clerk's Office staff., 51 MOTION for Andrew London to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17583487. Motion and supporting papers to be reviewed

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by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 09/11/2019)
52 MOTION for Andrew Paul Cohen to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17583616. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Health Law Advocate et al.. (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(DeFilipp, Kristyn) (Entered: 09/11/2019)
53 MOTION for Emily Joanne Nash to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17583657. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Health Law Advocate et al.. (Attachments: # 1 Affidavit, # 2 Text of Proposed Order)(DeFilipp, Kristyn) (Entered: 09/11/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 53 MOTION for Emily Joanne Nash to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17583657. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 09/11/2019)
54 MOTION to File Amicus Brief . Document filed by Health Law Advocate et al.. (Attachments: # 1 Exhibit 1)(DeFilipp, Kristyn) (Entered: 09/11/2019)
55 MOTION for Sarah M. Ray to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17585268. Motion and supporting papers to be reviewed by Clerk's Office staff. Document 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 New York, 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, New York Civil Liberties Union, The Arc of the United States, United Spinal Association. (Attachments: # 1 Affidavit Affidavit of Sarah M. Ray in Support of Motion for Admission Pro Hac Vice, # 2 Exhibit A - Certificate of Good Standing, # 3 Text of Proposed Order)(Ray, Sarah) (Entered: 09/11/2019)
56 MOTION for Charles Ferer Sprague to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17585334. Motion and

09/11/2019 09/11/2019

supporting papers to be reviewed by Clerk's Office staff. Document filed by American Association of People with Disabilities, American Civil Liberties Union, Association of University Centers on Disabilities, Autistic Self Advocacy Network, Center for Public Representation, 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 New York, 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, New York Civil Liberties Union, The Arc of the United States, United Spinal Association. (Attachments: # 1 Affidavit Affidavit of Charles Ferer Sprague in Support of Motion for Admission Pro Hac Vice, # 2 Exhibit A - Certificate of Good Standing, # 3 Text of Proposed Order)(Sprague, Charles) (Entered: 09/11/2019)
57 MOTION for Kyle A. Virgien to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17585342. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by American Association of People with Disabilities, American Civil Liberties Union, Association of University Centers on Disabilities, Autistic Self Advocacy Network, Center for Public Representation, 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 New York, 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, New York Civil Liberties Union, The Arc of the United States, United Spinal Association. (Attachments: # 1 Affidavit of Kyle A. Virgien in Support of Motion for Admission Pro Hac Vice, # 2 Exhibit A - Certificate of Good Standing, # 3 Text of Proposed Order)(Virgien, Kyle) (Entered: 09/11/2019)
58 LETTER MOTION to File Amicus Brief addressed to Judge George B. Daniels from Sarah M. Ray dated September 11, 2019. Document filed by American Association of People with Disabilities, American Civil Liberties Union, Association of University Centers on Disabilities, Autistic Self Advocacy Network, Center for Public Representation, 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 New York, Judge David L. Bazelon Center for Mental Health Law, Little

09/12/2019
09/12/2019 09/12/2019 09/12/2019 09/12/2019

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, New York Civil Liberties Union, The Arc of the United States, United Spinal Association. (Attachments: # 1 Exhibit A - Proposed Brief of Amici Curiae the American Civil Liberties Union, Center for Public Representation, et al. in Support of Plaintiffs' Motion for Preliminary Injunction)(Ray, Sarah) (Entered: 09/11/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 56 MOTION for Charles Ferer Sprague to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17585334. Motion and supporting papers to be reviewed by Clerk's Office staff., 57 MOTION for Kyle A. Virgien to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC17585342. Motion and supporting papers to be reviewed by Clerk's Office staff., 55 MOTION for Sarah M. Ray to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC17585268. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 09/12/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 52 MOTION for Andrew Paul Cohen to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17583616. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 09/12/2019)
59 MOTION for Regan Bailey to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17587865. Motion and supporting papers to be reviewed by Clerk's Office staff. Document 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 Text of Proposed Order)(Bailey, Regan) (Entered: 09/12/2019)
60 ORDER FOR ADMISSION PRO HAC VICE granting 39 Motion for Natalie Kean to Appear Pro Hac Vice. (Signed by Judge George B. Daniels on 9/11/2019) (jwh) (Entered: 09/12/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 59 MOTION for Regan Bailey to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC17587865. Motion and supporting papers to be reviewed by Clerk's

09/12/2019 09/12/2019 09/12/2019
09/12/2019

Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 09/12/2019)
61 MOTION for Julio A. Thompson to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17589071. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by State of Vermont. (Attachments: # 1 Text of Proposed Order, # 2 Affidavit)(Thompson, Julio) (Entered: 09/12/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 61 MOTION for Julio A. Thompson to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17589071. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 09/12/2019)
62 ORDER granting 58 Letter Motion to File Amicus Brief: Upon consideration of amici 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, Judge David L. Bazelon Center for Mental Health Law, Little Lobbyists, Mental Health America, National Association of Councils on Developmental Disabilities, National Council on Independent Living, National Disability Rights Network, National Federation of the Blind, The Arc of United States, United Spinal Association, Disability Rights New York and New York Civil Liberties Union's motion for leave to file an amici curiae brief in support of Plaintiffs, (ECF No. 58), it is hereby ORDERED that the motion is GRANTED. (Signed by Judge George B. Daniels on 9/12/2019) (jwh) (Entered: 09/12/2019)
63 ORDER granting 54 Motion to File Amicus Brief: Upon consideration of amici Health Law Advocates, Health Care For All, the Massachusetts Law Reform Institute, Northeastern University's Center for Health Policy and Law, Public Health Law Watch, and Health in Justice Action Lab, Northwest Health Law Advocates, Charlotte Center for Legal Advocacy, the Latino Coalition for a Healthy California, the California Pan-Ethnic Health Network, Korean Community Center of the East Bay, the California Immigrant Policy Center, the Kentucky Equal Justice Center, the Michigan Immigrant Rights Center, the Florida Health Justice Project, the Maine Immigrant Rights Coalition, the New York Immigration Coalition, Community Healthcare Network, the Arab Community Center for Economic and Social Services, Treatment Action Group, Families USA, UMass Memorial Health

09/12/2019
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Care, Inc., and Community Catalyst's motion for leave to file an amici curiae brief in support of Plaintiffs, (ECF No. 54), it is hereby ORDERED that the motion is GRANTED. (Signed by Judge George B. Daniels on 9/12/2019) (jwh) (Entered: 09/12/2019)
64 ORDER granting 47 Motion to File Amicus Brief. Upon consideration of amici Members of Congress Judy Chu, Chair of the CAP AC, Adriano Espaillat, CHC Whip, Yvette D. Clarke, Chair of the CBC Immigration Task Force, Joaquin Castro, Chair of the CHC, Karen Bass, Chair of the CBC, Pramila Jayapal, Chair of the CAP AC Immigration Task Force, Barbara Lee, Co-Chair of the CAP AC Healthcare Task Force, et al.'s motion for leave to file an amici curiae brief in support of Plaintiffs, (ECF No. 4 7), it is hereby ORDERED that the motion is GRANTED. (Signed by Judge George B. Daniels on 9/12/2019) (rro) (Entered: 09/12/2019)
65 ORDER FOR ADMISSION PRO HAC VICE granting 51 Motion for Andrew London to Appear Pro Hac Vice. (Signed by Judge George B. Daniels on 9/12/2019) (ks) (Entered: 09/12/2019)
66 ORDER FOR ADMISSION PRO HAC VICE granting 55 Motion for Sarah M. Ray to Appear Pro Hac Vice. (Signed by Judge George B. Daniels on 9/12/2019) (ks) (Entered: 09/12/2019)
67 ORDER FOR ADMISSION PRO HAC VICE granting 56 Motion for Charles Ferer Sprague to Appear Pro Hac Vice. (Signed by Judge George B. Daniels on 9/12/2019) (ks) (Entered: 09/12/2019)
68 ORDER FOR ADMISSION PRO HAC VICE granting 48 Motion for Kristyn M. DeFilipp to Appear Pro Hac Vice. (Signed by Judge George B. Daniels on 9/12/2019) (ks) (Entered: 09/12/2019)
69 ORDER FOR ADMISSION PRO HAC VICE granting 48 Motion for Kristyn Marie DeFilipp to Appear Pro Hac Vice. (Signed by Judge George B. Daniels on 9/12/2019) (rro) (Entered: 09/12/2019)
70 ORDER FOR ADMISSION PRO HAC VICE granting 57 Motion for Kyle A. Virgien to Appear Pro Hac Vice. (Signed by Judge George B. Daniels on 9/12/2019) (ks) (Entered: 09/12/2019)
71 ORDER FOR ADMISSION PRO HAC VICE granting 53 Motion for Emily Joanne Nash to Appear Pro Hac Vice. IT IS HEREBY ORDERED that Applicant is admitted to practice Pro Hae Vice in the above-captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules

09/12/2019
09/12/2019
09/12/2019 09/12/2019 09/12/2019 09/13/2019 09/13/2019 09/13/2019

governing discipline of attorneys. SO ORDERED. (Signed by Judge George B. Daniels on 9/12/2019) (kv) (Entered: 09/12/2019)
72 ORDER FOR ADMISSION PRO HAC VICE granting 59 Motion for Regan Bailey to Appear Pro Hac Vice. IT IS HEREBY ORDERED that Applicant is admitted to practice Pro Hac Vice in the above-captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing discipline of attorneys. (Signed by Judge George B. Daniels on 9/12/2019) (kv) (Entered: 09/12/2019)
73 ORDER FOR ADMISSION PRO HAC VICE granting 52 Motion for Andrew Paul Cohen to Appear Pro Hac Vice. IT IS HEREBY ORDERED that Applicant is admitted to practice Pro Hac Vice in the above-captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing discipline of attorneys. (Signed by Judge George B. Daniels on 9/12/2019) (kv) (Entered: 09/12/2019)
74 ORDER FOR ADMISSION PRO HAC VICE granting 49 MOTION for Justin J. Lowe to Appear Pro Hac Vice. (Signed by Judge George B. Daniels on 9/12/2019) (jca) (Entered: 09/12/2019)
75 ORDER FOR ADMISSION PRO HAC VICE granting 50 MOTION for Wendy Ellen Parmet to Appear Pro Hac Vice. (Signed by Judge George B. Daniels on 9/12/2019) (jca) (Entered: 09/12/2019)
76 NOTICE of Filing of Corrected Exhibit 9 to Declaration of Elena Goldstein re: 34 Declaration in Support of Motion,,,,,,,. Document filed by State of New York. (Attachments: # 1 Corrected Declaration of David Dyssegaard Kallick (Exhibit 9 to Declaration of Elena Goldstein), # 2 Redline Version of Declaration of David Dyssegaard Kallick)(Chu, Ming-Qi) (Entered: 09/12/2019)
77 MOTION to File Amicus Brief . Document filed by NHLP; FRAC; CLASP, et al.. (Attachments: # 1 Amicus Brief)(Yu, Victor) (Entered: 09/13/2019)
78 PROPOSED ORDER. Document filed by NHLP; FRAC; CLASP, et al.. Related Document Number: 77 . (Yu, Victor) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 09/13/2019)
***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 78 Proposed Order was reviewed and approved as to form. (km) (Entered: 09/13/2019)

09/13/2019 09/13/2019
09/13/2019
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09/13/2019 09/16/2019

79 ORDER FOR ADMISSION PRO HAC VICE granting 61 MOTION for Julio A. Thompson to Appear Pro Hac Vice. (Signed by Judge George B. Daniels on 9/13/2019) (jca) (Entered: 09/13/2019)
80 ORDER granting 77 Motion to File Amicus Brief: Upon consideration of amici the National Housing Law Project, the Food Research & Action Center, the Center for Law and Social Policy, and the other Housing, Nutrition, and Health-Focused Groups' motion for leave to file an amici curiae brief in support of Plaintiffs, (ECF No. 77), it is hereby ORDERED that the motion is GRANTED. (Signed by Judge George B. Daniels on 9/13/2019) (jwh) (Entered: 09/13/2019)
81 LETTER MOTION for Extension of Time to File Response/Reply as to 33 MOTION for Preliminary Injunction . addressed to Judge George B. Daniels from Joshua Kolsky dated September 13, 2019. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America.(Kolsky, Joshua) (Entered: 09/13/2019)
82 NOTICE OF APPEARANCE by Joshua Perry on behalf of State of Connecticut. (Perry, Joshua) (Entered: 09/13/2019)
83 LETTER RESPONSE in Opposition to Motion addressed to Judge George B. Daniels from Elena Goldstein dated September 13, 2019 re: 81 LETTER MOTION for Extension of Time to File Response/Reply as to 33 MOTION for Preliminary Injunction . addressed to Judge George B. Daniels from Joshua Kolsky dated September 13, 2019. . Document filed by State of New York. (Goldstein, Elena) (Entered: 09/13/2019)
84 NOTICE OF CHANGE OF ADDRESS by Victor Haohan Yu on behalf of NHLP; FRAC; CLASP, et al.. New Address: KEKER, VAN NEST & PETERS, 633 BATTERY STREET, SAN FRANCISCO, CA, USA 94911, 415-391-5400. (Yu, Victor) (Entered: 09/13/2019)
85 ORDER granting in part and denying in part 81 Letter Motion for Extension of Time to File Response/Reply re 33 MOTION for Preliminary Injunction: Defendants' time to file an opposition to Plaintiffs' motion for a preliminary injunction is extended to 12:00 pm on September 27, 2019. Plaintiffs' time to file any reply to Defendants' opposition is due by 12:00 pm on October 4, 2019. Oral argument will be held on Plaintiffs' motion for a preliminary injunction on October 7, 2019 at 10:00 am. The initial conference scheduled for September 24, 2019 at 10:30 am is canceled. (Responses due by 9/27/2019. Replies due by 10/4/2019.) (Signed by Judge George B. Daniels on 9/16/2019) (jwh) (Entered: 09/16/2019)

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09/20/2019 09/20/2019

Set/Reset Hearings: Oral Argument set for 10/7/2019 at 10:00 AM before Judge George B. Daniels. (jwh) (Entered: 09/16/2019)
86 MOTION to File Amicus Brief . Document filed by American Academy of Pediatrics, American Medical Association, American College of Physicians, New York State American Academy of Pediatrics. (Attachments: # 1 Proposed Brief, # 2 Text of Proposed Order)(Kennelly, Kaitland) (Entered: 09/17/2019)
87 BRIEF re: 86 MOTION to File Amicus Brief . *Corrected* Proposed Brief. Document filed by American Academy of Pediatrics, American College of Physicians, American Medical Association, New York State American Academy of Pediatrics.(Kennelly, Kaitland) (Entered: 09/17/2019)
88 ORDER granting 86 Motion to File Amicus Brief. Upon consideration of amici the American Academy of Pediatrics, the American Medical Association, the American College of Physicians, and the New York State American Academy of Pediatrics' motion for leave to file an amici curiae brief in support of Plaintiffs, (ECF No. 106), it is hereby ORDERED that the motion is GRANTED. (Signed by Judge George B. Daniels on 9/18/2019) (jca) (Entered: 09/18/2019)
89 NOTICE OF APPEARANCE by Julio A Thompson on behalf of State of Vermont. (Thompson, Julio) (Entered: 09/19/2019)
90 MOTION for Susan M. Krumplitsch to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17632263. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by American Academy of Pediatrics, American College of Physicians, American Medical Association, New York State American Academy of Pediatrics. (Attachments: # 1 Declaration of Susan Krumplitsch, # 2 Certificate of Good Standing - California, # 3 Text of Proposed Order)(Susan, Krumplitsch) (Entered: 09/20/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 90 MOTION for Susan M. Krumplitsch to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17632263. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 09/20/2019)
91 MOTION for Elizabeth L. Stameshkin to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17632368. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by American Academy of Pediatrics, American College of Physicians, American Medical Association, New York State American

09/20/2019 09/20/2019 09/20/2019 09/20/2019 09/20/2019
09/20/2019

Academy of Pediatrics. (Attachments: # 1 Declaration of Elizabeth Stameshkin, # 2 Certificate of Good Standing - California, # 3 Text of Proposed Order)(Stameshkin, Elizabeth) (Entered: 09/20/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 91 MOTION for Elizabeth L. Stameshkin to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17632368. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 09/20/2019)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 91 MOTION for Elizabeth L. Stameshkin to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-17632368. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 09/20/2019)
92 ORDER FOR ADMISSION PRO HAC VICE granting 90 Motion for Susan M. Krumplitsch to Appear Pro Hac Vice. (As further set forth in this Order.) (Signed by Judge George B. Daniels on 9/20/2019) (cf) (Entered: 09/20/2019)
93 ORDER FOR ADMISSION PRO HAC VICE granting 91 Motion for Elizabeth L. Stameshkin to Appear Pro Hac Vice. (As further set forth in this Order.) (Signed by Judge George B. Daniels on 9/20/2019) (cf) (Entered: 09/20/2019)
94 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Denny Chan to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document 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 Text of Proposed Order)(Chan, Denny) Modified on 9/20/2019 (wb). (Entered: 09/20/2019)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE re: Document No. 94 MOTION for Denny Chan to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from Supreme Court of California; the filing fee was not paid;. Re-file the motion as a Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within

the past 30 days - attach Proposed Order. Pay the filing fee using the event Pro Hac Vice Fee Payment found under the event list Other Documents. (wb) (Entered: 09/20/2019)

09/23/2019

95 CONSENT LETTER MOTION for Leave to File Excess Pages addressed to Judge George B. Daniels from Elena Goldstein dated September 23, 2019. Document filed by State of New York.(Goldstein, Elena) (Entered: 09/23/2019)

09/23/2019

96 CONSENT LETTER MOTION for Leave to File Excess Pages addressed to Judge George B. Daniels from Joshua M. Kolsky dated September 23, 2019. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America.(Kolsky, Joshua) (Entered: 09/23/2019)

09/24/2019

97 ORDER granting 95 Letter Motion for Leave to File Excess Pages. SO ORDERED. (Signed by Judge George B. Daniels on 9/24/2019) (jca) (Entered: 09/24/2019)

09/24/2019

98 ORDER granting 96 Letter Motion for Leave to File Excess Pages. SO ORDERED. (Signed by Judge George B. Daniels on 9/24/2019) (ks) (Entered: 09/24/2019)

09/27/2019

99 MEMORANDUM OF LAW in Opposition re: 33 MOTION for Preliminary Injunction . . Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America. (Kolsky, Joshua) (Entered: 09/27/2019)

10/01/2019

100 MOTION for Leave to File Amicus Brief . Document filed by Immigration Reform Law Institute. (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Amicus Brief)(Levy, Roger) (Entered: 10/01/2019)

10/03/2019

101 NOTICE OF APPEARANCE by Ethan Price Davis on behalf of Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America. (Davis, Ethan) (Entered: 10/03/2019)

10/04/2019

102 REPLY MEMORANDUM OF LAW in Support re: 33 MOTION for Preliminary Injunction . . Document filed by State of New York. (Goldstein, Elena) (Entered: 10/04/2019)

10/04/2019 103 ORDER granting 100 Letter Motion for Leave to File Document. Upon consideration of amici the Immigration Reform Law Institute' s motion

for leave to file an amici curiae brief in support of Defendants, (ECF No. 100), it is hereby ORDERED that the motion is GRANTED. (Signed by Judge George B. Daniels on 10/4/2019) (rro) (Entered: 10/04/2019)

10/04/2019

104 NOTICE OF APPEARANCE by Eric Soskin on behalf of Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America. (Soskin, Eric) (Entered: 10/04/2019)

10/06/2019

105 LETTER addressed to Judge George B. Daniels from Joshua M. Kolsky dated October 6, 2019 re: Correction to Rule. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America. (Attachments: # 1 Exhibit)(Kolsky, Joshua) (Entered: 10/06/2019)

10/07/2019

Minute Entry for proceedings held before Judge George B. Daniels: Oral Argument held on 10/7/2019 re: 33 MOTION for Preliminary Injunction . filed by State of New York. Plaintiff Counsel: Ming-Qi Chu, Elena Stacy Goldstein, Melanie Calandra, Cynthia C. Weaver Defense Counsel: Eric Soskin, Ethan Price Davis and Court Reporter present (Vega, Elizabeth) (Entered: 10/08/2019)

10/08/2019

106 PROPOSED ORDER. Document filed by City of New York, State of Connecticut, State of New York, State of Vermont. Related Document Number: 33 . (Rosner, Abigail) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 10/08/2019)

10/08/2019

***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 106 Proposed Order was reviewed and approved as to form. (ad) (Entered: 10/08/2019)

10/08/2019

107 MOTION for Denny Chan to Appear Pro Hac Vice receipt number ANYSDC-17576806. Motion and supporting papers to be reviewed by Clerk's Office staff. Document 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 Text of Proposed Order)(Chan, Denny) (Entered: 10/08/2019)

10/09/2019

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 107 MOTION for Denny Chan to Appear Pro Hac Vice receipt number ANYSDC-17576806. Motion and supporting papers to be reviewed by Clerk's Office staff.. The

document has been reviewed and there are no deficiencies. (wb) (Entered: 10/09/2019)

10/09/2019

108 ORDER FOR ADMISSION PRO HAC VICE granting 107 Motion for Denny Chan to Appear Pro Hac Vice. (Signed by Judge George B. Daniels on 10/9/2019) (mro) (Entered: 10/09/2019)

10/11/2019

109 ORDER GRANTING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION granting 33 Motion for Preliminary Injunction: It is hereby ORDERED that, pursuant to Federal Rule of Civil Procedure 65(a), Defendants are RESTRAINED AND ENJOINED from: 1. Enforcing, applying or treating as effective, or allowing persons under their control to enforce, apply, or treat as effective, the Rule; and 2. Implementing, considering in connection with any application, or requiring the use of any new or updated forms whose submission would be required under the Rule, including the new Form I-944, titled "Declaration of Self Sufficiency," and the updated Form I-485, titled "Application to Register Permanent Residence of Adjust Status"; and, It is hereby FURTHER ORDERED that, pursuant to 5 U.S.C. § 705, the effective date of the Rule is STAYED and POSTPONED sine die pending further Order of the Court such that, if this Order is later terminated and the Rule goes into effect, the Rule's stated effective date of October 15, 2019, as well as any references in the Rule to October 15, 2019, including but not limited those contained in proposed 8 CFR §§ 212.20, 212.22(b)(4)(i)(E), 212.22(b)(4)(ii)(E)(1), 212.22(b)(4)(ii)(E)(2), 212.22(b)(4)(ii)(F), 212.22(c)(1)(ii), 212.22(d), 214.1, 248.1(a), and 248.1(c)(4), shall be replaced with a date after this Order is terminated. (Signed by Judge George B. Daniels on 10/11/2019) (jwh) (Entered: 10/11/2019)

10/11/2019

110 MEMORANDUM DECISION AND ORDER re: 33 MOTION for Preliminary Injunction filed by State of New York: Plaintiffs' motion for issuance of a preliminary injunction, (ECF No. 33), is GRANTED. (Signed by Judge George B. Daniels on 10/11/2019) (jwh) (Entered: 10/11/2019)

10/25/2019

111 MOTION to Stay Preliminary Injunction. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America.(Kolsky, Joshua) (Entered: 10/25/2019)

10/25/2019

112 MEMORANDUM OF LAW in Support re: 111 MOTION to Stay Preliminary Injunction. . Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America. (Kolsky, Joshua) (Entered: 10/25/2019)

10/25/2019

113 DECLARATION of Daniel Renaud in Support re: 111 MOTION to Stay Preliminary Injunction.. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America. (Kolsky, Joshua) (Entered: 10/25/2019)

10/25/2019

114 LETTER MOTION for Extension of Time to File Answer addressed to Judge George B. Daniels from Joshua M. Kolsky dated October 25, 2019. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America.(Kolsky, Joshua) (Entered: 10/25/2019)

10/29/2019

115 ORDER granting 114 Letter Motion for Extension of Time to Answer: Defendants' request for an extension of time to respond to Plaintiffs' complaint, (ECF No. 114), is GRANTED. Defendants' response is due by December 9, 2019. (Kenneth T. Cuccinelli II answer due 12/9/2019; Kevin K. McAleenan answer due 12/9/2019; United States Citizenship and Immigration Services answer due 12/9/2019; United States Department of Homeland Security answer due 12/9/2019; United States of America answer due 12/9/2019.) (Signed by Judge George B. Daniels on 10/28/2019) (jwh) (Entered: 10/29/2019)

10/30/2019

116 NOTICE OF INTERLOCUTORY APPEAL from 109 Order on Motion for Preliminary Injunction,,,,, 110 Order,. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Kolsky, Joshua) (Entered: 10/30/2019)

10/30/2019

Appeal Fee Not Required for 116 Notice of Interlocutory Appeal,. Appeal filed by U.S. Government. (nd) (Entered: 10/31/2019)

10/31/2019

Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 116 Notice of Interlocutory Appeal,. (nd) (Entered: 10/31/2019)

10/31/2019

Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 116 Notice of Interlocutory Appeal, filed by Kenneth T. Cuccinelli II, United States Citizenship and Immigration Services, Kevin K. McAleenan, United States of America, United States Department of Homeland Security were transmitted to the U.S. Court of Appeals. (nd) (Entered: 10/31/2019)

11/08/2019 117 MEMORANDUM OF LAW in Opposition re: 111 MOTION to Stay Preliminary Injunction. . Document filed by State of New York. (Meyer, Amanda) (Entered: 11/08/2019)

11/08/2019

118 NOTICE of Waiver of Reply and Hearing re: 111 MOTION to Stay Preliminary Injunction.. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America. (Kolsky, Joshua) (Entered: 11/08/2019)

11/18/2019

119 TRANSCRIPT of Proceedings re: TRIAL held on 10/7/2019 before Judge George B. Daniels. Court Reporter/Transcriber: Pamela Utter, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/9/2019. Redacted Transcript Deadline set for 12/19/2019. Release of Transcript Restriction set for 2/18/2020.(McGuirk, Kelly) (Entered: 11/18/2019)

11/18/2019

120 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 10/7/19 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/18/2019)

11/29/2019

121 MOTION to Stay Proceedings Pending Appeal. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America.(Kolsky, Joshua) (Entered: 11/29/2019)

12/02/2019

122 MEMORANDUM DECISION AND ORDER denying 111 Letter Motion to Stay. In short, to stay the injunction would be inconsistent with this Court's underlying findings of Plaintiffs' likelihood of success on the merits, and of the irreparable injury that Plaintiffs, noncitizens, and the general public would suffer in the absence of an effective injunction. Accordingly, Defendants' motion for a stay of the preliminary injunction pending appeal, (ECF No. 111), is DENIED. SO ORDERED. (Signed by Judge George B. Daniels on 12/2/2019) (kv) (Entered: 12/02/2019)

12/04/2019

123 LETTER MOTION for Extension of Time to Respond to Complaint addressed to Judge George B. Daniels from Joshua M. Kolsky dated 12/4/2019. Document filed by Kenneth T. Cuccinelli II,

Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America.(Kolsky, Joshua) (Entered: 12/04/2019)

12/05/2019

124 ORDER granting 123 Letter Motion for Extension of Time. Defendants' deadline to respond to Plaintiffs' complaint is extended from December 9, 2019 to January 31, 2020. SO ORDERED. (Signed by Judge George B. Daniels on 12/5/2019) (rro) (Entered: 12/05/2019)

12/05/2019

Set/Reset Deadlines: Kenneth T. Cuccinelli II answer due 1/31/2020; Kevin K. McAleenan answer due 1/31/2020; United States Citizenship and Immigration Services answer due 1/31/2020; United States Department of Homeland Security answer due 1/31/2020; United States of America answer due 1/31/2020. (rro) (Entered: 12/05/2019)

12/06/2019

125 LETTER MOTION for Local Rule 37.2 Conference addressed to Judge George B. Daniels from Elena Goldstein dated December 6, 2019. Document filed by State of New York.(Goldstein, Elena) (Entered: 12/06/2019)

12/06/2019

126 NOTICE of Submission of Administrative Record. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America. (Kolsky, Joshua) (Entered: 12/06/2019)

12/06/2019

127 NOTICE of Ninth Circuit Order Staying Preliminary Injunctions. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America. (Attachments: # 1 Exhibit)(Kolsky, Joshua) (Entered: 12/06/2019)

12/13/2019 128 MEMORANDUM OF LAW in Opposition re: 121 MOTION to Stay Proceedings Pending Appeal. . Document filed by State of New York. (Meyer, Amanda) (Entered: 12/13/2019)

12/20/2019

129 NOTICE OF APPEARANCE by Keri Lane Berman on behalf of United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America. (Berman, Keri) (Entered: 12/20/2019)

12/20/2019

130 REPLY MEMORANDUM OF LAW in Support re: 121 MOTION to Stay Proceedings Pending Appeal. . Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Department of Homeland Security, United States of America. (Berman, Keri) (Entered: 12/20/2019)

12/20/2019

131 LETTER RESPONSE in Opposition to Motion addressed to Judge George B. Daniels from Joshua M. Kolsky dated 12/20/2019 re: 125 LETTER MOTION for Local Rule 37.2 Conference addressed to Judge George B. Daniels from Elena Goldstein dated December 6, 2019. . Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America. (Kolsky, Joshua) (Entered: 12/20/2019)

01/08/2020

132 ORDER of USCA (Certified Copy) as to 116 Notice of Interlocutory Appeal, filed by Kenneth T. Cuccinelli II, United States Citizenship and Immigration Services, Kevin K. McAleenan, United States of America, United States Department of Homeland Security. USCA Case Number 19-3591. In these related cases, Appellants move for stays pending their appeals of the district court's preliminary injunctions. Upon due consideration, it is hereby ORDERED that Appellants' motions are DENIED. See U.S. Sec. & Exch. Comm'n v. Citigroup Global Mkts. Inc., 673 F.3d 158, 16263 (2d Cir. 2012) (explaining standard for stay pending appeal). The Court has set an expedited briefing schedule on the merits of the government's appeals, with the last brief due on February 14. Oral argument will be scheduled promptly thereafter. As always, the merits panel as soon as constituted has full authority to consider the scope of the existing injunction. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 01/08/2020. (nd) (Entered: 01/08/2020)

01/28/2020

133 LETTER MOTION for Extension of Time to Respond to Complaint addressed to Judge George B. Daniels from Keri L. Berman dated January 28, 2020. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America.(Berman, Keri) (Entered: 01/28/2020)

01/28/2020

134 LETTER RESPONSE to Motion addressed to Judge George B. Daniels from Plaintiffs dated January 28, 2020 re: 133 LETTER MOTION for Extension of Time to Respond to Complaint addressed to Judge George B. Daniels from Keri L. Berman dated January 28, 2020. . Document filed by State of New York. (Chu, Ming-Qi) (Entered: 01/28/2020)

01/30/2020

135 LETTER addressed to Judge George B. Daniels from Keri L. Berman dated January 30, 2020 re: Defendants' Response to the Complaint. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America.(Berman, Keri) (Entered: 01/30/2020)

01/31/2020

136 ORDER denying 121 Letter Motion to Stay ; terminating 125 Letter Motion for Local Rule 37.2 Conference; denying as moot 133 Letter Motion for Extension of Time: Defendants' motion to stay proceedings in this case until the Second Circuit has rendered a decision on Defendants' appeals of this Court's preliminary injunction orders, (ECF No. 121), is DENIED. Defendants' deadline to respond to Plaintiffs' complaint is extended from January 31, 2020 to February 14, 2020. Should Defendants file a motion to dismiss Plaintiffs' complaint, any response to such motion is due by February 28, 2020, and any reply in further support of such motion is due by March 6, 2020. A conference is scheduled for March 17, 2020 at 10:30 am. The Clerk's Office is directed to close Defendants' letter motion dated January 28, 2020, (ECF No. 133), as moot. (Signed by Judge George B. Daniels on 1/31/2020) (jwh) (Entered: 01/31/2020)

01/31/2020

Set/Reset Deadlines: Kenneth T. Cuccinelli II answer due 2/14/2020; Kevin K. McAleenan answer due 2/14/2020; United States Citizenship and Immigration Services answer due 2/14/2020; United States Department of Homeland Security answer due 2/14/2020; United States of America answer due 2/14/2020. Motions due by 2/14/2020. Responses due by 2/28/2020. Replies due by 3/6/2020. Status Conference set for 3/17/2020 at 10:30 AM before Judge George B. Daniels. (jwh) (Entered: 01/31/2020)

02/12/2020

137 CONSENT LETTER MOTION for Leave to File Excess Pages addressed to Judge George B. Daniels from Keri L. Berman dated February 12, 2020. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security..(Berman, Keri) (Entered: 02/12/2020)

02/12/2020

138 ORDER granting 137 Letter Motion for Leave to File Excess Pages. SO ORDERED. (Signed by Judge George B. Daniels on 2/12/2020) (mro) (Entered: 02/12/2020)

02/14/2020

139 LETTER MOTION to Consolidate Cases 19-cv-7993; 19-cv7777 addressed to Judge George B. Daniels from Plaintiffs dated February 14, 2020. Document filed by State of New York..(Chu, MingQi) (Entered: 02/14/2020)

02/14/2020

140 MOTION to Dismiss . Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America. Responses due by 2/28/2020.(Kolsky, Joshua) (Entered: 02/14/2020)

02/14/2020

141 MEMORANDUM OF LAW in Support re: 140 MOTION to Dismiss . . Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America..(Kolsky, Joshua) (Entered: 02/14/2020)

02/18/2020

142 ENDORSED LETTER addressed to Judge George B. Daniels from Ming-Qi Chu and Jonathan H. Hurwitz dated February 14, 2020 re: letter requesting consolidation. ENDORSEMENT: SO ORDERED. (Signed by Judge George B. Daniels on 2/18/2020) Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD (ks) . (Entered: 02/18/2020)

02/26/2020

143 CONSENT LETTER MOTION for Leave to File Excess Pages re: consolidated opposition to Defendants' motions to dismiss addressed to Judge George B. Daniels from Jonathan Hurwitz & Elena Goldstein dated February 26, 2020. Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Make the Road New York, State of New York.Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD.(Hurwitz, Jonathan) (Entered: 02/26/2020)

02/27/2020

144 ORDER granting 143 CONSENT LETTER MOTION for Leave to File Excess Pages re: consolidated opposition to Defendants' motions to dismiss. SO ORDERED. (Signed by Judge George B. Daniels on 2/27/2020) (jca) (Entered: 02/27/2020)

02/28/2020

145 MEMORANDUM OF LAW in Opposition re: (140 in 1:19-cv-07777GBD) MOTION to Dismiss ., (176 in 1:19-cv-07993-GBD) MOTION to Dismiss . . Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Make the Road New York, City of New York, State of Connecticut, State of New York, State of Vermont. Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD.(Hurwitz, Jonathan) (Entered: 02/28/2020)

03/03/2020 146 NOTICE OF APPEARANCE by Adam Grogg on behalf of United States House of Representatives..(Grogg, Adam) (Entered: 03/03/2020)

03/03/2020 147 NOTICE OF APPEARANCE by Douglas Neal Letter on behalf of United States House of Representatives..(Letter, Douglas) (Entered: 03/03/2020)

03/03/2020 148 NOTICE OF APPEARANCE by Megan Barbero on behalf of United States House of Representatives..(Barbero, Megan) (Entered: 03/03/2020)

03/03/2020 149 NOTICE OF APPEARANCE by Rene Kathawala on behalf of United States House of Representatives..(Kathawala, Rene) (Entered: 03/03/2020)

03/03/2020

150 NOTICE OF APPEARANCE by Todd Barry Tatelman on behalf of United States House of Representatives..(Tatelman, Todd) (Entered: 03/03/2020)

03/03/2020 151 NOTICE OF APPEARANCE by William Havemann on behalf of United States House of Representatives..(Havemann, William) (Entered: 03/03/2020)

03/03/2020

152 CONSENT MOTION for Leave to File Brief of United States House of Representatives as Amicus Curiae in Opposition to Defendants Motion to Dismiss . Document filed by United States House of Representatives..(Letter, Douglas) (Entered: 03/03/2020)

03/03/2020

153 MEMORANDUM OF LAW in Support re: 152 CONSENT MOTION for Leave to File Brief of United States House of Representatives as Amicus Curiae in Opposition to Defendants Motion to Dismiss . . Document filed by United States House of Representatives. (Attachments: # 1 Brief of United States House of Representatives as Amicus Curiae in Opposition to Defendants Motion to Dismiss).(Letter, Douglas) (Entered: 03/03/2020)

03/05/2020

154 ORDER granting 152 Motion for Leave to File Document. Upon consideration of amici the United States House of Representatives' motion for leave to file an amici curiae brief in opposition to Defendants' motion to dismiss, (ECF No. 152), it is hereby ORDERED that the motion is GRANTED. So Ordered. (Signed by Judge George B. Daniels on 3/4/20) (yv) (Entered: 03/05/2020)

03/05/2020

155 CONSENT LETTER MOTION for Leave to File Excess Pages in Reply to Plaintiffs' Opposition to Defendants' Motion to Dismiss addressed to Judge George B. Daniels from Keri L. Berman dated March 5, 2020. Document filed by Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America..(Berman, Keri) (Entered: 03/05/2020)

03/05/2020 156 ORDER granting (155) Letter Motion for Leave to File Excess Pages in case 1:19-cv-07777-GBD; granting (191) Letter Motion for Leave to File Excess Pages in case 1:19-cv-07993-GBD: SO ORDERED.

(Signed by Judge George B. Daniels on 3/5/2020) Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD (jwh) (Entered: 03/05/2020)

03/06/2020

157 FIRST MOTION for Monisha Cherayil to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number NYSDC-19036694. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Public Justice Center. (Attachments: # 1 Exhibit Cherayil Certificate of Good Standing - Maryland, # 2 Affidavit Cherayil Affidavit for Admission Pro Hac Vice, # 3 Text of Proposed Order Cherayil Proposed Order for Admission Pro Hac Vice)Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993GBD.(Cherayil, Monisha) (Entered: 03/06/2020)

03/06/2020

158 FIRST MOTION for Leave to File Amicus Curiae Brief . Document filed by Public Justice Center. (Attachments: # 1 Exhibit Brief of Amicus Curiae Public Justice Center)Filed In Associated Cases: 1:19cv-07777-GBD, 1:19-cv-07993-GBD.(Cherayil, Monisha) (Entered: 03/06/2020)

03/06/2020

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 157 FIRST MOTION for Monisha Cherayil to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number NYSDC-19036694. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (aea) (Entered: 03/06/2020)

03/06/2020

159 REPLY to Response to Motion re: (140 in 1:19-cv-07777-GBD) MOTION to Dismiss ., (176 in 1:19-cv-07993-GBD) MOTION to Dismiss . . Document filed by Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America. Filed In Associated Cases: 1:19-cv-07777GBD, 1:19-cv-07993-GBD.(Berman, Keri) (Entered: 03/06/2020)

03/11/2020

160 ORDER: Oral argument on Defendants' motions to dismiss in both cases will be held on March 17, 2020 at 10:30 am. (Oral Argument set for 3/17/2020 at 10:30 AM before Judge George B. Daniels.) (Signed by Judge George B. Daniels on 3/11/2020) Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD (jwh) (Entered: 03/11/2020)

03/11/2020

161 LETTER addressed to Judge George B. Daniels from Elena Goldstein dated 3/11/2020 re: correspondence relating to coronavirus. Document filed by State of New York. (Attachments: # 1 Exhibit letter from state Attorneys General dated March 6, 2020).(Goldstein, Elena) (Entered: 03/11/2020)

03/12/2020

162 ORDER FOR ADMISSION PRO HAC VICE granting 157 Motion for Monisha Cherayil to Appear Pro Hac Vice. The motion of Monisha Cherayil for admission to practice pro hac vice in the above-captioned action is granted. IT IS HEREBY ORDERED that Applicant is admitted to practice pro hac vice in the above-captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing discipline of attorneys. (Signed by Judge George B. Daniels on 3/12/20) (yv) (Entered: 03/12/2020)

03/12/2020

163 ORDER granting (158) Motion for Leave to File Document in case 1:19-cv-07777-GBD; granting (194) Motion for Leave to File Document in case 1:19-cv-07993-GBD. Upon consideration of amicus the Public Justice Center's motion for leave to file an amicus curiae brief in in support of Plaintiffs, it is hereby ORDERED that the motion is GRANTED. SO ORDERED. (Signed by Judge George B. Daniels on 3/9/20) Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv07993-GBD (yv) (Entered: 03/12/2020)

03/15/2020

164 LETTER MOTION to Continue March 17, 2020 Hearing or in the Alternative to Proceed Telephonically addressed to Judge George B. Daniels from Keri L. Berman dated March 15, 2020. Document filed by Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America.Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv07993-GBD.(Berman, Keri) (Entered: 03/15/2020)

03/16/2020

165 ORDER granting (164) Letter Motion to Continue in case 1:19-cv07777-GBD; granting (200) Letter Motion to Continue in case 1:19-cv07993-GBD: The oral argument scheduled for March 17, 2020 is adjourned to May 5, 2020 at 10:00 a.m. (Oral Argument set for 5/5/2020 at 10:00 AM before Judge George B. Daniels.) (Signed by Judge George B. Daniels on 3/16/2020) Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD (jwh) (Entered: 03/16/2020)

04/28/2020

166 LETTER addressed to Judge George B. Daniels from Plaintiffs dated April 28, 2020 re: Request to maintain May 5, 2020 argument date. Document filed by State of New York. (Attachments: # 1 Exhibit Defs. Oppn. to Pls. Motion to Compel in N.D. Cal)Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD.(Chu, Ming-Qi) (Entered: 04/28/2020)

04/28/2020

167 LETTER addressed to Judge George B. Daniels from Keri L. Berman dated April 28, 2020 re: Request to Postpone May 5, 2020 Hearing. Document filed by Ken Cuccinelli, United States Citizenship & Immigration Services, United States Department of Homeland Security, Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America.Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD.(Berman, Keri) (Entered: 04/28/2020)

04/28/2020

168 MOTION for Preliminary Injunction or in the Alternative for a Temporary Restraining Order Pending National Emergency. Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., City of New York, Make the Road New York, State of Connecticut, State of New York, State of Vermont..(Goldstein, Elena) (Entered: 04/28/2020)

04/28/2020

169 MEMORANDUM OF LAW in Support re: 168 MOTION for Preliminary Injunction or in the Alternative for a Temporary Restraining Order Pending National Emergency. . Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., City of New York, Make the Road New York, State of Connecticut, State of New York, State of Vermont..(Goldstein, Elena) (Entered: 04/28/2020)

04/28/2020

170 DECLARATION of Elena Goldstein in Support re: 168 MOTION for Preliminary Injunction or in the Alternative for a Temporary Restraining Order Pending National Emergency.. Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., City of New York, Make the Road New York, State of Connecticut, State of New York, State of Vermont. (Attachments: # 1 Exhibit Supreme Court Order dated 1/27/2020, # 2 Exhibit Supreme Court Order (NY) dated 4/24/2020, # 3 Exhibit Supreme Court Order (Cook County) dated 4/24/2020, # 4 Exhibit USCIS Public Charge Alert, # 5 Exhibit Letter from Attorneys General dated 3/6/2020, # 6 Exhibit Letter from NYC dated 3/18/2020, # 7 Exhibit Letter from Attorneys General dated 3/19/2020, # 8 Exhibit Alamasude Decl., # 9 Exhibit Barbot Decl., # 10 Exhibit Benito Decl., # 11 Exhibit Chavez Decl., # 12 Exhibit Fong Decl., # 13 Exhibit Heinrich Decl., # 14 Exhibit Kennedy Decl., # 15 Exhibit Kritzman Decl., # 16 Exhibit Ku Decl., # 17 Exhibit Moreno Decl., # 18 Exhibit Mostofi Decl., # 19 Exhibit Newstrom Decl., # 20 Exhibit Newton Decl., # 21 Exhibit Pryor Decl., # 22 Exhibit Voit Decl., # 23 Exhibit Nolan Decl., # 24 Exhibit Oshiro Decl., # 25 Exhibit Russell Decl.,

# 26 Exhibit Yoo Decl., # 27 Exhibit Aguilar Decl.).(Goldstein, Elena) (Entered: 04/28/2020)

04/28/2020

171 MOTION to Expedite Plaintiffs' Motion for a Preliminary Injunction. Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., City of New York, Make the Road New York, State of Connecticut, State of New York, State of Vermont..(Goldstein, Elena) (Entered: 04/28/2020)

04/29/2020

172 RESPONSE in Opposition to Motion re: (171 in 1:19-cv-07777-GBD) MOTION to Expedite Plaintiffs' Motion for a Preliminary Injunction. . Document filed by Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America. Filed In Associated Cases: 1:19-cv-07777GBD, 1:19-cv-07993-GBD.(Berman, Keri) (Entered: 04/29/2020)

04/30/2020

173 REPLY to Response to Motion re: (171 in 1:19-cv-07777-GBD) MOTION to Expedite Plaintiffs' Motion for a Preliminary Injunction. . Document filed by State of New York. Filed In Associated Cases: 1:19cv-07777-GBD, 1:19-cv-07993-GBD.(Chu, Ming-Qi) (Entered: 04/30/2020)

04/30/2020

174 ORDER: Oral argument on Plaintiffs' motion for Preliminary Injunction and Stay or Temporary Restraining Order (19-cv-7777, ECF No. 168), and Defendants' motions to dismiss (19-cv-7777, ECF No. 140; 19-cv-7993, ECF No. 176), will be held on May 18, 2020 from 10:00 am to 1:00 p.m. by videoconference. Defendants' response to Plaintiffs' motion is due by May 12, 2020. Plaintiffs shall file any reply by May 15, 2020. (Oral Argument set for 5/18/2020 at 10:00 AM before Judge George B. Daniels. Set Deadlines/Hearing as to (168 in 1:19-cv-07777-GBD) MOTION for Preliminary Injunction: Responses due by 5/12/2020, Replies due by 5/15/2020.) (Signed by Judge George B. Daniels on 4/30/2020) Filed In Associated Cases: 1:19-cv-07777GBD, 1:19-cv-07993-GBD (jwh) Modified on 5/1/2020 (jwh). (Entered: 04/30/2020)

05/12/2020

175 FIRST LETTER MOTION to File Amicus Brief addressed to Judge George B. Daniels from Roger A. Levy dated May 12, 2020. Document filed by Immigration Reform Law Institute. (Attachments: # 1 Supplement Proposed Amicus Brief).(Levy, Roger) (Entered: 05/12/2020)

05/12/2020 176 MEMORANDUM OF LAW in Opposition re: 168 MOTION for Preliminary Injunction or in the Alternative for a Temporary

Restraining Order Pending National Emergency. . Document filed by Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America..(Kolsky, Joshua) (Entered: 05/12/2020)

05/12/2020

177 DECLARATION of Joseph B. Edlow in Opposition re: 168 MOTION for Preliminary Injunction or in the Alternative for a Temporary Restraining Order Pending National Emergency.. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America..(Kolsky, Joshua) (Entered: 05/12/2020)

05/13/2020

178 LETTER addressed to Judge George B. Daniels from Plaintiffs dated May 13, 2020 re: Supplemental authority. Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Make the Road New York, City of New York, State of Connecticut, State of New York, State of Vermont. (Attachments: # 1 Exhibit A - April 17, 2020 Washington Order, # 2 Exhibit B - April 1, 2020 California Order)Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD.(Hurwitz, Jonathan) (Entered: 05/13/2020)

05/13/2020

179 LETTER addressed to Judge George B. Daniels from Plaintiffs dated May 13, 2020 re: Hearing Scheduled for May 18, 2020. Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Make the Road New York, City of New York, State of Connecticut, State of New York, State of Vermont.Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv07993-GBD.(Hurwitz, Jonathan) (Entered: 05/13/2020)

05/13/2020

180 LETTER addressed to Judge George B. Daniels from Joshua M. Kolsky dated 5/13/2020 re: Reply to Plaintiffs Consolidated Opposition to Defendants Motion to Dismiss. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America..(Kolsky, Joshua) (Entered: 05/13/2020)

05/14/2020 181 ORDER granting 175 Letter Motion to File Amicus Brief: SO ORDERED. (Signed by Judge George B. Daniels on 5/14/2020) (jwh) (Entered: 05/14/2020)

05/14/2020 182 ORDER re: (179 in 1:19-cv-07777-GBD, 208 in 1:19-cv-07993-GBD) Letter, (125 in 1:19-cv-07777-GBD) LETTER MOTION for Local

Rule 37.2 Conference, (162 in 1:19-cv-07993-GBD) LETTER MOTION for Local Rule 37.2 Conference: Plaintiffs' letter motion for a pre-motion discovery conference (19-cv-7777, ECF No. 125; 19-cv7993, ECF No. 162) is DENIED, without prejudice to renew, if applicable, after this Court renders a decision on Defendants' pending motions to dismiss (19-cv-7777, ECF No. 140; 19-cv-7993, ECF No. 176). Plaintiffs' request that the Court restructure the order of presentation of oral argument scheduled for May 18, 2020 (19-cv-7777, ECF No. 179; 19-cv-7993, ECF No. 208) is DENIED. Members of the public who wish to listen to the oral argument scheduled for May 18, 2020 at 10:00 am may call (888) 363-4749 and use Access Code 4523890. (Signed by Judge George B. Daniels on 5/14/2020) Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD (jwh) (Entered: 05/14/2020)

05/15/2020

183 REPLY MEMORANDUM OF LAW in Support re: 168 MOTION for Preliminary Injunction or in the Alternative for a Temporary Restraining Order Pending National Emergency. . Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., City of New York, Make the Road New York, State of Connecticut, State of New York, State of Vermont..(Goldstein, Elena) (Entered: 05/15/2020)

05/18/2020

Minute Entry for proceedings held before Judge George B. Daniels: Oral Argument held on 5/18/2020 re: 168 MOTION for Preliminary Injunction or in the Alternative for a Temporary Restraining Order Pending National Emergency. filed by Asian American Federation, Make the Road New York, Catholic Charities Community Services (Archdiocese of New York), City of New York, State of Vermont, State of Connecticut, Catholic Legal Immigration Network, Inc., State of New York, African Services Committee, 140 MOTION to Dismiss . filed by Kenneth T. Cuccinelli II, United States of America, United States Citizenship and Immigration Services, Kevin K. McAleenan, United States Department of Homeland Security. Plaintiff Counsel: Ming-Qi Chu, Elena Goldstein; Defense Counsel: Keri Berman, Joshua Kolsky and Court Reporters present. (Vega, Elizabeth) (Entered: 05/18/2020)

05/21/2020

184 LETTER addressed to Judge George B. Daniels from Plaintiffs dated May 21, 2020 re: Supplemental Authority. Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Make the Road New York, City of New York, State of Connecticut, State of New York, State of Vermont. (Attachments: # 1 Exhibit A-May 19, 2020 Cook County Order)Filed

In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993GBD.(O'Loughlin, Robert) (Entered: 05/21/2020)

05/28/2020

185 MOTION for Owen T. Masters to Withdraw as Attorney . Document filed by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging..(Masters, Owen) (Entered: 05/28/2020)

06/01/2020

186 ORDER granting 185 MOTION for Owen T. Masters to Withdraw as Attorney. SO ORDERED. Attorney Owen T. Masters terminated. (Signed by Judge George B. Daniels on 6/1/2020) (jca) (Entered: 06/01/2020)

06/01/2020

187 MOTION for Susan M. Krumplitsch to Withdraw as Attorney . Document filed by American Academy of Pediatrics, American College of Physicians, American Medical Association, New York State American Academy of Pediatrics..(Stameshkin, Elizabeth) (Entered: 06/01/2020)

06/03/2020

188 MEMO ENDORSEMENT granting 187 Motion to Withdraw as Attorney. ENDORSEMENT: SO ORDERED. (Attorney Krumplitsch Susan terminated.) (Signed by Judge George B. Daniels on 6/3/2020) (jwh) (Entered: 06/03/2020)

06/03/2020

189 MOTION for Christopher John Frisina to Withdraw as Attorney . Document filed by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars..(Frisina, Christopher) (Entered: 06/03/2020)

06/08/2020

190 MEMO ENDORSEMENT granting 189 Motion to Withdraw as Attorney. ENDORSEMENT: SO ORDERED. (Attorney Christopher John Frisina terminated.) (Signed by Judge George B. Daniels on 6/8/2020) (rro) (Entered: 06/08/2020)

06/15/2020

191 LETTER addressed to Judge George B. Daniels from Plaintiffs dated June 15, 2020 re: Supplemental Authority. Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Make the Road New York, City of New York, State of Connecticut, State of New York, State of Vermont. (Attachments: # 1 Exhibit A - Cook County, Illinois, et al. v. Wolf, No. 19-3169 (7th Cir. June 10, 2020))Filed In Associated Cases: 1:19-cv07777-GBD, 1:19-cv-07993-GBD.(Hurwitz, Jonathan) (Entered: 06/15/2020)

06/19/2020

192 LETTER addressed to Judge George B. Daniels from Keri L. Berman dated June 19, 2020 re: Defendants' Response to Plaintiffs' Notice of Supplemental Authority. Document filed by Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services.Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD.(Berman, Keri) (Entered: 06/19/2020)

06/26/2020

193 LETTER addressed to Judge George B. Daniels from Keri L. Berman dated June 26, 2020 re: Notice of Supplemental Authority. Document filed by Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America.Filed In Associated Cases: 1:19-cv-07777GBD, 1:19-cv-07993-GBD.(Berman, Keri) (Entered: 06/26/2020)

06/30/2020

194 LETTER addressed to Judge George B. Daniels from Jonathan H. Hurwitz and Ming-Qi Chu dated June 30, 2020 re: Supplemental Authority re DACA SCOTUS Decision. Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Make the Road New York, City of New York, State of Connecticut, State of New York, State of Vermont.Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993GBD.(Hurwitz, Jonathan) (Entered: 06/30/2020)

07/29/2020

195 MEMORANDUM DECISION AND ORDER granting in part and denying in part (140) Motion to Dismiss; granting (168) Motion for Preliminary Injunction in case 1:19-cv-07777-GBD; granting in part and denying in part (176) Motion to Dismiss in case 1:19-cv-07993GBD: Defendants' motion to dismiss, (No. 19 Civ. 7993, ECF No. 176), Count III of Organizational Plaintiffs' complaint, claiming that DHS and USCIS lacked authority to promulgate the Rule, is GRANTED. Plaintiffs' motion for a preliminary injunction, and temporary stay of the Rule's application under 5 U.S.C. § 705, (No. 19 Civ. 7777, ECF No. 168), is GRANTED. Defendants are enjoined from enforcing, applying, implementing, or treating as effective the Rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak. This opinion shall also serve alternatively as an indicative ruling under Federal Rule of Civil Procedure 62.1. Should the Second Circuit determine that this Court does not presently have jurisdiction to issue this injunction and remands this case for the purpose of further considering Plaintiffs' present motion, this Court would issue a preliminary injunction based on factual findings as set

forth herein. The Court of Clerk is directed to close the motions, (No. 19 Civ. 7777, ECF Nos. 140, 168; No. 19 Civ. 7993, ECF No. 176), accordingly. (Signed by Judge George B. Daniels on 7/29/2020) Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD (jwh) (Entered: 07/29/2020)

08/03/2020

196 NOTICE OF INTERLOCUTORY APPEAL from (221 in 1:19-cv07993-GBD, 221 in 1:19-cv-07993-GBD, 221 in 1:19-cv-07993-GBD, 195 in 1:19-cv-07777-GBD, 195 in 1:19-cv-07777-GBD, 195 in 1:19cv-07777-GBD) Order on Motion to Dismiss, Order on Motion for Preliminary Injunction,,,,,,,,,,,,,,,,,,,. Document filed by Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19cv-07993-GBD.(Kolsky, Joshua) (Entered: 08/03/2020)

08/03/2020

197 MOTION to Stay re: (221 in 1:19-cv-07993-GBD, 221 in 1:19-cv07993-GBD, 221 in 1:19-cv-07993-GBD, 195 in 1:19-cv-07777-GBD, 195 in 1:19-cv-07777-GBD, 195 in 1:19-cv-07777-GBD) Order on Motion to Dismiss, Order on Motion for Preliminary Injunction,,,,,,,,,,,,,,,,,,, . Document filed by Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America.Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD.(Kolsky, Joshua) (Entered: 08/03/2020)

08/03/2020

198 MEMORANDUM OF LAW in Support re: (223 in 1:19-cv-07993GBD) MOTION to Stay re: (221 in 1:19-cv-07993-GBD, 221 in 1:19cv-07993-GBD, 221 in 1:19-cv-07993-GBD, 195 in 1:19-cv-07777GBD, 195 in 1:19-cv-07777-GBD, 195 in 1:19-cv-07777-GBD) Order on Motion to Dismiss, Order on Motion for Preliminary Injunction . Document filed by Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America. Filed In Associated Cases: 1:19-cv-07777GBD, 1:19-cv-07993-GBD.(Kolsky, Joshua) (Entered: 08/03/2020)

08/03/2020

Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: (222 in 1:19-cv-07993-GBD, 196 in 1:19cv-07777-GBD) Notice of Interlocutory Appeal. Filed In Associated

Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD. (tp) (Entered: 08/03/2020)

08/03/2020

Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for (222 in 1:19-cv-07993-GBD, 196 in 1:19-cv-07777-GBD) Notice of Interlocutory Appeal, filed by Kenneth T. Cuccinelli II, United States Citizenship and Immigration Services, United States Citizenship & Immigration Services, Kevin K. McAleenan, Ken Cuccinelli, United States of America, United States Department of Homeland Security were transmitted to the U.S. Court of Appeals. Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv07993-GBD. (tp) (Entered: 08/03/2020)

08/04/2020

199 LETTER addressed to Judge George B. Daniels from Joshua M. Kolsky dated 8/4/2020 re: Supplemental Authority. Document filed by Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America.Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv07993-GBD.(Kolsky, Joshua) (Entered: 08/04/2020)

08/05/2020

200 MEMORANDUM OF LAW in Opposition re: (223 in 1:19-cv-07993GBD) MOTION to Stay re: (221 in 1:19-cv-07993-GBD, 221 in 1:19cv-07993-GBD, 221 in 1:19-cv-07993-GBD, 195 in 1:19-cv-07777GBD, 195 in 1:19-cv-07777-GBD, 195 in 1:19-cv-07777-GBD) Order on Motion to Dismiss, Order on Motion for Preliminary Injunction . Document filed by State of New York. Filed In Associated Cases: 1:19cv-07777-GBD, 1:19-cv-07993-GBD.(Chu, Ming-Qi) (Entered: 08/05/2020)

08/06/2020

201 NOTICE of of Waiver of Reply and Hearing re: (197 in 1:19-cv-07777GBD, 223 in 1:19-cv-07993-GBD) MOTION to Stay re: (221 in 1:19cv-07993-GBD, 221 in 1:19-cv-07993-GBD, 221 in 1:19-cv-07993GBD, 195 in 1:19-cv-07777-GBD, 195 in 1:19-cv-07777-GBD, 195 in 1:19-cv-07777-GBD) Order on Motion to Dismiss, Order on Motion for Preliminary Injunction. Document filed by Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America. Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993GBD.(Kolsky, Joshua) (Entered: 08/06/2020)

08/10/2020 202 LETTER addressed to Judge George B. Daniels from Joshua M. Kolsky dated 8/10/2020 re: Request for Extension of Time to File

Answers. Document filed by Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America.Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD.(Kolsky, Joshua) (Entered: 08/10/2020)

08/11/2020

203 ORDER re: (228 in 1:19-cv-07993-GBD, 202 in 1:19-cv-07777-GBD) Letter: Defendants' request to extend the deadline for Defendants to file an answer to Plaintiffs' complaints, (l 9-cv-7777, ECF No. 202; 19-cv7993, ECF No. 228), is GRANTED. Defendants shall file a consolidated answer to Plaintiffs' complaints by September 28, 2020. (Signed by Judge George B. Daniels on 8/11/2020) Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD (jwh) (Entered: 08/11/2020)

08/11/2020

Set/Reset Deadlines: Ken Cuccinelli answer due 9/28/2020; Kenneth T. Cuccinelli II answer due 9/28/2020; Kevin K. McAleenan answer due 9/28/2020; United States Citizenship and Immigration Services answer due 9/28/2020; United States Department of Homeland Security answer due 9/28/2020; United States of America answer due 9/28/2020. (jwh) (Entered: 08/11/2020)

08/12/2020

204 ORDER of USCA (Certified Copy) as to (222 in 1:19-cv-07993-GBD, 196 in 1:19-cv-07777-GBD) Notice of Interlocutory Appeal,, filed by Kenneth T. Cuccinelli II, United States Citizenship and Immigration Services, United States Citizenship & Immigration Services, Kevin K. McAleenan, Ken Cuccinelli, United States of America, United States Department of Homeland Security. USCA Case Number 20-2537. Upon due consideration of the Defendants-Appellants' motion seeking a stay, pending resolution by the panel assigned to decide the motion, it is hereby ORDERED that the injunction entered by the District Court on July 29, 2020 is stayed with respect to all states other than those within the Second Circuit: Connecticut, New York, and Vermont. See New York v. United States Dep't of Homeland Sec., No. 19-3591, 2020 WL 4457951, at *32 (2d Cir. Aug. 4, 2020). within the Second Circuit: Connecticut, New York, and Vermont. See New York v. United States Dep't of Homeland Sec., No. 19-3591, 2020 WL 4457951, at *32 (2d Cir. Aug. 4, 2020). Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 8/12/2020. Filed In Associated Cases: 1:19cv-07777-GBD, 1:19-cv-07993-GBD.(nd) (Entered: 08/13/2020)

08/25/2020 205 LETTER addressed to Judge George B. Daniels from Plaintiffs dated August 20, 2020 re: Renewed request for pre-motion discovery conference. Document filed by State of New York. (Attachments:

# 1 Cook County Illinois v. Wolf).(Chu, Ming-Qi) (Entered: 08/25/2020)

08/27/2020

206 LETTER addressed to Judge George B. Daniels from Keri L. Berman dated August 27, 2020 re: Opposition to Plaintiffs' Renewed Request for Pre-Motion Discovery Conference. Document filed by Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America.Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD.(Berman, Keri) (Entered: 08/27/2020)

08/27/2020

207 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, nondispositive pretrial motions, and settlement) and Specific NonDispositive Motion/Dispute: 19 Civ. 7993, ECF No. 231; 19 Civ. 7777, ECF No. 205. Referred to Magistrate Judge Ona T. Wang. (Signed by Judge George B. Daniels on 8/27/2020) Filed In Associated Cases: 1:19-cv-07777-GBD, 1:19-cv-07993-GBD (jwh) (Entered: 08/27/2020)

08/27/2020

MOTIONS REFERRED: 139 LETTER MOTION to Consolidate Cases 19-cv-7993; 19-cv-7777 addressed to Judge George B. Daniels from Plaintiffs dated February 14, 2020., 197 MOTION to Stay re: (221 in 1:19-cv-07993-GBD, 221 in 1:19-cv-07993-GBD, 221 in 1:19-cv07993-GBD, 195 in 1:19-cv-07777-GBD, 195 in 1:19-cv-07777-GBD, 195 in 1:19-cv-07777-GBD) Order on Motion to Dismiss, Order on Motion for Preliminary Injunction. Motions referred to Ona T. Wang. (jwh) (Entered: 09/01/2020)

09/03/2020

208 LETTER addressed to Magistrate Judge Ona T. Wang from Daniel S. Sinnreich dated September 3, 2020 re: Response to Defendants' Letter dated August 27, 2020. Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Make the Road New York, City of New York, State of Connecticut, State of New York, State of Vermont.Filed In Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19-cv-07993-GBDOTW.(Sinnreich, Daniel) (Entered: 09/03/2020)

09/04/2020

209 MOTION for Ethan Price Davis to Withdraw as Attorney . Document filed by Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services,

United States of America.Filed In Associated Cases: 1:19-cv-07777GBD-OTW, 1:19-cv-07993-GBD-OTW.(Davis, Ethan) (Entered: 09/04/2020)

09/08/2020

210 MEMO ENDORSEMENT granting (209) Motion to Withdraw as Attorney. Attorney Ethan Price Davis terminated in case 1:19-cv07777-GBD-OTW; granting (236) Motion to Withdraw as Attorney. ENDORSEMENT: SO ORDERED. Attorney Ethan Price Davis terminated in case 1:19-cv-07993-GBD-OTW (Signed by Judge George B. Daniels on 9/8/2020) Filed In Associated Cases: 1:19-cv-07777GBD-OTW, 1:19-cv-07993-GBD-OTW (cf) (Entered: 09/08/2020)

09/10/2020

211 SCHEDULING ORDER: The Court will hold a Status Conference on Tuesday, September 22, 2020 at 3:00 p.m. The dial in information is (866) 390-1828, access code 1582687. The Court will email a security code to the parties. SO ORDERED.(Telephone Conference set for 9/22/2020 at 03:00 PM before Magistrate Judge Ona T. Wang.) (Signed by Magistrate Judge Ona T. Wang on 9/10/2020) Filed In Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19-cv-07993-GBD-OTW (rro) (Entered: 09/10/2020)

09/11/2020

212 OPINION of USCA (Certified Copy) as to (222 in 1:19-cv-07993GBD-OTW, 196 in 1:19-cv-07777-GBD-OTW) Notice of Interlocutory Appeal,, filed by Kenneth T. Cuccinelli II, United States Citizenship and Immigration Services, United States Citizenship & Immigration Services, Kevin K. McAleenan, Ken Cuccinelli, United States of America, United States Department of Homeland Security USCA Case Number 20-2537. In appealing from a preliminary injunction granted to the plaintiffs by the United States District Court for the Southern District of New York (Daniels, J.), the defendant Department of Homeland Security ("DHS") moves to stay the preliminary injunction pending resolution of this appeal. We conclude that the moving party has demonstrated likelihood of success on the merits as we doubt that the district court had jurisdiction to issue the preliminary injunction while this Court was considering an appeal from a prior, virtually identical preliminary injunction. Accordingly, we stay the preliminary injunction pending further order of this Court by the panel charged with deciding its merits. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 09/11/2020. Filed In Associated Cases: 1:19cv-07777-GBD-OTW, 1:19-cv-07993-GBD-OTW.(nd) (Entered: 09/11/2020)

09/14/2020

213 LETTER MOTION for Local Rule 37.2 Conference addressed to Magistrate Judge Ona T. Wang from Daniel S. Sinnreich dated September 14, 2020. Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services

(Archdiocese of New York), Catholic Legal Immigration Network, Inc., Make the Road New York, City of New York, State of Connecticut, State of New York, State of Vermont. (Attachments: # 1 Exhibit A - Letter to Josh Kolsky, # 2 Exhibit B - Privilege Log, # 3 Exhibit C - Deficient Entries)Filed In Associated Cases: 1:19-cv07777-GBD-OTW, 1:19-cv-07993-GBD-OTW.(Sinnreich, Daniel) (Entered: 09/14/2020)

09/17/2020

214 SCHEDULING ORDER granting (213) Letter Motion for Local Rule 37.2 Conference in case 1:19-cv-07777-GBD-OTW; granting (240) Letter Motion for Local Rule 37.2 Conference in case 1:19-cv-07993GBD-OTW. The September 22, 2020 conference is adjourned. The Court will hold a Status Conference on Wednesday, September 30, 2020 at 3:00 p.m. The dial in information is (866) 390-1828, access code 1582687. SO ORDERED. (Telephone Conference set for 9/30/2020 at 03:00 PM before Magistrate Judge Ona T. Wang.) (Signed by Magistrate Judge Ona T. Wang on 9/10/2020) Filed In Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19-cv-07993-GBD-OTW (rro) (Entered: 09/17/2020)

09/17/2020

215 LETTER RESPONSE to Motion addressed to Magistrate Judge Ona T. Wang from Joshua M. Kolsky dated September 17, 2020 re: (240 in 1:19-cv-07993-GBD-OTW) LETTER MOTION for Local Rule 37.2 Conference addressed to Magistrate Judge Ona T. Wang from Daniel S. Sinnreich dated September 14, 2020. . Document filed by Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America. Filed In Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19-cv-07993GBD-OTW.(Kolsky, Joshua) (Entered: 09/17/2020)

09/22/2020

216 LETTER REPLY to Response to Motion addressed to Magistrate Judge Ona T. Wang from Daniel S. Sinnreich and Ming-Qi Chu dated September 22, 2020 re: (213 in 1:19-cv-07777-GBD-OTW, 240 in 1:19-cv-07993-GBD-OTW) LETTER MOTION for Local Rule 37.2 Conference addressed to Magistrate Judge Ona T. Wang from Daniel S. Sinnreich dated September 14, 2020. . Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Make the Road New York, City of New York, State of Connecticut, State of New York, State of Vermont. (Attachments: # 1 Exhibit A-Email, # 2 Exhibit B-Email, # 3 Exhibit CEmail, # 4 Exhibit D-Privilege Log, # 5 Exhibit E-2nd Cir. Order, # 6 Exhibit F-SDNY Order, # 7 Exhibit G-Hearing Transcript)Filed In

Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19-cv-07993-GBDOTW.(Sinnreich, Daniel) (Entered: 09/22/2020)

09/24/2020

217 LETTER MOTION for Conference seeking leave to file an amended complaint addressed to Magistrate Judge Ona T. Wang from Elena Goldstein dated 9/24/2020. Document filed by State of New York. (Attachments: # 1 Exhibit 1 (19-cv-7777 Proposed Amended Complaint), # 2 Exhibit 2 (19-cv-7777 Proposed Emended Complaint redline), # 3 Exhibit 3 (19-cv-7993 Proposed Amended Complaint), # 4 Exhibit 4 (19-cv-7993 Proposed Amended Complaint redline))Filed In Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19-cv-07993-GBDOTW.(Goldstein, Elena) (Entered: 09/24/2020)

09/24/2020

218 LETTER MOTION for Extension of Time to Answer or Respond to Complaint addressed to Magistrate Judge Ona T. Wang from Keri L. Berman dated September 24, 2020. Document filed by Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America.Filed In Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19cv-07993-GBD-OTW.(Berman, Keri) (Entered: 09/24/2020)

09/25/2020

219 ORDER granting in part and denying in part (217) Letter Motion for Conference ; granting (218) Letter Motion for Extension of Time in case 1:19-cv-07777-GBD-OTW; granting (244) Letter Motion for Conference; granting (245) Letter Motion for Extension of Time in case 1:19-cv-07993-GBD-OTW. The Court has reviewed Plaintiffs' letter motions for a pre-motion conference to file an amended complaint. (19cv-7777, ECF 217; 19-cv-7993, ECF 244). Defendants do not oppose. (19-cv-7777, ECF 217 at 1; 19-cv-7993, ECF 244 at 1). Accordingly, leave to amend is hereby GRANTED. Plaintiffs are directed to file their amended complaints by October 2, 2020. Plaintiffs' requests for a premotion conference are thus DENIED as moot. Defendants' requests for an extension of time to answer or otherwise respond to the complaint, (19-cv-7777, ECF 218; 19-cv-7993, ECF 245), are GRANTED. The Clerk is respectfully directed to close ECF 217 and ECF 218 in 19-cv7777, and ECF 244 and ECF 245 in 19-cv-7993. SO ORDERED. (Amended Pleadings due by 10/2/2020.) (Signed by Magistrate Judge Ona T. Wang on 9/25/2020) Filed In Associated Cases: 1:19-cv-07777GBD-OTW, 1:19-cv-07993-GBD-OTW (rro) (Entered: 09/25/2020)

09/29/2020

220 ORDER re: 9/30/20 conference as set forth in Order. Additionally, the Court has reviewed the parties submissions regarding the privilege logs. Defendants are hereby ORDERED to cure the deficiencies identified by Plaintiffs and produce updated privilege logs to Plaintiffs by October 2,

2020. Parties are then directed to meet and confer and, by close of business October 9, 2020, submit a joint status letter addressing whether Plaintiffs will be disputing privilege designations and which privilege designations are still at issue. Parties may attach the updated privilege logs to aid the Court. (Signed by Magistrate Judge Ona T. Wang on 9/29/2020) (RR) (Entered: 09/29/2020)

09/30/2020

221 ORDER re: 9/30/20 conference. By 2:00 p.m., Parties are directed to jointly email Chambers a list of counsel who may be speaking during the teleconference. The email should also set forth the last four digits of the telephone numbers from which counsel expect to join the call. To facilitate orderly teleconferences and the creation of an accurate transcript, counsel are required to identify themselves every time they speak during the call. (HEREBY ORDERED by Magistrate Judge Ona T. Wang) (Text Only Order) (rr) (Entered: 09/30/2020)

09/30/2020

222 ORDER: Accordingly, Plaintiffs are entitled to discovery on the claim. As ordered at the conference, Parties are to submit their 26(f) report on October 15, 2020. SO ORDERED. (Signed by Magistrate Judge Ona T. Wang on 9/30/2020) Filed In Associated Cases: 1:19-cv-07777-GBDOTW, 1:19-cv-07993-GBD-OTW (rro) (Entered: 10/01/2020)

10/02/2020

223 FIRST AMENDED COMPLAINT amending 17 Complaint, against Kenneth T. Cuccinelli II, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America, Chad F. Wolf.Document filed by City of New York, State of New York, State of Connecticut, State of Vermont. Related document: 17 Complaint,..(Goldstein, Elena) (Entered: 10/02/2020)

10/05/2020

224 TRANSCRIPT of Proceedings re: CONFERENCE held on 9/30/2020 before Magistrate Judge Ona T. Wang. Court Reporter/Transcriber: Vincent Bologna, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/26/2020. Redacted Transcript Deadline set for 11/5/2020. Release of Transcript Restriction set for 1/3/2021..(McGuirk, Kelly) (Entered: 10/05/2020)

10/05/2020

225 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 9/30/20 has been filed by the court reporter/transcriber in the abovecaptioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically

available to the public without redaction after 90 calendar days....(McGuirk, Kelly) (Entered: 10/05/2020)

10/07/2020

226 MOTION for Adam A. Grogg to Withdraw as Attorney . Document filed by United States House of Representatives. (Attachments: # 1 Text of Proposed Order).(Grogg, Adam) (Entered: 10/07/2020)

10/07/2020

227 MANDATE of USCA (Certified Copy) as to 116 Notice of Interlocutory Appeal, filed by Kenneth T. Cuccinelli II, United States Citizenship and Immigration Services, Kevin K. McAleenan, United States of America, United States Department of Homeland Security. USCA Case Number 19-3591. IT IS HEREBY ORDERED, ADJUDGED and DECREED that the district court's ordersare AFFIRMED AS MODIFIED.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 10/7/2020. (Attachments: # 1 Opinion).(nd) (Entered: 10/07/2020)

10/07/2020

Transmission of USCA Mandate to the District Judge re: 227 USCA Mandate,,..(nd) (Entered: 10/07/2020)

10/08/2020

228 ORDER granting 226 Motion to Withdraw as Attorney. ORDERED that the motion is GRANTED, and the Clerk is directed to terminate Adam A. Grogg's appearance as counsel for amicus the United States House of Representatives. (Attorney Adam Grogg terminated.) (Signed by Magistrate Judge Ona T. Wang on 10/8/2020) (rro) (Entered: 10/08/2020)

10/15/2020

229 CONSENT LETTER MOTION for Extension of Time to File Joint Status Letter addressed to Magistrate Judge Ona T. Wang from Daniel S. Sinnreich dated October 15, 2020. Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Make the Road New York, City of New York, State of Connecticut, State of New York, State of Vermont.Filed In Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19-cv-07993-GBDOTW.(Sinnreich, Daniel) (Entered: 10/15/2020)

10/15/2020

230 RULE 26(f) DISCOVERY PLAN REPORT.Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Make the Road New York, City of New York, State of Connecticut, State of New York, State of Vermont. (Attachments: # 1 Exhibit A-10/8/19 Order, # 2 Exhibit B-7/15/18 Order, # 3 Exhibit C-7/14/20 Transcript, # 4 Exhibit D-6/23/20 Order, # 5 Exhibit E-5/4/20 Order)Associated Cases: 1:19-cv-07777-GBDOTW, 1:19-cv-07993-GBD-OTW.(Beale, Elana) (Entered: 10/15/2020)

10/16/2020

231 JOINT LETTER addressed to Magistrate Judge Ona T. Wang from Daniel S. Sinnreich dated October 16, 2020 re: Privilege Log. Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Make the Road New York, City of New York, State of Connecticut, State of New York, State of Vermont. (Attachments: # 1 Exhibit A - Privilege Log, # 2 Exhibit B - SDNY Order, # 3 Exhibit C - Defendant's Order, # 4 Exhibit D - Public Comment, # 5 Exhibit E - Confidentiality Order, # 6 Exhibit F - SDNY Order)Filed In Associated Cases: 1:19-cv-07777GBD-OTW, 1:19-cv-07993-GBD-OTW.(Sinnreich, Daniel) (Entered: 10/16/2020)

10/16/2020

232 JOINT LETTER addressed to Magistrate Judge Ona T. Wang from Jonathan Hurwitz, Ming-Qi Chu, Joshua Kolsky dated 10/16/2020 re: Briefing Schedule. Document filed by Ken Cuccinelli, Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Chad F. Wolf, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America, Chad F. Wolf.Filed In Associated Cases: 1:19-cv-07777GBD-OTW, 1:19-cv-07993-GBD-OTW.(Kolsky, Joshua) (Entered: 10/16/2020)

10/19/2020

233 ORDER granting (229) Letter Motion for Extension of Time to File in case 1:19-cv-07777-GBD-OTW; granting (257) Letter Motion for Extension of Time to File in case 1:19-cv-07993-GBD-OTW. Application GRANTED nunc pro tunc. (Signed by Magistrate Judge Ona T. Wang on 10/19/2020) Filed In Associated Cases: 1:19-cv07777-GBD-OTW, 1:19-cv-07993-GBD-OTW (cf) (Entered: 10/19/2020)

10/23/2020

234 MEMO ENDORSEMENT on re: (260 in 1:19-cv-07993-GBD-OTW, 232 in 1:19-cv-07777-GBD-OTW) Letter Briefing Schedule, filed by Kenneth T. Cuccinelli II, Chad F. Wolf, United States Citizenship and Immigration Services, United States Citizenship & Immigration Services, Kevin K. McAleenan, Ken Cuccinelli, United States of America, United States Department of Homeland Security. ENDORSEMENT: SO ORDERED. Application GRANTED., ( Cross Motions due by 11/17/2020., Motions due by 10/27/2020., Responses due by 12/10/2020, Replies due by 12/18/2020.) (Signed by Magistrate Judge Ona T. Wang on 10/23/20) Filed In Associated Cases: 1:19-cv07777-GBD-OTW, 1:19-cv-07993-GBD-OTW (yv) (Entered: 10/23/2020)

10/23/2020

235 LETTER MOTION for Leave to File Excess Pages addressed to Magistrate Judge Ona T. Wang from Plaintiffs dated Oct. 23, 2020. Document filed by State of New York.Filed In Associated Cases: 1:19cv-07777-GBD-OTW, 1:19-cv-07993-GBD-OTW.(Chu, Ming-Qi) (Entered: 10/23/2020)

10/23/2020

236 ORDER: The parties may amend the pleadings or join additional parties until November 30, 2020. All fact discovery shall be completed by April 16, 2021. All expert discovery shall be completed by July 16, 2021. Initial disclosures must be exchanged by November 6, 2020. If Defendants intend to oppose the production of initial disclosures, they may file a brief on the issue by close of business on October 26, 2020. Plaintiffs' reply, if any, is due by November 2, 2020. The parties are required to follow the Court's Individual Practices when seeking Court intervention on discovery disputes. See http://www.nysd.uscourts.gov/judge/Wang. A joint letter informing the Court of the status of discovery shall be filed by December 2, 2020 and every 60 days thereafter. The letter should address any outstanding discovery disputes and the efforts made by the parties to resolve these issues without Court intervention. It should also indicate whether the parties wish to schedule a settlement conference and, if so, include proposed dates on at least two consecutive weeks. The parties are, however, encouraged to contact the Court earlier if they believe a settlement conference sooner would be productive. The parties request a bench trial. (Amended Pleadings due by 11/30/2020., Expert Discovery due by 7/16/2021., Fact Discovery due by 4/16/2021., Joinder of Parties due by 11/30/2020.) (Signed by Magistrate Judge Ona T. Wang on 10/23/2020) Filed In Associated Cases: 1:19-cv07777-GBD-OTW, 1:19-cv-07993-GBD-OTW (rro) (Entered: 10/23/2020)

10/23/2020

237 ORDER: The Court has reviewed the parties' joint letter. (ECF 231 in 19-cv-7777; ECF 259 in 19-cv-7993). It is hereby ORDERED that Defendants are directed to supplement/revise their privilege log by November 13, 2020 as follows: Defendants are directed to revise their privilege log to include this information. The privilege log need not be publicly filed. The Court does not find this request unduly burdensome as Exhibit 1 contains 208 entries. Defendant shall supplement their privilege descriptions. Defendants shall identify which individuals listed in the privilege log are attorneys. The Court does not find this request unduly burdensome. A ruling on this issue is premature. Neither Plaintiffs nor the Court can assess the applicability of the deliberative process privilege in a vacuum. The Court will address the applicability of the privilege if/when, after a robust meet and confer between the parties, there are particular documents where the applicability of the privilege is contested. Parties shall follow my Individual Practices for

raising such disputes in the future. Plaintiffs' request for the Court to set a deadline for Defendants to produce a final privilege log is denied without prejudice for renewal. The parties are directed to report on Defendants' progress regarding the privilege log in the joint status letter due by December 2, 2020. Any future privilege logs concerning documents not referenced in Exhibit 1 should follow the spirit of this order. SO ORDERED. (Signed by Magistrate Judge Ona T. Wang on 10/23/2020) Filed In Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19-cv-07993-GBD-OTW (rro) (Entered: 10/23/2020)

10/26/2020

238 ORDER granting (235) Letter Motion for Leave to File Excess Pages in case 1:19-cv-07777-GBD-OTW; granting (263) Letter Motion for Leave to File Excess Pages in case 1:19-cv-07993-GBD-OTW. SO ORDERED: Application GRANTED. (Signed by Magistrate Judge Ona T. Wang on 10/26/2020) Filed In Associated Cases: 1:19-cv07777-GBD-OTW, 1:19-cv-07993-GBD-OTW (rro) (Entered: 10/26/2020)

10/27/2020

239 MOTION for Summary Judgment . Document filed by City of New York, State of Connecticut, State of New York, State of Vermont. Responses due by 11/17/2020.(Chu, Ming-Qi) (Entered: 10/27/2020)

10/27/2020

240 DECLARATION of Ming-Qi Chu in Support re: 239 MOTION for Summary Judgment .. Document filed by City of New York, State of Connecticut, State of New York, State of Vermont. (Attachments: # 1 Exhibit Delegation 00106 revision dated Apr. 10, 2019, # 2 Exhibit Delegation 00106 revision dated Feb. 15, 2019, # 3 Exhibit GAO Report, # 4 Exhibit Executive Order 13753, # 5 Exhibit Nielson Resignation Ltr., # 6 Exhibit Article re Grady Resignation, # 7 Exhibit Defs. Mem., Casa de Maryland v. Wolf dated Aug. 3, 2020, # 8 Exhibit Amendment to order of succession dated Nov. 8, 2019, # 9 Exhibit Delegation 00106 revision dated Nov. 14, 2019, # 10 Exhibit Ltr. from Bennie G. Thompson and Carolyn B. Maloney dated Nov. 15, 2019, # 11 Exhibit Wolf Memorandum dated Sept. 17, 2020, # 12 Exhibit Gaynor Order dated Sept. 10, 2020, # 13 Exhibit Wolf Memorandum dated Oct. 7, 2020, # 14 Exhibit Defs. Mem., La Clinica De La Raza v. Trump dated Sept. 24, 2020, # 15 Exhibit Delegation No. 0100.2 dated June 23, 2003, # 16 Exhibit Memorandum from John M. Mitnick dated Apr. 9, 2019, # 17 Exhibit Defs. Mem., State of New York v. Trump dated Sept. 11, 2020, # 18 Exhibit Order, La Clinica De La Raza et al v. Trump dated Sept. 9, 2020, # 19 Exhibit Relationship among FVRA authorities chart, # 20 Exhibit Changes in Delegation 00106 from Feb. to Nov. 2019 chart).(Chu, Ming-Qi) (Entered: 10/27/2020)

10/27/2020 241 MEMORANDUM OF LAW in Support re: 239 MOTION for Summary Judgment . . Document filed by City of New York, State of

Connecticut, State of New York, State of Vermont..(Chu, Ming-Qi) (Entered: 10/27/2020)

10/27/2020

242 RULE 56.1 STATEMENT. Document filed by State of Connecticut, State of New York, State of Vermont..(Chu, Ming-Qi) (Entered: 10/27/2020)

11/03/2020

243 CONSENT MOTION to File Amicus Brief . Document filed by Constitutional Accountability Center. (Attachments: # 1 Memorandum in Support, # 2 Amicus Brief, # 3 Proposed Order)Filed In Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19-cv-07993-GBD-OTW.(Gans, David) (Entered: 11/03/2020)

11/04/2020

244 ORDER granting (243) Motion to File Amicus Brief in case 1:19-cv07777-GBD-OTW; granting (271) Motion to File Amicus Brief in case 1:19-cv-07993-GBD-OTW: Upon consideration of the motion of Constitutional Accountability Center for leave to file its proposed amicus curiae brief in support of Plaintiffs' motion for partial summary judgment, it is hereby ORDERED that the motion is GRANTED. (Signed by Judge George B. Daniels on 11/4/2020) Filed In Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19-cv-07993-GBD-OTW (jwh) (Entered: 11/04/2020)

11/04/2020

245 ORDER: Upon consideration of the motion of Constitutional Accountability Center for leave to file its proposed amicus curiae brief in support of Plaintiffs motion for partial summary judgment, it is hereby ORDERED that the motion is GRANTED. (Signed by Magistrate Judge Ona T. Wang on 11/4/2020) Filed In Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19-cv-07993-GBD-OTW (rro) (Entered: 11/04/2020)

11/16/2020

246 LETTER MOTION for Leave to File Excess Pages addressed to Magistrate Judge Ona T. Wang from Keri L. Berman dated November 16, 2020. Document filed by Ken Cuccinelli, Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Chad F. Wolf, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America, Chad F. Wolf.Filed In Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19-cv-07993-GBD-OTW.(Berman, Keri) (Entered: 11/16/2020)

11/17/2020

247 ORDER granting (246) Letter Motion for Leave to File Excess Pages in case 1:19-cv-07777-GBD-OTW; granting (274) Letter Motion for Leave to File Excess Pages in case 1:19-cv-07993-GBD-OTW. Application GRANTED. SO ORDERED. (Signed by Magistrate Judge Ona T. Wang on 11/17/2020) Filed In Associated Cases: 1:19-cv-

07777-GBD-OTW, 1:19-cv-07993-GBD-OTW (rro) (Entered: 11/17/2020)

11/17/2020

248 MOTION to Dismiss and Opposition to Motion for Summary Judgment. Document filed by Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America..(Berman, Keri) (Entered: 11/17/2020)

11/17/2020

249 MEMORANDUM OF LAW in Opposition re: (267 in 1:19-cv-07993GBD-OTW) MOTION for Summary Judgment ., (239 in 1:19-cv07777-GBD-OTW) MOTION for Summary Judgment . And in Support of Motion to Dismiss. Document filed by Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America, Chad F. Wolf. Filed In Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19-cv-07993-GBDOTW.(Berman, Keri) (Entered: 11/17/2020)

11/17/2020

250 DECLARATION of Juliana Blackwell in Opposition re: (267 in 1:19cv-07993-GBD-OTW) MOTION for Summary Judgment ., (239 in 1:19-cv-07777-GBD-OTW) MOTION for Summary Judgment .. Document filed by Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America, Chad F. Wolf. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)Filed In Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19-cv-07993-GBD-OTW.(Berman, Keri) (Entered: 11/17/2020)

11/17/2020

251 DECLARATION of Neal J. Swartz in Opposition re: (267 in 1:19-cv07993-GBD-OTW) MOTION for Summary Judgment ., (239 in 1:19cv-07777-GBD-OTW) MOTION for Summary Judgment .. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America, Chad F. Wolf. (Attachments: # 1 Exhibit, # 2 Exhibit)Filed In Associated Cases: 1:19cv-07777-GBD-OTW, 1:19-cv-07993-GBD-OTW.(Berman, Keri) (Entered: 11/17/2020)

11/17/2020

252 RESPONSE in Opposition to Motion re: (267 in 1:19-cv-07993-GBDOTW) MOTION for Summary Judgment ., (239 in 1:19-cv-07777GBD-OTW) MOTION for Summary Judgment . Response to Plaintiffs' Local Rule 56.1 Statement. Document filed by Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States Department of Homeland Security, United States of America, Chad F. Wolf. Filed In Associated Cases: 1:19-cv-

07777-GBD-OTW, 1:19-cv-07993-GBD-OTW.(Berman, Keri) (Entered: 11/17/2020)

12/02/2020

253 JOINT LETTER addressed to Magistrate Judge Ona T. Wang from Jonathan H. Hurwitz dated December 2, 2020 re: Status of Discovery. Document filed by African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Make the Road New York, City of New York, State of Connecticut, State of New York, State of Vermont. (Attachments: # 1 Exhibit A - NYAG Initial Disclosures, # 2 Exhibit B - MRNY Initial Disclosures, # 3 Exhibit C DOJ Initial Disclosures)Filed In Associated Cases: 1:19-cv-07777GBD-OTW, 1:19-cv-07993-GBD-OTW.(Hurwitz, Jonathan) (Entered: 12/02/2020)

12/10/2020

254 REPLY MEMORANDUM OF LAW in Support re: 239 MOTION for Summary Judgment . and Opposition to Defendants' Motion to Dismiss. Document filed by State of New York..(Chu, Ming-Qi) (Entered: 12/10/2020)

12/11/2020

255 NOTICE of Corrected Filing re: 254 Reply Memorandum of Law in Support of Motion. Document filed by State of New York. (Attachments: # 1 Corrected Memorandum of Law, # 2 Redline Version of Corrected Memorandum of Law).(Chu, Ming-Qi) (Entered: 12/11/2020)

12/15/2020

256 MEMO ENDORSEMENT on re: (280 in 1:19-cv-07993-GBD-OTW, 253 in 1:19-cv-07777-GBD-OTW) Letter,, filed by Asian American Federation, Make the Road New York, Catholic Charities Community Services (Archdiocese of New York), City of New York, State of Vermont, State of Connecticut, Catholic Legal Immigration Network, Inc., State of New York, African Services Committee. ENDORSEMENT: Next joint status letter due January15, 2021. SO ORDERED. (Signed by Magistrate Judge Ona T. Wang on 12/15/2020) Filed In Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19-cv-07993GBD-OTW (rro) (Entered: 12/15/2020)

12/16/2020

257 CONSENT LETTER MOTION for Leave to File Excess Pages addressed to Magistrate Judge Ona T. Wang from Keri L. Berman dated December 16, 2020. Document filed by Ken Cuccinelli, Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Chad F. Wolf, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America, Chad F. Wolf.Filed In Associated Cases:

1:19-cv-07777-GBD-OTW, 1:19-cv-07993-GBD-OTW.(Berman, Keri) (Entered: 12/16/2020)

12/18/2020

258 ORDER granting (257) Letter Motion for Leave to File Excess Pages in case 1:19-cv-07777-GBD-OTW; granting (284) Letter Motion for Leave to File Excess Pages in case 1:19-cv-07993-GBD-OTW. Application GRANTED. SO ORDERED. (Signed by Magistrate Judge Ona T. Wang on 12/18/2020) Filed In Associated Cases: 1:19-cv07777-GBD-OTW, 1:19-cv-07993-GBD-OTW (rro) (Entered: 12/18/2020)

12/18/2020

259 REPLY MEMORANDUM OF LAW in Support re: (248 in 1:19-cv07777-GBD-OTW) MOTION to Dismiss and Opposition to Motion for Summary Judgment. . Document filed by Ken Cuccinelli, Ken Cuccinelli, Kevin K. McAleenan, United States Citizenship & Immigration Services, United States Department of Homeland Security, Chad F. Wolf, Ken Cuccinelli, Kenneth T. Cuccinelli II, Kevin K. McAleenan, United States Citizenship and Immigration Services, United States of America, Chad F. Wolf. Filed In Associated Cases: 1:19-cv-07777-GBD-OTW, 1:19-cv-07993-GBD-OTW.(Berman, Keri) (Entered: 12/18/2020)

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 Case 1:19-cv-07777 Document 1 Filed 08/20/19 Page 1 of 85

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK, CITY OF NEW YORK, STATE OF CONNECTICUT, and STATE OF VERMONT,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; KEVIN K. McALEENAN, in his official capacity as Acting Secretary of the United States Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; KENNETH T. CUCCINELLI II, in his official capacity as Acting Director of United States Citizenship and Immigration Services; and UNITED STATES OF AMERICA,
Defendants.

CIVIL ACTION NO.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION 1. For generations, the United States has been a haven for immigrants seeking opportunity and upward mobility. See, e.g., John F. Kennedy, Nation of Immigrants (1958); Emma Lazarus, The New Colossus (1883) (welcoming “your tired, your poor, your huddled masses”). Our federal immigration law reflects this history, permitting exclusion of immigrants as a “public charge” only in very narrow circumstances where the immigrants are unwilling or unable to work and have no other source of support, and therefore likely to be primarily dependent on the federal government in the long term.
1

Case 1:19-cv-07777 Document 1 Filed 08/20/19 Page 2 of 85
2. The Final Rule, Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (to be codified at 8 C.F.R. pt. 103, 212, 213, 214, 245, 248) (“Final Rule”) turns this history on its head. The Final Rule upends Defendants’ circumscribed authority to exclude an individual as a “public charge,” exploding this narrow classification to radically realign national immigration policy in a manner both proscribed by Congress and unauthorized by law. In so doing, the Final Rule implements this Administration’s explicit animus against immigrants of color; it is the means by which immigrants from what this Administration has described as “shithole countries” will be excluded to the benefit of white, wealthy Europeans.1
3. The Final Rule weaponizes the public charge inquiry to target legal immigrants who are lawfully present in this country, who have close ties to our communities, and who Congress has expressly decided should be entitled to certain federal benefits. The Rule penalizes immigrants for their use of vital, non-cash benefit programs—such as food stamps, Medicaid, and housing assistance—that are designed to encourage upward mobility and promote selfsufficiency. As a result, the Rule will disproportionately harm immigrants of color, immigrants with disabilities, and immigrants with limited resources at the time of their visa or green card applications.
4. The Department of Homeland Security’s new definition of “public charge” unlawfully and unreasonably assumes that any recipient of certain federal benefits above a de minimis threshold of use will become a drain on public resources. But the history and purpose of the benefits programs that the Rule targets do not support such an assumption. Rather, Congress intended to provide temporary, supplemental benefits to working families to enable them to
1 Ali Vitali et al., Trump referred to Haiti and African nations as ‘shithole’ countries, NBC News (Jan. 11, 2018), https://www.nbcnews.com/politics/white-house/trump-referred-haiti-african-countries-shithole-nations-n836946.
2

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continue to be productive members of our society. Defendants thus contort the meaning of “public charge” beyond recognition by radically expanding its definition to include individuals who receive benefits—however nominal—and by viewing the receipt of such benefits as evidence of long-term dependency rather than, as Congress intended, a means of empowering individuals to continue contributing to their communities.
5. The Final Rule will cause immediate and irreparable injury to the Plaintiffs and their residents. Immigrants, forced to choose between feeding their children and losing their pathway to citizenship, or believing they face such a forced choice due to confusion and fear about the Final Rule, will withdraw from programs that Congress designed to promote stability and upward mobility. And this chilling effect, and the concomitant increase in homelessness, food insecurity, and undiagnosed and untreated medical issues, will force state and local governments to bear severe financial and public health consequences. State and local governments will be forced to expend their own resources to assist low- and middle-class workers and their families, including citizen children, and to cover the public health and other severe consequences that will result from immigrants forgoing non-cash supplemental benefits.
6. As Defendants themselves acknowledge, the Rule will not only drive families away from using the food supplements, health care, and housing assistance programs expressly covered by the Rule, but will also deter households from availing themselves of other benefits to which they are lawfully entitled and which are not directly subject to the Rule. The result will be less preventative health care, less nutritious food, and less stable housing, with enormous financial and public harms to Plaintiffs and their residents. Additionally, immigrants who choose to continue receiving public benefits stand to lose adjustments in their status critical to their stability and success.
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7. The Final Rule directly and irreparably interferes with Plaintiff States’ and City’s sovereign interests in the governance of their jurisdictions. The Rule would upend Plaintiffs’ statutes and policies designed to combat homelessness and improve children’s health outcomes. It would undermine Plaintiffs’ systems designed to promote public health, well-being, and civil rights of their residents. And the Rule will also inflict irreparable harm on Plaintiffs’ economies, increasing poverty and housing instability, and reducing economic productivity and educational attainment within the Plaintiffs’ jurisdictions.
8. Defendants’ radical reversal of longstanding practice and policy violates the Administrative Procedure Act and the Constitution. First, Defendants’ effort to overhaul federal immigration policy by redefining the long-established meaning of the term “public charge” exceeds their statutory authority. Second, the Final Rule discriminates against persons with disabilities, in direct contravention of Section 504 of the Rehabilitation Act of 1973. The Final Rule also is arbitrary and capricious in a host of ways, including Defendants’ failure to reasonably justify their departure from decades of settled practice and to adequately consider the Rule’s varied and extensive harms. And Defendants failed to give the public adequate notice of these changes through the notice and rulemaking process. Finally, the Rule intentionally discriminates against Latino immigrants and immigrants of color, in keeping with Defendants’ broader scheme designed to instill fear in those communities and deter and decrease immigration from these communities.
9. Plaintiffs the State of New York, the City of New York, the State of Connecticut, and the State of Vermont bring this action to vacate the Final Rule and enjoin its implementation because it exceeds and is contrary to Defendants’ statutory jurisdiction, authority, and limitations in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(C); is arbitrary,
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capricious, an abuse of discretion, and otherwise not in accordance with law under the APA, 5 U.S.C. § 706(2)(A); and violates the equal protection guarantee of the Fifth Amendment to the U.S. Constitution.
JURISDICTION AND VENUE 10. This action is brought pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706. This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702. 11. This Court has the authority to grant the requested declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201-2202 and 5 U.S.C. §§ 705 and 706. 12. Venue is proper in the Southern District of New York pursuant to 28 U.S.C. §§ 1391(b) and (e)(1) because Defendants are United States agencies or officers sued in their official capacities, Plaintiffs the State of New York and the City of New York are residents of this judicial district, and a substantial part of the events or omissions giving rise to this action occurred and are continuing to occur in this district.
PARTIES 13. Plaintiff the State of New York, represented by and through its Attorney General, is a sovereign state of the United States of America. The Attorney General is New York State’s chief law enforcement officer and is authorized to pursue this action pursuant to N.Y. Executive Law § 63. 14. Plaintiff the City of New York is a municipal corporation organized pursuant to the laws of the State of New York. New York City is a political subdivision of the State and derives its powers through the New York State Constitution, New York State laws, and the New York City Charter. New York City is the largest city in the United States by population.
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15. Plaintiff the State of Connecticut, represented by and through its Attorney General, William Tong, is a sovereign state of the United States of America. The Attorney General brings this action as the state’s chief civil legal officer under Conn. Gen. Stat. § 3-124 et seq.
16. Plaintiff the State of Vermont, represented by and through its Attorney General, Thomas J. Donovan, is a sovereign state of the United States of America. The Attorney General is the state’s chief law enforcement officer and is authorized to pursue this action pursuant to Vt. Stat. Ann. tit. 3, §§ 152 and 157.
17. Plaintiffs are aggrieved by Defendants’ actions and have standing to bring this action because the Final Rule harms their sovereign, quasi-sovereign, economic, and proprietary interests and will continue to cause injury unless and until the Final Rule is vacated.
18. Defendant United States Department of Homeland Security (“DHS” or “the Department”) is a cabinet agency within the executive branch of the United States government, and is an agency within the meaning of 5 U.S.C. § 552(f). DHS promulgated the Final Rule and is responsible for its enforcement.
19. Defendant Kevin K. McAleenan is the Acting Secretary of DHS and is sued in his official capacity.
20. Defendant United States Citizenship and Immigration Services (“USCIS”) is an agency of DHS and is an agency within the meaning of 5 U.S.C. § 552(f). USCIS has primary authority to make public charge determinations for adjustment of status applications
21. Defendant Kenneth T. Cuccinelli II is the Acting Director of USCIS and is sued in his official capacity.
22. Defendant the United States of America is sued as allowed by 5 U.S.C. § 702.
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ALLEGATIONS 23. The Immigration and Nationality Act (“INA”) provides that the federal government may deem a non-citizen applying either to enter or to reside permanently in the United States likely to become a public charge, and thus inadmissible for entry or adjustment of status. 8 U.S.C. § 1182(a)(4)(A). In assessing whether an applicant is likely to fall within the public charge definition, DHS is required to evaluate a range of factors in a totality of circumstances determination. 8 U.S.C. § 1182(a)(4)(B). The Final Rule drastically changes this process, far beyond statutory limits, to exclude from admissibility working individuals and families, their children, the disabled, people of color, and other residents of Plaintiffs’ jurisdictions who are not likely to depend primarily and permanently on government support. A. Federal Immigration Statutes Incorporated the Common Law Interpretation of Public Charge. 24. Since the 19th century, the term “public charge” has been understood to mean solely those individuals who depend permanently and primarily on government resources. The term has never been understood to include individuals who earn moderate or low incomes, or who receive temporary or moderate amounts of public benefits that are designed to assist them in maintaining stable and healthy lives. For more than a century, federal immigration statutes have incorporated this established and narrow common law meaning of “public charge.” And over subsequent decades, Congress has repeatedly rejected numerous attempts to expand public charge beyond the common law definition. 1. Common Law Defines Public Charge as an Individual Primarily Dependent
on Governmental Assistance. 25. For more than 130 years, courts, Congress, and federal agencies have consistently interpreted the term “public charge” to mean an individual who has become or is likely to become primarily or completely dependent on the government in the long term.
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26. The first federal immigration statute, enacted in 1882, adopted the concept of “public charge” that had been used by several local and state statutes enacted in the first half of the 19th century.2 Like those early state and local statutes, the federal statute excluded those who could not work on a sustained basis, including “convicts, lunatics, idiots, and any person unable to take care of himself without becoming a public charge.” Immigration Act of 1882, ch. 376, 22 Stat. 214, 47th Cong. (1882). And like the early state and local statutes on which it was based, the federal statute did not exclude as public charges individuals who were able to work.
27. In 1907, Congress passed a second immigration statute, which it amended in 1910. Immigration Act of 1907, ch. 1134, § 2, 34 Stat. 898, 899 (1907); amended by Act of Mar. 26, 1910, ch. 128, § 1, 36 Stat. 263, 263 (1910). Both the 1907 law and the amendment retained the public charge exclusion for paupers, professional beggars, those with contagious illnesses, and those with permanent “defects,” and therefore, had to look to the government indefinitely for support. These federal statutes thus continued the preexisting meaning of public charge as including solely those individuals who needed to rely primarily on the government to live, and not those who did or could work.
28. Courts and the Board of Immigration Appeals (“BIA”)3 have consistently interpreted “public charge” to refer to individuals who depend completely or nearly completely upon government support. In 1915, the Supreme Court has affirmed this understanding. In Gegiow v. Uhl,4 the Court held that the public charge exclusion did not cover the poor or the
2 Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 Colum. L. Rev. 1833, 1850 (1993) (citing Act of Feb. 26, 1794, ch. 32, §§ 15, 1794 Mass. Acts & Laws 375, 385.). 3 The BIA is a department within the Department of Justice (“DOJ”) that is the highest administrative body for interpreting and applying immigration laws. The BIA has nationwide jurisdiction to hear appeals from certain decisions rendered by immigration judges and by district directors of DHS. 4 239 U.S. 3 (1915).
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temporarily unemployed, but was intended to reach individuals permanently unable to support themselves through work.5 Justice Holmes, writing for the Court, explained that temporary factors such as local labor conditions were irrelevant to a public charge finding and that such a determination should be based solely on “permanent personal objections.”6 A “likely public charge” determination under the common law thus required a permanent and unalterable condition of dependence, rather than a condition of temporary hardship or low-income status.
29. In the decades following Uhl, courts rejected a “latitudinarian construction” of public charge and held that it encompassed only “those persons who are likely to become occupants of almshouses for want of means with which to support themselves in the future.”7 From the 1940s to the present, the BIA and circuit courts have continued to adhere to this narrow definition, overturning public charge exclusions of employable immigrants found inadmissible for having low incomes or using some public benefits. Interpreting decades of common law on public charge, the BIA found that the INA “requires more than a showing of a possibility that the alien will require public support.”8
30. For applicants who arrived in the United States without financial resources but were willing and able to work in the long term, the public charge exclusion did not apply; public charge determination was thus the exception, rather than the rule.
5 Id. at 9-10. 6 These permanent personal objections included: long-term poverty (“paupers and professional beggars”), disability (“idiots” and those with “a mental or physical defect”), a history of criminality (“convicted felons, prostitutes”), or “persons dangerously diseased.” Id. at 10. 7 Ex parte Mitchell, 256 F. 229, 232 (N.D.N.Y. 1919); Howe v. United States, 247 F. 292, 294 (2d Cir. 1917); U.S. ex rel. Mantler v. Comm'r of Immigration, 3 F.2d 234, 235 (2d Cir. 1924). 8 Matter of Martinez-Lopez, 10 I. & N. Dec. 409, 421 (BIA 1962); see also, e.g., Matter of A-, 19 I. & N. Dec. 867, 869 (Comm. 1988).
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2. The Immigration and Nationality Act of 1952 Incorporated the Common Law Definition of Public Charge.
31. In 1952, Congress passed the INA, which included a provision establishing public charge as a ground of both inadmissibility and removal. The INA provides 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).
32. The statute requires a public charge determination for applicants seeking to adjust their status to become permanent residents (i.e. green card holders). Defendant USCIS is a component of DHS and has authority to make public charge determinations for adjustment of status applications. 8 U.S.C. § 1201(a). Prior to March 1, 2003, this function was performed by the Immigration and Naturalization Service (“INS”), under the purview of the United States Department of Justice (“DOJ”). After 2003, this authority was delegated to DHS.
33. The statute also requires a public charge determination for applicants seeking entry to the United States via a visa application—such as people applying for family- or employment-based visas. The Department of State has jurisdiction to make such public charge determinations for visa applicants. See Department of State, 9 Foreign Affairs Manual 302.8.
34. Additionally, the INA provides that any individual who becomes a public charge “within five years after the date of entry from causes not affirmatively shown to have arisen since entry” is subject to removal. 8 U.S.C. § 1227(a)(5). DOJ is responsible for initiating and adjudicating removal proceedings. 8 U.S.C. § 1103(g).
35. The term “public charge” is used in both the admissibility and removal sections of the INA, and applies in the admissibility context, to individuals seeking entry to the United
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States and those seeking to adjust their status to become permanent residents, and in the deportation context.
36. Congress incorporated the common law definition of public charge into both the admission and removal provisions of the INA. Congress enacted the INA’s public charge provision against the backdrop of decades of clear and consistent court and agency decisions defining a public charge as an individual primarily and permanently dependent on governmental assistance and gave no indication that it intended to change that prevailing common law interpretation.
3. Congress Repeatedly Rejected Efforts to Expand Public Charge Beyond the Common Law Definition.
37. Since the passage of the INA, Congress has consistently resisted expansion of the public charge definition to reach immigrant applicants who receive basic, non-cash benefits.
38. With welfare and immigration reform in the 1990s, the scope of the public charge exclusion became a sharply contested issue. While the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) and the Personal Responsibility and Work Opportunity Reconciliation Act (the “Welfare Reform Act”) imposed restrictions on immigration, the bills also set baseline protections for immigrants’ use of public benefits that DHS now seeks to ignore. In these laws, and in subsequent statutory enactments, Congress made clear that the public charge provisions of the INA are not triggered by the use of benefits like Medicaid, nutritional supplements, and housing subsidies.
39. In early 1996, Congress considered the Immigration Control and Financial Responsibility Act (“ICFRA”), which—much like the Final Rule—would have expressly altered the well-established meaning of “public charge” to encompass a non-citizen who used almost
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any public benefit program for more than one year,9 with limited exceptions for certain emergency medical and childhood nutrition services.10 H.R. Rep. 104-469, at 266-67 (1996).
After months of debates and amendments, the Senate rejected the bill. Discussing the proposed
change, Senator Leahy objected that “the definition of public charge goes too far in including a
vast array of programs none of us think of as welfare. . . . The bill would affect the working poor
who are striving against difficult odds to become self-sufficient. . . . The bill is unnecessarily
uncertain and will yield harsh and idiosyncratic results that no one should intend.” S. Rep. No.
104-249, at 64 (1996).
40. In 1996, Congress passed IIRIRA, which modified certain aspects of the public
charge analysis, but did not change the settled meaning of “public charge” as including solely
individuals who are not currently or likely to become primarily and permanently dependent on
the government. Instead, IIRIRA amended the INA to include, for the first time, a list of
mandatory factors to consider when determining which applicants were likely to become a public
charge, including the applicant’s age, health, family status, financial status, and education and
skills. Pub. L. No. 104-208, § 531(a), 110 Stat. 3009-546, 3009-674-75 (1996). As part of the
9 The ICFRA would have defined “public charge” to encompass “any alien who receives benefits . . . for an aggregate period of more than 12 months” from: (i) the aid to families with dependent children program, (ii) Medicaid, (iii) the food stamp program, (iv) the supplemental security income (“SSI”) program, (v) any state general assistance program, or (vi) “any other program of assistance funded, in whole or in part, by the Federal Government or any State or local government entity, for which eligibility for benefits is based on need.” H.R. 2202 § 202(a)(5)(D). 10 The Act would have excluded the following services from public charge determinations: (i) emergency medical services under title XIX of the Social Security Act; (ii) prenatal and postpartum services under title XIX of the Social Security Act; (iii) short-term emergency disaster relief; (iv) assistance or benefits under (I) the National School Lunch Act (42 U.S.C. 1751 et seq.), (II) the Child Nutrition Act of 1966 (42 U.S.C. 1771 et seq.), (III) section 4 of the Agriculture and Consumer Protection Act of 1973 (Public Law 93-86; 7 U.S.C. 612c note), (IV) the Emergency Food Assistance Act of 1983 (Public Law 98-8; 7 U.S.C. 612c note), (V) section 110 of the Hunger Prevention Act of 1988 (Public Law 100-435; 7 U.S.C. 612c note), and (VI) the food distribution program on Indian reservations established under section 4(b) of Public Law 88-525 (7 U.S.C. 2013(b)); or (v) any student assistance received or approved for receipt under title IV, V, IX, or X of the Higher Education Act of 1965 in an academic year which ends or begins in the calendar year in which the Act is enacted until the matriculation of their education. H.R. 2202 §§ 201-02.
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public charge determination, IIRIRA also permitted INS officials to take into account “a[n] affidavit of support,” i.e., an agreement by a sponsor to provide financial support to an applicant who would otherwise be likely to become a public charge. Id.
41. During the drafting of IIRIRA, Congress specifically rejected a provision that— much like the Final Rule—would have redefined public charge to include individuals who received “federal public benefits for an aggregate of 12 months over a period of 7 years.” 142 Cong. Rec. S11872 (daily ed. Sept. 30, 1996) (statement of Sen. Kyl). Senate Republicans removed the controversial provision in response to President Clinton’s “threat of shutting down the Federal Government unless Congress ma[d]e changes in the immigration bill.” 142 Cong. Rec. S11612 (daily ed. Sept. 28, 1996) (statement of Sen. Simpson).
42. In 2013, Congress rejected yet another attempt to broaden the definition of public charge in a proposed amendment to the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, S. 744, 113th Cong. (2013) (“2013 Border Security Bill”). The amendment would have altered the meaning of public charge by including applicants for admission, who sought either to remain in the United States or to adjust their status, likely “to qualify even for non-cash employment supports” such as Medicaid and SNAP. S. Rep. No. 11340, at 42 (2013). The report of the Judiciary Committee noted that the senators opposing the amendment “cited the strict benefit restrictions and requirements.” Id.
4. Congress Has Repeatedly Protected Immigrant Access to Non-Cash Public Benefits.
43. Over the past two decades, Congress has repeatedly affirmed its commitment to ensuring that immigrants may enroll in certain non-cash benefits programs. While non-citizens remain ineligible for a number of public programs, Congress preserved access to benefits like SNAP, housing assistance, and Medicaid for several categories of legally residing non-citizens.
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These non-cash benefits are designed to help working and employable individuals, promote selfsufficiency, and allow individuals who temporarily fall on hard times to avoid poverty. Increased enrollment in food, health care, housing programs also supports better public health outcomes and strengthens the labor force and economic productivity within Plaintiff States.
44. In 1996, Congress passed the Welfare Reform Act, Pub. L. No. 104–193, 110 Stat. 2105 (1996). While it again left the definition of “public charge” intact, the Welfare Reform Act excluded non-citizens from many federal and state cash public benefits programs. 8 U.S.C. §§ 1611(a), 1621(a). Under the Welfare Reform Act, only “qualified aliens,” such as green card holders, refugees, recipients of temporary parole for humanitarian reasons, residents whose deportation is being withheld, and entrants from certain enumerated countries, could enroll in means-tested benefits programs. 8 U.S.C. §§ 1611, 1641. Of these “qualified aliens,” most categories of individuals were only eligible for benefits after five years from their date of entry. 8 U.S.C. § 1613. The House Budget Committee report stated that, as a result of these provisions, the “welfare reform strategy end[ed] the role of welfare as an immigration magnet.” H.R. Rep. 104-651, at 6 (1996). While Congress sought, through the Act, to promote selfsufficiency and eliminate the role of benefits as an incentive to immigrate to the United States, Congress chose not to expand the definition of public charge, instead addressing such goals through other means.
45. At the same time, however, the Welfare Reform Act also ensured that noncitizens would remain eligible for numerous non-cash benefits, including emergency medical assistance, disaster relief, immunization services, and public housing. 8 U.S.C. §§ 1611(b), 1621(b). Despite promoting concepts of self-sufficiency and personal responsibility, the Act also recognized the need for a safety net. 142 Cong. Rec. S9387 (Aug. 1, 1996) (Statements of Sen.
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Pressler) (“The bill before us would change the welfare system and the lives of many Americans for the better. Welfare was meant to be a safety net, not a way of life. This bill would restore the values of personal responsibility and self-sufficiency by making work, not Government benefits, the centerpiece of public welfare policy.”)
46. In 2002, Congress passed the Farm Bill, which rolled back the Welfare Reform Act’s restrictions to restore access to supplemental nutrition benefits for many non-citizen children and non-citizens receiving disability benefits. Farm Security and Rural Investment Act of 2002, Pub. L. No. 107–171, § 4401, 116 Stat. 134 (2002). The Bill also provided that noncitizens who had been present in the country for more than five years would be eligible for supplemental nutrition benefits. Id.
47. In support of the 2002 Farm Bill’s increased access to food stamps, Senator Robert Graham specifically recognized the importance of the food supplement programs to moving people off welfare to work: “I am also acutely aware of the role the Food Stamp Program plays in helping families leave welfare for work. . . . I supported the 1996 welfare reform law. Some of my original interest in the Food Stamp Program grew out of my desire to see welfare reform succeed. . . . I would call particular attention to [accomplishing] the following: restor[ing] benefits to legal immigrant children—most of whom are members of working families. . . . This important legislation would improve basic benefits for senior citizens, people with disabilities, and working citizen and legal immigrant families with children.” 147 Cong. Rec. S13245-07, S13270 (Dec. 14, 2001). He also noted that ensuring immigrants’ access to food stamps was consistent with the goals of the Welfare Reform Act: “A provision of the 1996 law also cut off food stamps to legal immigrants. This was unnecessary to achieve the goals of the law, since over 90 percent of legal immigrants are working.” Id.
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48. The 2009 Child Health Insurance Program (“CHIP”) Reauthorization Bill further expanded access to benefits for non-citizens, allowing states to provide Medicaid and CHIP coverage to lawfully residing non-citizen children and pregnant women during their first five years in the country. CHIP Reauthorization Act of 2009, Pub. L. No. 111-3, § 214, 123 Stat. 8 (2009).
49. Recent efforts to limit immigrant access to non-cash benefits have failed. The RAISE Act of 2017 proposed sweeping changes to the INA, including a point-based visa system. S. 1720, 115th Cong. (2017). A substantially identical bill of the same title was introduced in 2019. S. 1103, 116th Cong. (2019). Both bills would have restricted parents of citizen children to obtaining only temporary immigrant visas and barred them from receiving any federal, state, or local public benefits. S. 1720 § 4(d)(2)(s)(2)(b); S. 1103 § 4(d)(2)(s)(2)(b). Congress has not acted on either bill. B. Regulatory Guidance on Public Charge Codified the Primarily Dependent
Standard. 50. In 1999, INS published guidance on the definition of public charge, which reflected the well-established common law meaning of “public charge” adopted by courts, agencies, and Congress: an individual primarily dependent on cash-based governmental assistance over the long term. Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689-93 (Mar. 26, 1999) (“1999 Field Guidance”). 51. The 1999 Field Guidance defined a public charge as “an alien who has become (for deportation purposes) or who is likely to become (for admission/adjustment purposes) primarily dependent on the government assistance, 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. Immigrant applicants who received non-cash benefits or who
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received less than 50 percent of their income from the government were not considered to fall within the definition of public charge. See Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114, 51,163-64 (Oct. 10, 2018) (the “Proposed Rule”).
52. Before issuing the 1999 Field Guidance, the INS consulted with agencies that administer public benefit programs and thus have expertise in the nature and use of public benefits, including the Social Security Administration (“SSA”), the Department of Health and Human Services (“HHS”), and the Department of Agriculture (“USDA”). Those agencies opined that cash benefits, rather than non-cash benefits like SNAP, Medicaid, or housing assistance, and long-term institutionalization, were the best indicators of whether an individual is relying primarily on the government. After that consultation, INS determined in the 1999 Field Guidance that cash benefits, rather than non-cash benefits, are relevant to assessing the likelihood that an individual would become a public charge. See 84 Fed. Reg. 41,351.
53. The 1999 Field Guidance applied in both the admission and removal contexts. 64 Fed. Reg. at 28,690.
54. The INS explained that guidance was necessary to clarify, in the wake of the Welfare Reform Act, “the relationship between the receipt of public benefits and the concept of ‘public charge’” because the Welfare Reform Act “deterred eligible aliens and their families, including citizen children, from seeking important health and nutrition benefits that they are legally entitled to receive.” Id. at 28,692.
55. The 1999 Field Guidance acknowledged the well-documented benefits of access to public benefits and recognized that receipt of non-cash benefits did not correlate with a likelihood of long-term dependence on the government assistance. The Department noted that
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“[t]his reluctance to access benefits has an adverse impact not just on the potential recipients, but on public health and the general welfare.” Id.
56. The 1999 Field Guidance also concluded that the “nature of the public program” is critical to determining whether a particular public benefit is relevant to the public charge determination. As the INS explained, “non-cash benefits (other than institutionalization for longterm care) are by their nature supplemental and do not, alone or in combination, provide sufficient resources to support an individual or family.” Such non-cash benefits are also often “available to families with incomes far above the poverty level,” the INS explained, reflecting broad public policy decisions about improving general public health and nutrition rather than any indication that a recipient is primarily depend on the government. Id. By contrast, substantial cash benefits for income maintenance may provide enough resources to primarily support an individual or family.
57. In addition to expressly codifying which circumstances and public benefits gave rise to a public charge determination, the 1999 Field Guidance explained in more detail the application of the INA’s public charge considerations, including “age, health, family status, assets, resources, and financial status, and education and skills.” 8 U.S.C. § 1182(a)(4)(B)(i). Consistent with BIA decisions in the 1960s and 70s,11 the 1999 Field Guidance required INS officials to evaluate each factor as a part of a totality of circumstances test to assess whether an applicant would become primarily dependent on governmental assistance in the future. 64 Fed. Reg. at 28690. The 1999 Field Guidance provided that “[s]ervice officers should assess the
11 See Matter of Martinez-Lopez, 10 I. & N. Dec. 409, 421-22 (AG 1964) (finding that a determination of public charge “requires more than a showing of a possibility that the alien will require public support” and “[s]ome specific circumstance . . . tending to show that the burden of supporting the alien is likely to be cast on the public, must be present”); Matter of Harutunian, 14 I. & N. Dec. 583 (BIA 1974) (determining applicant was a public charge after considering the totality of the applicant’s circumstances, including age, inability to earn a living, and lack of family or other support).
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financial responsibility of the alien by examining the totality of the alien’s circumstances at the time of his or her application . . . . The existence or absence of a particular factor should never be the sole criterion for determining if an alien is likely to become a public charge.” Id (emphasis omitted).
58. The 1999 Field Guidance further specified that the public determination for visa and green card applicants was forward-looking and that “past receipt of non-cash benefits” and even “past receipt of special-purpose cash benefits” should be not taken into account. 64 Fed. Reg. at 28,690.
59. The 1999 Field Guidance is currently in effect. There is no indication that the 1999 Field Guidance has failed to screen out applicants who were likely to become primarily or permanently dependent on the government. Nor is there evidence that immigrants who utilized the non-cash benefits excluded from consideration by the 1999 Field Guidance ultimately became primarily dependent on the government.
60. Based on the 1999 Field Guidance, DOJ, the agency responsible for applying the public charge determination in the removal context, issued a fact sheet acknowledging that the public charge doctrine “ha[d] been part of U.S. immigration law for more than 100 years” and clarifying that benefits like food supplements, public health benefits, and housing assistance were “not intended for income maintenance” and “are not subject to public charge consideration.” U.S. Dep’t of Justice, Public Charge Fact Sheet, 2009 WL 3453730 (Oct. 29, 2011). C. Congress Has Expressly Prohibited Discrimination on the Basis of Disability.
61. In addition to protecting access to public benefits, Congress has also evinced its intent to eliminate barriers to admissibility faced by individuals with disabilities. The 19th century definition of public charge encompassed individuals who were mentally or physically
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disabled, based on the outdated assumption that disabled persons would not be able to work or otherwise support themselves. But Congress has since expressly prohibited discrimination based on an applicant’s disability.
62. In 1973, Congress enacted the Rehabilitation Act, which authorizes federal grants to states for vocational rehabilitation services to individuals with disabilities and prohibits disability discrimination in federally funded programs. 29 U.S.C. § 794. The Rehabilitation Act extended this prohibition on disability discrimination to the federal government itself in 1978. Pub. L. No. 95-602, § 119, 92 Stat. 2955 (1978).
63. Section 504 of the Rehabilitation Act prohibits discrimination because of disability in any program or activity conducted by any federal executive branch agency. Specifically, the statute provides that no individual with a disability “shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency[.]” 29 U.S.C. § 794(a). The DOJ’s Office of Legal Counsel has determined that Section 504’s prohibitions on discrimination apply to all INS—and now DHS—activities and programs, which would include public charge determinations.12
64. In 1990, Congress passed the Americans with Disabilities Act (“ADA”) “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). The ADA prohibits disability discrimination in private employment, state and local government, and public accommodations.
12 See April 1997 Opinion at 1; Memorandum for Maurice C. Inman, Jr., General Counsel, Immigration and Naturalization Service, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Section 504 of the Rehabilitation Act of 1973 (Feb. 2, 1983).
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Shortly after the ADA’s passage, and consistent with the policies embodied by the ADA, Congress also amended the INA to eliminate exclusions based on “mental retard[ation],” “insanity,” “psychopathic personality,” “sexual deviation,” or “mental defect.” Immigration Act of 1990, Pub. L. No. 101-649, §§ 601-603, 104 Stat. 4978 (1990).
65. Most recently, in 2008, Congress removed HIV and AIDS from the list of infectious diseases that would prevent an individual from immigrating to or visiting the United States, which broadened further protections for disabled immigrants. Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008, Pub. L. No. 110-293, 122 Stat. 2918 (2008); 42 C.F.R. § 34.2(b) (2008). D. Public Benefits Enable Immigrants to Maintain Healthy Lives and Stable
Employment. 66. The long-standing definition of “public charge,” which the Final Rule would upend, ensures that immigrants are able to participate in essential federal, state, and local benefits programs that provide supplemental assistance to further public health, nutrition, housing-stability, and other public policy goals. 67. Receipt of limited governmental assistance, particularly in the form of food, housing, and health insurance subsidies, enables immigrants and their children to maintain employment, continue healthy and stable lives, and to contribute fully to the federal and state economies. Rather than inhibiting self-sufficiency, these benefits help immigrants achieve their full economic potential. 1. Food Supplement Programs Prevent Health Problems and Promote Healthy
Eating Habits. 68. By providing supplemental nutrition benefits, state and local governments promote positive health outcomes and prevent conditions like obesity, diabetes, and malnutrition,
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which can limit an individual’s ability to work. These benefits offer targeted and crucial assistance to working families, particularly those that support children, individuals with disabilities, and seniors.
69. SNAP is a federal nutritional supplement program that is overseen by USDA but administered in large part at the state level. SNAP benefits are available to low-income residents to purchase nutritional staples, such as bread and cereals, fruit and vegetables, meats, and dairy products.13
70. New York State distributes SNAP benefits through its Office of Temporary and Disability Assistance (“NYOTDA”). In 2018, an average of 2.7 million New York residents, including approximately 265,000 non-citizens, each month received a total of almost $4.5 billion in SNAP benefits.14
71. New York City administers SNAP benefits through its Department of Social Services’ Human Resources Administration (“NYCDSS”) under the oversight of NYOTDA.
72. Connecticut distributes SNAP through its Department of Social Services (“CTDSS”).15 In calendar year (“CY”) 2018, a total of 493,600 Connecticut residents—nearly 14 percent of the state population—received SNAP benefits, including 168,489 children under the age of 18.16
13 See Supplemental Nutrition Assistance Program (SNAP), Off. of Temp. & Disability Assistance, Frequently Asked Questions, http://otda.ny.gov/programs/snap/qanda.asp#noncitizen. 14 Annual Report (2018), Off. of Temp. & Disability Assistance, 4 (2019), http://otda.ny.gov/news/attachments/OTDA-Annual-Report-2018.pdf. 15 Supplemental Nutrition Assistance Program - SNAP, Ct. St. Dep’t of Housing, https://portal.ct.gov/dss/SNAP/Supplemental-Nutrition-Assistance-Program---SNAP. 16 People Served –CY 2012-2018, Ct. Dep’t of Soc. Serv., 56 (2019), https://data.ct.gov/Health-and-HumanServices/Connecticut-Department-of-Social-Services-People-S/928m-memi p.56.
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73. Vermont distributes SNAP benefits through a program called 3SquaresVT. The Department for Children and Families, which is a division of the Agency of Human Services, administers the program. In fiscal year (“FY”) 2018, 74,038 Vermont residents received SNAP benefits. Approximately one third of SNAP recipients in Vermont are children under the age of 18.
74. Nationally, approximately two-thirds of SNAP beneficiaries are under 18, over 60, or living with disabilities.17 The SNAP program has consistently reduced poverty among its participants, especially in non-metropolitan areas. In 2015, SNAP lifted approximately 17 percent of its beneficiaries—over 8 million people—above the poverty line. Among children, SNAP decreased the poverty rate by approximately 28 percent.18 The vast majority of SNAP beneficiaries—over 90 percent—do not receive cash welfare benefits.19
2. Health Insurance Programs Increase Access to Preventative Care and Treatment for Disabilities and Diseases.
75. Health insurance programs, like Medicaid, expand coverage to low-income individuals and families who may otherwise be uninsured. Having access to health insurance increases the likelihood that individuals will seek medical care regularly and receive preventative and potentially life-saving treatment.
17 U.S. Dep’t of Agric., Characteristics of USDA Supplemental Nutrition Assistance Program Households: Fiscal Year 2017 (Summary) (Feb. 2019), https://fns-prod.azureedge.net/sites/default/files/resourcefiles/Characteristics2017-Summary.pdf; U.S. Dep’t of Agric., Characteristics of USDA Supplemental Nutrition Assistance Program Households: Fiscal Year 2016 (Summary) (Nov. 2017), https://fnsprod.azureedge.net/sites/default/files/ops/Characteristics2016-Summary.pdf. 18 Laura Wheaton & Victoria Tran, The Antipoverty Effects of SNAP, Urb. Inst., https://www.urban.org/sites/default/files/the_antipoverty_effects_of_snap.pdf. 19 U.S. Dep’t of Agric., Characteristics of USDA Supplemental Nutrition Assistance Program Households: Fiscal Year 2017 (Summary) (Feb. 2019), https://fns-prod.azureedge.net/sites/default/files/resourcefiles/Characteristics2017-Summary.pdf.
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76. Medicaid offers coverage to those with income and assets below a certain threshold, generally those earning 138 percent of, or less than, the Federal Poverty Guideline (“FPG”).
77. New York State Department of Health (“NYSDOH”) manages the Medicaid program for New York and administers NY State of Health, New York State’s Insurance Marketplace (“NYS Marketplace”). NYS Marketplace includes health insurance options for New Yorkers, including Medicaid, Child Health Plus (New York’s version of CHIP), and other insurance plans for low-income New Yorkers.
78. During FY 2019, Medicaid provided comprehensive insurance coverage to over 6 million New Yorkers, including children, pregnant women, single individuals, families, and individuals certified blind or disabled. More than one third of Medicaid enrollees statewide are children.
79. In FY 2019, Child Health Plus covered 396,351 children in New York. 80. In New York City, the NYC Department of Health and Mental Hygiene (“DOHMH”) and NYC Health + Hospitals (“Health + Hospitals”) receive reimbursements from Medicaid for administrative costs and as medical services providers. Health + Hospitals, DOHMH, and NYC DSS assist potential beneficiaries with applying for Medicaid and CHIP. 81. According to state enrollment data published in March 2019, 3.5 million New York City residents—approximately 40 percent of the City’s population—are enrolled in Medicaid. 82. According to state enrollment data published in July 2019, in New York City nearly 159,000 children are covered by CHIP, or approximately 39 percent of the total CHIP enrollees in New York State.
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83. In Connecticut, the state’s Department of Social Services administers Medicaid (known as HUSKY A) and CHIP (known as Husky B).20 During 2018, 566,045 Connecticut residents participated in Medicaid/HUSKY A and 31,672 Connecticut residents participated in CHIP/Husky B.21
84. The Department of Vermont Health Access (DVHA) administers Medicaid and CHIP in Vermont.22
85. During FY 2017, 5841 Vermont children participated in CHIP (known as Dr. Dynasaur).23 In December 2018, Medicaid for children and adults (including CHIP) covered 67,237 adults and 63,886 children.24
86. Medicaid’s role is particularly important for vulnerable populations and populations with specialized health care needs—for instance, Medicaid provides prenatal and postpartum care and covers almost half of all births. Studies have shown that expanded Medicaid access is associated with improvement in public health, and in particular with lower mortality rates, better pregnancy and birth outcomes, and higher cancer detection rates.
87. CHIP covers services such as check-ups, vaccinations, blood tests, and X-rays for infants and children, which help to prevent them from developing a lifetime of serious diseases and medical conditions.
20 Connecticut’s Health Care for Children & Adults, https://www.ct.gov/hh/site/default.asp. 21 People Served – CY 2012-2018, Ct. Dep’t of Soc. Serv., 10, 36 (2019), https://data.ct.gov/Health-and-HumanServices/Connecticut-Department-of-Social-Services-People-S/928m-memi. 22 State of Vermont Green Mountain Care, https://www.greenmountaincare.org/. 23 Framework for the Annual Report of the Children’s Health Insurance Plans Under Title XXI of the Social Security Act, 10 (2017), https://www.medicaid.gov/chip/downloads/annual-reports/vt-chipannualreport.pdf. 24 Global Commitment to Health 11-W-00194/1 Annual Report for Demonstration Year 2018, State of Vt. Agency of Hum. Serv., 8 (2019), https://dvha.vermont.gov/global-commitment-to-health/2018-vt-gc-annual-report-final-withattachments.pdf.
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88. Health insurance coverage contributes to the financial security and stability of many low- and middle-income workers. Not only are insured workers less likely to miss work for health-related reasons, they are also less likely face exorbitant medical debt when they do seek medical care.
3. Housing Assistance Programs Decrease Displacement and Homelessness. 89. Affordable housing programs decrease housing displacement and homelessness and allow recipients to live in a stable physical environment. 90. New York State Homes and Community Renewal (“NYHCR”) administers funding from the U.S. Department of Housing and Urban Development (“HUD”), including for the Section 8 Housing Choice Voucher Program (“HCV”), and Veterans Affairs Supportive Housing (“HUD-VASH”). HCV provides rent subsidies to very low-income families, the elderly, individuals with disabilities, and those in shelters or at the risk of becoming homeless, including survivors of domestic violence, to afford safe and sanitary housing in the private market. The HUD-VASH programs offer both Housing Vouchers and Project-Based Rental Assistance units to homeless veterans. 91. In total, NYSHCR currently administers 44,332 vouchers (including HCVs and HUD-VASH vouchers) on behalf of participating families throughout New York State. Of these families, 73 percent are female-headed, 39 percent have children under 18, 23 percent have a person with a disability, 31 percent are elderly, 27 percent are African American/Black, and 14 percent identify as Hispanic. 92. NYSHCR also administers Project-Based Rental Assistance to private owners of multifamily housing to lower rental costs. In 2018, NYSHCR administered this assistance to over 92,000 apartments in 986 buildings for approximately 150,000 people statewide. Of this population, 58 percent are elderly, 23 percent are families with children, and 12 percent have a
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family member who is disabled. In addition, 25 percent identify as African-American/Black, and 34 percent as Hispanic.
93. In New York City, the New York City Department of Housing Preservation and Development (“HPD”) and New York City Public Housing Authority (“NYCHA”) administer the Section 8 Choice Vouchers Program and Section 8 Project-Based Rental Assistance.
94. In Connecticut, public housing assistance is administered at the state level by the Department of Housing (“CTDOH”).25 Like its New York equivalent, CTDOH administers HUD grants, including the Section 8 Housing Vouchers Program and Section 8 Project-Based Rental Assistance.
95. CTDOH also administers special types of Section 8 vouchers targeted at specific vulnerable populations. These include the Family Unification Program, a collaboration with the state’s Department of Children and Families that provides housing vouchers to families for whom the lack of adequate housing is a primary factor in the placement of the family’s child or children in out-of-home care; Mainstream Housing Opportunities Program for Persons with Disabilities, which creates a pipeline to housing for persons with disabilities; and Nursing Facility Transition Preference, which supplies vouchers for persons with disabilities transitioning from licensed nursing facilities into a private rental unit.26
96. In FY 2017 to 2018, CTDOH directly administered $80,488,781 worth of Section 8 vouchers to 7,524 families. Across the state of Connecticut, in CY 2018, federal rental assistance programs provided low-income residents with $850 million in housing assistance, supporting 37,200 households through the portable Section 8 voucher program; 22,800
25 Programs and Initiatives, Ct. St. Dep’t of Housing, https://portal.ct.gov/DOH/DOH/Gold-Bar/Programs. 26 Section 8 Housing Choice Voucher (HCV) Program, Ct. St. Dep’t of Housing, https://portal.ct.gov/DOH/DOH/Programs/Housing-Assistance---Section-8.
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households with project-based vouchers; and 13,300 in government-owned public housing developments. In all, 162,700 people in 83,000 Connecticut households benefitted from federal housing assistance in CY 2018, including 92,800 people in families with children.
97. CTDOH also administers a range of exclusively state-funded housing assistance programs for low-income people, including the Rental Assistance Program (“RAP”), which awards vouchers to assist very-low-income families in affording decent, safe, and sanitary housing in the private market,27 and the Elderly Rental Assistance Program, which provides rental assistance to low-income persons residing in state-assisted rental housing for the elderly.28 In FY 2017 to 2018, CTDOH administered 6,486 RAP vouchers.
98. In Vermont, the Office of Economic Opportunity (“OEO”), which is within the Department for Children and Families, administers some housing assistance programs, including the Family Supportive Housing program and the Housing Opportunity Grant Program. The Family Supportive Housing program provides intensive case management and service coordination to homeless families with children. This program is funded through Medicaid and uses roughly $700,000 annually, of which approximately 40 percent is federal and 60 percent is state funding. In FY 2018, the program served 187 families, including 462 people, of which 225 were children under six.29 The Housing Opportunity Grant Program provides a blend of state and federal funding to support operations, homelessness prevention, and rapid re-housing assistance at approximately 39 non-profit emergency shelter, transitional housing, and prevention
27 Rental Assistance Program (RAP), Ct. St. Dep’t of Housing, https://portal.ct.gov/DOH/DOH/Programs/HousingAssistance--Rental-Assistance-Program-RAP. 28 Elderly Rental Assistance Program, Ct. St. Dep’t of Housing, https://portal.ct.gov/DOH/DOH/Programs/ElderlyRental-Assistance. 29 St. of Vt. Dep’t. for Child. & Fam. Off. of Econ. Opportunity, Family Supportive Housing Program Annual Report: State Fiscal Year 2018, 4, https://dcf.vermont.gov/sites/dcf/files/OEO/Docs/FSH-AR-SFY2018.pdf.
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programs across Vermont. The program provides approximately $7.4 million annually in core funding to these homeless shelters and services. Approximately 14 percent of the funding is federal, largely through the HUD Homeless Assistance fund, and the remainder of the program is funded by the state. In FY 2018, Vermont’s publicly funded emergency shelters, domestic violence shelters, and youth shelters served 3872 persons, including 2770 adults and 1102 children. Of those persons, 58 percent were single adults and 42 percent were in families with children. The average length of stay was approximately 50 days.30 The Economic Services Division, also within the Department for Children and Families, also provides some emergency temporary housing assistance through a state general assistance fund. And the Agency of Human Services funds a number of temporary rental assistance programs intended to provide “bridge” funding as participants wait for Section 8 funding to become available.
99. The Vermont State Housing Authority (“VSHA”), a quasi-governmental body, administers many of the Section 8-funded housing assistance programs statewide in Vermont. Vt. Stat. Ann. tit. 24, § 4005.31 These programs include Vermont’s Section 8 Existing Housing Choice Voucher program. That program provides subsidy payments to owners of private housing on behalf of a very-low income individual or family. With a voucher, individuals and families pay approximately 30 percent of their adjusted income for rent. Tenants may select their own housing, subject to certain conditions. Participants in this program also benefit from access to the Family Self-Sufficiency program, which provides social services to help families achieve greater financial independence. Section 8 vouchers may also be used to allow first-time homebuyers to pay for a mortgage under certain conditions of the Homeownership program.
30 State of Vt. Dep’t for Child. & Fam., Housing Opportunity Grant Program (HOP) Annual Report - State Fiscal Year 2018, https://dcf.vermont.gov/sites/dcf/files/OEO/Docs/HOP-AR-2018.pdf. 31 Other Section 8 programs in Vermont are administered via local, municipal housing authorities, such as the Burlington Housing Authority. https://burlingtonhousing.org/; see Vt. Stat. Ann. tit. 24, § 4003.
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VSHA also runs the HUD-VASH initiative and Housing for Persons with AIDS program as well as the Project Based Voucher and Moderate Rehabilitation programs, which help landlords and developers improve and expand housing stock in return for making their housing available for use by low-income families. VSHA also administers the Shelter Plus Care program, which provides rental assistance to homeless people with disabilities, and the Mainstream Housing program, which funds rental assistance for non-elderly disabled families. It also administers the Family Unification program, which provides rental assistance to families for whom lack of adequate housing is a primary factor in the separation of children from their families. This program is a collaboration with the Agency of Human Services, VHSA’s direct housing services reach approximately 8,000 Vermont families.32
100. Housing programs that Plaintiffs administer are essential to reducing homelessness and promoting stability, safety, and health by ensuring housing accommodations that families can afford. For example, in New York State, where even middle class families struggle to find affordable housing options, programs like Section 8 and public housing offer tools to correct the effects of skewed market forces.
101. Recipients of public housing benefits often work and do not necessarily receive other governmental assistance.
102. Affordable housing programs also promote employment by installing beneficiaries in stable accommodations, which often provide access to reliable transportation. Individuals who receive housing assistance are less likely to face chronic tardiness or absenteeism at work or school.
32 Rental Assistance Program, Vermont State Housing Authority, https://www.vsha.org/vsha-programs/rentalassistance-program/.
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E. The 2018 Proposed Rulemaking. 103. On October 10, 2018, DHS published in the Federal Register a Notice of
Proposed Rulemaking regarding the public charge ground for inadmissibility. 83 Fed. Reg. at 51,114-51,296.
104. The Proposed Rule re-defined the meaning of public charge and significantly changed the process by which DHS decides whether an applicant would likely become a public charge and thus be inadmissible.
105. First, the Proposed Rule drastically expanded the established common law definition of public charge incorporated into the INA and abandoned the long-standing understanding of a public charge as a person who was and would remain primarily dependent on the government over the long term. Instead, the Proposed Rule set a monetary threshold and considered any applicants who received public benefits valued at 15 percent of the FPG (approximately $5 per day) for a period of 12 consecutive months to be a public charge. 83 Fed. Reg. at 51,290.
106. Second, the Proposed Rule radically expanded the benefits within the public charge definition, adding supplemental non-cash benefits, like food supplements, public health insurance, and housing assistance. Id. at 51,289-90. The Proposed Rule classified subsidies like SNAP and Section 8 as monetary benefits and services like Medicaid as non-monetary benefits. If an applicant received both monetary and non-monetary benefits simultaneously, then use of the non-monetary benefits for only nine months within a 36-month period would render the applicant a public charge. Id. at 51,158, 51,290.
107. Finally, the Proposed Rule sought to replace the public charge’s case-by-case totality of circumstances test, which DHS used to determine whether applicants were likely to become a public charge, with a formulaic test that would assign positive, negative, heavily
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positive, and heavily negative weights to enumerated factors. This weighted circumstances scheme stacked the odds of admissibility against disabled, non-white, and low-income applicants. Id. at 51,291-92.
108. The Proposed Rule received over 200,000 comments, “the vast majority of which opposed the rule.” 84 Fed. Reg. at 41,297. Many commenters strenuously opposed both the changes to the definition of public charge and the changes to the totality of circumstances test. Commenters expressed concern for the substantial negative public health outcomes and economic consequences that would result from a decrease of enrollment in subsidized nutrition, health insurance, and housing programs.
109. Commenters cautioned also that these proposed changes, taken together, would target some of the country’s most vulnerable residents, including persons with disabilities, the elderly, women, children, and racial minorities. F. The Final Rule.
110. On August 14, 2019, DHS published the Final Rule in the Federal Register. The Final Rule changes both the public charge definition and the process by which DHS determines whether an applicant is likely to meet this definition in the future. 84 Fed. Reg. at 41,292-508.
111. Specifically, the Final Rule eliminates the primarily dependent standard; includes receipt of non-cash benefits in the public charge definition; and establishes a weighted circumstances test that relies heavily on factors that bear no reasonable relationship to whether an individual will become a drain on the public fisc. Id. at 41,294-95.
112. Despite the longstanding exclusion of supplemental, non-cash benefits from the public charge analysis, the Final Rule creates a new standard of total self-sufficiency, a concept
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nowhere found in the relevant portions of INA itself, and requires individuals to satisfy this requirement to avoid a public charge determination.33
113. DHS’s total self-sufficiency standard contravenes Congressional intent and decades of case law and legislative history. Moreover, the predictable consequences of the Final Rule—resulting in immigrant communities becoming less healthy, less educated, and less equipped for the workforce—significantly undermine immigrants’ ability to attain selfsufficiency through reliance on programs that Congress created and extended to immigrants for that very purpose.
114. The Final Rule also fails to acknowledge that the DHS concluded in 1999, three years after Congress passed IIRIRA and the Welfare Reform Act, that immigrants’ use of supplemental, non-cash benefits did not raise apprehensions about improper incentives. Nor does the Final Rule provide evidence that immigrants are motivated by participation in non-cash benefits programs to come or to stay in the United States.
115. Likewise, the Final Rule does not provide support for the conclusion that immigrants who utilized the benefits excluded from consideration under the 1999 Field Guidance typically became primarily dependent on the government, rather than using those benefits to become upwardly mobile and more self-sufficient.
116. Finally, while the Final Rule projects certain savings for federal and state budgets, it does not account for a wide range of public health, economic, and administrative harms to Plaintiffs.
33 On August 13, 2019, just one day after announcing the Final Rule, Cuccinelli publicly rewrote the iconic Emma Lazarus poem inscribed on the Statue of Liberty: “Give me your tired and your poor who can stand on their own two feet and who will not become a public charge.” Jason Silverstein, Trump’s top immigration official reworks the words on the Statue of Liberty, CBS News (Aug. 14, 2019), https://cbsnews.com/news/statue-of-liberty-poememma-lazarus-quote-changed-trump-immigration-official-ken-cuccinelli-after-public-charge-law/.
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1. The Rule Arbitrarily and Unlawfully Departs from the Well-Established Meaning of Public Charge a. The Rule Abandons the Permanently and Primarily Dependent Standard.
117. The Final Rule drastically changes the scope of the public charge determination, which for more than 130 years has applied only to individuals primarily dependent on the government for support over the long term. The Rule would expand the public charge definition far beyond its historical and statutory boundaries to exclude from admissibility the majority of low-income immigrants, many of whom are on their way to building stable and more prosperous lives. By penalizing even temporary and minimal use of public benefits, the Rule would place significant obstacles along the path of upward mobility.
118. The Final Rule defines “public charge” to include an immigrant “who receives one or more public benefit,” without regard to whether the benefits received suggest long-term dependence upon the government, rather than temporary, short-term help to overcome specific hardships. The Rule deems a public charge any person who has (i) received any amount of certain non-monetary public benefits—including, for example, food stamps, Medicaid, certain types of housing assistance or cash subsidies—for more than 12 months in the aggregate within any 36-month period. 84 Fed. Reg. at 41,501 (to be codified at 8 C.F.R. § 212.21(a)). Whereas the Proposed Rule set a value threshold for evaluating whether an applicant’s use of benefits fell within the public charge definition, the Final Rule dispenses with the threshold altogether, and replaces it with a pure durational requirement that looks only to the fact of receiving benefits over some period of time rather than the amount of such benefits.
119. In a further departure from the Proposed Rule, the Final Rule provides that when an individual receives two or more benefits simultaneously, DHS would count each benefit separately in calculating the duration of use. Id. at 41,295-97; see also id. at 41,501 (to be
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codified at 8 C.F.R. § 212.21(a)). For example, under this stacking scheme, an applicant who suffered a temporary health setback and who received both Medicaid and SNAP during a sixmonth period would be considered a public charge because the applicant used six months of Medicaid and six months of SNAP. The Final Rule provides no limit on the magnitude of the stacking effect; an applicant who experienced an unexpected job loss and enrolled, for a limited time, in three benefits programs would fall within the public charge definition after just four months. Nor does the Rule provide guidance for how receipt of public benefits during only part of a month will count; this ambiguity may result in immigrants being excluded as public charges for receiving benefits for even shorter durations than 12 full months.
120. This change impermissibly expands the INA’s—and Congress’s—definition of public charge, which understood a public charge to be an individual primarily and permanently dependent on government assistance. Consistent with this understanding, DHS has historically interpreted the INA’s public charge provision to apply to applicants who receive more than 50 percent of their income from public cash benefits. See 83 Fed. Reg. at 51,164. By ignoring the amount of public benefits received by an immigrant, and treating any receipt of benefits as evidence that somebody will become a public charge, DHS exceeds its rulemaking authority.
121. Egregiously, the Rule’s interpretation of public charge encompasses all applicants receiving any amount of almost any public benefits for one year in the aggregate (less if the applicant is receiving more than one benefit at the same time). This radical re-definition of public charge would reach, for example, an immigrant who received less than $1 per day in food stamps. The Department does not articulate any reasoned basis for the new durational threshold nor attempt to justify exclusion of applicants who receive minimal governmental assistance.
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122. As support for its conclusion that an applicant who received any amount government assistance is excludable as a public charge, DHS repeatedly cites BIA decisions in Matter of Vindman and Matter of Harutunian. Both cases, however, involved immigrant applicants who relied almost exclusively on the government for income; these cases only reinforce the permanently and primarily dependent standard set forth in the history, case law, and agency interpretations, including the 1999 Field Guidance. DHS’s flawed legal analysis is irrational.
123. The Final Rule’s changes to the dependence standard are also not a logical outgrowth of the Proposed Rule.
124. First, while the Proposed Rule contemplated lowering the dependence threshold to include individuals who received smaller amounts of public benefits, the Proposed Rule did not contemplate or suggest that Defendants were considering eliminating the quantity threshold altogether and instead counting the receipt of any amount of certain public benefits as relevant to the public charge determination. See 83 Fed. Reg. at 51,290.
125. Second, in determining whether an applicant meets the 12-month durational threshold for benefits-use, the Final Rule allows DHS to stack the number of months when the applicant uses more than one benefit at a time. DHS did not provide the public notice of this stacking scheme. The Department deprived the public of the opportunity to comment on how often and when individuals use benefits in conjunction with one another and how these patterns would affect the public charge analysis.
b. The Rule Dramatically Expands the Types of Benefits Considered As Part of the Public Charge Definition.
126. The Final Rule also expands the benefits that give rise to a public charge determination. In sweeping these supplemental benefits, which currently support approximately
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one third of all citizens born in the United States, into the public charge definition,34 DHS seeks to evade the legislative decision-making process and alter immigration law in ways that Congress never authorized and has, in fact, explicitly rejected.
127. Consistent with statutory directive, the 1999 Field Guidance provides that income replacement programs, such as TANF and SSI, or long-term institutionalization, are the only benefits relevant to the public charge determination. The current guidance prohibits DHS from taking into account most non-cash benefits because “non-cash benefits (other than institutionalization for long-term care) are by their nature supplemental and do not, alone or in combination, provide sufficient resources to support an individual or family.” 64 Fed. Reg. at 28,692.
128. The Final Rule, by contrast, requires consideration of an applicant’s use of almost any public benefit, regardless of whether the benefit is supplemental in nature. The Rule defines “public benefit” to include all Federal, State, local or tribal cash assistance programs; SNAP; various forms of housing assistance, including Section 8, Section 8 Project-Based Rental Assistance, and public housing; and most non-emergency Medicaid benefits (the “enumerated benefits”). 84 Fed. Reg. at 41,501 (to be codified at 8 C.F.R. § 212.21(b)(1)(i)).35
129. DHS exceeds its rulemaking authority by including non-cash supplemental benefits like SNAP, Medicaid, Section 8 subsidies, and public housing in the public charge
34 Danilo Trisi, One-Third of U.S.-Born Citizens Would Struggle to Meet Standard of Extreme Trump Rule for Immigrants, Ctr. for Budget and Pol’y Priorities, (Sept. 27, 2018), https://www.cbpp.org/blog/one-third-of-us-borncitizens-would-struggle-to-meet-standard-of-extreme-trump-rule-for. 35 Recognizing that Proposed Rule would have potentially devastating impacts on women and children, the Final Rule makes limited exceptions for pregnant women and children on Medicaid. 84 Fed. Reg. at 41,476. Women and children would still be penalized, however, for enrolling in SNAP, and women would have to enroll and disenroll in Medicaid depending on their pregnancy status. The Final Rule also purports to allow consideration for “primary caregiver” role as part of the totality of circumstances test. 84 Fed. Reg. at 41,438, 41,504, 41,438, 41,502 (to be codified at 8 C.F.R. 212.21(f)).
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determination. As the relevant statutory language, history, case law, and long-standing agency practice demonstrate, Congress never intended that an immigrant’s lawful receipt of non-cash supplemental benefits be used to render a public charge determination.
130. On three occasions—while debating ICFRA, IIRIRA, and the Border Security Bill—Congress considered and rejected proposals to alter the well-settled meaning of public charge to reach non-cash benefits like food stamps, health insurance, and housing assistance programs. Opponents of these provisions expressly resisted including non-cash benefits in the public charge inquiry. The Final Rule ignores this statutory history and directly contradicts clear Congressional intent.
131. DHS also interferes with Plaintiffs’ discretion under the Welfare Reform Act to administer federal benefits programs. The Welfare Reform Act provides that “a State is authorized to determine the eligibility of an alien . . . for any designated Federal program.” 8 U.S.C. § 1612(b)(1). The Final Rule is inconsistent with congressional intent to place in State hands determinations of who should be eligible for benefits by deterring non-citizens from enrolling in benefits for which Plaintiff states deemed them eligible.
132. Finally, the proposed changes irrationally penalize low-income applicants from using benefits that Congress expressly allowed them to receive, and that are designed to assist beneficiaries and enable them to participate in the workforce.
c. The Rule Impermissibly Extends the Public Charge Determination to Non-Immigrant Visas.
133. The INA subjects only applicants for visas or adjustment of status to a public charge determination. See 8 U.S.C. § 1182(4)(a).
134. The INA does not require that individuals seeking to extend or change the status of non-immigrant visas, including students, tourists, and certain types of temporary workers,
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undergo a public charge determination. See 8 U.S.C. § 1184; 8 U.S.C. § 1101(a)(15)(defining classes of non-immigrant visas).
135. Without statutory authority, the Final Rule would subject an applicant requesting to extend a non-immigrant visa or to change the status of a current visa to a public charge inquiry and require denial of the application if, at any point in the prior 36 months, the applicant received benefits for 12 months in the aggregate. 84 Fed. Reg. at 41,507 (to be codified at 8 C.F.R. § 214.1). For example, individuals studying in the United States and seeking to extend their student visas in order to complete their education will, for the first time and without any statutory basis, be subject to a public charge inquiry. For these individuals, the Final Rule imposes an even more draconian test that looks only to the receipt of public benefits and does not take into any other factors, much less the totality of circumstances.
136. As with the changes to the public charge definition, DHS ignores the statutory limits on its authority.
137. Furthermore, the Final Rule unlawfully removes discretion from DHS officials to determine whether these applicants are likely to become a public charge. Under the INA, DHS must weigh a minimum of six statutory factors in a totality of circumstances test to determine whether an applicant is likely to become a public charge. See 8 U.S.C. § 1182(a)(4)(b). By automatically denying visa extensions for every applicant who has received 12 months of public benefits within the past 36 months, without considering any other factors, the Final Rule violates this statutory mandate.
2. The Rule Arbitrarily and Unlawfully Transforms the Totality of Circumstances Test to Stack the Odds Against Disabled, Non-White, and Poor Immigrant Applicants.
138. The Final Rule arbitrarily and unlawfully overhauls the public charge “totality of circumstances” test to stack the odds against immigrants with disabilities, immigrants of color,
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and low-income immigrants. The Rule does so by arbitrarily and unlawfully relying on a collection of “negative” factors that both individually and collectively bear little reasonable relationship to whether an individual immigrant will become a public charge. The Rule’s reliance on these irrational factors skews the inquiry against immigrants who are not wealthy, who receive small amounts of non-cash supplemental benefits, who speak languages other than English, or who are disabled. And the Rule places a heavy thumb on the scale in favor of immigrants from predominately wealthy, white, and English-speaking countries.
139. To determine the likelihood that a particular applicant would become a public charge, the INA specifies that DHS must take into account a range of factors, including, at a minimum, an immigrant’s age, health, family status, assets, resources, financial status, education, and skills, in determining whether the applicant is inadmissible. See 8 U.S.C. § 1182(a)(4). While DHS must assess each factor in the totality of circumstances test, the statute neither prioritizes nor permits the prioritization of any given factor. Id. Both courts and DHS itself have interpreted the statutory mandate to require a case-by-case determination based on the facts of each application. See 64 Fed. Reg. at 28,690, 28,692.
140. The Final Rule transforms the statutorily-mandated totality of circumstances test by adding a host of secondary factors to each of the statutory factors and assigning mandatory weights to each factor considered. The Rule divides the factors into four weights: negative, heavily negative, positive, and heavily positive. 84 Fed. Reg. at 41,397; id. at 41,502-04 (to be codified at 8 C.F.R. § 212.22(b)).
141. The Final Rule’s negative factors include an applicant’s (i) age, if he or she is under 18 or over 62; (ii) health, if he or she is diagnosed with a medical condition that could interfere with the immigrant's educational or work opportunities; (iii) income, if he or she earns
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less than 125 percent of the FPG and does not have other significant assets; (iv) financial status, if he or she has a poor credit score, has applied or been certified for, or received, benefits in the past, or has future foreseeable medical costs that he or she cannot cover without Medicaid; (v) skills, if he or she is non-proficient in English; (vi) education if he or she lacks a high school diploma; and (vii) family status, if the applicant has a large family or family members that are financially interdependent. Id. at 41,502-04 (to be codified at 8 C.F.R. § 212.22(b)(1)-(5)).
142. The heavily negative factors include an applicant’s (i) lack of employability; (ii) receipt or authorization to receive benefits for 12 months within 36 months of filing application (for a visa, admission, adjustment of status, extension of stay, change of status); (iii) diagnosis of a medical condition that is likely to require extensive medical treatment or institutionalization or interfere with the applicant’s ability to attend work or school where the applicant lacks private insurance; and (iv) previous findings of inadmissibility. Id. at 41,504 (to be codified at 8 C.F.R. § 212.22(c)(1)).
143. The only heavily positive factors are an applicant’s financial assets, resources, support, or annual income of at least 250 percent of the FPG, and enrollment in a private insurance plan. Id. at 41,504 (to be codified at 8 C.F.R. § 212.22(c)(2)). However, enrolling in a private insurance plan using tax credits to offset health care premium costs under the Patient Protection and Affordable Care Act (ACA) does not count as a heavily weighted positive factor. Id. at 41,504.
144. The Final Rule instructs DHS officials to weigh the factors and find in favor of admissibility only if the positive factors outweigh the negative factors. Id. at 41,397-98. When a heavily weighted negative factor is present, the applicant can only overcome a public charge
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determination by showing two or more countervailing positive factors or one heavily weighted positive factor. Id.
145. While contending that agency officials would retain discretion to balance all factors in deciding whether an applicant would more likely than not become a public charge, the Rule guides DHS officials to enter public charge findings for applicants with disabilities, nonwhite applicants, and applicants who do not arrive in the United States with significant resources. The Final Rule reshapes the public charge exception, which has until now applied only to applicants who likely to become primarily and permanently dependent on the government, into an effective presumption against admissibility for these groups.
a. The Weighted Circumstances Test Discriminates Against Individuals with Disabilities and Irrationally Presumes that Their Disabilities will Render them Public Charges.
146. The Final Rule resurrects the legacy barriers to admissibility for the mentally and physically disabled that Congress has dismantled over time. By heavily weighting medical diagnoses, the costs of government subsidized treatments and care, and the lack of private health insurance against applicants, DHS unlawfully discriminates against individuals with disabilities in violation of Section 504 of the Rehabilitation Act. See 29 U.S.C. § 794(a).
147. The Final Rule intentionally discriminates against individuals with disabilities by requiring DHS officials to consider an applicant’s “disability diagnosis that, in the context of the alien’s individual circumstances, [when it] affects his or her ability to work, attend school, or otherwise care for him or herself.” 84 Fed. Reg. at 41,408.
148. Under the weighted circumstances test, which penalizes applicants who are diagnosed with or in treatment for a disability, most persons with disabilities, even those not primarily depending on government assistance, would be found inadmissible. For example, the Final Rule would heavily weigh as a negative factor a disabled applicant’s receipt of Medicaid.
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Id. at 41,504 (to be codified at 8 C.F.R. § 212.22(c)(1)(iii)). Many persons with disabilities, even working professionals with advanced degrees, retain Medicaid coverage because Medicaid is the only insurer that sufficiently covers some forms of personalized care and medical equipment. Yet the Rule does nothing to reasonably accommodate that reality for individuals with disabilities. Accordingly, the Final Rule would penalize individuals who, based solely on their disabilities, chose Medicaid coverage, the only appropriate insurance to meet their needs.
149. Additionally, the Final Rule provides that DHS would consider whether an applicant has been diagnosed with a medical condition “that will interfere with [the applicant’s] ability to provide and care for him- or herself, to attend school, or to work upon admission or adjustment of status.” Id. at 41,316. A significant proportion of disabilities affect, in some way, an individual’s ability to work or learn. The Final Rule would thus disproportionately assign a negative weight to individuals with disabilities, including to an applicant requiring a reasonable accommodation at work or an Individualized Education Program at school.
150. The weighted circumstances would also count the same factors multiple times against a disabled applicant of limited means. For example, an applicant in a wheelchair who needs an accommodation at work would presumptively be deemed a public charge. Because the individual has been diagnosed with a medical condition that interferes with work and likely does not have private insurance, the applicant would start the test with a heavily weighted negative factor. If he had used Medicaid for more than 12 months at any point in the past three years, he would have two heavily weighted negative factors. He would then receive additional negative marks in (i) health, for his disability and (ii) financial status, for his use of and application for Medicaid. The applicant would further be disqualified from the heavily positive factor of having
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private health insurance. In substance, the Final Rule counts the same underlying facts against an individual in multiple ways, stacking the results towards inadmissibility.
b. The Weighted Circumstances Test Would Have A Discriminatory Impact on Immigrants of Color.
151. The weighted circumstances test disproportionately places applicants from countries with predominately non-white populations at a disadvantage, regardless of their ability to find employment and achieve self-sufficiency in the future. Sixty percent of applicants from Mexico and Central America and 41 percent from Asia would have two or more negative factors, compared to only 27 percent of immigrants from Europe, Canada, and Oceania.36 Applicants from countries with non-white majorities are also less likely to have assets in excess of 250 percent of the FPG. DHS fails to adequately address this discriminatory impact and, accordingly, ensures that immigrants of color would be significantly more likely to be found inadmissible.
152. DHS also does not sufficiently address the specific effects of the Rule’s languagebased discrimination. The new test assigns a negative weight to an applicant’s limited English proficiency (“LEP”) without specifying how DHS officials should determine whether an applicant’s English is proficient.
153. Nor does the Final Rule make a reasonable connection between LEP status and the likelihood of becoming a public charge. Immigrants from Central and South American as well as Asian countries are more likely to have limited English skills, but are almost equally likely to find gainful employment as are non-LEP immigrants from Europe.37
36 Randy Capps, Mark Greenberg, Michael Fix & Jie Zong, Gauging the Impact of DHS’ Proposed Public-Charge Rule on U.S. Immigration, Migration Pol’y Inst., 9 (Nov. 2018), https://www.migrationpolicy.org/research/impactdhs-public-charge-rule-immigration. 37 Jie Zong & Jeanne Batalova, The Limited English Proficient Population in the United States, Migration Pol’y Inst. (July 8, 2018), https://www.migrationpolicy.org/article/limited-english-proficient-population-united-states.
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154. This change lacks a rational relationship to the determination of whether an applicant will depend on governmental resources, since immigrants who speak limited English can readily find employment in industries that do not require frequent employee communication as well as within non-English speaking communities. Furthermore, this factor also runs afoul the federal government’s obligation not to discriminate on the basis of national origin.
155. Moreover, the Rule’s mandatory consideration of household size irrationally disfavors families that live together and pool resources, and will further disfavor immigrants of color who tend to reside in larger households comprised of multiple generations. See 84 Fed. Reg. 41,501-41,502; 8 C.F.R. §212.21(d).
156. DHS acknowledges the Rule’s impact on immigrants of color and recognizes the possibility that the Rule would have discriminatory effects, but does nothing to meaningfully address or ameliorate the disproportionate harms to non-white immigrant communities. Id. at 41,322.
c. The Weighted Circumstances Test Unlawfully and Arbitrarily Targets Immigrants Who Are Not Likely to Become Public Charges.
157. The weighted circumstances test targets immigrants who Congress never intended to consider public charges. Under the INA, a public charge is an applicant who is likely to become permanently and primarily dependent on the government for support.
158. But the weighted circumstances test targets applicants who are not remotely likely to become permanently and primarily dependent on the government for support. For example, without reasoned analysis, the Final Rule counts a large family as a negative factor, even though more family members may be able to contribute to the family’s shared finances. The weighted circumstances test also undervalues the significance of affidavits of support, which have
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traditionally allowed and encouraged family members to take financial responsibility for one another.
159. Under the Rule, applicants who work (or are employable) are likely to be deemed public charges simply because, among other things, they earn (or are likely to earn) moderate or low incomes, obtain health insurance using premium tax subsidies designed to assist moderateor low-income working individuals and families, or use small amounts of non-cash supplemental public benefits. The weighted circumstances test thus goes far beyond Congress’s intent in enacting the public charge inquiry, and far beyond DHS’s authority.
d. The Weighted Circumstances Test Arbitrarily Deters Immigrants from Accepting Benefits to Which They Are Legally Entitled.
160. The weighted circumstances test deters immigrant applicants from enrolling in benefits programs to which they are legally entitled in contravention of Congressional intent. In the decades since the Welfare Reform Act, Congress expressed an intent to provide non-citizens with access to basic food, health care, and housing needs.
161. Additionally, Congress has specified, in particular, that SNAP may not be considered against recipients as income or resources under any federal, state, or local law. See 7 U.S.C. § 2017(b).
162. Despite this, the new test heavily weighs as a negative factor any use of the enumerated public benefits for an aggregate of 12 months within the last 36 months of the immigrant’s application. Under the Final Rule, the statutory protections for these benefits become illusory; a non-citizen could not enroll in benefits programs without being heavily penalized for exercising that right.
163. As in the disability context, the weighted circumstances test double counts use of legally protected benefits against applicants. For example, a single working mother who
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received food stamps for the previous year starts the test with a heavily weighted negative factor because she used benefits for an aggregate of 12 months within the 36 months. Because, in order to qualify for SNAP benefits, she must make below 125 percent of the FPG, she receives an additional negative factor for her income and is disqualified from the countervailing heavily positive factor of making 250 percent of the FPG. She also receives a negative financial status rating for her use of public benefits. The Final Rule’s calculus imposes multiple, separate demerits based on a single factual predicate.
e. The Weighted Circumstances Test Arbitrarily Penalizes Immigrants with Limited Resources at the Time of Application.
164. The Final Rule’s changes to the totality of circumstances test ensure that immigrants with limited resources at the time of their application will face a nearly insurmountable burden to escape a public charge finding—even if they are hardworking and productive members of Plaintiffs’ communities.
165. The Rule counts a household income of less than 125 percent of the FPG as a negative factor even if the applicant has not received any of the enumerated public benefits. The Rule arbitrarily targets hardworking immigrants simply because they work in moderate- or lowpaying jobs. For example, the annual income of applicants who hold steady jobs that are important to Plaintiffs’ economies—including childcare and early education providers, foodservice workers, and farm workers—are often at or below the Rule’s 125 percent income cutoff.
166. DHS fails to offer any rationale for why the Rule counts a household income of less than 125 percent of the FPG as a negative factor. 84 Fed. Reg. at 41,413-16. DHS states only that the 125 threshold is an appropriate measure for sponsors who provide affidavits to support otherwise inadmissible applicants. Yet the threshold for sponsors, who undertake the obligation to support themselves as well as the immigrant applicant, has no bearing on
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appropriate income threshold for the applicant herself. DHS does not justify the departure from the current standard, which requires an income threshold sufficient to keep applicants from becoming primarily dependent on government income-replacement programs.
167. The weighted circumstance test’s consideration of an applicant’s credit score is similarly without rational explanation. DHS does not provide any support for the conclusion that an individual’s credit score is indicative of whether he or she is likely to become dependent on government assistance in the future. Id. at 41,425-28.
3. DHS Underestimates and Fails to Quantify Widespread Harms. 168. The Final Rule’s Regulatory Impact Analysis simply declines to quantify or assess many of the very real harms that Defendants admit will arise from the Final Rule. 169. While DHS concludes that federal and state governments will reduce their direct benefits payments to immigrants by approximately $2 billion annually, DHS fails to even attempt to quantify the bulk of the countervailing costs attributable to the Rule. 84 Fed. Reg. at 41,485. For example, this estimate does not account for downstream indirect costs on state and local economies, see id. at 41,489-90, nor does it consider many of the longer-term costs on a population that will, as a result of the Rule, become sicker, poorer, and less educated. 170. First, DHS severely underestimates the Final Rule’s chilling effect. The Department acknowledges that experts predict that 24 to 25 million people will forgo or disenroll in benefits, but then estimates without basis that the Rule will only affect approximately 700,000 people. Id. at 41,463. 171. The Final Rule also acknowledges that DHS did not attempt to quantify many significant costs, including effects on “potential lost productivity, [a]dverse health effects, [a]dditional medical expenses due to delayed health care treatment, and [i]ncreased disability
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insurance claims, [and] a]dministrative changes to business processes such as reprogramming computer software and redesigning application forms and processing.” Id. at 41,489.
172. Specifically, the Final Rule recognizes but refuses to quantify “increases in uncompensated health care or greater reliance on food banks or other charities,” id. at 41,485, and “reduced revenues for health care providers participating in Medicaid, companies that manufacture medical supplies or pharmaceuticals, grocery retailers participating in SNAP, agricultural producers who grow foods that are eligible for purchase using SNAP benefits, or landlords participating in federally funded housing program.” Id. at 41,486.
173. The Final Rule also did not include a federalism analysis nor did it account for the Rule’s effect on state tax revenue and economic activity, which likely decrease due to the rise in illness and poverty. Id. at 41,492. G. Defendants Were Motivated by Animus toward Immigrants and Latino
Communities When Adopting the Final Rule. 174. Defendants were fully aware of the disparate impact that Final Rule will have on Latino communities and other immigrants of color. Indeed, Defendants proposed the Rule specifically to prevent members of those communities from residing permanently or obtaining citizenship in the United States, a result desired by Defendants. The Final Rule is of a piece with the Administration’s rhetoric and policies, which have long reflected a deep animus toward immigrants of color and Latino communities. 175. President Trump has long engaged in rhetoric that disparages Latinos and immigrants of color. In statements stretching back to the beginning of his campaign, President Trump has repeatedly dehumanized, devalued, and vilified immigrants in general, and specifically immigrants from Latin America. For instance:
a. During his campaign launch in June 2015, President Trump claimed that “[w]hen
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Mexico sends its people. . . . They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. . . . It’s coming from more than Mexico. It’s coming from all over South and Latin America.”38 b. In December 2015, President Trump called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on.”39 c. In December 2016, in an interview with TIME magazine, President Trump stated in reference to a supposed crime wave on Long Island, “They come from Central America. They’re tougher than any people you’ve ever met. They’re killing and raping everybody out there. They’re illegal. And they are finished.”40 d. During a meeting regarding a proposed immigration reform package in the Oval Office in June 2017, President Trump stated that 15,000 immigrants from Haiti “all have AIDS” and that 40,000 immigrants from Nigeria would never “go back to their huts” in Africa after seeing the United States.41 e. On June 28, 2017, speaking of immigrants, President Trump stated, “They are bad people. And we’ve gotten many of them out already . . . . We’re actually
38Full text: Donald Trump announces a presidential bid, Wash. Post, (June 16, 2015, https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/full-text-donald-trump-announces-apresidential-bid/?noredirect=on&utm_term=.0a30b7ba1f8a). 39 Donald J. Trump Campaign, Donald J. Trump Statement on Preventing Mulsim Immigration (Dec. 7, 2015), https://web.archive.org/web/20170508054010/https://www.donaldjtrump.com/press-releases/donald-j.-trumpstatement-on-preventing-muslim-immigration. 40 Michael Scherer, 2016 Person of the Year: Donald Trump, Time, https://time.com/time-person-of-the-year-2016donald-trump/. 41 Michael Shear and Julie Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, N.Y. Times (Dec. 23, 2017), https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html
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liberating towns, if you can believe that we have to do that in the United States. But we’re doing it and we’re doing it fast.”42 f. During a January 2018 meeting with lawmakers, while discussing protections for immigrants from Haiti, El Salvador and other African countries, President Trump asked why the United States is “having all these people from shithole countries come here” and suggested that the United States should have more immigrants from countries like Norway.43 g. In a May 16, 2018 speech, President Trump stated that “[w]e have people coming into the country, or trying to come in . . . You wouldn’t believe how bad these people are. These aren’t people, these are animals.”44 h. At an event on April 7, 2019, President Trump claimed that the asylum program in the United States was a “scam,” claiming beneficiaries were “some of the roughest people you’ve ever seen,” and that they “carry[] the flag of Honduras or Guatemala or El Salvador, only to say [they are] petrified to be in [their] country.”45 i. Speaking on the topic of migrant groups travelling to the United States from Central America at a rally on May 8, 2019, President Trump, stated, “[W]hen you
42 Alana Abramson, ‘I Can Be More Presidential Than Any President.’ Read Trump’s Ohio Rally Speech, Time (July 26, 2017), https://time.com/4874161/donald-trump-transcript-youngstown-ohio/. 43 Vitali et al, supra note 1. 44 Julie Hirschfeld Davis, Trump Calls Some Unauthorized Immigrants ‘Animals’ in Rant, N.Y. Times (May 16, 2018), https://www.nytimes.com/2018/05/16/us/politics/trump-undocumented-immigrants-animals.html. 45 President Trump Mocks Asylum Seekers, Calls Program a “Scam,” C-SPAN (April 6, 2019), https://www.cspan.org/video/?c4790668/president-trump-mocks-asylum-seekers-calls-program-scam.
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see these caravans starting out with 20,000 people, that’s an invasion.”46 j. On July 14, 2019, President Trump tweeted that four non-white Members of
Congress (Representatives Alexandria Ocasio-Cortez, Rashida Tlaib, Ilhan Omar, and Ayanna Pressley) should “go back” to the “totally broken and crime infested places from which they came.”47 One day later the President accused the four Representatives of hating the United States and stated that “they are free to leave” the country.48 176. Indeed, several senior level officials at the DHS, including the official responsible for implementing the public charge rule, have similarly expressed their animus towards immigrants of color. a. On August 13, 2019, just a day after announcing the Final Rule, Defendant Cuccinelli stated that the famous inscription on the Statue of Liberty, welcoming “huddled masses” of immigrants to the United States, only referred to “people coming from Europe.”49 b. During an October 23, 2018 interview, Cuccinelli repeating President Trump’s characterization, called immigrants crossing the southern border of the United
46Road to the White House 2020 President Trump Holds Rally in Panama City, C-SPAN (May 9, 2019), https://archive.org/details/CSPAN_20190509_065700_Road_to_the_White_House_2020_President_Trump_Holds_ Rally_in_Panama_City. 47 Donald J. Trump (@realDonaldTrump), Twitter (July 14, 2019, 5:27 AM), https://twitter.com/realDonaldTrump/status/1150381394234941448. 48 Brian Naylor, Lawmakers Respond To Trump’s Racist Comments: We Are Here To Stay, NPR (July 15, 2019), https://www.npr.org/2019/07/15/741771445/trump-continues-twitter-assault-on-4-minority-congresswomen. 49 Zeke Miller and Ashley Thomas, Trump Official: Statue of Liberty’s Poem is about Europeans, Associated Press (Aug. 14, 2019), https://www.apnews.com/290fe000b4584ddca46a6eb36a74a703.
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States an “invasion.”50 c. On June 13, 2017, then Acting Director of U.S. Immigration and Customs
Enforcement, and current “border czar”, Thomas Homan, testified before Congress that “every immigrant in the country without papers . . . should be uncomfortable. You should look over your shoulder. And you need to be worried.”51 d. Homan repeated the threat on June 22, 2017, stating that “[f]or those who get by the Border Patrol they need to understand there’s no safe haven in the United States . . . if you happen to get by the Border Patrol, ICE is looking for you.” Later he clarified that while the enforcement priorities were those who committed crimes, “[n]ow the message is clear: If you’re in the United States illegally . . . someone is looking for you. And that message is clear.”52 e. In January 2019, Mark Morgan, the current Acting Director of ICE, speaking of children detained in border facilities stated, “I’ve been to detention facilities where I’ve walked up to these individuals that are so-called minors, 17 or under. I’ve looked at them I’ve looked at their eyes . . . and I’ve said that is a soon-to-be MS-13 gang member. It’s unequivocal.”53
50 John Binder, Exclusive-Ken Cuccinelli: States Can Stop Migrant Caravan “Invasion” With Constitutional War Powers, Brietbart (Oct. 23, 2018), https://www.breitbart.com/politics/2018/10/23/exclusive-ken-cuccinelli-statescan-stop-migrant-caravan-invasion-with-constitutional-war-powers/. 51 Immigration and Customs Enforcement and Customs and Border Patrol Fiscal Year 2018 Budget Request: Hearing Before the Subcomm. on Homeland Sec. of the H. Comm. on Appropriations, 115th Cong. 279 (2017) (statement of Thomas D. Homan, Acting Dir., Immigration and Customs Enf’t). 52 Press Release, The White House Office of the Press Secretary, Press Gaggle by Director of Immigration and Customs Enforcement Tom Homan et al. (June 28, 2017). 53 Ted Hesson, Trump’s pick for ICE director: I can tell which migrant children will become gang members by looking into their eyes, Politico (May 16, 2019), https://www.politico.com/story/2019/05/16/mark-morgan-eyes-icedirector-1449570.
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177. Defendants have acted on this rhetoric by adopting policies that seek to isolate and exclude Latino immigrants and other immigrants of color. For instance, the Trump Administration has:
a. Rescinded the Deferred Action for Childhood Arrivals program, which protected 800,000 individuals, 90 percent of which were Latino and 80 percent of which were Mexican-American;
b. Banned travel from several majority-Muslim countries; c. Suspended refugee admissions to the United States; d. Terminated special protections from removal for migrants from nations
experiencing war and natural disasters, including Nicaragua, Honduras, Haiti and El Salvador; e. Increased actual and threatened raids and deportations of undocumented migrants, including, as recently as June 17, 2019, when President Trump tweeted a threat that “[n]ext week ICE will begin the process of removing the millions of illegal aliens who have illicitly found their way into the United States. They will be removed as fast as they come in;”54 f. Attempted to suspend or terminate federal funding to localities that elect to limit their participation in federal immigration enforcement efforts; g. Attempted to build a physical wall along the Mexico-U.S. border; h. Adopted policies of separating children from their families when entering the United States from Mexico, and detaining children separate from their parents and
54 Nick Miroff & Maria Sacchetti, Trump vows mass immigration arrests, removals of “millions of illegal aliens” starting next week, Wash. Post (June 17, 2019), https://www.washingtonpost.com/immigration/trump-vows-massimmigration-arrests-removals-of-millions-of-illegal-aliens-starting-next-week/2019/06/17/4e366f5e-916d-11e9aadb-74e6b2b46f6a_story.html.
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families thereafter; and i. Maintained children and other migrants across the border between Mexico and the
United States in detention facilities that the United Nations Children’s Fund has described as “dire” and as causing “irreparable harm” to children housed in them.55 178. Further, President Trump and Defendants, including and senior officials in the DHS have explicitly sought to disparage immigrant use of public benefits. These comments often contain false and misleading assertions that generically characterize immigrants, and especially immigrants of color, as poor, a drain on the United States, and taking advantage of United States citizens: a. On July 18, 2015, President Trump tweeted: “It’s a national embarrassment that an illegal immigrant can walk across the border and receive free health care.”56 b. On June 21, 2017, during a rally, President Trump demanded “new immigration rules which say those seeking admission into our country must be able to support themselves financially and should not use welfare for a period of at least five years.”57 However, immigrants are already held to this standard. c. In August 2017, while announcing his support of the RAISE Act, a bill designed to decrease the population of Latino immigrants and immigrants of color in the United States by restricting family-based visas, President Trump stated that the
55 UN News, After Rio Grande tragedy, UNICEF chief highlights “dire” detention centers on US-Mexico border (June 27, 2019), https://news.un.org/en/story/2019/06/1041421. 56 Donald J. Trump (@realDonaldTrump), Twitter (July 18, 2015), https://twitter.com/realDonaldTrump/status/622469994220273664. 57 Michelle Mark, Trump called for legislation blocking immigrants from receiving welfare for 5 years – but it already exists, Business Insider (June 22, 2017), https://www.businessinsider.com/trump-called-for-legislationblocking-immigrants-from-receiving-welfare-for-5-years-but-it-already-exists-2017-6.
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bill would ensure that immigrants were “not going to come in and just immediately go and collect welfare.”58 d. During a press conference on August 2, 2017, Stephen Miller, a senior advisor to President Trump, misleadingly claimed that “roughly half of immigrant head of households in the United States receive some type of welfare benefit.”59 But researchers have shown that poor immigrant households use less welfare than poor non-immigrant households.60 e. At the same press conference, Stephen Miller went on to falsely state that the United States “issue[s] a million green cards to foreign nationals from all the countries of the world” without regard to “whether they can pay their own way or be reliant on welfare.”61 f. On March 11, 2019, during an interview, President Trump said: “I don’t want to have anyone coming in that’s on welfare.” He continued “I don’t like the idea of people coming in and going on welfare for 50 years, and that’s what they want to be able to do—and it’s no good.”62 g. On April 17, 2019, after the Trump Administration announced a proposed rule
58 Alexia Fernandez Campbell, Poor immigrants are the least likely group to use welfare, despite Trump’s claims, Vox.com (Aug. 4, 2017), https://www.vox.com/policy-and-politics/2017/8/4/16094684/trump-immigrantswelfare.com. 59 White House Press Briefing, Press Briefing by Press Secretary Sarah Sanders and Senior Policy Advisor Stephen Miller (Aug. 2, 2017), https://www.whitehouse.gov/briefings-statements/press-briefing-press-secretary-sarahsanders-senior-policy-advisor-stephen-miller-080217/. 60 Alex Nowrasteh, CIS Exaggerates the Cost of Immigrant Welfare Use, CATO Inst. (May 10, 2016), https://www.cato.org/blog/cis-exaggerates-cost-immigrant-welfare-use. 61 Press Briefing, supra note 59. 62 Alexander Marlow et al., President Donald Trump On Immigration: “I Don’t Want To Have Anyone Coming In That’s On Welfare”, Breitbart (Mar. 11, 2019), https://www.breitbart.com/politics/2019/03/11/exclusive-presidentdonald-trump-on-immigration-i-dont-want-to-have-anyone-coming-in-thats-on-welfare/.
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that would block households with undocumented members from obtaining public housing assistance, an administration official stated that “as illegal aliens attempt to swarm our borders, we’re sending the message that you can’t live off of American welfare on the taxpayers’ dime.”63
H. The Final Rule Harms the Plaintiffs. 179. The Final Rule’s destructive and far-reaching consequences significantly frustrate
Plaintiffs’ obligations to provide for the social and economic well-being of their residents, harms Plaintiffs’ economies, and inflicts substantial and burdensome administrative costs on Plaintiffs’ institutions.
1. The Final Rule Will Have a Broad Chilling Effect on Public Benefits Enrollment.
180. The Final Rule will result in non-citizens withdrawing from or forgoing enrollment in public benefit programs that their tax dollars support, and to which they are legally entitled. The Final Rule may also result in harm to American citizens who share a case with a non-citizen household member.
181. With respect to those individuals directly affected by the Final Rule, DHS absurdly “expects that [non-citizens] . . . will make purposeful and well-informed decisions commensurate with the immigration status they are seeking.” 84 Fed. Reg. at 41,312. But the only decision for which the Final Rule’s weighted test effectively allows is for immigrants to make the impossible choice of either forgoing critical public benefits, or risking being found likely to become a public charge, resulting in denial of admission or adjustment of status.
63 Stephen Dinan, HUD moves to cancel illegal immigrants’ public housing access, Wash. Times (April 17, 2019) https://www.washingtontimes.com/news/2019/apr/17/hud-moves-cancel-illegal-immigrants-public-housing/.
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182. Moreover, millions of immigrants—including many of Plaintiffs’ residents—will be frightened and confused about the potential consequences of applying for benefits and will forgo public assistance altogether, even if the Final Rule does not implicate their immigration status or include a particular benefit in the public charge analysis.
183. Nonprofit research and education entities estimate that Plaintiff States will experience disenrollment from public benefits at rates between 15 to 35 percent.64
184. Indeed, this chilling effect has already begun. Families, responding to rumors and news reports that use of public benefits would have adverse immigration consequences,65 began disenrolling from multiple public benefit programs even before the publication of the Proposed Rule. The Final Rule will exacerbate the chilling effect and the number of immigrants forgoing critical and sometimes life-saving public benefits will increase.
185. For example, a web and phone survey of citizens and non-citizens in the community commissioned by the City of New York in December 2018 and January 2019 confirmed that many fear the impact of changes to the public charge rule. The survey showed that, because of concern over public charge, three-quarters of the non-citizens surveyed (76 percent) would consider withdrawing from or not applying for services, even if the survey respondent felt he or she needed the services.
186. Additionally, frontline staff members from Health + Hospitals and DOHMH have observed and reported that clients have disenrolled from or expressed reluctance to enroll in
64 “Only Wealthy Immigrants Need Apply”: How a Trump Rule’s Chilling Effect Will Harm the U.S., Fiscal Pol’y Inst. (Oct. 10, 2018), http://fiscalpolicy.org/wp-content/uploads/2018/10/US-Impact-of-Public-Charge.pdf; Samantha Artiga et al., Estimated Impacts of the Proposed Public Charge Rule on Immigrants and Medicaid, The Henry J. Kaiser Fam. Found. (Oct. 18, 2018), https://www.kff.org/report-section/estimated-impacts-of-theproposed-public-charge-rule-on-immigrants-and-medicaid-appendices/. 65 Helena Evich, Immigrants, Fearing Trump Crackdown, Drop Out of Nutrition Programs, Politico (Sept. 3, 2018), https://www.politico.com/story/2018/09/03/immigrants-nutrition-food-trump-crackdown-806292.
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public benefits and services due to fear of changes in the public charge definition and determination.
187. Vermont’s multiple refugee resettlement communities face similar concerns. Refugees are exempt from the Final Rule and may continue to receive public benefits without jeopardizing their immigration status. However, many refugees have families with mixed immigration statuses. Fear and confusion surrounding the Final Rule will likely result in refugees, as well as their non-refugee family members, disenrolling in critical benefits that help them successfully integrate.
188. Vermont’s Refugee Health Program, which is managed through the Department of Health at the Agency of Human Services, works to protect and promote the health of refugees from the time they arrive in Vermont. The Program collaborates with community partners to help refugees integrate into the health care system. Among other things, all eligible refugees are immediately enrolled in Medicaid, SNAP, and TANF when they arrive in Vermont. Reenrollment after the initial resettlement period is challenging and can cause substantial confusion. Immigrants and refugees in Vermont have already demonstrated anxiety and fear surrounding the changes to the public charge rule.
189. The Final Rule will harm children with at least one non-citizen parent, regardless of the child’s citizenship status. Approximately 9.2 million of the 10.5 million children with at least one immigrant parent in the United States are American citizens by birth.66
66 Jeanne Batalova et al., Chilling Effects: The Expected Public Charge Rule and Its Impact on Legal Immigrant Families’ Public Benefits Use, Migration Pol’y Inst. (June 2018), https://www.migrationpolicy.org/research/chilling-effects-expected-public-charge-rule-impact-legal-immigrantfamilies.
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190. Children thrive when their families thrive. When the immigrant parents of citizen children disenroll or decline to enroll in public benefits, their children will suffer too. Tragically, experts estimate that up to 2 million citizen children will disenroll from medical insurance and up to 3 million will disenroll from food supplement programs as a result of the Final Rule.67
191. DHS is aware of the devastating impact of the Final Rule on residents who depend on the enumerated public benefits and on residents who depend on benefits that are not directly subject to the Rule. After enactment of the Welfare Reform Act in the mid-1990s, there was a sharp decline in the usage of benefits, even among groups whose eligibility remained unchanged. This trend prompted the INS to publish the 1999 Field Guidance to “reduce negative public health and nutrition consequences generated by the confusion.” 83 Fed. Reg. at 51,133.
192. Defendants acknowledge that the Final Rule would affect Plaintiffs’ residents regardless of whether the Final Rule directly applies to their immigration status. 84 Fed. Reg. at 41,312.
193. Additionally, DHS concedes that the chilling effect will have far-reaching consequences with respect to food insecurity, housing scarcity, public health and vaccinations, education health-based services, reimbursement to health providers, and increased costs to states and localities. Id. at 41,313.
2. The Final Rule Will Result in Negative Public Health Outcomes. a. The Final Rule will Harm Public Health.
194. The Final Rule will endanger health insurance coverage for a substantial number of Plaintiffs’ residents and cause significant harms to the public health.
67 Artiga et al., supra note 64.
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195. In New York, up to 2 million non-citizens and their citizen children enrolled in Medicaid, Child Health Plus (New York’s version of CHIP), and other health care options available through the State may choose to disenroll from these programs because of the Final Rule.
196. New York City’s Health + Hospitals estimates that over 200,000 of its patients could be either directly affected by the Final Rule or change their behavior out of concern about the Final Rule even if they are not directly impacted by the Final Rule itself. Health + Hospitals expects that patients will respond to the Final Rule in three ways if they believe their use of public benefits could endanger their ability to attain immigration relief in the future, or if they believe it may impact the ability of a household member to attain immigration relief in the future: First, patients may disenroll. Second, patients may use fewer preventative services resulting in a downstream increase of high-severity and inpatient services. Third, patients may make it more difficult for healthcare providers to collect identifying information, and thus adversely affect Health + Hospitals’ ability to collect payment for services. Each of these potential responses has detrimental consequences for the City.
197. In Connecticut, an estimated 45,000 children with non-citizen parents participate in Medicaid or CHIP, known in Connecticut as HUSKY A and HUSKY B.68 Based on the projected disenrollment rates from nonprofit institutes, between 6,750 to 15,750 children in Connecticut may lose health care coverage because of the Final Rule.
198. By deterring participation in Medicaid, CHIP, and other health insurance programs Plaintiff States administer, the Final Rule undermines Plaintiffs’ interest in improving
68 Samantha Artiga et al., Potential Effects of Public Charge Changes on Health Coverage for Citizen Children, The Henry J. Kaiser Fam. Found. (May 18, 2018), https://www.kff.org/report-section/potential-effects-of-public-chargechanges-on-health-coverage-for-citizen-children-appendix/.
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both short- and long-term health and advancing public health interests for both immigrants and citizens.
199. An increase in uninsured residents will have significant adverse effects on individuals’ well-being and the public health of Plaintiff States and of New York City. Immigrants will delay care, avoid seeking treatment, and fall back on financially strained public and nonprofit clinics and hospitals for emergency care. Children are at significant risk: because uninsured children will not have access to routine well-child visits and primary care, they will be at greater risk for potentially serious health issues and will be more likely to rely on emergency room visits for treatments.
200. Lack of access to primary care not only puts the health and well-being of noncitizens at risk but also jeopardizes Plaintiffs’ ability to provide for the well-being of all their residents. For example, because uninsured persons are less likely to receive immunizations, there is an increased risk of vaccine-preventable diseases to the entire community. Additionally, New York City agencies are concerned that patients will fail to seek testing and treatment for communicable diseases, leading to poor health outcomes and increasing the risk of disease transmission.
201. The Final Rule will also imperil New York’s significant progress in combatting the spread of the HIV/AIDS epidemic by reducing enrollment in Medicaid and thus decreasing access to HIV prophylaxis, testing, and care; chilling participation in federal, State, and City programs and services for people with HIV; and discouraging HIV testing. New York’s Medicaid Program for Persons with HIV assists nearly 67,000 New Yorkers by providing health care and other supportive services. New York State’s AIDS Drug Assistance Program helps ensure access to HIV medication for uninsured and underinsured persons; and federal programs,
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such as Ryan White, help ensure access to primary medical care, essential support services, and medications for people living with HIV.
202. Treating persons with HIV and persons at risk for HIV helps prevents the transmission and acquisition of HIV. By deterring HIV-positive individuals and those at risk for HIV from enrolling in Medicaid and other health insurance programs, non-citizens will not receive life-saving health care and the risk for disease transmission will increase within Plaintiffs’ jurisdictions.
b. The Final Rule Will Increase Food Insecurity. 203. By penalizing immigrant participation in SNAP, the Final Rule undermines Plaintiffs’ interest in combatting food insecurity. While WIC is not an enumerated benefit under the Final Rule, the Rule’s chilling effect extends to the WIC program, which works in tandem with other benefits, such as SNAP and Medicaid. 204. Food-insecure individuals are disproportionately more likely to experience poor physical health. Food insecurity has particularly harmful direct and indirect impacts on the health, development, and overall well-being of children. For example, children in food-insecure households are more likely to be sick and experience increased behavioral and emotional issues, and are less likely to perform well in school.69 205. In an effort to stretch their food budget, food-insecure immigrants will be more likely to engage in cost-saving strategies that harm their health. For example, individuals will
69 The Impact of Poverty, Food Insecurity, and Poor Nutrition on Health and Well-Being, Food Res. & Action Ctr. 1 (Dec. 2017), http://frac.org/wp-content/uploads/hunger-health-impact-poverty-food-insecurity-health-wellbeing.pdf.
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purchase inexpensive and nutrient-poor food; underuse or skip medication; and choose between having food and having adequate housing, transportation, health care, and utilities.70
206. Additionally, because fewer non-citizen mothers and their children will participate in WIC, both will be at risk of birth complications, malnutrition, and even death. Moreover, non-citizen mothers will not receive other health supports that WIC provides, like breastfeeding support services. By deterring non-citizen mothers from accessing these services, the Final Rule will put children at greater risk of short- and long-term adverse health effects that are correlated with reductions in breastfeeding, including diabetes, obesity, and chronic disease, as well as reduced cognitive development.
c. The Final Rule Will Increase Housing Insecurity. 207. The Final Rule’s inclusion of housing assistance programs and its overall chilling effect on seeking public assistance will discourage individuals and families from participating in affordable housing programs. Individuals deterred from participating in housing programs because of the Final Rule will face substantial challenges in finding affordable housing and avoiding homelessness. For example, the New York State housing market is plagued by low vacancy rates and high rents. Specifically, the vacancy rate in New York State for non-rural areas is 4.3 percent compared to 6.1 percent nationally. Nearly 80 percent of New Yorkers living in non-rural areas confront a rental housing market that has less than a 5 percent vacancy rate. Extremely low vacancy rates can be found throughout New York, including in Albany, Buffalo, New Rochelle, Troy, White Plains, and New York City. Additionally, the median rent in New York State is $1,075, hundreds of dollars higher than the national median rent of $827.
70 Eleanor Goldberg, 8 Impossible Choices People Who Can’t Afford Food Make Every Day, HuffPost (Oct. 23, 2014), https://www.huffpost.com/entry/hunger-statistics-us_n_6029332.
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The disparity is even wider for many municipalities throughout New York, including New York City and Hempstead.
208. Non-citizens will also incur substantial and potentially prohibitive costs, including thousands of dollars for deposits, brokers’ fees, up-front rental payments, and storage and moving fees.
209. Once an individual forgoes housing because of the Final Rule, it will be very difficult for such an individual to reenroll in housing programs to receive the benefits they once had. For example, all federal housing programs in New York State have waiting lists, and once individuals terminate their housing benefit, they will not be able to return to their old apartment or neighborhood.
210. Further, housing insecurity has negative health impacts. Scarce affordable housing can cause families to cohabitate in crowded, multi-family households, which can have negative health effects from overcrowding and stress.
211. Housing instability and homelessness further contribute to severe stress and mental health issues, including depression and anxiety—health issues that may follow children into adulthood. Additionally, children who experience housing instability are less likely to perform well in school and are more likely to experience economic insecurity in adulthood.
3. The Final Rule Will Harm State Economic Interests. 212. If adopted, the Final Rule will cause Plaintiff States to suffer massive federal funding cuts, significant economic ripple effects, and thousands of lost jobs. Specifically, even estimating that only 15 percent of households containing at least one non-citizen would disenroll in SNAP and Medicaid—enumerated benefits under the Final Rule—the Final Rule’s chilling effect will collectively cost Plaintiff States approximately $1.1 billion in federal funding; $2.3 billion in economic ripple effects; and 15,816 lost jobs. If benefits disenrollment reaches 35
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percent, Plaintiff States collectively stand to lose $2.7 billion in federal funding; $5.5 billion in ripple effects and the loss of tens of thousands of jobs.71
a. The Final Rule Will Increase State Medical and Hospital Costs. 213. The Final Rule will shift the costs of health care to hospitals and state and local governments. Moreover, the health care costs state and local governments will bear will increase overall and cause significant financial strain on these institutions. Because individuals without health insurance wait longer to seek care, the care they eventually receive from emergency rooms is more costly. 214. Because Medicaid and other health insurance programs offered through the NYS Marketplace have made health insurance more affordable, the number of uninsured New Yorkers has decreased. In 2013, the uninsured rate was 10 percent—it is now 4.7 percent because of increased health insurance coverage, including through Medicaid. The Final Rule will reverse this progress. 215. NYC Health + Hospitals estimates that if 20 percent of potentially affected Medicaid enrollees were to drop their health insurance, over 15,000 insured patients would become uninsured and Health + Hospitals would face a significant financial loss as a result in the first year of the Final Rule being in effect. 216. DOHMH may face increased costs for clinic services resulting from uncompensated care due to its obligation to provide certain types of care that it must provide regardless of a patient’s ability to pay; this may be compounded by an influx of uninsured patients.
71 Economic and Fiscal Impacts of Reduced Food and Medical Assistance,” Fiscal Pol’y Inst. (2018), http://fiscalpolicy.org/wp-content/uploads/2018/11/50-states-economic-impact-of-public-charge-1.pdf.
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217. In Connecticut—again, because of improved Medicaid access—the uninsured rate for low-income people making less than 200 percent of the Federal Poverty Level fell from 27 percent in 2013 to 15 percent in 2017, while the overall uninsured rate fell from 9 percent to 6 percent.
218. In Vermont, the overall uninsured rate fell from 7 percent to 4 percent during the same time frame.72
219. Plaintiffs will be also responsible for the substantial financial burden of increased health care costs associated with the decline in SNAP and WIC usage. Children who grow up with resulting higher rates of disease and malnutrition will likely need to rely on health care provided by state governments to treat these long-term issues.
b. The Final Rule Will Shift Costs to Plaintiffs’ Benefit Programs. 220. The Final Rule will shift the costs of providing non-cash, supplemental benefits to state and local governments. Like Congress, many state and local governments provide non-cash supplemental benefits to their residents to further critical public policy goals—such as improving general public health and nutrition, promoting education and child health, and assisting working families to maintain or achieve economic stability. 221. The Final Rule will transfer costs to these and other similar programs, forcing Plaintiffs to bear costs that Congress intended the federal government to share. As many immigrants disenroll or forgo the use of supplemental benefits enumerated in the Final Rule, Plaintiffs will need to try to cover the costs of providing such supplemental benefits to promote the health, nutrition, education, and housing security of their residents.
72 Health Insurance Coverage of the Total Population, The Henry J. Kaiser Fam. Found., https://www.kff.org/other/state-indicator/totalpopulation/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D
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c. The Final Rule Will Negatively Affect the Labor Force. 222. Deterring non-citizens from enrolling in Medicaid and other health insurance programs will negatively affect the workforce. Without routine, preventive health care, employees will be more likely to miss work because of their own illnesses or because they have to care for sick family members. This instability in the workforce will diminish economic productivity. 223. The increase in uninsured workers will significantly affect the health care industry, which disproportionately employs immigrants in lower-skilled positions such as nursing and home-health aides. In New York, 59 percent of employees in these fields are immigrants—the highest share nationally. Harms to this workforce will have cascading impacts in the fields and markets where these workers are employed. 224. Because home health agencies and nursing homes are less likely to provide employer-sponsored insurance, their employees are more likely to be enrolled in Medicaid. A sicker health-care workforce may result in a labor shortage, harming the workers and the individuals cared for by the workers. 225. In Vermont, the increase in uninsured workers will affect the farming, fishing, and forestry industry, in which 13.4 percent of all workers are immigrants.73 Like lower-skilled health care workers, agricultural workers are unlikely to receive employer-sponsored insurance and therefore more likely to be enrolled in Medicaid. 226. The decrease in Medicaid, SNAP, and WIC enrollment for children, which will worsen health outcomes, will also impede their academic success, and thus limit their economic contributions in the future.
73 Immigrants in Vermont, Am. Immigr. Council, 3 (2017), https://www.americanimmigrationcouncil.org/sites/default/files/research/immigrants_in_vermont.pdf.
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227. Additionally, the decrease in safe and stable housing interferes with children’s educational and financial prospects.
d. The Final Rule Will Decrease Economic Productivity. 228. Research has shown that SNAP helps to stimulate state and local economies. The SNAP program has a direct economic multiplier effect: for every one dollar in SNAP benefits received, there is an approximate $1.79 in increased economic activity.74 229. In 2017, New York had one of the highest number of SNAP benefit redemptions in the United States, along with California, Texas, and Florida. More than $4.7 billion federal SNAP dollars were spent in New York State at the more than 18,600 authorized retailers, including supermarkets, grocery stores, and convenience stores.75 230. In 2017, Connecticut SNAP recipients spent $653.08 million at some 2,600 approved authorized retail locations, buoying the state's economy. 76 231. In 2017, Vermont SNAP recipients spent $112.95 million at 700 authorized locations in the State.77
74 Kenneth Hanson, The Food Assistance National Input-Output Multiplier (FANIOM) Model and Stimulus Effects of SNAP, U.S. Dep’t of Agric., iv (Oct. 2010), https://www.ers.usda.gov/webdocs/publications/44748/7996_err103_1_.pdf?v=0. 75 U.S. Dep’t of Agric., Fiscal Year 2017 At a Glance, 3 (Jan. 16, 2018), https://fnsprod.azureedge.net/sites/default/files/snap/2017-SNAP-Retailer-Management-Year-End-Summary.pdf. 76 Catlin Nchako & Lexin Cai, A Closer Look at Who Benefits from SNAP: State-by-State Fact Sheets, Ctr. for Budget and Pol’y Priorities (Dec. 3, 2018), https://www.cbpp.org/research/food-assistance/a-closer-look-at-whobenefits-from-snap-state-by-state-fact-sheets#Connecticut 77 Catlin Nchako & Lexin Cai, A Closer Look at Who Benefits from SNAP: State-by-State Fact Sheets, Ctr. for Budget and Pol’y Priorities (Dec. 3, 2018), https://www.cbpp.org/research/food-assistance/a-closer-look-at-whobenefits-from-snap-state-by-state-fact-sheets#Vermont.
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232. SNAP also benefits local farms in New York. In 2017, approximately 60,000 New York households spent $3.4 million federal SNAP dollars at authorized farmers’ markets throughout the State.78
233. Vermont SNAP recipients are eligible for “crop cash,” a program funded by the USDA that incentivizes spending SNAP benefits at local farmer’s markets.79 In 2018, recipients spent $62,533 in crop cash in Vermont.
e. The Final Rule Will Increase the Cost of Providing Shelter. 234. The lack of participation in affordable housing programs will increase emergency shelter use, which will place a substantial financial strain on states and municipalities. It is significantly more expensive to house a family in an emergency shelter than to provide long-term housing through either public housing or Section 8. In 2016, it cost Connecticut an average of over $91 per night – or $33,360 per year – to shelter a homeless person, as against an average of $15,198 annually to rent a HUD-subsidy-eligible two-bedroom apartment at the average statewide HUD-determined fair market rent.80 In Vermont, the average cost for emergency housing from the state general assistance fund was $74 per night. 4. The Final Rule Interferes With Obligations Under State Law. 235. The Final Rule will significantly impede the ability of Plaintiffs, their agencies, and their institutions to provide critical care and services to their residents, including those as mandated by state law. The Rule’s chilling effect prevents Plaintiffs and their agencies from fulfilling their mandate to provide aid to their residents.
78 Press Release, N.Y.S. Governor Andrew M. Cuomo, Governor Cuomo Announces Plan to Protect SNAP Recipients’ Access to Farmers’ Markets (July 27, 2018), https://www.governor.ny.gov/news/governor-cuomoannounces-plan-protect-snap-recipients-access-farmers-markets. 79 NOFA-VT, https://nofavt.org/cropcash. 80 CECHI: Connecticut Estimating Costs of Child Homelessness Initiative (Apr. 26, 2016), http://www.pschousing.org/files/CECHI_4_21_16-2final.pdf.
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236. For example, Article XVII of the New York State Constitution provides that “the aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions.” N.Y. Const., art. XVII, § 1. It also provides that “the protection and promotion of the health of the inhabitants of the state are matters of public concern and provision therefore shall be made by the state and by such of its subdivisions.” Id.
237. In accordance with this constitutional mandate, the New York State Legislature created OTDA, and charged it with providing for the health and well-being of New York residents. The New York Legislature has made clear that this includes providing “family assistance,” “safety net assistance,” and “medical assistance” to non-citizens. See N.Y. Social Services Law § 122. Because the Final Rule deters non-citizens from accessing benefits that and other New York State agencies administer, the Final Rule would significantly frustrate OTDA’s constitutional and statutory responsibilities.
238. Similarly, in New York State, the Office for New Americans (“ONA”)—a statutorily-created state-level immigrant services office—is charged with helping immigrants fully and successfully integrate into their communities through, among other things, English language instruction and job training. Because the Final Rule would cause immigrants to forgo services necessary to their health and well-being, the Final Rule would impede ONA’s ability to provide its core services, and will instead force ONA to divert resources to deal with the effects of unmet basic needs, and the burdens that the Final Rule imposes. For example, attorneys that ONA’s resources support may need to divert significant staff time to assisting immigrants complete the forms that the Final Rule requires.
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5. The Final Rule Imposes Programmatic and Administrative Burdens on Plaintiffs and Their Institutions.
239. The Final Rule will impose significant additional programmatic and administrative burdens on the state and local agencies that administer many of the programs that are included in the public charge analysis, or will be implicated by the Final Rule’s chilling effect.
240. Plaintiffs will no longer be able to consistently rely on current systems they have invested in to streamline benefits enrollment, and will need to instead employ costly and timeconsuming processes that will strain their budgets.
241. For example, New York, Connecticut, and Vermont commonly determine whether individuals are income-eligible for WIC based on their participation in programs like Medicaid and SNAP. Because the Final Rule will result in a decrease in participation in Medicaid and SNAP among WIC families, WIC staff will no longer be able to rely on such participation to determine income-eligibility for many individuals.
242. Accordingly, state agency staff will need to spend additional time conducting income assessments for WIC applicants, which is one of the most burdensome elements of the process.
243. Plaintiffs will also need to undertake significant efforts to educate agency staff and the public on the Final Rule. Indeed, although DHS significantly underestimates the costs of familiarizing individuals with the Final Rule, it acknowledges these costs exist, and will burden a wide variety of Plaintiffs’ entities. 84 Fed. Reg. at 41,467, 41,488.
244. NYC Health + Hospitals will incur significant costs to implement the Final Rule, which will include costs for staff training, outreach, preparation of materials, and additional financial counseling and legal services to support its patients. MetroPlus, the managed care plan
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owned by Health + Hospitals, would also experience a negative financial impact related to decreased enrollment and the cost of implementation.
245. NYSDOH expects to expend approximately $8.3 million because of the Final Rule. These costs include training the NYS Marketplace customer service center representatives and approximately 7,000 in-person assistors who help residents apply for health insurance programs; developing policies and procedures for these representatives to refer non-citizens and citizens with non-citizen family members to other state agencies, like ONA for more information with respect to the Final Rule; and increased call time for customer service center representatives responding to questions about the Rule.
246. Additionally, state agencies will have to divert staff resources to educate vulnerable communities, and address increased call volume and traffic from concerned residents.81 In New York, for example, ONA has already expended considerable efforts in responding to the Proposed Rule. For instance, in response to a significant increase in telephone calls and individuals seeking guidance from ONA’s community partners, ONA hosted a two-day phone bank on public charge in early October 2018, which drew over 800 callers, and resulted in over 1,000 referrals to other services. ONA anticipates that because of the Final Rule it will need to continue and intensify these efforts.
247. Likewise, the City of New York has expended and will continue to expend substantial resources in connection with the new regulation. The City’s efforts include creating and implementing a comprehensive media and community outreach and education campaign, developing a script for 311 operators to field calls from New Yorkers concerned about how the
81 The Office for New Americans, a New York State immigration service, has reported triple the staff time necessary to answer questions on public charge and enrollment in public benefits since the Proposed Rule was published.
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rule will affect them, participating in over 150 public meetings, developing a City-wide strategy with consistent messaging for use by all affected City Agencies, expanding the scope of the City’s immigration telephone hotline in order to better address New Yorkers’ questions and concerns about the public charge regulation, and connecting New Yorkers who may be impacted—or who fear that they may be impacted—by the regulation with referrals to Cityfunded, free legal services.
248. Moreover, state agencies will have to expend time to process disenrollment requests and applications to re-enroll (“churn”). Churn is associated with fear-based disenrollment followed by subsequent re-enrollment. Re-enrollment may happen when individuals learn they are not subject to a public charge determination or when medical or nutritional problems advance such that re-enrollment is necessary despite the potential negative impact on the family’s immigration status.
249. In some contexts, the effects of disenrollment and re-enrollment will be particularly costly. For example, NYSHCR currently has no policies or procedures in place to assist individuals in reentering federal housing programs after termination because re-enrollment is rare. If the Final Rule were to go into effect, NYSHCR may need to devise policies and procedures to address how to assist families that may relinquish their housing because of fear, but then may subsequently seek housing because of a change in circumstances.
250. The Final Rule also obligates state and local agencies to provide information to USCIS to determine whether a “public charge bond has been breached.” Gathering, storing, and transmitting this information will require Plaintiffs either to expend additional resources or to divert resources from other areas to comply.
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6. The Final Rule Harms Plaintiffs’ Interest in Civil Rights. 251. Plaintiffs have an interest in promoting and protecting the civil rights of their citizens, which the Final Rule dramatically undermines. The Final Rule would impose devastating and disproportionate burdens on Plaintiffs’ most vulnerable populations, including individuals with disabilities, women, and people of color.
a. The Final Rule Disproportionately Impacts Individuals with Disabilities.
252. The Final Rule targets and penalizes individuals with disabilities; the Rule will have a direct and disproportionate impact on immigrants with disabilities.
253. Individuals with disabilities disproportionately rely on public benefit programs— often because of their disability—to be self-sufficient. Approximately 33 percent of Medicaid enrollees between the ages of 18 and 65 have a disability, as compared with approximately 12 percent of adults under the age of 65 in the general United States population. Additionally, nonelderly individuals with disabilities are significantly less likely to have private health insurance—often because of their disability—because of decreased access to employer-provided health insurance and increased health care needs.82 Medicaid provides preventative and primary care and medical treatment for chronic conditions. It also provides access to medical devices, and home- and community-based services, which are not covered by private insurance.
254. Although the Final Rule exempts services funded through Medicaid but instituted through the Individuals with Disabilities Education Act (“IDEA”) and exempts Medicaid benefits received by children themselves, as detailed above, the Final Rule will cause families to
82 MaryBeth Musumeci & Julia Foutz, Medicaid Restructuring Under the American Health Care Act and Nonelderly Adults with Disabilities, The Henry J. Kaiser Fam. Found. (Mar. 2017), http://files.kff.org/attachment/Issue-Brief-Medicaid-Restructuring-Under-the-American-Health-Care-Act-andNonelderly-Adults-with-Disabilities.
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disenroll even from benefits that are not technically within the scope of the Final Rule and will likely deter families from enrolling or maintaining their special needs children in Medicaid. Public health insurance programs like Medicaid provide specialized care and services that help children with special needs stay healthy, manage their activities of daily living, attend school, and, for some, to stay alive.83
b. The Final Rule Disproportionately Impacts Women. 255. The Final Rule disproportionately harms women because non-citizen women, particularly women of color, are at a higher risk for economic insecurity than non-citizen men are and therefore are more likely to participate in and benefit from the supplemental public programs that the Final Rule targets. This heightened risk of economic insecurity is due in part to pay disparities, discrimination, overrepresentation of immigrant women and especially immigrant women of color in low-wage work, which all inhibit the ability of immigrant women to have private health care coverage and food security. For example, in 2017, 47 percent of noncitizen recipients of Medicaid were women (as compared to 40 percent men and 13 percent children). Similarly, 48 percent of non-citizen recipients of SNAP were women (as compared to 40 percent men and 12 percent children).84 256. Moreover, the Final Rule harms women by including employment history in the public charge analysis. See 84 Fed. Reg. at 41,503. Women have a disproportionate responsibility for caregiving duties and immigrant women often forgo careers in the formal
83 MaryBeth Musumeci & Julia Foutz, Medicaid’s Role for Children with Special Health Care Needs: A Look at Eligibility, Services, and Spending, The Henry J. Kaiser Fam. Found. (Feb. 22, 2018), https://www.kff.org/medicaid/issue-brief/medicaids-role-for-children-with-special-health-care-needs-a-look-ateligibility-services-and-spending/. 84 National Women’s Law Center calculations based on U.S. Census Bureau, 2017 Current Population Survey, using Sarah Flood, Miriam King, Renae Rodgers, Steven Ruggles, and J. Robert Warren. Integrated Public Use Microdata Series, Current Population Survey: Version 6.0 [dataset]. Minneapolis, MN: IPUMS, 2018, at https://doi.org/10.18128/D030.V6.0.
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economy to focus on childcare and other familial needs. In the Final Rule, DHS pays lip service to this reality by including a provision that permits DHS to consider whether the applicant is a “primary caregiver” for an individual presently residing in the applicant’s home. However, the Final Rule’s primary caregiver consideration applies only to current caregivers, and will not help immigrants whose employment history is limited by their former caregiver role. See id. at 41,438, 41,504, 41,438, 41,502 (to be codified at 8 C.F.R. 212.21(f)). Moreover, when determining whether an applicant is a “primary caregiver,” USCIS will consider evidence of whether the individual is residing in the alien’s home, the individual’s age and medical condition, including disability. See id. at 41,504.
257. The Final Rule further disproportionately affects women by considering lack of high school diploma and LEP as indicators of likelihood that an immigrant may become a public charge. See 83 Fed. Reg. at 51,190, 51,195. Women receive less formal education in many regions. This is even more likely to harm women when compounded with the above focus on employment history.
c. The Final Rule Disproportionately Impacts People of Color. 258. The Final Rule will overwhelmingly harm non-white immigrants. Of the 25.9 million immigrants who will be affected by the Rule, 23.3 million are non-white.85 259. Immigrant applicants of color will be disproportionately harmed by the inclusion of LEP as a negative factor. In 2015, individuals with LEP represented 9 percent86 of the United States population ages five and older. New York is home to one of the highest concentrations of
85 Custom Tabulation by Manatt Phelps & Philips LLP, Public Charge Proposed Rule: Potentially Chilled Population Data Dashboard, (Oct. 11, (2018), https://www.manatt.com/Insights/Articles/2018/Public- ChargeRule-Potentially-Chilled-Population (using 2012-2016 5-Year American Community Survey Public Use Microdata Sample (ACS/PUMS); 201220162012-201620122016 5-Year American Community Survey (ACS) estimates accessed via American FactFinder; Missouri Census Data Center (MCDC) MABLE PUMA-County Crosswalk). 86 Zong & Batalova, supra note 37.
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individuals with LEP—approximately 10 percent of the United States individuals with LEP call New York home. In New York, 2,518,700 people—more than 13 percent of New York’s population—had limited English proficiency.
260. In 2015, 278,700 people—more than 8 percent of Connecticut’s population—had limited English proficiency.87 In Vermont, this number was 9,000, or roughly 1.5 percent of Vermont’s population.88
261. Latino and Asian immigrants have the lowest rates of English proficiency, as compared to European and Canadian immigrants who have the highest rates.89
262. The Final Rule’s weighted circumstances test favors white immigrants. Sixty percent of green card applicants from Mexico and Central America and 41 percent from Asia had two or more negative factors, whereas only 27 percent of immigrants from Europe, Canada, and Oceania have two or more negative factors.90 Immigrants from Europe and Canada, and Oceania (primarily Australia and New Zealand) are the least likely to be affected by the Final Rule’s changes to public charge because they are generally wealthier, more educated, and more likely to speak English. In fact, immigrants from these regions with predominantly white populations have the highest proportion of recent lawful permanent residents with family income above 250 percent FPG.91
87 Id. 88 Id. 89 Jynnah Radford, Key Findings about U.S. Immigrants, Pew Res. Ctr. (June 17, 2019), https://www.pewresearch.org/fact-tank/2019/06/17/key-findings-about-u-s-immigrants/; Language Spoken at Home and English-speaking Ability, by Age, Nativity and Region of Birth: 2016, Pew Res. Ctr., http://assets.pewresearch.org/wp-content/uploads/sites/7/2018/09/06132759/PH_2016-Foreign-Born-StatisticalPortraits_Current-Data_7_Language-by-age-nativity-and-birth-region.png. 90 Capps et al., supra note 36. 91 Id. at 19-26.
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FIRST CLAIM FOR RELIEF (Administrative Procedure Act—Exceeds Statutory Authority) 263. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 264. Under the Administrative Procedure Act, courts must “hold unlawful and set aside agency action” that is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C). 265. Defendants may only exercise authority conferred by statute. City of Arlington v. FCC, 569 U.S. 290, 297-98 (2013). 266. The Final Rule exceeds Defendants’ statutory authority because the Final Rule imposes a novel meaning of “public charge” that is contrary to the well-settled meaning of that term. The Final Rule disregards the long-standing meaning of primary and permanent dependence incorporated into the definition of public charge, and considers receipt of any public benefits for 12 months in the aggregate within any 36-month period sufficient to render an applicant a public charge. This change is not authorized by the relevant federal statutes. 267. The Final Rule also exceeds Defendants’ statutory authority because the Final Rule, contrary to Congressional intent, would permit Defendants to consider applicants’ use of non-cash benefits, such as food supplements, public health insurance, and housing assistance in a public charge determination. 268. The Final Rule also exceeds Defendants’ statutory authority because the weighted circumstances test targets applicants who Congress never intended to consider public charges. 269. The Final Rule further exceeds Defendants’ statutory authority because the Final Rule would permit Defendants to apply the public charge determination to applicants seeking to adjust non-immigrant visas and deprive them of a totality of circumstances inquiry.
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270. The Final Rule is therefore “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” in violation of the APA. 5 U.S.C. § 706(2)(C).
271. Defendants’ violation causes ongoing harm to Plaintiffs and their residents. SECOND CLAIM FOR RELIEF
(Administrative Procedure Act—Not in Accordance with Law) 272. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 273. Under the APA, a court must set “aside agency action” that is “not in accordance with law.” 5 U.S.C. § 706(2)(A). 274. The Final Rule conflicts with Section 504 of the Rehabilitation Act, which provides that no individual with a disability “shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency[.]” 29 U.S.C. § 794(a). 275. The Final Rule also conflicts with the SNAP statute, which provides that “[t]he value of benefits that may be provided under this chapter shall not be considered income or resources for any purpose under any Federal, State, or local laws, including, but not limited to, laws relating to taxation, welfare, and public assistance program.” 7 U.S.C. § 2017(b). 276. Finally, the Final Rule conflicts with the Welfare Reform Act, which provides that “a State is authorized to determine the eligibility of an alien . . . for any designated Federal program.” 8 U.S.C. § 1612(b)(1). 277. The Final Rule is therefore “not in accordance with law” as required by the APA. 5 U.S.C. § 706(2)(A). 278. Defendants’ violation causes ongoing harm to Plaintiffs and their residents.
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THIRD CLAIM FOR RELIEF (Administrative Procedure Act—Arbitrary and Capricious) 279. Plaintiffs incorporate by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 280. The APA provides that courts must “hold unlawful and set aside” agency action that is “arbitrary, capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2)(A). 281. The Final Rule is arbitrary and capricious because DHS’s justification for its decision runs counter to the evidence before the agency, relies on factors Congress did not intend the agency to consider, and disregards material facts and evidence. 282. The Final Rule is arbitrary and capricious because Defendants have failed to reasonably justify their departure from decades of settled practice with respect to the scope and definition of a “public charge” and their expansion of the public charge determination to include factors that are not rationally related to whether an individual will become primarily and permanently dependent on governmental assistance. 283. The Final Rule is arbitrary and capricious because it arbitrarily discriminates against individuals with disabilities and does not address the Rule’s conflict with Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. 284. The Final Rule is arbitrary and capricious because its replaces the statutory totality of the circumstances test with a test that is vague, arbitrary, and unsupported by the evidence. 285. The Final Rule is arbitrary and capricious because it is pretextual. While the Final Rule purports to identify individuals who will be public charges, its adoption of factors that bear no reasonable relationship to that inquiry demonstrates that defendants were instead seeking to reduce immigration by immigrants of color.
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286. The Final Rule is arbitrary and capricious because DHS fails to adequately address the Final Rule’s discriminatory impact. The Final Rule is arbitrary and capricious because it does not adequately quantify or consider the harms that will result.
287. The Final Rule is arbitrary and capricious because it relies on incorrect legal interpretations of Matter of Vindman, 16 I &N Dec. 131 (Reg’l Comm’r 1977), and Matter of Harutunian, 14 I&N Dec. 583 (Reg’l Comm’r 1974).
288. The Final Rule is therefore “arbitrary, capricious, [or] an abuse of discretion” in violation of the APA. 5 U.S.C. § 706(2)(A).
289. Defendants’ violation causes ongoing harm to Plaintiffs and their residents. FOURTH CLAIM FOR RELIEF
(Administrative Procedure Act—Without Observance of Procedure Required by Law) 290. Plaintiffs incorporate by reference the allegations set forth in each of the
preceding paragraphs of this Complaint. 291. The APA provides that courts must “hold unlawful and set aside agency action”
that is “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). 292. The APA requires agencies to publish notice of all proposed rulemakings in a
manner that “give[s] interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments . . . .” 5 U.S.C. § 553(c); see also id. § 553(b).
293. The Final Rule failed to quantify harm to public health, state economies, and other administrative burdens.
294. In addition, the Final Rule entirely eliminates the benefits value threshold of 15 percent of the FPG in the public charge definition and allows DHS offices to stack the number of months when counting how long an applicant has used benefits. Neither of these policies was discussed in the Proposed Rule, and they are not a logical outgrowth of the Proposed Rule.
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Accordingly, these provisions were adopted without conforming to procedure required by law in violation of 5 U.S.C. § 706(2)(D).
295. The regulations as drafted must be set aside as in violation of 5 U.S.C. § 706(2)(D). FIFTH CLAIM FOR RELIEF
(U.S. Constitution, Fifth Amendment—Due Process Clause Equal Protection Guarantee) 296. Plaintiffs incorporate by reference the allegations set forth in each of the
preceding paragraphs of this Complaint. 297. Under the equal protection component of the Due Process Clause of the Fifth
Amendment to the United States Constitution, the federal government cannot deny to any person the equal protection of its laws. The Due Process Clause prohibits the federal government from discriminating against individuals on the basis of race, ethnicity, and national origin. U.S. Constitution Amend. V.
298. Defendants were motivated by discriminatory animus toward Latinos and immigrant communities of color when they promulgated the Final Rule.
299. Defendants intend to target Latino immigrants and immigrants of color with the Final Rule, as part of their broader effort to reduce the population of permanent residents of color in the United States.
300. Defendants’ violation causes ongoing harm to Plaintiffs and their residents. PRAYER FOR RELIEF
Wherefore, Plaintiffs respectfully request that this Court: 1. Declare that the Final Rule is in excess of the Department’s statutory jurisdiction,
authority, or limitations, or short of statutory right within the meaning of 5 U.S.C. § 706(2)(C); 2. Declare that the Final Rule is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law within the meaning of 5 U.S.C. § 706(2)(A);
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3. Declare that the Final Rule is without observance of procedure required by law

within the meaning of 5 U.S.C. § 706(2)(D);

4. Declare that the Final Rule is unconstitutional;

5. Vacate and set aside the Final Rule;

6. Enjoin the Department and all its officers, employees, and agents, and anyone

acting in concert with them, from implementing, applying, or taking any action whatsoever under

the Final Rule;

7. Postpone the effective date of the Final Rule pursuant to 5 U.S.C. § 705;

8. Grant other such relief as this Court may deem proper.

DATED: August 20, 2019

Respectfully submitted,

LETITIA JAMES Attorney General of the State of New York

By: /s/ Matthew Colangelo Matthew Colangelo
Chief Counsel for Federal Initiatives

Ming-Qi Chu, Section Chief, Labor Bureau Elena Goldstein, Senior Trial Counsel Amanda Meyer, Assistant Attorney General Abigail Rosner, Assistant Attorney General Ajay Saini, Assistant Attorney General Office of the New York State Attorney General 28 Liberty Street New York, NY 10005 Phone: (212) 416-6057 Matthew.Colangelo@ag.ny.gov

Attorneys for the State of New York

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ZACHARY W. CARTER

WILLIAM TONG

Corporation Counsel of the City of New York Attorney General of Connecticut

By: /s/ Tonya Jenerette Tonya Jenerette
Deputy Chief for Strategic Litigation Cynthia Weaver, Senior Counsel Hope Lu, Senior Counsel Doris Bernhardt, Senior Counsel Melanie Ash, Senior Counsel 100 Church Street, 20th Floor New York, NY 10007 Phone: (212) 356-4055 tjeneret@law.nyc.gov

By: /s/ Joshua Perry Joshua Perry*
Special Counsel for Civil Rights 55 Elm Street Hartford, CT 06106-0120 (860) 808-5318 Joshua.perry@ct.gov
Attorneys for the State of Connecticut

Attorneys for the City of New York

THOMAS J. DONOVAN, JR. Attorney General of Vermont

By: /s/ Benjamin Battles Benjamin Battles, Solicitor General Eleanor Spottswood, Assistant Attorney General Julio Thompson,* Assistant Attorney General Office of the Attorney General 109 State Street Montpelier, VT 05609-1001 (802) 828-5500 benjamin.battles@vermont.gov

Attorneys for the State of Vermont

*Application for admission pro hac vice forthcoming

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK, CITY OF NEW YORK, STATE OF CONNECTICUT, and STATE OF VERMONT,
Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY; KEVIN K. McALEENAN, in his official capacity as Acting Secretary of the United States Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; KENNETH T. CUCCINELLI II, in his official capacity as Acting Director of United States Citizenship and Immigration Services; and UNITED STATES OF AMERICA,
Defendants.
MAKE THE ROAD NEW YORK, AFRICAN SERVICES COMMITTEE, ASIAN AMERICAN FEDERATION, CATHOLIC CHARITIES COMMUNITY SERVICES, and CATHOLIC LEGAL IMMIGRATION NETWORK, INC.,
Plaintiffs, v. KEN CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services; UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES; KEVIN K. McALEENAN, in his official capacity as Acting Secretary of Homeland Security; and UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendants.

CIVIL ACTION NO. 19 Civ. 07777 (GBD)
CIVIL ACTION NO. 19 Civ. 07993 (GBD)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND STAY OR TEMPORARY RESTRAINING ORDER
PENDING NATIONAL EMERGENCY

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TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................... 1 PROCEDURAL BACKGROUND................................................................................................. 2 CHANGES IN FACTUAL CIRCUMSTANCES .......................................................................... 3
A. The Nationwide COVID-19 Pandemic ............................................................................... 4 B. The Importance of Public Benefits in Responding to the COVID-19 Crisis...................... 6 C. The Harms Imposed by the Rule and the COVID-19-Related Guidance Issued by the Department of Homeland Security ............................................................................................. 8 ARGUMENT ................................................................................................................................ 12 A. The Court has authority to issue a new, narrow injunction to address the drastic changed circumstances engendered by the COVID-19 pandemic. ......................................................... 13 B. The Court should issue a targeted and limited preliminary injunction for the duration of the national emergency. ............................................................................................................ 16
1. The Rule causes irreparable harms not previously before the Court.......................... 16 i. The Rule is impeding efforts to mitigate the spread of the virus. .............................. 16 ii. The Rule deters access to public benefits that are necessary to respond to the severe economic crisis caused by COVID-19.............................................................................. 19 iii. USCIS’s alert does not remedy these substantial harms......................................... 21
2. Balance of equities and public interest favor issuance of an injunction..................... 23 3. Plaintiffs have demonstrated likelihood of success on the merits of their claims. ..... 24 C. Nationwide relief is warranted and essential. ................................................................... 25 CONCLUSION............................................................................................................................. 25
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TABLE OF AUTHORITIES

Page(s)

Andino v. Fischer, 555 F. Supp. 2d 418 (S.D.N.Y. 2008)......................................................................................12

City & Cty. of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018) .................................................................................................25

Coronel v. Decker, No. 20 Civ. 2472 (AJN), 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) ....................13, 24, 25

Department of Homeland Security, et al. v. New York, et al., No. 19A785 (S. Ct. Apr. 20, 2020) ..........................................................................................22

Flatiron Health, Inc. v. Carson, No. 19 CIV. 8999 (VM), 2020 WL 257505 (S.D.N.Y. Jan. 17, 2020)....................................15

Gortat v. Capala Bros., No. 07-CV-3629(ILG), 2008 WL 5273960 (E.D.N.Y. Dec. 18, 2008)...................................13

Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623 (1962).................................................................................................................14

Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. E. Air Lines, Inc., 847 F.2d 1014 (2d Cir. 1988)...................................................................................................13

Mayweathers v. Newland, 258 F.3d 930 (9th Cir. 2001) ...................................................................................................14

New York State Nat. Org. for Women v. Terry, 886 F.2d 1339 (2d Cir. 1989)...................................................................................................13

New York v. United States Dep't of Homeland Sec., 408 F. Supp. 3d 334 (S.D.N.Y. 2019) .....................................................................................24

New York v. United States Dep't of Homeland Sec., No. 19 Civ. 7777 (GBD), 2019 WL 6498250 (S.D.N.Y. Dec. 2, 2019) .................................24

Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904 (2d Cir. 1990).....................................................................................................13

Texas v. EPA, 829 F.3d 405 (5th Cir. 2016) ...................................................................................................13

Trump v. International Refugee Assistance Project, 137 S. Ct. 2080 (2017) .......................................................................................................14, 23

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United States v. Carr, 557 F.3d 93 (2d Cir. 2009).......................................................................................................24
Webb v. GAF Corp., 78 F.3d 53 (2d Cir. 1996) ........................................................................................................14
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 26 (2008)) ............................................................................................................24
Wolf v. Cook Cty., Ill., 140 S. Ct. 681 (2019) .................................................................................................................3
FEDERAL STATUTES 5 U.S.C.
§ 705...............................................................................................................................2, 12, 25 50 U.S.C.
§ 1601 et seq. .............................................................................................................................4 Coronavirus Aid, Relief, and Economic Security Act,
Pub. L. No. 116-136§ 6428(d), 134 Stat. 281, 335 (2020) ........................................................8 FEDERAL REGULATIONS 83 Fed. Reg. 51,114 (Oct. 10, 2018)..........................................................................................8, 17 84 Fed. Reg. 41,292 (Aug. 14, 2019)..................................................................................... passim 85 Fed. Reg. 15,337 (Mar. 13, 2020)...............................................................................................5 RULES Fed. R. Civ. P. 62.1 ........................................................................................................2, 15, 16, 25 Fed. R. Civ. P 65 ......................................................................................................................12, 25 MISCELLANEOUS AUTHORITIES Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §
3949.1 (3d ed. Aug. 2019 update)......................................................................................14, 15
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PRELIMINARY STATEMENT In the last two months, the novel coronavirus SARS-CoV-2 has triggered a devastating global pandemic, afflicting almost a million people in the United States with a potentially lethal illness, coronavirus disease 2019 (COVID-19). The virus has already killed over 53,000 people in the United States, including almost 20,000 in the three Plaintiff states alone. The rapid and ongoing spread of COVID-19 is causing a nationwide public-health crisis and wreaking havoc on the economy. The President has declared a state of national emergency. And state and local authorities—including Governmental Plaintiffs here, the States of New York, Connecticut, and Vermont, and the City of New York—have also declared states of emergency and are undertaking extraordinary efforts to stop the spread of COVID-19 and protect the health and well-being of our residents. Extensive recent evidence presented with this motion—evidence developed during and pertaining to the period following this Court’s October 2019 preliminary injunctions and the Supreme Court’s January 2020 stay order—shows that the Public Charge Rule (the “Rule”) is gravely hindering those efforts. By deterring immigrants from accessing publicly funded healthcare, including programs that would enable immigrants to obtain testing and treatment for COVID-19, the Rule makes it more likely that immigrants will suffer serious illness if infected. In turn, those infected are likely to spread the virus inadvertently to others—a risk that is heightened because the essential workers who interact daily with the public are disproportionately immigrants. The Rule also deters access to public benefits, including nutrition benefits, that are critical for both immigrants and the country as a whole to weather the economic crisis triggered by COVID-19. The Rule thereby impedes efforts to protect the public at large from further spread of the virus and to promote our nation’s recovery from the economic crisis
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that the virus has caused. In light of the dire risks the Rule poses to the public, on April 13, 2020, the
Governmental Plaintiffs filed a motion in the Supreme Court to temporarily lift or modify the Supreme Court’s stay on this Court’s injunction for the duration of the COVID-19 pandemic. In the alternative, the Governmental Plaintiffs requested that the Supreme Court clarify that the stay pending appeal did not preclude Plaintiffs from seeking emergency relief from this Court on the same grounds. On April 24, 2020, the Supreme Court denied the Governmental Plaintiffs’ request to modify or lift the stay, but ruled that “[t]his order does not preclude a filing in the District Court as counsel considers appropriate.”1
Accordingly, Plaintiffs respectfully request that the Court make factual findings recognizing the harmful effects of the Rule during this time of crisis, and issue a new injunction or a Section 705 stay temporarily halting implementation of the Rule during the national COVID-19 emergency declared by the President. Plaintiffs also request that the Court issue an indicative ruling pursuant to Rule 62.1 of the Federal Rules of Civil Procedure, indicating that the court would issue the preliminary injunction if the Second Circuit were to remand the case for that purpose. In the alternative, Plaintiffs respectfully request that the Court issue a temporary restraining order until Plaintiffs’ motion for an injunction or stay can be adjudicated.
PROCEDURAL BACKGROUND In August 2019, DHS issued its Public Charge Rule, which modified its criteria for determining inadmissibility on public charge grounds. 84 Fed. Reg. 41,292 (Aug. 14, 2019). Under the Rule, DHS officials must now deem an immigrant to be a “public charge” if the immigrant is likely to receive any amount of certain “public benefits,” including supplemental
1 Exhibit 2 to Declaration of Elena Goldstein dated April 28, 2020 (hereinafter “Ex. __”) (Supreme Court April 24, 2020 Order)
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benefits such as Medicaid, Supplemental Nutrition Assistance Program (SNAP) benefits, and Section 8 housing assistance during “more than 12 months in the aggregate within any 36-month period” during the immigrant’s life. Id. at 41,501.
On October 11, 2019, the Court issued two orders that preliminarily enjoined the enforcement of the Rule on a nationwide basis, and postponed the Rule’s effective date pursuant to 5 U.S.C. § 705. On December 2, 2019, the Court denied Defendants’ request to stay the injunction pending appeal. See Dkt. No. 122. On January 7, 2020, the Second Circuit also denied Defendants’ stay request. See Dkt. No.132. On January 27, 2020, the Supreme Court issued a stay of this Court’s orders of preliminary relief, thereby allowing the Rule to take effect.2 On February 21, 2020, the Supreme Court issued a stay of a preliminary injunction issued by the United States District Court for the Northern District of Illinois that had prevented enforcement of the Rule in Illinois alone. Wolf v. Cook Cty., Ill., 140 S. Ct. 681, 681 (2019) (Justices Ginsburg, Breyer, Sotomayor, and Kagan dissenting). In reliance on the Supreme Court’s stay orders, Defendants began enforcing the Rule nationwide on February 24, 2020.
On April 24, 2020, in response to the Governmental Plaintiffs’ motion, the Supreme Court denied the Governmental Plaintiffs’ request to modify or lift the stay but ruled that “[t]his order does not preclude a filing in the District Court as counsel considers appropriate.”3 Pursuant to the Supreme Court’s order, Plaintiffs now seek new preliminary relief to halt implementation of the Rule during the COVID-19 pandemic. CHANGES IN FACTUAL CIRCUMSTANCES SINCE THE COURT’S PRIOR ORDERS
Since October 11, 2019, when this Court entered preliminary injunctions in these matters, and January 27, 2020, when those injunctions were stayed by the Supreme Court, the nationwide
2 Ex. 1 (Supreme Court January 27, 2020 Order) (Justices Ginsburg, Breyer, Sotomayor, and Kagan dissenting). 3 Ex. 2 (Supreme Court April 24, 2020 Order).
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COVID-19 pandemic has dramatically increased the public harm caused by the Rule, and thus
substantially altered the balance of hardships from allowing it to take effect. We summarize here
the extensive recent evidence submitted with this motion demonstrating how the Rule is severely
impeding efforts to mitigate the dire health and economic harms done by the pandemic.
A. The Nationwide COVID-19 Pandemic
After the Supreme Court issued its stays, COVID-19 began sweeping across the United
States. COVID-19 has already exacted a tremendous toll on the nation, and the pace of its spread
continues to increase rapidly. In the United States, 957,875 individuals have confirmed cases of COVID-19, and at least 53,000 people have died from the disease.4
Plaintiffs and Governmental Plaintiffs’ residents have been particularly hard hit. In New
York, which has become the current epicenter of the pandemic in the United States, 291,996
people have confirmed cases of COVID-19, and at least 17,300 people have died from the disease.5 In New York City alone, there are currently more than 156,000 confirmed positive cases and more than 11,000 confirmed deaths.6 The New York communities where Plaintiff
Make the Road New York has community centers in Queens, Brooklyn, Westchester, and Long Island have been particularly devastated by the pandemic.7 And other jurisdictions across the country have likewise seen rising numbers of infections and fatalities.8 These figures likely
vastly underrepresent the number of actual infections and related deaths for many reasons,
4 Center for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19): Cases in U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last updated Apr. 28, 2020). 5 See New York Dep’t of Health, NYSDOH COVID-19 Tracker, https://coronavirus.health.ny.gov/county-countybreakdown-positive-cases (last updated Apr. 28, 2020); New York Dep’t Health, Fatalities by County, https://covid19tracker.health.ny.gov/views/NYS-COVID19-Tracker/ NYSDOHCOVID-19TrackerFatalities?%3Aembed=yes&%3Atoolbar=no&%3Atabs=n (last updated Apr. 28, 2020). 6 See New York City Dep’t of Health & Mental Hygiene, COVID-19: Data: Cases, Hospitalizations and Deaths, https://www1.nyc.gov/site/doh/covid/covid-19-data.page (last updated Apr. 28, 2020). 7 Ex. 24 (Oshiro Decl.) ¶ 6. 8 See, e.g., Corona Virus: Michigan Data, https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173--,00.html (last updated Apr. 28, 2020) (38,210 confirmed infections and 3,407 confirmed deaths in Michigan).
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including that many people who likely have the virus have not been tested for it.9
On March 13, 2020, the President declared a state of national emergency concerning the
COVID-19 outbreak, invoking his authority under the National Emergencies Act. Proclamation
No. 9994, 85 Fed. Reg. 15,337 (Mar. 13, 2020); see generally 50 U.S.C. § 1601, et seq. The
President declared that “[t]he spread of COVID-19 within our Nation’s communities threatens to
strain our Nation’s healthcare systems.” 85 Fed. Reg. at 15,337. He also declared that because
additional measures “are needed to successfully contain and combat the virus in the United
States,” he was authorizing the Department of Health and Human Services and the Social
Security Administration to temporarily waive or modify certain requirements of various public-
health and medical-insurance related statutes “throughout the duration of the public health
emergency declared in response to the COVID-19 outbreak.” Id. The governors of each of the
Governmental Plaintiff States, as well as the mayor of Plaintiff New York City, have each
declared public-health emergencies in their respective jurisdictions based on the COVID-19 pandemic.10 In each of the Governmental Plaintiffs’ jurisdictions, state officials and agencies
have also been taking increasingly drastic measures to slow the spread of COVID-19 and provide
testing and treatment for residents who are already infected. For example, state officials have
required all nonessential employees to work from home, closed schools, and issued orders to increase hospital capacity to care for COVID-19 patients.11
9 See Jacqueline Howard, US coronavirus death count likely an underestimate. Here’s why, CNN (Apr. 6, 2020), https://www.cnn.com/2020/04/06/health/us-coronavirus-death-count-cdc-explainer/ index.html. 10 New York declared a state of emergency on March 7, 2020; Connecticut on March 10, 2020; and Vermont on March 13, 2020. See New York Exec. Order No. 202, 9 N.Y.C.R.R. § 8.202 (2020); Connecticut Office of the Governor, Declaration of Public Health and Civil Preparedness Emergencies (Mar. 10, 2020), available at https://portal.ct.gov/-/media/Office-of-the-Governor/News/20200310-declaration-of-civil-preparedness-and-publichealth-emergency.pdf?la=en; Vermont Exec. Order No. 01-20 (2020), available at https://dcf.vermont.gov/sites/dcf/files/DCF/EO-01-20.pdf. 11 See, e.g., New York Exec. Order No. 202.4, 9 N.Y.C.R.R. § 8.202.4 (2020) (closing schools in New York); New York Exec. Order No. 202.8, 9 N.Y.C.R.R. § 8.202.8 (2020) (ordering all nonessential workers in New York to work from home); New York Exec. Order No. 202.10, 9 N.Y.C.R.R. § 8.202.10 (2020) (ordering various measures
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B. The Importance of Public Benefits in Responding to the COVID-19 Crisis
Experts in infectious disease control and public health have warned that everyone should
be minimizing the spread of the virus to the greatest extent possible.12 Testing and medical
treatment for COVID-19 are critically important to slowing infection rates, preserving hospital
capacity and medical equipment, and saving lives.13 If individuals are deterred from testing and
thus do not know they are infected, they are more likely to inadvertently spread the virus to
others—who will then spread the virus to still more people.14 And if individuals suffering from
COVID-19 delay obtaining medical care, they are more likely to spread the virus, experience
serious illness and need intensive care in a hospital, and potentially die from the disease.15
Individuals who lack health insurance are much less likely to obtain necessary treatment
for COVID-19 because of the prohibitive costs of medical care and hospital stays.16 A recent
report from a nonprofit organization that analyzes healthcare costs estimated that a six-day
hospital stay for COVID-19 treatment will cost approximately $73,300.17 This burden will fall
to increase hospital capacity); Connecticut Exec. Order No. 7H (2020) (ordering all nonessential workers in Connecticut to work from home); Vermont Exec. Order No. 01-20, add. 6 (2020) (ordering all nonessential businesses in Vermont to cease in-person business operations). 12 See Center for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19): How to Protect Yourself and Others, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last updated Apr. 8, 2020). 13 Ex. 6 (Barbot Ltr.) ¶ 10 (letter from Plaintiff New York City to DHS requesting suspension of the Rule during the pandemic); Ex. 16 (Ku Decl.) ¶¶ 9, 11, 20. 14 Ex. 16 (Ku Decl.) ¶¶ 11-12, 20, 22; Ex. 8 (Almasude Decl.) ¶ 9; Ex. 24 (Oshiro Decl.) ¶ 6 (“[F]ear of accessing health care, including COVID-19 testing and treatment, because of public charge implications can have life-altering health consequences for . . . clients; other members of their households, including U.S. citizens; and their neighbors and communities.). See also Washington State Dep’t of Health, Testing for COVID-19, https://www.doh.wa.gov/Emergencies/NovelCoronavirusOutbreak2020COVID19/ TestingforCOVID19 (last visited Apr. 12, 2020) (testing allows public-health officials to “keep people with COVID-19 and their contacts away from others to prevent spread of the virus”); Ex. 26 (Yoo Decl.) ¶¶ 4-5. 15 Ex. 16 (Ku Decl.) ¶¶ 11, 20, 22; Ex. 17 (Moreno Decl.) ¶¶ 4, 9; Ex. 14 (Kennedy Decl.) ¶ 15. 16 Ex. 16 (Ku Decl.) ¶¶ 9, 15-19; Ex. 27 (Aguilar Decl.) ¶ 19. 17 FAIR Health, COVID-19: The Projected Economic Impact of the COVID-19 Pandemic on the US Healthcare System 2, 8, 13, 16 (Mar. 25, 2020). And the cost of treatment will be higher for patients who suffer more severe symptoms or require longer hospital stays. See Center for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html (last updated Apr. 6, 2020).
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heavily on immigrants, who are significantly more likely than citizens to be uninsured.18
Many immigrants residing in Plaintiffs’ jurisdictions and in other jurisdictions are highly
vulnerable to contracting and spreading COVID-19 because they work in industries that have
been deemed “essential,” and thus continue to operate during the crisis. For example, executive
orders in New York, Connecticut, and Vermont that direct residents to work from home do not
apply to workers in essential sectors such as healthcare, grocery stores, food and retail delivery, building maintenance, farms and agriculture, and sanitation.19 Because immigrants are a
significant proportion of the workers in these front-line industries, they must interact with others
or spend time in high-risk environments—such as caring for the aging in nursing homes,
cleaning public spaces, and preparing or delivering food and supplies to other residents who must stay at home.20 These workers are thus more likely to be exposed to the virus. Without
adequate testing and treatment, these workers, if infected, are more likely to suffer worse health outcomes and to spread the virus to others inadvertently.21
In addition to the public-health crisis, the COVID-19 pandemic has triggered a severe
economic crisis, with millions of workers losing significant income or employment, and needing to turn to supplemental benefit programs like Medicaid and SNAP.22 An unprecedented 26
million individuals applied for the first time for unemployment benefits in the five-week period
18 Kaiser Family Foundation, Health Coverage of Immigrants (March 18, 2020), available at: https://www.kff.org/disparities-policy/fact-sheet/health-coverage-of-immigrants/. 19 See New York Exec. Order No. 202.8, supra n.10; Connecticut Exec. Order No. 7H § 1 (2020), available at https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-OrderNo-7H.pdf?la=en; Vermont Exec. Order No. 01-20, add. 6 (2020), available at https://governor.vermont.gov/sites/scott/files/documents/ADDENDUM%206%20 TO%20EXECUTIVE%20ORDER%2001-20.pdf. 20 See Ex. 12 (Fong Decl.) ¶¶ 12-13; Ex. 14 (Kennedy Decl.) ¶ 15. 21 See Ex. 16 (Ku Decl.) ¶¶ 11, 20, 22; Ex. 8 (Almasude Decl.) ¶ 9; see also Ex. 14 (Kennedy Decl.) ¶ 15 (immigrant workers in Colorado meatpacking plants and dairies are essential workers at high risk of contracting and spreading COVID-19). 22 See Ex. 16 (Ku Decl.) ¶¶ 23-24.
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from March 19 to April 23.23 The number of those seeking unemployment benefits in Plaintiffs’
jurisdictions has steeply increased due to the pandemic. In New York, for example, the number
of new unemployment claims last week was 394,701, over 380,000 more than the same week one year ago.24 Immigrant workers, particularly in the hospitality and service industries, have been disproportionately impacted by layoffs and furloughs.25
Workers who lose their jobs because of the pandemic are likely temporarily to need
supplemental benefit programs, including Medicaid and SNAP, until they can get back on their feet.26 For example, many workers who lose their jobs and employer-sponsored health insurance because of the pandemic are likely to need Medicaid coverage until they can find another job.27
And programs like SNAP are particularly important to immigrants and their family members,
many of whom are ineligible for unemployment insurance benefits or certain COVID-19 related benefits recently enacted by Congress.28
C. The Harms Imposed by the Rule and the COVID-19-Related Guidance Issued by the Department of Homeland Security
As DHS has acknowledged, e.g., 83 Fed. Reg. 51,114, 51,270 (Oct. 10, 2018), and the
record evidence here confirms, the Rule’s expansion of the grounds for deeming immigrants
inadmissible as public charges has already deterred many immigrants from using supplemental
public benefits, including Medicaid and SNAP benefits, or led them to disenroll from programs
23 Patricia Cohen, ‘Jobless Numbers Are ‘Eye-Watering’ but Understate the Crisis, N.Y. Times (Apr. 23, 2020), available at https://www.nytimes.com/2020/04/09/business/economy/unemployment-claim-numberscoronavirus.html. 24 United States Dep’t of Labor, Unemployment Insurance Weekly Claims 7 (Apr. 23, 2020), available at https://www.dol.gov/ui/data.pdf. 25 Ex. 18 (Mostofi Decl.) ¶ 16 (immigrants in New York have lost jobs in restaurants and as domestic workers); Ex. 10 (Benito Decl.) ¶ 10 (immigrants in Illinois have lost jobs as domestic workers, personal care aides, and nannies). 26 See Ex. 16 (Ku Decl. ¶¶ 23-24. 27 Id. at ¶ 24. 28 See Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, § 6428(d), 134 Stat. 281, 335 (2020).
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that provide such benefits. Since the Rule came into effect following the Supreme Court’s stay
orders, increasing numbers of immigrants have begun forbearing from Medicaid coverage and
other publicly funded healthcare benefits based on concerns that using such benefits will render
them a “public charge” and thus jeopardize their ability to obtain legal permanent resident (LPR)
status and, eventually, citizenship.29 Across the country, immigrants have been deterred from
seeking COVID-19 testing and treatment and the health benefits that cover these critical services.
For example:
 A physician in Connecticut has spoken with patients who had symptoms consistent with COVID-19, but were afraid to obtain COVID-19 testing or seek treatment due to concerns about the Rule and fears that they could not afford to pay for treatment.30
 As the pandemic took hold of New York City in March, Plaintiff Make the Road New York has seen members and clients reluctant to access health and nutrition assistance such as SNAP and food pantries for fear that public charge will result in them or their family members being penalized for using such assistance or benefits.31
 Telephone hotlines operated by Plaintiff Catholic Charities Community Services, Archdiocese of New York, in partnership with state or city agencies, have been receiving public-charge-related inquiries from callers who are fearful of seeking medical treatment for COVID-19.32
 The New York Legal Assistance Group has observed immigrants and their family members declining or delaying medical treatment they needed because of COVID-19, due to concerns about the Rule.33
 Staff at Bronx Legal Services in New York have spoken with noncitizen clients who are afraid to obtain COVID-19 testing or treatment because they fear that doing so will require them to obtain Medicaid coverage.34
 Multiple other community organizations in New York City have reported that immigrant clients are afraid to obtain testing or treatment for COVID19, even if they are feeling ill, based on concerns that doing so will
29 Ex. 19 (Newstrom Decl.) ¶¶ 19-25; Ex. 14 (Kennedy Decl.) ¶¶ 5-9. 30 Ex. 8 (Almasude Decl.) ¶¶ 4-8. 31 Ex. 24 (Oshiro Decl.) ¶ 7. 32 Ex. 25 (Russell Decl.) ¶ 6. 33 Ex. 23 (Nolan Decl.) ¶¶ 9-10. 34 Ex. 20 (Newton Decl.) ¶ 19.
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jeopardize their immigration status.35
 Physicians in Monterey County, California, are working with an increasing number of immigrant patients who have symptoms of COVID19, but are refusing to seek medical care for these symptoms based on concerns about the Rule and the costs of treatment.36
 Nonprofit organizations in Chicago, Illinois, have received calls from immigrants who are afraid to seek virus-related testing and treatment because of the Rule. Many of these immigrants are seniors or individuals with underlying health conditions, who are at greater risk of suffering severe illness or death from COVID-19.37
 In February and March 2020, even as the COVID-19 crisis became increasingly severe, health clinics in Virginia have continued to see an increasing number of immigrant families declining to seek Medicaid coverage (or withdrawing from existing coverage) because of the Rule.38
 In the past two months, a health educator in California has worked with multiple clients who have forgone publicly funded health insurance for themselves or their citizen children based on fears about the Rule.39
The Rule’s deterrent effects have not been limited to the LPR applicants or public-benefit
programs that are directly subject to the Rule. Rather, substantial fear and confusion, along with
the complicated nature of benefits programs, have led immigrants and their families to avoid
state-funded health insurance programs, reduce their use of medical services, and forbear from
using other public benefits not covered by the Rule.40 Immigrants have also increasingly been
declining to use SNAP benefits, which are included in the public charge analysis, as well as other
nutrition programs, such as the Special Supplemental Nutrition Program for Women, Infants, and
Children (WIC), that are not implicated in the public-charge analysis.41
35 Ex. 18 (Mostofi Decl.) ¶¶ 13, 15. 36 Ex. 17 (Moreno Decl.) ¶¶ 4-5; Ex. 22 (Voit Decl.) ¶¶ 27-30. 37 Ex. 10 (Benito Decl.) ¶ 13. 38 Ex. 21 (Pryor Decl.) ¶¶ 11-17. 39 Ex. 27 (Aguilar Decl.) ¶¶ 9-13. 40 Ex. 23 (Nolan Decl.) ¶¶ 9-14; Ex. 19 (Newstrom Decl.) ¶¶ 20-22, 25; Ex. 14 (Kennedy Decl.) ¶¶ 5-9; Ex. 24 (Oshiro Decl.) ¶10; Ex. 26 (Yoo Decl.) ¶¶ 4-5. 41 Ex. 20 (Newton Decl.) ¶ 16; Ex. 13 (Heinrich Decl.) ¶¶ 4-5; Ex. 19 (Newstrom Decl.) ¶¶ 20-22, 25-26. Agencies and nonprofit organizations that work with immigrants experienced a substantial increase in inquiries about the Rule
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The Rule’s impacts have become particularly acute as the COVID-19 crisis has escalated. See infra, at 16-20. As a result, on March 6, the Attorneys General of the Governmental Plaintiff States, fifteen other state Attorneys General, and over fifty other elected officials sent a letter to DHS requesting that the agency temporarily halt implementation of the Rule given the harms to public health from its implementation during the COVID-19 crisis.42 DHS did not respond.
On March 13, DHS posted an “alert” on the website of the U.S. Citizenship and Immigration Services (“USCIS”). The alert, issued only in English, stated that DHS officials conducting public-charge determinations would not “consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination . . . even if such treatment is provided or paid for by one or more public benefits” targeted by the Rule, such as federally funded Medicaid.43 However, the alert also stated that the Rule will still require DHS officials to treat as a negative factor an applicant’s receipt of public benefits, including federally funded Medicaid, even when such benefits “may be used to obtain testing or treatment for COVID-19.”44 Thus, under the alert, an LPR applicant who obtains or maintains Medicaid coverage that helps him access COVID-19 testing or treatment will still receive an automatic negative factor in the public-charge analysis based on his Medicaid coverage, even if his COVID-19 test or treatment will not itself be considered. See 84 Fed. Reg. at 41,422 (DHS will consider “any application, approval, or certification for, or receipt of, public benefits as a negative factor”).45
after the Rule took effect in February 2020. Ex. 18 (Mostofi Decl.) ¶ 8; Ex 27 (Aguilar Decl.) ¶ 5 (health educator received “more questions about public charge” during February and March than she had ever previously received). 42 Ex. 5 (Ltr. from State Attorneys General to Chad Wolf, Acting Secretary, U.S. Department of Homeland Security et al., dated Mar. 6, 2020); see also Ex. 6, (Barbot Ltr.). 43 Ex. 4 (Printout of USCIS Public Charge Alert, dated Mar. 13, 2020). 44 Id. 45 In its brief opposing Plaintiffs’ request to the Supreme Court to temporarily modify its stay, Defendants claimed for the first time that obtaining Medicaid coverage specifically for COVID-19 testing or treatment will not count under the public-charge inquiry—despite the alert’s language to the contrary.
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DHS’s alert appears to leave in place other aspects of the Rule during the COVID-19 crisis, even though these aspects of the Rule deter immigrants from using supplemental benefits that will help Plaintiffs’ residents and the country recover from the current economic crisis. Thus, an applicant who applies for SNAP benefits because a COVID-19 public-health order forced him out of his job will continue to receive a negative factor in the public-charge inquiry. See 84 Fed. Reg. at 41,422. At most, the alert states that an applicant may inform DHS if “disease prevention methods” prevent him from working or attending school, and DHS officials will consider such information to the extent it is “relevant and credible.”46
ARGUMENT The COVID-19 outbreak and its ramifications on public health and the economy present sudden and stark new circumstances not previously considered by the Court. The exigencies of this pandemic warrant entry of a new injunction temporarily halting implementation of the Rule during the national emergency concerning COVID-19 declared by the President, or a timelimited stay of the Rule pursuant to Section 705 of the Administrative Procedure Act (“APA”). In the alternative, Plaintiffs respectfully request that the Court issue a temporary restraining order until Plaintiffs’ motion for an injunction and stay can be adjudicated. See Fed. R. Civ. P 65. “The standard for granting a temporary restraining order and a preliminary injunction pursuant to Rule 65 of the Federal Rules of Procedure are identical.” Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (quoting Spencer Trask Software & Info. Servs., LLC v. RPost Int’l, Ltd., 190 F. Supp. 2d 577, 580 (S.D.N.Y. 2002)). The standard for a stay under § 705
46 Ex. 4 (Printout of USCIS Public Charge Alert, dated Mar. 13, 2020). After DHS posted the alert, the Attorneys General of the Plaintiff States and fifteen other state Attorneys General sent DHS another letter explaining that the alert did not address the harms imposed by the Rule during the pandemic. Ex. 7 (Ltr. From State Attorneys General to Chad Wolf, Acting Secretary, U.S. Department of Homeland Security, et al., dated Mar. 19, 2020). DHS did not respond to this letter.
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is the same as the standard for a preliminary injunction. See Texas v. EPA, 829 F.3d 405, 435 (5th Cir. 2016). All require a showing of “a likelihood of success on the merits, a likelihood of irreparable harm in the absence of preliminary relief, that the balance of equities tips in the party’s favor, and that an injunction is in the public interest.” Coronel v. Decker, No. 20 Civ. 2472 (AJN), 2020 WL 1487274, at *2 (S.D.N.Y. Mar. 27, 2020) (citing Am. Civil Liberties Union v. Clapper, 804 F.3d 617, 622 (2d Cir. 2015)). The irreparable harm factor is “the single most important prerequisite for the issuance of a preliminary injunction.” Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir. 1990). Given the catastrophic harms that the Rule causes during the COVID-19 pandemic, Plaintiffs have shown that injunctive relief is necessary.
A. The Court has authority to issue new temporary relief to address the drastic changed circumstances engendered by the COVID-19 pandemic.
As a preliminary matter, the Court has authority to issue new injunctive relief to address the new public health and economic harms that the Rule is causing during the COVID-19 crisis. While the preliminary injunction that the Court issued on October 11, 2019 is pending before the Circuit, the Court retains authority to issue a new injunction based on changed circumstances. An interlocutory appeal of a preliminary injunction “only divests the district court of jurisdiction respecting the questions raised and decided in the order that is on appeal.” New York State Nat. Org. for Women v. Terry, 886 F.2d 1339, 1350 (2d Cir. 1989) (citing Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)); see also, e.g., Gortat v. Capala Bros., No. 07-CV3629(ILG), 2008 WL 5273960, at *1 (E.D.N.Y. Dec. 18, 2008) (“[A] district court retains jurisdiction over those matters not involved in the appeal.”).
Accordingly, where, as here, the Circuit is considering an interlocutory appeal from an order granting a preliminary injunction, the matter otherwise “proceeds” in the district court. Terry, 886 F.2d at 1350; see also Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. E.
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Air Lines, Inc., 847 F.2d 1014, 1018 (2d Cir. 1988) (affirming issuance of new injunction in district court based on new development while district court’s previous grant of preliminary injunction was pending appeal); Webb v. GAF Corp., 78 F.3d 53, 56 (2d Cir. 1996) (district court retains jurisdiction to rule on issues—including requests for injunctive relief—that are not present in the interlocutory appeal); Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure (“Wright & Miller”) § 3949.1 (3d ed. Aug. 2019 update) (interlocutory appeal “does not oust district-court jurisdiction to continue with proceedings that do not threaten either the appeal’s orderly disposition or its raison d’etre”). During this unprecedented and rapidly escalating COVID-19-related crisis, this Court is the best-placed to consider and make findings on new factual issues that are not part of the appellate record.
Moreover, Plaintiffs’ motion does “not threaten [] the appeal’s orderly disposition,” Wright & Miller § 3949, but instead seeks new relief based upon new facts and circumstances that were not—and could not have been—before the Court when it issued its prior order. The relief that Plaintiffs seek does not undermine or interfere with the pending appeal; to the contrary, the Court’s issuance of a new, narrowly tailored injunction to address the COVID-19 pandemic would not alter the questions presented to the Second Circuit or change the scope of its review.47 Plaintiffs do not seek a second bite at the apple to obtain a more favorable result on an issue up on appeal; to the contrary, Plaintiffs have already received a favorable ruling from this
47 As Plaintiffs detail above, they seek new relief based upon new facts. However, the Court also has inherent authority to modify its previous injunction and “‘may mold its decree to meet the exigencies of the particular case.’” Trump v. International Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (citing Wright & Miller § 2947). Under Federal Rule of Civil Procedure 62(d), “an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance in the district court.” A district court may modify an existing injunction pending appeal if such modification would “neither chang[e] the status quo at the time of the first appeal nor materially alte[r] the status of the appeal.” Mayweathers v. Newland, 258 F.3d 930 (9th Cir. 2001); see Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623 (1962). Because the Rule was enjoined at the time of appeal, issuance of a subsequent injunction would properly preserve that status quo without undermining the Circuit’s ability to review the prior preliminary injunction based on the previous record.
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Court on their prior request for injunctive relief and do not seek to disturb or alter that injunction. Indeed, Plaintiffs’ request for relief is particularly appropriate in light of the unusual
procedural posture of this case. Absent the Supreme Court’s stay of this Court’s orders of preliminary relief, there would be no need for additional preliminary relief to address the drastically changed circumstances caused by COVID-19. And after Plaintiffs requested that the Supreme Court lift or modify its stay, the Supreme Court allowed Plaintiffs to return to the district court to address the new circumstances.48 The Supreme Court’s order thus further clarifies that this Court is the proper forum to address in the first instance the new and urgent harms caused by the Rule during this time of crisis.
Moreover, in addition to the entry of a new preliminary injunction, Plaintiffs also respectfully request that the Court enter an indicative ruling pursuant to Rule 62.1 of the Federal Rules of Civil Procedure, indicating that the court would issue the preliminary injunction and factual findings supporting that injunction if the Second Circuit were to remand the case for that purpose. Rule 62.1 is designed to ameliorate potential concerns about the scope of the district court’s jurisdiction pending an appeal by authorizing the district court to indicate its decision on an issue if the Second Circuit were to determine that the district court lacked jurisdiction and remand the matter to the district court to issue its decision. See Fed. R. Civ. P. 62.1(a)(3) (where a district court has been divested of authority because of a pending appeal, authorizing the district court to nonetheless “state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue”); Flatiron Health, Inc. v. Carson, No. 19-CV-8999 (VM), 2020 WL 257505, at *5 (S.D.N.Y. Jan. 17, 2020), order superseded on other grounds, 2020 WL 416423 (S.D.N.Y. Jan. 27, 2020) (concluding that court
48 See Ex. 2 (Supreme Court April 24, 2020 Order) (explaining that order “does not preclude a filing” in this Court).
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had jurisdiction to modify an injunction, but stating that if the Circuit were to conclude that the district court “lack[ed] authority to grant” the modification, the opinion “shall also serve as an indicative ruling under Rule 62.1”). Given the ongoing and irreparable harms alleged here, an alternative indicative ruling will ensure more timely relief in the event that the Second Circuit determines that it retains jurisdiction over this matter. See Wright & Miller § 3921.2.
B. The Court should issue a targeted and limited preliminary injunction for the duration of the national emergency.
Plaintiffs have met the standard governing issuance of a preliminary injunction. The pandemic has drastically altered the nature and magnitude of the irreparable harms faced by Plaintiffs, their residents, and the nation due to the Rule and tipped the balance of the equities decisively in favor of granting injunctive relief while the COVID-19 emergency continues. And Plaintiffs have already demonstrated that they are likely to succeed on the merits of their claims that the Rule is contrary to law and is arbitrary and capricious in violation of the APA—issues that the Second Circuit is currently considering and that Plaintiffs do not seek to relitigate here.
1. The Rule causes irreparable harms not previously before the Court. The Rule is irreparably harming public health in the Governmental Plaintiffs’ jurisdictions and throughout the country during the public-health disaster caused by the COVID19 pandemic. The Rule deters immigrants from seeking testing and treatment for the virus and from accessing other benefits like food assistance when they have suffered temporary job loss. While DHS recognizes these disastrous consequences, its efforts to alleviate the chilling effect have been ineffectual and only affirm the message that use of Medicaid or SNAP during the pandemic can give rise to a public charge finding.
i. The Rule is impeding efforts to mitigate the spread of the virus. By penalizing immigrants and their families from obtaining publicly funded health
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insurance and medical care, the Rule is undermining efforts to slow the spread of the virus— putting everyone at higher risk of infection. As DHS itself has acknowledged, the Rule’s expanded criteria for inadmissibility will deter immigrants from enrolling (or maintaining enrollment for) themselves and their family members in Medicaid, due to the understandable fear that simply applying will be deemed a negative factor in any future public-charge analysis. See 84 Fed. Reg. at 41,422. Indeed, DHS admitted in its notice of proposed rulemaking that the Rule “could lead to . . . [i]ncreased prevalence of communicable diseases, including among members of the U.S. citizen population.” 83 Fed. Reg. at 51,270.
Even in light of the pandemic, fear and confusion about the Rule are now driving many immigrants to forgo any publicly funded health coverage for fear that using such supplemental public benefits will jeopardize their ability to obtain LPR status and, eventually, citizenship.49 Indeed, since the Rule took effect, medical personnel, state and local officials, and staff at nonprofit organizations have encountered many immigrants refusing to enroll in Medicaid or other publicly funded healthcare coverage based on concerns that receiving such coverage will increase the risk of being deemed a “public charge” under the Rule.50
Such avoidance of Medicaid and other publicly funded healthcare programs will prevent immigrants from receiving testing or treatment for COVID-19, materially impeding publichealth officials’ efforts to stem the current crisis. Without Medicaid or other health insurance, the costs of COVID-19 treatment are prohibitively high for most patients—particularly if they develop severe symptoms necessitating hospitalization. And since the pandemic began, doctors and other front-line workers have seen many immigrants avoid COVID-19 testing and treatment
49 Ex. 16 (Ku Decl.) ¶ 18; Ex. 27 (Aguilar Decl.) ¶¶ 7-13; Ex. 15 (Kritzman Decl.) ¶¶ 3-4; Ex. 14 (Kennedy Decl.) ¶¶ 5-9. 50 See, e.g., Ex. 21 (Pryor Decl.) ¶¶ 13-17; Ex. 14 (Kennedy Decl.) ¶¶ 5-7.
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altogether, even if they might be able to obtain publicly funded care, due to the fear generated by the Rule.51 These effects of the Rule on COVID-19 testing and treatment are not speculative.
Immigrants’ inability or unwillingness to obtain testing and treatment for COVID-19 due to concerns about the Rule jeopardizes the health and safety of not only immigrants and their families but also the public. Without proper testing and treatment, immigrants and their family members who become infected are more likely to suffer severe illness or death from the virus.52 Immigrants who lack testing and treatment are also more likely to spread the virus to other people inadvertently, contributing to the exponential growth of infection and fatalities.53
This risk of virus spread is further increased by the high number of immigrants who work in essential industries and who thus must continue to work outside of their homes and interact with others. See supra, at 9-10. Indeed, in New York City, the current epicenter of the COVID19 crisis, noncitizens make up approximately 42.4% of home health aides, 42.3% of cooks, 37.1% of food preparation workers, and 26.9% of janitors and building cleaners.54 By deterring these essential workers from obtaining health insurance and medical care for COVID-19, the Rule is increasing the risk of infection for the public.
The Rule further impedes current attempts to stem the COVID-19 crisis by deterring immigrants and their family members from obtaining treatment for preexisting conditions that either make individuals more vulnerable to the virus, or make their COVID-19 symptoms worse. Immigrants who decline Medicaid or other health insurance coverage because of the Rule often
51 Ex. 8 (Almasude Decl.) ¶¶ 4-8; Ex. 18 (Mostofi Decl.) ¶¶ 13, 15; Ex. 17 (Moreno Decl. ¶ 4); Ex. 22 (Voit Decl.) ¶¶ 27-28, 30; Ex. 21 (Pryor Decl.) ¶ 19; Ex. 14 (Kennedy Decl.) ¶ 13. 52 Ex. 16 (Ku Decl.) ¶ 11; Ex. 8 (Almasude Decl.) ¶ 9. 53 Ex. 16 (Ku Decl.) ¶¶ 11, 20, 22; Ex. 8 (Almasude Decl.) ¶ 9; Ex. 17 (Moreno Decl.) ¶¶ 4, 9; Ex. 14 (Kennedy Decl.) ¶ 15. 54 Ex. 12 (Fong Decl.) ¶ 13. And in other areas of the country, large numbers of noncitizens continue to work in essential industries such as agriculture or food packing and distribution. Ex. 22 (Voit Decl.) ¶¶ 9-10; Ex. 10 (Benito Decl.) ¶ 11; Ex. 14 (Kennedy Decl.) ¶ 15.
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stop seeking primary care for conditions like diabetes, asthma, and heart disease.55 But these conditions put patients at higher risk of suffering severe symptoms or death from COVID-19.56 For example, since this crisis began, staff at Bronx Legal Services have already seen noncitizen clients who declined Medicaid coverage rather than risk their immigration status, did not treat their serious medical conditions as a result, and have now fallen extremely ill with COVID-19 symptoms.57 These uninsured individuals will wait to seek medical care until their condition gets serious, further straining hospitals and clinics that are reaching capacity and facing challenges obtaining ventilators and other critical medical supplies.58 Without insurance, these patients will likely be forced to make in-person visits to hospitals and clinics rather than use telehealth services, placing themselves and medical staff at higher risk.59
ii. The Rule deters access to public benefits that are necessary to respond to the severe economic crisis caused by COVID-19.
The Rule is further injuring Plaintiffs and the public interest by undermining efforts to mitigate the vast economic consequences of the COVID-19 pandemic. The unemployment rates in the Governmental Plaintiffs’ jurisdictions and across the country are already reaching unprecedented levels due to the virus outbreak. See supra, at 7-8. And the economic downturn is likely to grow worse as the virus continues to spread.60 Supplemental benefits are crucial to helping employable individuals through a sudden emergency like losing a job or incurring substantial medical bills for COVID-19 treatment.61 By providing short-term help to individuals
55 Ex. 20 (Newton Decl.) ¶¶ 21-23. 56 Ex. 16 (Ku Decl.) ¶ 26; Ex. 20 (Newton Decl.) ¶¶ 21-23. 57 Ex. 20 (Newton Decl.) ¶ 22; see also Ex. 23 (Nolan Decl.) ¶¶ 9-10 (staff at New York Legal Assistance Group have seen clients declining or delaying medical treatment based on concerns about the Rule). 58 See Ex. 16 (Ku Decl.) ¶¶ 11, 26; Ex. 21 (Pryor Decl.) ¶ 12. 59 Ex. 16 (Ku Decl.) ¶ 22. 60 Ex. 16 (Ku Decl.) ¶¶ 23-24. 61 See Ex. 16 (Ku Decl.) ¶¶ 23-24; Ex. 18 (Mostofi Decl.) ¶ 16; Ex. 20 (Newton Decl.) ¶ 27; Ex. 10 (Benito Decl.) ¶¶ 10-11.
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until they can get back on their feet, supplemental benefits promote economic stability and recovery for all of Plaintiffs’ residents, the clients they serve, and the nation.
Many hard-working immigrants, who are not “public charges” under any reasonable interpretation of that term, have begun to face sudden financial strains as their employers cut jobs due to the current economic crisis and government mandates ordering “nonessential” businesses to limit their services or have their employees work from home.62 But the Rule deters immigrants and their family members from using such benefits to maintain health and nutrition during the crisis.63 These irreparable harms further warrant an injunction during the current national emergency. For example, since the Rule went into effect and since the pandemic began, immigrants have increasingly been declining to participate in SNAP or other publicly funded nutrition programs due to fear that doing so will jeopardize their immigration status.64 Indeed, under the Rule, using SNAP for just a few months during the current economic crisis places an LPR applicant at risk of being deemed a public charge. See 84 Fed. Reg. at 41,422 (mere application for SNAP is negative factor); id. at 41,506 (using SNAP and another public benefit during a single month counts as two months of benefits use for calculating heavily weighted negative factor of 12 out of 36 months of benefits use).
Immigrants’ avoidance of the public benefits covered by the Rule has already resulted in worse harms to both immigrants and Plaintiffs during this difficult economic period. For example, immigrants who decline SNAP for fear of being deemed a “public charge” are turning to emergency food assistance programs, such as food pantries.65 But many food pantries have
62 See Ex. 16 (Ku Decl.) ¶¶ 23-24; Ex. 18 (Mostofi Decl.) ¶16. 63 See Ex. 8 (Almasude Decl.) ¶ 6; Ex. 20 (Newton Decl.) ¶ 11, Ex. 17 (Moreno Decl.) ¶ 6. 64 Ex. 20 (Newton Decl.) ¶¶ 11; 26-27, Ex. 17 (Moreno Decl.) ¶ 6, Ex. 15 (Kritzman Decl.) ¶ 4. 65 Ex. 20 (Newton Decl.) ¶¶ 26-27; Ex. 10 (Benito Decl.) ¶ 12; see also Ex. 24 (Oshiro Decl.) ¶ 7 (nothing that some instances immigrants are afraid to access food pantries due to public charge concerns).
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closed or reduced their hours due to COVID-19. And many of the emergency food programs that are still operating “are running out of food at alarming rates.”66 The Court should grant a narrowly tailored injunction to avoid such irreparable public-health and economic harms.
iii. USCIS’s alert does not remedy these substantial harms. By revising its application of the Rule during the current COVID-19 crisis, USCIS has effectively acknowledged the Rule’s deterrent effect on immigrants’ willingness to obtain necessary medical care. On March 13, USCIS issued an alert that purports to limit this deterrent effect, but this alert does not fully address the grave harms that the Rule is causing during the ongoing pandemic, and is thus no substitute for the relief requested here. First, although the alert excludes “testing, treatment, [and] preventative care . . . related to COVID-19” from future public-charge determinations,67it continues to treat as an automatic negative factor an LPR applicant’s application for or receipt of public benefits “that may be used to obtain testing or treatment for COVID-19,” including federally funded Medicaid.68 In other words, an LPR applicant who applies for federally funded Medicaid will have that application count against him in the public-charge inquiry, even if subsequently obtained COVID-19 treatment paid for by federally funded Medicaid does not itself count in the public-charge inquiry. See supra, at 11-12. But deterring immigrants from accessing the benefits that they need to get healthcare prevents them from getting necessary testing and treatment for COVID-19. This aspect of the alert thus preserves the very problem USCIS has purported to address. Second, the alert does not provide sufficiently clear direction to assure immigrants that
66 Ex. 20 (Newton Decl.) ¶ 27; see Ex. 13 (Heinrich Decl.) ¶ 6 (food banks and pantries are facing increased food costs and “new challenges for accepting donated food”); Ex. 10 (Benito Decl.) ¶ 12 (many food pantries in Chicago, Illinois have “either closed or are seeing a marked increase in requests for food assistance”). 67 Ex. 4 (Printout of USCIS Public Charge Alert, dated Mar. 13, 2020). 68 Id.
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they will not be penalized in a future public-charge determination for accessing critical healthcare now. Even setting aside that the alert was published only in English and only on a single federal website, the alert is replete with ambiguity. It is unclear how the alert would apply to an individual who receives medical treatment for COVID-19-like symptoms but is never tested, perhaps because of a shortage of testing kits. Furthermore, although the alert clarifies that the Rule will not apply to state or local benefits, it is unclear how an immigrant is supposed to discern or control whether federal, state, or local benefits apply—especially if she may require emergency care. And under the alert, an LPR applicant will continue to be penalized for having Medicaid coverage to obtain treatment for medical conditions such as asthma, diabetes, or heart disease, even though these conditions place patients at high risk of suffering more severe symptoms or death if they contract COVID-19. And an LPR applicant who does not need COVID-19 testing or treatment now will be penalized for seeking Medicaid as a precaution to protect the applicant and his family in the event that they become infected with the virus.
Defendants have effectively conceded that that the USCIS alert does not adequately address the Rule’s chilling effects. Defendants’ principal response to the objections Plaintiffs raised to the alert in their motion before the Supreme Court was to further modify the Rule’s application by stating for the first time that “if an alien enrolls in Medicaid to receive COVID19-related care, that enrollment will not be a negative factor in a public-charge inadmissibility determination.”69 Although Defendants purport to base this position on the text of the alert they issued, the alert actually appears to say the opposite; it admonishes that Defendants will continue “to consider the receipt of certain cash and non-cash public benefits, including those that may be
69 Department of Homeland Security, et al. v. New York, et al., No. 19A785 (S. Ct. Apr. 20, 2020), available at https://www.supremecourt.gov/DocketPDF/19/19A785/142052/20200420132042768_IRLI%20Pub%20Charge%20 Stay%20Amicus%202d.pdf .
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used to obtain testing or treatment for COVID-19 in a public charge inadmissibility determination.”70 Defendants’ attempt to engage in rulemaking through opposition brief not only highlights the defects in the original alert, but will also likely cause more confusion about the Rule’s applicability during these tumultuous times—thus further demonstrating the need for the Court to issue a clear ruling that stays the Rule until the national emergency ends.
Furthermore, after DHS posted the alert on its website, the Rule has in fact continued to deter immigrants from accessing needed medical care during the pandemic. In the weeks following DHS’s alert, physicians and others working on the front lines of the current emergency have continued to see many immigrants and their families expressing fear about and declining to obtain COVID-19 testing and treatment based on their persistent concerns about the Rule.71
Finally, the alert is limited to testing and treatment for COVID-19, but the Rule will also deter immigrants from accessing public benefits that are especially critical for their well-being in light of the dire public-health and economic crisis that COVID-19 has triggered. Placing immigrants in a situation where they must choose between forgoing essential aid for healthcare, food, or housing, or risking their future chances of obtaining LPR status is particularly inequitable during this unprecedented moment in our history, and will inhibit the country’s ability to recover from the current economic crisis.
2. Balance of equities and public interest favor issuance of an injunction. Given the Rule’s substantial harms to public health, the balance of the equities and the public interest weigh heavily in favor of issuing an injunction.72 The purpose of interim equitable
70 Id. 71 See, e.g., Ex. 22 (Voit Decl.) ¶¶ 27-28; Ex. 21 (Pryor Decl.) ¶¶ 18-19; Ex. 11 (Chavez Decl.) ¶ 9; Ex. 14 (Kennedy Decl.) ¶ 14; Ex. 24 (Oshiro Decl.) ¶¶ 7, 15. 72 Where the government is a party, “the final two factors in the [preliminary injunction] analysis—the balance of the equities and the public interest—merge.” Coronel, 2020 WL 1487274, at *7.
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relief is “but to balance the equities as the litigation moves forward,” bearing in mind “‘the overall public interest.’” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 26 (2008)). As detailed above, Plaintiffs and the nation are struggling to contain the public health and economic threats posed by COVID-19, efforts that are materially hindered by the continued implementation of the Rule. The public’s interest in mitigating disease spread and saving lives weighs strongly and inexorably in favor of new, targeted injunctive relief. In contrast, the harm to DHS of temporarily halting implementation of the Rule, particularly while USCIS offices are closed and green card processing has been suspended, is “far outweighed by the public interest” in mitigating the spread of disease and other harms “in light of the rapidly-evolving public health crisis engendered by the spread of COVID-19.” Coronel, 2020 WL 1487274, at *8.
3. Plaintiffs have demonstrated likelihood of success on the merits of their claims.
The Court has twice ruled that Plaintiffs are likely to succeed on the merits of their claims that the Rule exceeds Defendants’ statutory authority, is contrary to law, and is arbitrary and capricious. New York v. United States Dep’t of Homeland Sec., 408 F. Supp. 3d at 334, 345-350 (S.D.N.Y. 2019); New York v. United States Dep’t of Homeland Sec, No. 19 Civ. 7777 (GBD), 2019 WL 6498250, at *2 (S.D.N.Y. Dec. 2, 2019). These holdings are dispositive under the law of the case doctrine. See United States v. Carr, 557 F.3d 93, 102 (2d Cir. 2009). And because the Second Circuit is currently reviewing this Court’s determination that Plaintiffs are likely to succeed on the merits, Plaintiffs do not seek to relitigate that issue here. Accordingly, and for the reasons stated in Plaintiffs’ initial motion for preliminary relief, Dkt. 35, opposition to Defendants’ motion for a stay of the preliminary injunction, Dkt. 117, and opposition to Defendants’ motion for a stay pending appeal, Dkt. 128, Plaintiffs are likely to succeed on the
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merits. C. Nationwide relief is warranted and essential. During this crisis, the Court should enjoin Defendants from continuing to implement the
Rule without geographic restriction or, in the alternative, postpone the effective date of the Rule pursuant to 5 U.S.C. § 705. See Dkt. No. 35 at 39-40 (detailing applicable legal framework). Nationwide relief during the COVID-19 pandemic is essential in light of the nationwide harms, interconnected nature of the risks between and within states, and the realities attendant to the spread of this disease. As essential workers travel between states for work, and travelers come into the Governmental Plaintiffs’ jurisdictions as other states lift their stay at home restrictions, it is vital that this Court ensure that the Public Charge Rule does not contribute to the spread of the epidemic. Far from a case where “the record is not sufficiently developed on the nationwide impact of the [agency action],” City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1245 (9th Cir. 2018), Plaintiffs have adduced evidence of irreparable harms across the nation. Nationwide relief is not only warranted, but necessary.
CONCLUSION For the reasons stated above, Plaintiffs respectfully request that the Court make factual findings recognizing the harmful effects of the Rule during this time of crisis, issue a new preliminary injunction forbidding implementation of the Rule during the national emergency declared on March 13, 2020, or a stay of the effective date of the Rule pursuant to Section 705 of the APA, and issue an indicative ruling pursuant to Rule 62.1 confirming that that the Court would grant Plaintiffs’ motion. In the alternative, Plaintiffs respectfully request that the Court issue a temporary restraining order until the motion for preliminary injunction may be heard.

DATED: April 28, 2020

Respectfully submitted,

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LETITIA JAMES Attorney General of the State of New York
By: /s/ Elena Goldstein Elena Goldstein, Deputy Bureau Chief, Civil Rights Bureau Matthew Colangelo
Chief Counsel for Federal Initiatives Ming-Qi Chu, Section Chief, Labor Bureau Amanda Meyer, Assistant Attorney General Abigail Rosner, Assistant Attorney General Office of the New York State Attorney General New York, New York 10005 Phone: (212) 416-6201 elena.goldstein@ag.ny.gov
Attorneys for the State of New York

JAMES JOHNSON

WILLIAM TONG

Corporation Counsel of the City of New York Attorney General of Connecticut

By: /s/ Tonya Jenerette Tonya Jenerette
Deputy Chief for Strategic Litigation Cynthia Weaver, Senior Counsel Doris Bernhardt, Senior Counsel Melanie Ash, Senior Counsel 100 Church Street, 20th Floor New York, NY 10007 Phone: (212) 356-4055 tjeneret@law.nyc.gov

By: /s/ Joshua Perry Joshua Perry*
Special Counsel for Civil Rights 165 Capitol Avenue Hartford, CT 06106-0120 (860) 808-5318 Joshua.perry@ct.gov
Attorneys for the State of Connecticut

Attorneys for the City of New York

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THOMAS J. DONOVAN, JR. Attorney General of Vermont
By: /s/ Benjamin Battles Benjamin Battles, Solicitor General Eleanor Spottswood, Assistant Attorney General Julio Thompson,* Assistant Attorney General Office of the Attorney General 109 State Street Montpelier, VT 05609-1001 (802) 828-5500 benjamin.battles@vermont.gov
Attorneys for the State of Vermont
*Application for admission pro hac vice forthcoming
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Andrew J. Ehrlich Jonathan H. Hurwitz Elana R. Beale Robert J. O’Loughlin Daniel S. Sinnreich Amy K. Bowles
1285 Avenue of the Americas New York, New York 10019-6064 (212) 373-3000 aehrlich@paulweiss.com jhurwitz@paulweiss.com ebeale@paulweiss.com roloughlin@paulweiss.com dsinnreich@paulweiss.com abowles@paulweiss.com
CENTER FOR CONSTITUTIONAL RIGHTS Ghita Schwarz Brittany Thomas Baher Azmy
666 Broadway
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7th Floor New York, New York 10012 (212) 614-6445 gschwarz@ccrjustice.org bthomas@ccrjustice.org bazmy@ccrjustice.org
THE LEGAL AID SOCIETY Susan E. Welber, Staff Attorney, Law Reform Unit Kathleen Kelleher, Staff Attorney, Law Reform Unit Susan Cameron, Supervising Attorney, Law Reform Unit Hasan Shafiqullah, Attorney-in-Charge, Immigration Law Unit 199 Water Street, 3rd Floor New York, New York 10038 (212) 577-3320 sewelber@legal-aid.org kkelleher@legal-aid.org scameron@legal-aid.org hhshafiqullah@legal-aid.org
Attorneys for Plaintiffs Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), and Catholic Legal Immigration Network, Inc.
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 Case 1:19-cv-07777-GBD Document 176 Filed 05/12/20 Page 1 of 30

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

MAKE THE ROAD NEW YORK, et al.,

Plaintiffs,
v.
KENNETH CUCCINELLI, et al., Defendants.

No. 19-07993 (GBD)

STATE OF NEW YORK, et al. Plaintiffs, v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al. Defendants.

No. 19-cv-07777 (GBD)

OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND STAY OR TEMPORARY RESTRAINING
ORDER PENDING NATIONAL EMERGENCY

Case 1:19-cv-07777-GBD Document 176 Filed 05/12/20 Page 2 of 30
TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 STANDARD OF REVIEW ............................................................................................................ 5 ARGUMENT .................................................................................................................................. 6 I. The Court Lacks Jurisdiction to Issue the Preliminary Relief Requested by Plaintiffs...... 6 II. Plaintiffs Are Unlikely to Succeed on the Merits of Their Claims................................... 10 III. Plaintiffs Fail to Demonstrate That They Will Suffer Irreparable Harm in the Absence
of a Preliminary Injunction, or that the Balance of Equities Favors an Injunction .......... 12 A. USCIS Has Already Issued an Alert that Adequately Addresses Plaintiffs’ Concerns .... 12 B. Plaintiffs’ Claimed Harms Are Not Caused by the Rule and Would Not Be Remedied
by a Preliminary Injunction .............................................................................................. 14 C. The Remaining Equitable Factors Require Denial of Plaintiffs’ Motion ......................... 19 IV. If the Court Chooses to Grant Injunctive Relief, the Injunction Should Not Have
Nationwide Effect ............................................................................................................. 20 V. The Court Should Decline to Issue an Indicative Ruling on Plaintiffs’ Request for
Preliminary Relief ............................................................................................................. 22 CONCLUSION............................................................................................................................. 23
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TABLE OF AUTHORITIES
Cases
Appalseed Prods., Inc. v. Medianet Dig., Inc, 2012 U.S. Dist. LEXIS 93946 (S.D.N.Y. July 6, 2012) ........................................................... 17
Broker Genius Inc. v. Seat Scouts LLC, No. 17-8627, 2019 U.S. Dist. LEXIS 18447 (S.D.N.Y. Feb. 5, 2019)....................................... 7
Chevron Corp. v. Naranjo, 667 F. 3d 232 (2d Cir. 2012)..................................................................................................... 23
City & County of San Francisco v. USCIS, 944 F.3d 773 (2019)........................................................................................................ 3, 11, 20
Conkright v. Frommert, 556 U.S. 1401 (2009)................................................................................................................ 11
Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020) ........................................................................................................ 1, 3, 20
Drywall Tapers & Pointers of Greater N.Y. v. Bovis Lend Lease Interiors, Inc., No. 05 CV 274, 2006 U.S. Dist. LEXIS 5014 (E.D.N.Y. Feb 10, 2006) ................................... 9
Faulkner v. Jones, 10 F.3d 226 (4th Cir. 1993) ................................................................................................ 17, 19
Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996) .................................................................................................... 18
Garcia v. Bloomberg, No. 11 civ. 6597, 2012 U.S. Dist. LEXIS 108311 (S.D.N.Y. July 26, 2012) ............................ 6
Gill v. Whitford, 138 S. Ct. 1916 (2018) .............................................................................................................. 21
Huszar v. Zeleny, 269 F. Supp. 2d 98 (S.D.N.Y. 2003)........................................................................................... 7
Int’l Ass’n of Machinists & Aerospace Workers v. Eastern Airlines, Inc., 847 F.2d 1014 (2d Cir. 1988)...................................................................................................... 9
I.M. Wilson, Inc. v. Otvetstvennostyou “Grichko”, No. 18-5194, 2019 U.S. Dist. LEXIS 182350 (E.D. Pa. Oct. 18, 2019) .................................. 17
Lewis v. Casey, 518 U.S. 343 (1996).................................................................................................................. 21
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Madsen v. Women’s Health Ctr. Inc., 512 U.S. 753 (1994).................................................................................................................. 21
Maryland v. King, 567 U.S. 1301 (2012)................................................................................................................ 20
Monserrate v. New York State Senate, 599 F.3d 148 (2d Cir. 2010)...................................................................................................... 12
Munaf v. Geren, 553 U.S. 674 (2008).................................................................................................................... 5
New York NOW v. Terry, 886 F.2d 1339 (2nd Cir. 1989).................................................................................................... 6
Nken v. Holder, 556 U.S. 418 (2009)............................................................................................................ 11, 19
Ret. Bd. of the Policemen’s Annuity and Ben. Fund of Chi. v. Bank of N.Y. Mellon, 297 F.R.D. 218 (S.D.N.Y. 2013) ........................................................................................ 22, 23
Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010)........................................................................................................ 17
Satcom Int’l Group PLC v. Orbcomm Int’l Partners, L.C., 55 F. Supp. 2d 231 (S.D.N.Y. 1999)........................................................................................... 7
Sea Shore Corp. v. Sullivan, 158 F.3d 51 (1st Cir. 1998) ....................................................................................................... 18
Sierra Club v. United States DOE, 825 F. Supp. 2d 142 (D.D.C. 2011) .......................................................................................... 17
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976).................................................................................................................... 18
Summers v. Earth Island Inst., 555 U.S. 488 (2009).................................................................................................................. 21
Texas v. EPA, 829 F.3d 405 (5th Cir. 2016) ...................................................................................................... 5
United States v. Rodgers, 101 F.3d 247 (2d Cir. 1996)........................................................................................................ 9
United States v. Salerno, 868 F.2d 524 (2d Cir. 1989)........................................................................................................ 9
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United States v. Walker, 7 F.3d 26 (2d Cir. 1993)............................................................................................................ 18
VIP of Berlin v. Town of Berlin, 593 F.3d 179 (2d Cir. 2010).................................................................................................. 5, 11
Webb v. GAF Corp., 78 F.3d 53 (2d Cir. 1996)............................................................................................................ 9
Winter v. NRDC, 555 U.S. 7 (2008)........................................................................................................................ 5
Wolf v. Cook County, 140 S. Ct. 681 (2020) .................................................................................................................. 3 Statutes
5 U.S.C. 705.............................................................................................................................. 3, 21 8 U.S.C. § 1182(a)(4)...................................................................................................................... 2 8 U.S.C. § 1641(b) ........................................................................................................................ 15 8 U.S.C. § 1642(b) ........................................................................................................................ 15
Rules Federal Rule of Civil Procedure 62.1 ........................................................................................... 22 Federal Rule of Appellate Procedure 28(j) ................................................................................... 23
Other Authorities Inadmissibility on Public Charge Grounds,
84 Fed. Reg. 41292 (Aug. 14, 2019) ................................................................................. passim Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 18, 2020)....................................................... 4
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INTRODUCTION The Supreme Court has twice rejected Plaintiffs’ attempts to halt implementation of the Department of Homeland Security rule Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41292 (Aug. 14, 2019) (“Rule”). First, on January 27, 2020, the Supreme Court stayed, over Plaintiffs’ objections, this Court’s October 11, 2019 orders preliminarily enjoining the Rule. See Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020). Then, in April, Plaintiffs asked the Supreme Court to temporarily lift or modify its stay because of the COVID-19 pandemic, arguing, as they do in the instant motion, that “the Rule is now causing additional irreparable harms to the public—citizens and noncitizens alike—that were not present when the Court initially considered defendants’ motion for a stay.” See Dep’t of Homeland Sec. v. New York, No. 19A785, Mot. by Gov’t Pls. to Temporarily Lift or Modify the Ct.’s Stay of the Orders Issued by the U.S. Dist. Ct. for S.D.N.Y. (“Mot. to Lift Stay”), at 2.1 The Supreme Court denied that motion. Plaintiffs now turn to this Court to seek a new preliminary injunction. But their motion – which merely replicates their most recent unsuccessful Supreme Court filing – fails to establish a basis for a different outcome in this Court. Accordingly, the Court should deny Plaintiffs’ motion. First and foremost, as Plaintiffs themselves recognized in their Supreme Court motion, there is “substantial doubt as to whether the lower courts could provide any meaningful relief given the [Supreme] Court’s stay.” Mot. to Lift Stay, at 16. Indeed, that was an understatement. According to well-settled principles, this Court lacks jurisdiction over issues that are currently under review by the Second Circuit Court of Appeals. Plaintiffs’ request here – which asks the Court to either issue a duplicative injunction or
1 Available at https://www.supremecourt.gov/DocketPDF/19/19A785/141515/2020041315301 4307_19A785%20Motion%20to%20Temporarily%20Lift%20or%20Modify%20Stay.pdf.
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simply “modify” the injunction that was already issued (and stayed) – clearly comes within that rule.
Even if this Court determines that it has the authority to issue a new injunction, it should find that the prerequisites for such relief are not met here. On the merits, the Supreme Court, in staying the injunctions, has already necessarily decided that Defendants have a fair prospect of success. Plaintiffs also fail to show that any irreparable harm would result in the absence of a preliminary injunction where (1) Defendants have already issued guidance to address concerns that individuals may not seek medical services for COVID-19 and (2) a preliminary injunction would not likely remedy Plaintiffs’ alleged harms. The balance of equities, too, weighs against entry of another injunction. For these reasons, as discussed further below, the Court should reach the same result as the Supreme Court did when it reviewed the same evidence that is now before this Court, and deny Plaintiffs’ requested relief.
BACKGROUND On August 14, 2019, the Department of Homeland Security (“DHS”) published the Rule in the Federal Register. 84 Fed. Reg. 41292 (Aug. 14, 2019). This final rule is the culmination of an extensive, multi-year process to adopt regulations that prescribe how DHS will determine whether an alien applying for admission or adjustment of status is inadmissible under section 212(a)(4) of the Immigration and Nationality Act (“INA”) because he or she is “likely at any time to become a public charge.” 8 U.S.C. § 1182(a)(4). The Rule defines “public charge” – which the statute itself does not define – to mean “an alien who receives one or more [designated] 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).” Rule at 41501. The designated public benefits include federal, state,
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local, and tribal cash assistance for income maintenance (excluding tax credits) and certain federally funded or administered non-cash benefits, including most Medicaid benefits, Supplemental Nutrition Assistance Program benefits, and federal housing assistance. Id. They do not, however, include emergency medical services under Medicaid. Id. at 41363, 41482-83. Nor do they include non-cash benefits that are not federally funded or administered, such as state and local non-cash benefits. Id. at 41312. Receipt of those benefits therefore will not be considered in making a public-charge inadmissibility determination under the Rule.
On October 11, 2019, the Court granted Plaintiffs’ motions for a nationwide preliminary injunction and stay under 5 U.S.C. 705 barring DHS from implementing the Rule. See New York, ECF Nos. 109, 110; Make the Road New York, ECF Nos. 146, 147. On January 27, 2020, the Supreme Court stayed the nationwide injunctions in their entirety, “pending disposition of the Government’s appeal in the United States Court of Appeals for the Second Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought.” New York, 140 S. Ct. at 599.
Four other district courts also issued injunctions against the Rule. The U.S. Court of Appeals for the Ninth Circuit granted the government’s motions for stays pending appeal in the cases pending in that circuit. See City & County of San Francisco v. USCIS, 944 F.3d 773 (2019). The U.S. Court of Appeals for the Fourth Circuit also granted a stay pending appeal of the nationwide injunction entered by a district court in Maryland. See Order, Casa de Maryland, Inc. v. Trump, No. 19-2222 (4th Cir. Dec. 9, 2019). After the U.S. Court of Appeals for the Seventh Circuit denied the government’s renewed motion for a stay pending appeal of an injunction against the Rule issued by a district court in Illinois, the Supreme Court stayed that injunction. See Wolf v. Cook County, 140 S. Ct. 681 (2020).
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On March 13, 2020, the President issued a proclamation stating “that the COVID-19 outbreak in the United States constitutes a national emergency.” Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 18, 2020). That same day, Defendant U.S. Citizenship and Immigration Services (“USCIS”) issued guidance explaining that it “encourages all those, including aliens, with symptoms that resemble Coronavirus Disease 2019 (COVID-19) (fever, cough, shortness of breath) to seek necessary medical treatment or preventive services. Such treatment or preventive services will not negatively affect any alien as part of a future Public Charge analysis.” Pls’ Ex. 4. The guidance specifically states that “[t]o address the possibility that some aliens impacted by COVID-19 may be hesitant to seek necessary medical treatment or preventive services, USCIS will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination, nor as related to the public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status, even if such treatment is provided or paid for by one or more public benefits, as defined in the rule (e.g. federally funded Medicaid).” Id.
On April 13, 2020, Plaintiffs filed a motion in the Supreme Court to temporarily lift or modify its stay of this Court’s injunctions. See Mot. to Lift Stay. Plaintiffs argued that “the Rule is now causing additional irreparable harms to the public” by “deterring immigrants from accessing publicly funded healthcare, including programs that would enable immigrants to obtain testing and treatment for COVID-19” and by deterring access to public benefits “that are critical for both immigrants and the country as a whole to weather the economic crisis triggered by COVID-19.” Id. at 2. According to Plaintiffs, “[t]hese irreparable harms have tipped the balance of the equities decidedly against maintaining the stay during the national emergency concerning COVID-19.” Id. As evidentiary support, Plaintiffs offered nineteen declarations, all of which it has filed in support
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of its motion in this Court as well. On April 24, 2020, the Supreme Court denied Plaintiffs’ motion and stated that the Court’s “order does not preclude a filing in the District Court as counsel considers appropriate.” See Pls’ Ex. 2.2
STANDARD OF REVIEW Preliminary injunctions are “extraordinary and drastic remed[ies]” that are “never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689-90 (2008). A party seeking to enjoin “government action taken in the public interest pursuant to a statutory or regulatory scheme” in a way that would “alter, rather than maintain, the status quo . . . must demonstrate irreparable harm and a clear or substantial likelihood of success on the merits,” VIP of Berlin v. Town of Berlin, 593 F.3d 179, 185-86 (2d Cir. 2010) (internal quotation marks omitted), and must also show that the balance of equities tips in their favor and that an injunction is in the public interest. Winter v. NRDC, 555 U.S. 7, 20 (2008). Where, as here, there are serious questions as to the Court’s jurisdiction, it is “more unlikely” that the plaintiff can establish a “likelihood of success on the merits.” Munaf, 553 U.S. at 690. In the alternative, Plaintiffs seek a stay of the effective date of the Rule under Section 705 of the APA. As they correctly observe, “[t]he standard for a stay under § 705 is the same as the standard for a preliminary injunction.” Mem. of Law in Supp. of Pls.’ Mot. for Prelim. Inj. and Stay or TRO Pending National Emergency at 12-13, ECF No. 169 (“Mot.”) (citing Texas v. EPA, 829 F.3d 405, 435 (5th Cir. 2016)).
2 The Court also denied a similar motion by the plaintiffs in litigation pending in the U.S. District Court for the Northern District of Illinois. Pls’ Ex. 3. To date, those plaintiffs have not filed a new motion for a preliminary injunction.
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ARGUMENT I. The Court Lacks Jurisdiction to Issue the Preliminary Relief Requested by
Plaintiffs Plaintiffs contend that the district court retains jurisdiction to issue a second preliminary injunction based on legal issues identical to those that are currently before the Second Circuit on appeal and despite the Supreme Court’s stay of the Court’s first preliminary injunction. But just weeks ago, Plaintiffs conceded in their Supreme Court filing that there is “substantial doubt as to whether the lower courts could provide any meaningful relief given the [Supreme] Court’s stay.” Mot. to Lift Stay at 16. That is why Plaintiffs sought relief initially in the Supreme Court rather than in this Court. Because this Court lacks authority to modify its first injunction, it follows that the Court also may not issue a new injunction that would effectively undo the Supreme Court’s stay of that injunction. Such a “new” injunction would for all intents and purposes be identical to the injunctions that the Supreme Court already has stayed – but simply issued based on this Court’s “new” evaluation of the applicable factors. It is well-settled that an interlocutory appeal “divests the district court of jurisdiction respecting the questions raised and decided in the order that is on appeal.” New York NOW v. Terry, 886 F.2d 1339, 1350 (2nd Cir. 1989); see also Garcia v. Bloomberg, No. 11 civ. 6597, 2012 U.S. Dist. LEXIS 108311, at *2-3 (S.D.N.Y. July 26, 2012) (“An interlocutory appeal, unless frivolous, generally divests the district court of jurisdiction respecting the issues raised and decided in the order on appeal; but the district court retains jurisdiction over ‘collateral’ matters not involved in the appeal.”). It is true, as Plaintiffs note, see Mot. at 13-14, that a notice of interlocutory appeal does not entirely divest a district court of jurisdiction “to proceed with other phases of the case,” but that narrow exception does not apply here. Plaintiffs cannot plausibly contend that the substance of their successive motion for preliminary relief is independent of the
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questions of law and fact raised and decided in the previous preliminary injunction motion and which are now under consideration by the Second Circuit. Indeed, Plaintiffs expressly admit that the instant injunction request is premised, at least in part, on the same considerations as the prior injunction that is on appeal. Mot. at 16 (“Plaintiffs have already demonstrated that they are likely to succeed on the merits of their claims and that the Rule is contrary to law and arbitrary and capricious in violation of the APA – issues that the Second Circuit is currently considering and that the Plaintiffs do not seek to relitigate here.”). In other words, Plaintiffs ask the Court to rely on the Court’s prior legal and factual determinations in order to satisfy the standard, Mot. at 24, even though those determinations are currently under review by the Second Circuit. See Broker Genius Inc. v. Seat Scouts LLC, No. 17-8627, 2019 U.S. Dist. LEXIS 18447, at *7 (S.D.N.Y. Feb. 5, 2019) (court lacked jurisdiction to change the amount of a bond because the amount of the bond was set in the order granting a preliminary injunction, which was still on appeal). Plaintiffs have not withdrawn their first motion for preliminary injunction, but instead they are continuing to pursue that motion in the Second Circuit while simultaneously seeking a new injunction in this Court.3
Plaintiffs attempt to distinguish their instant motion from their earlier motion by insisting that the new motion “seeks new relief based upon new facts and circumstances that were not—and could not have been—before the Court when it issued its prior order.” Mot. at 14. Even if
3 Plaintiffs are not asking the Court to proceed to the merits or take any other action collateral to the issues on appeal. Instead, contrary to their assertions, they are transparently seeking “a second bite at the apple” in the form of a preliminary nationwide injunction of the Rule as a whole. Cf., e.g., Satcom Int’l Group PLC v. Orbcomm Int’l Partners, L.C., 55 F. Supp. 2d 231, 234 (S.D.N.Y. 1999) (“[T]he district court may proceed with those matters not involved in the appeal.”); Huszar v. Zeleny, 269 F. Supp. 2d 98, 102 (S.D.N.Y. 2003) (“Here the interlocutory appeal involves the Court’s denial of a preliminary injunction and is unrelated to the merits of the case . . . Therefore the Court has jurisdiction over . . . the defendants’ motion to dismiss.”).
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Plaintiffs could show that one issue presented by their current motion was not tied up with the issues already pending on appeal, that would not change the fact that their current motion necessarily implicates other, distinct issues that are indisputably wrapped up in the appeal. See supra at 6-7. That by itself means that this Court lacks jurisdiction to grant their present motion. And in any event, the types of harms that Plaintiffs describe in the instant motion were indeed raised in their earlier motion – the COVID-19 situation simply presents a new example of those previously identified harms. Plaintiffs argued at length in their first motion that the Rule would cause individuals to disenroll from Medicaid and other public benefits and thereby harm public health. See New York, No. 19-7777, Mem. of Law in Supp. of Pls’ Mot. for Prelim. Inj. And Stay Pending Judicial Review, ECF No. 35, at 6-17. For example, Plaintiffs claimed that the Rule “will impair Plaintiffs’ ability to safeguard public health in their jurisdictions,” “will cause irreparable harm to public health,” and that the Rule “jeopardizes Plaintiffs’ ability to reduce the spread of communicable diseases” because “uninsured adults and children are more likely to skip immunizations and vaccinations, increasing the likelihood that communicable diseases will spread throughout Plaintiffs’ jurisdictions.” Id. at 9, 13, 14. The Court agreed with those arguments when it enjoined the Rule, see, e.g., New York, No. 19-7777, ECF No. 110, at 20 (discussing “economic and public health harms” including “[i]ncreased prevalence of communicable diseases”), and the Second Circuit is now considering those same arguments on appeal, see New York v. DHS, No. 19-3591, Brief for Appellees, at 29-31 (2d Cir.). Moreover, Plaintiffs raised those arguments, unsuccessfully, before the Supreme Court when they opposed Defendants’ application for a stay.
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See DHS v. New York, No. 19A785, Opp’n of Gov’t Pls to Defs’ Application for a Stay of the Orders Issued by the U.S. District Ct. for S.D.N.Y., at 19-20 (Jan. 22, 2020).4
The divestiture of jurisdiction rule is “designed to ‘avoid confusion or waste of time resulting from having the same issues before two courts at the same time’” – the exact problem that Plaintiffs’ instant motion creates. United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996) (quoting United States v. Salerno, 868 F.2d 524, 540 (2d Cir. 1989)). The Court has been divested of jurisdiction to make decisions based on elements that are on appeal. See, e.g., Webb v. GAF Corp., 78 F.3d 53, 55 (2d Cir. 1996); Drywall Tapers & Pointers of Greater N.Y. v. Bovis Lend Lease Interiors, Inc., No. 05 CV 274, 2006 U.S. Dist. LEXIS 5014, at *9 (E.D.N.Y. Feb 10, 2006) (“Whether [the court] has jurisdiction to decide [party’s motion] essentially depends on whether the issues raised by that motion overlap with the issues ‘involved in’ the [interlocutory] appeal[.]”). Therefore, Plaintiffs’ successive motion for preliminary injunction should be denied for lack of jurisdiction.
Plaintiffs’ secondary argument, that the Court is empowered to take action to maintain the status quo at the time of the injunction, is also unavailing. Mot. at 14 n.47. Rule 62(c) “has been narrowly interpreted to allow the district court to grant only such relief as may be necessary to preserve the status quo pending an appeal.” Int’l Ass’n of Machinists & Aerospace Workers v. Eastern Airlines, Inc., 847 F.2d 1014, 1018 (2d Cir. 1988). The circumstances that would have pertained under the preliminary injunction cannot be the status quo for purposes of this rule because the Supreme Court’s stay of the injunction prevents the injunction from having any effect. Indeed, given that the Supreme Court has stayed that existing injunction, modifying that injunction
4 Available at https://www.supremecourt.gov/DocketPDF/19/19A785/129483/2020012213472 4605_No.19A785%20StayOpposition.pdf.
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would have no effect while the Supreme Court’s stay remains in place – further highlighting the fact that what Plaintiffs are effectively doing is asking this Court to overrule the Supreme Court’s stay decision.
Plaintiffs seek to avoid the effect of the well-settled precedent described above by pointing to the Supreme Court’s statement that “[t]his order” – i.e., the order denying Plaintiffs’ request to lift the stay of injunction – “does not preclude a filing in the District Court as counsel considers appropriate.” Pls’ Ex. 2. But that statement merely clarified that the Supreme Court’s order on their motion to modify the stay did not purport to predetermine the effect of the underlying stay itself (and the pending appeal) on this Court’s jurisdiction over a yet-to-be-filed motion that Plaintiffs themselves had suggested this Court would likely not be able to consider. The limited scope of the Court’s statement about the “preclu[sive]” effect of its “order” on a “filing” by counsel, Pls’ Ex. 2, moreover, is especially notable because it differs in important ways from the alternative relief Plaintiffs had asked for – that “the Court should clarify that its stay does not preclude the district court from considering whether changed circumstances from the COVID-19 outbreak warrant temporary relief from implementation of the Public Charge Rule.” Mot. to Lift Stay at 27 (emphasis added). Plaintiffs simply ignore the limited language of the Court’s order, suggesting – incorrectly – that the Court gave them exactly what they had requested. See, e.g., Mot. at 15.
II. Plaintiffs Are Unlikely to Succeed on the Merits of Their Claims Even if the Court determines it has jurisdiction over Plaintiffs’ second motion for
preliminary injunction, it should deny that motion. Plaintiffs argue that this Court’s prior rulings on the merits in connection with Plaintiffs’ first preliminary injunction motion “are dispositive under the law of the case doctrine.” Mot. at 24. But that argument ignores the Supreme Court’s
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stay. In staying this Court’s preliminary injunction, the Supreme Court necessarily concluded that the government had a fair prospect of success on the merits. Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers); see Nken v. Holder, 556 U.S. 418, 434 (2009) (explaining that a stay applicant must “ma[k]e a strong showing that he is likely to succeed on the merits”). And Plaintiffs identify nothing in their present motion – which deals exclusively with events that occurred after the finalization of the Rule – that would undermine the Supreme Court’s assessment of the merits. Accordingly, they have failed to demonstrate the “ ‘clear’ or ‘substantial’ likelihood of success on the merits” that their application for a preliminary injunction requires. VIP of Berlin, 593 F.3d at 185-86 (citation omitted). Accordingly, the law of the case doctrine favors Defendants, not Plaintiffs.
Even if the Court could reconsider the merits question that was necessarily decided in Defendants’ favor by the Supreme Court, the authority in support of Defendants’ position is even stronger now than it was at the time of the first preliminary injunction motion. In particular, in staying materially similar preliminary injunctions against the Rule’s enforcement, the Ninth Circuit has issued a detailed opinion concluding that Defendants are likely to succeed on their claim that the Rule falls well within the Executive Branch’s discretion to interpret and implement the public charge inadmissibility provision in the Immigration and Nationality Act. San Francisco, 944 F.3d at 773. Particularly in light of that decision, Plaintiffs cannot show a likelihood of success on the merits. See New York, No. 19-7777, Mem. of Law in Supp. of Defs’ Mot. to Dismiss, ECF No. 141; Make the Road New York, No. 19-7993, Mem. of Law in Supp. of Defs’ Mot. to Dismiss,
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ECF No. 177. If this Court determines that it has jurisdiction to consider Plaintiffs’ motion at all, it can deny the motion on this basis alone.5
III. Plaintiffs Fail to Demonstrate That They Will Suffer Irreparable Harm in the Absence of a Preliminary Injunction, or that the Balance of Equities Favors an Injunction
A. USCIS Has Already Issued an Alert That Adequately Addresses Plaintiffs’ Concerns
Plaintiffs also cannot satisfy the irreparable harm and balance of equities requirements for
preliminary injunctive relief. On March 13, 2020—the same day that President Trump declared
that the COVID-19 outbreak constitutes a national emergency—USCIS issued an alert to ensure
that the Rule would not deter aliens from seeking medical treatment or preventive services related
to COVID-19. See USCIS, Public Charge Alert, https://www.uscis.gov/green-card/green-card-
processes-and-procedures/public-charge (last visited May 12, 2020) (hereinafter, “Alert”). The
Alert categorically states that “treatment or preventive services” for COVID-19 “will not
negatively affect any alien as part of a future public charge analysis.” Id. The alert further clarifies:
To address the possibility that some aliens impacted by COVID-19 may be hesitant to seek necessary medical treatment or preventive services, USCIS will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination, nor as related to the public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status, even if such treatment is provided or paid for by one or more public benefits, as defined in the rule (e.g. federally funded Medicaid).
5 Although the Second Circuit has suggested that a moving party may make a lesser showing of “sufficiently serious questions going to the merits of its claims to make them a fair ground for litigation,” to obtain a preliminary injunction, that alternative standard is unavailable to a party challenging “governmental action taken in the public interest pursuant to a statutory or regulatory scheme.” Monserrate v. New York State Senate, 599 F.3d 148, 154 (2d Cir. 2010).
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Id. (emphasis added). Thus, if an alien enrolls in Medicaid to receive COVID-19-related care, that enrollment will not be a negative factor in a public-charge inadmissibility determination, so long as the alien disenrolls from Medicaid once he or she no longer needs COVID-19-related care, or provides evidence of a request to disenroll. See Declaration of Joseph P. Edlow ¶ 12. Thus, the Alert adequately addresses Plaintiffs’ concerns about disenrollment from public benefits used for testing or treatment of COVID-19.
Plaintiffs argue that the Alert sows confusion since although it states that COVID-19 related treatment and preventive services will not be considered, it states that Medicaid enrollment is generally considered a factor in the public charge analysis.6 But the Alert clearly states that COVID-19-related medical services, “even if . . . provided or paid by” public benefits covered by the Rule including Medicaid, will not be considered for the purpose of the Rule. To the extent that this unequivocal language left any uncertainty, moreover, the government eliminated it by confirming before the Supreme Court that “if any alien enrolls in Medicaid to receive COVID-19related care, that enrollment will not be a negative factor in a public-charge inadmissibility determination, so long as the alien disenrolls from Medicaid once he or she no longer needs COVID-19-related care, or provides evidence of a request to disenroll.” See DHS v. New York, Resp. in Opp’n to Respondents’ Mot. to Temp. Lift or Modify the Ct’s Stay, at 13, No. 19A785 (April 20, 2020).7
6 Plaintiffs refer to the segment of the Alert which states: “The rule requires USCIS to consider the receipt of certain cash and non-cash public benefits, including those that may be used to obtain testing or treatment for COVID-19 in a public charge inadmissibility determination, and for purposes of a public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status.” See Alert. 7 Available at https://www.supremecourt.gov/DocketPDF/19/19A785/142030/2020042011211 2348_19A785%20Govt%20oppn%20to%20NY%20motion%20FILE.pdf
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In an attempt to obtain broader relief from this Court, Plaintiffs suggest that the government’s interpretation is inconsistent with “the text of the alert.” Mot. 22. But outside of the litigation context, other entities have had no issue interpreting USCIS’s Alert. For example, the District of Columbia government notes on its website that “for the purposes of COVID-19 testing, diagnosis, and treatment, Medicaid enrollment will not be considered a negative factor in a public charge analysis, according to USCIS guidance issued on March 19, 2020.” See Government of the District of Columbia, Public Notice: Public Charge Rule FAQs with COVID19 Information, (Mar. 26, 2020), https://coronavirus.dc.gov/release/public-notice-public-chargerule-faqs-covid-19-information (emphasis added). The New York City Mayor’s Office website similarly states that “USCIS posted an alert clarifying that seeking or using medical treatment or preventive healthcare services related to COVID-19 will NOT be considered under the public charge rule, even if the services are Medicaid-funded.” NYC Mayor’s Office of Immigrant Affairs, Public Charge Rule, Mar. 16, 2020, https://www1.nyc.gov/site/immigrants/help/legalservices/public-charge.page (emphasis added).
Thus, the USCIS Alert assures aliens that they may access COVID-19-related treatment and preventive services, even if financed through Medicaid or other public benefit as defined in the Rule, without risking an adverse determination based on that receipt. To the extent a discrete set of aliens still find the Alert ambiguous, Plaintiffs could use their resources to properly inform them of its content and scope, rather than pursuing a preliminary injunction which, if anything, creates ambiguity by suggesting that the Alert should be read to impose the very sorts of effects Plaintiffs are ostensibly seeking to avoid.8
8 Contrary to Plaintiffs’ assertion that the Alert was published “only in English,” Mot. at 22, a Spanish language version is available by clicking “Version en espanol” on the USCIS website. See https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge.
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B. Plaintiffs’ Claimed Harms Are Not Caused by the Rule and Would Not Be Remedied by a Preliminary Injunction
Putting aside that USCIS has issued guidance to clarify that the very harms that Plaintiffs fear will not materialize, Plaintiffs’ theory of irreparable harm (and their related argument on the balance of the equities) suffers from more fundamental problems. As their own evidence makes clear, the harms Plaintiffs allege stem not from the Rule itself, but rather from misunderstandings about how the Rule works. Plaintiffs’ argument is that, because of the Rule, some individuals will avoid using public benefits, such as Medicaid, and thereby fail to obtain testing or treatment for COVID-19, which will cause Plaintiffs harm. Mot. at 16-21. But the Rule does not prohibit anyone from accessing public benefits, and aliens who voluntarily choose to disenroll from public benefits because of the Rule will typically have done so because they mistakenly believe they are subject to the Rule when, in fact, they are not. This is because most aliens to whom the Rule could potentially apply are not presently eligible for federal means-tested benefits like Medicaid. See Rule at 41313 (explaining that classes of aliens who are eligible for the noncash benefits covered by the Rule are, except in rare circumstances, not subject to a public charge inadmissibility determination); see also 8 U.S.C. § 1642(b) (limiting receipt of federal public benefits to eligible qualified aliens); id. § 1641(b) (“qualified alien” includes, inter alia, lawful permanent residents, asylum recipients, and refugees). The Rule cannot possibly prevent or deter aliens from using public benefits for which they are not eligible.
Plaintiffs assert that notwithstanding USCIS’s COVID-19-related guidance and the limited relevance of the Rule to aliens who are actually eligible for benefits, the Rule is “deterring immigrants from accessing publicly funded healthcare, including programs that would enable immigrants to obtain testing and treatment for COVID-19[.]” Mot. at 1. But their accompanying declarations make clear that this asserted effect is not the result of the Rule itself, but rather of
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“mistaken beliefs” about the Rule’s application and content. Pls’ Ex. 14 ¶ 9; Pls’ Ex. 27 ¶ 7. Plaintiffs’ declarations repeatedly describe aliens who incorrectly believe that they are subject to the Rule, or who express concerns about using public benefits that are not considered by the Rule. See, e.g., Pls’ Ex. 8 ¶ 4 (“two patients receiving outpatient treatment reported concerns about going to the hospital for COVID-19 care because they worried that any benefits that they might use to access that care—including even the Yale Freecare Program, which I understand is not subject to the Public Charge Rule—might negatively impact their immigration status”); Pls’ Ex. 10 ¶ 12 (describing concerns that enrollment in public benefits “including for their U.S. citizen children, will subject them to the public charge rule”); Pls’ Ex. 14 ¶ 5 (“some families that organizers speak with have withdrawn their U.S. citizen children from healthcare coverage out of a mistaken fear that their children’s coverage will trigger immigration consequences related to public charge”); id. ¶ 6 (“classes of immigrants to whom the public charge rule does not apply, such as Lawful Permanent Residents, have also disenrolled from services out of the mistaken fear that they could face immigration consequences for receiving benefits); Pls’ Ex. 17 ¶ 5 (“My patients’ fears and concerns about the risks associated with use of public benefits, however, apply even to services exempted by the rule.”); Pls’ Ex. 18 ¶ 8 (“nine callers to the hotline were so insistent on disenrolling from public benefits—even though they were entitled to the benefits and not subject to a public charge test”); id. ¶ 9 (discussing “calls . . . from immigrants with legal permanent resident status” which “demonstrate the continued confusion about and chilling effect of the Rule, even amongst those to whom it does not apply”); Pls’ Ex. 21 ¶ 13 (discussing “five families [that] did not want to apply for Medicaid for their children due to the fear of the Rule” where “[a]ll family members were green card holders and were looking into applying for citizenship”); id. ¶ 21 (asylee parent “called and requested that the [benefits] applications for all three children be
16

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withdrawn due to concern with the Rule”); Pls’ Ex. 23 ¶ 11 (“A lawful permanent resident who lost his job recently called the LegalHealth public charge hotline with concerns that receiving Medicaid and applying for unemployment would impact his permanent residency.”); Pls’ Ex. 24 ¶ 10 (“The clients expressing these fears include people to whom public charge is not applicable because they are LPRs or hold other status not affected.”); see also Mot. at 10 (“The Rule’s deterrent effects have not been limited to the LPR applicants or public-benefit programs that are directly subject to the Rule.”).
Plaintiffs cite no authority holding that a federal policy may be enjoined because some subset of the public misunderstands its legal effects. But even if harms that may result from misunderstandings of the Rule were somehow relevant to the irreparable harm analysis, those harms still would be insufficient to justify a preliminary injunction here. Preliminary injunctive relief “inherently requires a causal connection between the injunction and harm.” I.M. Wilson, Inc. v. Otvetstvennostyou “Grichko”, No. 18-5194, 2019 U.S. Dist. LEXIS 182350, at *9 (E.D. Pa. Oct. 18, 2019). In other words, to obtain a preliminary injunction, “plaintiffs must show that, on the facts of their case, the failure to issue an injunction would actually cause irreparable harm.” Appalseed Prods., Inc. v. Medianet Dig., Inc., 2012 U.S. Dist. LEXIS 93946, at *29 (S.D.N.Y. July 6, 2012) (quoting Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010)); see also Faulkner v. Jones, 10 F.3d 226, 235-36 (4th Cir. 1993) (Hamilton, J., dissenting; emphasis in original) (“[A]ny inquiry into the irreparable harm resulting from the denial of interim relief must necessarily begin with an analysis of the degree to which that particular relief remedies the alleged injuries.”); Sierra Club v. United States DOE, 825 F. Supp. 2d 142, 153 (D.D.C. 2011) (“A plaintiff may be irreparably harmed by all sorts of things, but the irreparable harm considered by the court must be
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caused by the conduct in dispute and remedied by the relief sought.”) (emphasis added; citing cases).
Here, Plaintiffs have not shown that their alleged harms would be remedied by a preliminary injunction. On the contrary, as discussed above, Plaintiffs’ Motion is premised on the idea that various individuals misunderstand the Rule, including basic questions such as to whom it applies and which public benefits are relevant, and that this confusion persists even after the implementing agency issued guidance specifically clarifying that COVID-19-related testing and treatment will not be treated as a negative factor in public charge determinations. Against that backdrop, it is utter speculation to conclude that these same individuals – who mistakenly believe themselves to be subject to the Rule when they are not, or who for some reason cannot be informed about the government’s policy with respect to COVID-19-related testing and treatment – will (1) learn about a preliminary injunction that may be issued by this Court, (2) understand what it means for a court to preliminarily enjoin a rule, and (3) change their behavior and begin using public benefits based on that understanding. Accordingly, Plaintiffs’ irreparable harm argument requires speculative assumptions about the future behavior of third parties, though it is widely recognized that “predicting . . . the behavior of third parties is usually suspect.” Sea Shore Corp. v. Sullivan, 158 F.3d 51, 56 (1st Cir. 1998); United States v. Walker, 7 F.3d 26, 30 (2d Cir. 1993) (“future actions of third parties are not easily predicted.”). “The Supreme Court itself has noted the improbability of establishing the necessary likelihood of some result when that result depends on predicting the acts of even a single ‘interest group’ who is unrepresented in the instant litigation, especially when that group . . . is actually composed of dozens of individual actors[.]” Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 670 (D.C. Cir. 1996) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 42-46 (1976)).
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Moreover, Plaintiffs’ own declarations undermine the inference that a preliminary injunction would remedy Plaintiffs’ alleged harms. Those declarations suggest that aliens who are avoiding public benefits based on mistaken beliefs about the Rule would not adjust their behavior on the basis of an interim court ruling. The declarations describe individuals’ refusals to utilize public benefits even after they are assured that the benefits are outside the scope of the Rule. See, e.g., Pls’ Ex. 15 ¶ 4 (“Another client recently refused to sign up to use IRIS’s own food pantry because of the Public Charge Rule. I could not convince this client—who is currently unemployed because of the COVID-19 epidemic—to access this necessary food resource, even though use of the food pantry is totally outside of the scope of the Rule.”); Pls’ Ex. 21 ¶ 11 (“Even when outreach workers try to assure families that it is ok to apply for Medicaid/FAMIS, outreach workers are seeing an increasing number of families who ultimately decide not to apply and in some cases, withdraw from coverage.”). The declarations also describe “widespread” “[c]onfusion . . . among immigrants as to how public charge applies,” Pls’ Ex. 14 ¶ 6, and explain that immigrants “are extremely unlikely to receive accurate information about who public charge applies to and how” unless they “actively reach out” or are located “through outreach services,” Pls’ Ex. 27 ¶ 7, suggesting that these individuals are unlikely to learn about and understand the legal significance of a preliminary injunction in this case. Accordingly, Plaintiffs have failed to show that their requested preliminary injunction would dispel the alleged confusion about the Rule, much less that it would remedy Plaintiffs’ claimed injuries from that confusion. See Faulkner, 10 F.3d at 236 (“If the relief requested does little, if anything, to alleviate the alleged injuries, it is difficult to comprehend how the refusal to grant that relief could cause irreparable harm.”).
C. The Remaining Equitable Factors Require Denial of Plaintiffs’ Motion
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Lastly, the Court should find that the equitable balance favors Defendants. Plaintiffs contend that it would be in “the public interest” to enjoin the Rule, in its entirety, nationwide. Mot. at 23. But the public has an interest in both addressing the COVID-19 crisis and enforcing lawful immigration policy – and it is the Executive Branch that is charged with determining how best to do both. See Nken, 556 U.S. at 435-36. The Executive Branch has considered the arguments Plaintiffs advance, and has concluded that Plaintiffs’ preferred outcome – a wholesale suspension of the Rule, just as they sought before the COVID-19 crisis – is not warranted. Plaintiffs provide no basis for this Court to overrule that judgment about how the nation’s lawful immigration policies should be implemented during the COVID-19 crisis.
Furthermore, there is no serious question that Defendants and the public would be irreparably harmed by an injunction. The federal government sustains irreparable injury whenever it “is enjoined by a court from effectuating statutes enacted by representatives of its people.” Maryland v. King, 567 U.S. 1301 (2012) (Roberts, C.J., in chambers). That injury is particularly acute here because an injunction would require DHS, on a nationwide basis, to grant lawful permanent resident status to aliens who are likely at any time to become public charges under the Rule. DHS currently has no practical means of revisiting these determinations if the injunction were later stayed or vacated. See Declaration of Daniel Renaud, ECF No. 113, ¶ 4. In granting a stay of the first preliminary injunction, the Supreme Court necessarily concluded that the government would suffer irreparable harm in the absence of a stay, and that no other equitable considerations rendered a stay inappropriate. And the Ninth Circuit expressly did so. See San Francisco, 944 F.3d at 805-06.9
9 Plaintiffs incorrectly claim that “green card processing has been suspended[.]” Mot. at 24. In fact, processing has not been suspended to the extent that processing does not require face-to-face contact. See https://www.uscis.gov/about-us/uscis-response-covid-19.
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IV. If the Court Chooses to Grant Injunctive Relief, the Injunction Should Not Have Nationwide Effect
Although Plaintiffs contend that the relief they seek is substantively different from the previously stayed preliminary injunction, it is in fact identical in geographic scope and merely limited to an unspecified future point in time. When the first injunction was stayed, Justice Gorsuch, joined by Justice Thomas, issued a concurring opinion specifically to highlight the impropriety of nationwide injunctions. See New York, 140 S. Ct. at 600 (Gorsuch, J., concurring) (“[T]he routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions.”). Plaintiffs’ motion provides no response to any of the concerns raised by this opinion. Moreover, Plaintiffs provide only self-serving, speculative, and conclusory statements in support of their argument that the injunction they now seek must have nationwide effect. Mot. at 25.
Plaintiffs seek relief that is not necessary to redress any allegedly cognizable, irreparable injuries to the parties in the case, and they therefore lack standing to obtain such relief. See Madsen v. Women’s Health Ctr. Inc., 512 U.S. 753, 765 (1994) (holding that injunctive relief must “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”). The remedy sought “must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Gill v. Whitford, 138 S. Ct. 1916, 1921 (2018) (quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)). Furthermore, a plaintiff does not retain standing to challenge a regulation in the abstract when its application to that plaintiff has been resolved. See Summers v. Earth Island Inst., 555 U.S. 488, 494-97 (2009).
Consequently, in order to justify an injunction of broader application, Plaintiffs would have to have made a satisfactory showing that they would face harms sufficient to satisfy the preliminary injunction standard even if a geographically limited injunction were in place, a showing they have
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not meaningfully attempted to make. Instead, Plaintiffs simply note that individuals travelling from other states may spread COVID-19 into the government Plaintiffs’ jurisdictions. Mot. at 25. But that is true regardless of whether a preliminary injunction is issued. Not even Plaintiffs contend that a preliminary injunction would end the pandemic or stop infected persons from travelling into the plaintiff jurisdictions.10
V. The Court Should Decline to Issue an Indicative Ruling on Plaintiffs’ Request for Preliminary Relief
“[I]n addition to” a new preliminary injunction, Plaintiffs are also seeking an indicative ruling pursuant to Federal Rule of Civil Procedure 62.1. Mot. at 15. Plaintiffs are correct that, in general, when a district court has been divested of jurisdiction by an appeal, Rule 62.1 allows the court to notify the Court of Appeals “either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.” Fed. R. Civ. P. 62.1(a)(3). However, the purpose of an indicative ruling is to allow for “the timely resolution of motions which may further the appeal or obviate its necessity,” and not for the district court to “reconsider[] the same question being reviewed by the court of appeals.” Ret. Bd. of the Policemen’s Annuity and Ben. Fund of Chi. v. Bank of N.Y. Mellon, 297 F.R.D. 218, 221 (S.D.N.Y. 2013).
As discussed above, Plaintiffs’ second motion for preliminary injunction requests the identical relief, but with a time limitation, on primarily identical legal and factual questions. “[A]n indicative ruling on the very issue on appeal,” however, “only interrupts the appellate process.”
10 Plaintiffs have also moved again for an order postponing the effective date of the Rule pursuant to 5 U.S.C. § 705. That request is governed by the same legal standard as the motion for preliminary injunction, and it therefore fails for the same reasons as discussed above. Indeed, Section 705 authorizes courts to postpone an agency’s action only “to the extent necessary to prevent irreparable injury.” The Court should also deny Plaintiffs’ request for a temporary restraining order for the same reasons and because the Court’s hearing on the preliminary injunction will be held in a matter of days.
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Id. If Plaintiffs are correct that their two motions for preliminary injunction are sufficiently unrelated to allow the Court jurisdiction, which they are not, see supra, a ruling on the instant motion would not obviate the need to resolve the appeal on the first. Because Plaintiffs’ current request seeks to limit their otherwise identical proposed nationwide injunction to the duration of the national emergency, and the previous injunction was not so limited, it would still be necessary to resolve the appeal.
It is also clear that “[a]n indicative ruling would do little to aid the Second Circuit’s consideration of the appeal.” Id. at 222. The Court of Appeals’ review of the legal issues in a preliminary injunction is de novo and its consideration of the district court’s analysis of the applicable standard is based on the information that was available to the court at the time of the decision. See, e.g., Chevron Corp. v. Naranjo, 667 F. 3d 232, 239 (2d Cir. 2012). In any event, Plaintiffs submitted their evidence concerning the COVID-19 pandemic to the Second Circuit through a letter pursuant to Federal Rule of Appellate Procedure 28(j), so that Court is already aware of Plaintiffs’ position. See New York v. DHS, No. 2019-3591, No. 534 (2d Cir.).
CONCLUSION Defendants respectfully request that the Court deny Plaintiffs’ motion.

Dated: May 12, 2020
GEOFFREY S. BERMAN United States Attorney

Respectfully submitted,

JOSEPH H. HUNT Assistant Attorney General

ALEXANDER K. HAAS Director, Federal Programs Branch

/s/ Joshua M. Kolsky

_

ERIC J. SOSKIN

Senior Trial Counsel

KERI L. BERMAN

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Case 1:19-cv-07777-GBD Document 176 Filed 05/12/20 Page 29 of 30 KUNTAL V. CHOLERA JOSHUA M. KOLSKY, DC Bar No. 993430 U.S. Dept. of Justice, Civil Division, Federal Programs Branch 1100 L Street, N.W., Rm. 12002 Washington, DC 20001 Phone: (202) 305-7664 Fax: (202) 616-8470 Email: joshua.kolsky@usdoj.gov
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CERTIFICATE OF SERVICE I hereby certify that on May 12, 2020, I electronically filed a copy of the foregoing. Notice of this filing will be sent via email to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF System.
/s/ Joshua M. Kolsky____________ JOSHUA M. KOLSKY

 
 Case 1:19-cv-07777-GBD Document 141 Filed 02/14/20 Page 1 of 53

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK, et al. Plaintiffs,
v. U.S. DEPARTMENT OF HOMELAND
SECURITY, et al. Defendants.

No. 19-cv-07777 (GBD)

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

Case 1:19-cv-07777-GBD Document 141 Filed 02/14/20 Page 2 of 53
TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 1 STANDARD OF REVIEW ............................................................................................................ 5 ARGUMENT .................................................................................................................................. 5 I. Plaintiffs Have Not Established Standing Or Ripeness ...................................................... 5 II. Plaintiffs Are Outside The Zone of Interests Regulated By The Rule ............................... 9 III. The Court Should Dismiss Count One.............................................................................. 11
A. The Rule’s Definition of “Public Charge” Is Consistent With The Statute ............... 12 1. The Rule’s Definition of “Public Charge” Is Consistent With The INA, ` Administrative Interpretations, And U.S. Immigration Policy................................... 13 2. Early Definitions Support the Rule’s Definition of “Public Charge” ........................ 17 3. Gegiow v. Uhl and the Immigration Act of 1917 ....................................................... 19
B. The Weighted-Circumstances Test Is Also Consistent With the Statute ................... 22 C. The Public Charge Statute Does Not Require That Government
Benefits Be Paid In Cash ............................................................................................ 22 D. DHS’s Interpretation Is Reinforced By Congress’s Unequivocal,
Longstanding Delegation Of Authority To The Executive Branch............................ 24 E. DHS Has Statutory Authority to Impose Public-Benefits Conditions on
Applications by Nonimmigrants for Extensions or Status Changes........................... 27 IV. The Court Should Dismiss Count Two ............................................................................. 28
A. The Rehabilitation Act ................................................................................................ 28 B. SNAP .......................................................................................................................... 30 C. PRWORA ................................................................................................................... 31 V. The Court Should Dismiss Count Three ........................................................................... 32 A. The Rule Meets the Standards Required For An Agency To Change Its Position
Through Notice-and-Comment Rulemaking .............................................................. 32
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Case 1:19-cv-07777-GBD Document 141 Filed 02/14/20 Page 3 of 53 B. DHS Adequately Considered Potential Harms ........................................................... 34 C. The Rule Retains The Totality Of The Circumstances Standard And Relies On
Appropriate Factors .................................................................................................... 37 D. The Rule Considers Relevant Factors in Assessing an Alien’s Likelihood of
Becoming a Public Charge.......................................................................................... 38 E. Plaintiffs’ Additional Allegations Do Not Show Any Arbitrariness
Or Capriciousness ....................................................................................................... 39 VI. The Court Should Dismiss Count Four............................................................................. 40 VII. The Court Should Dismiss Count Five ............................................................................. 41 CONCLUSION............................................................................................................................. 44
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TABLE OF AUTHORITIES
Cases
Agape Church, Inc. v. FCC, 738 F.3d 397 (D.C. Cir. 2013) .................................................................................................. 40
Ashcroft v. Iqbal, 556 U.S. 662 (2009).................................................................................................................... 5
Chevron, U.S.A. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)...................................................................................................... 12, 24, 33
City & Cty. Of San Francisco v. USCIS, 944 F.3D 773 (9th Cir. 2019)............................................................................................. passim
City and Cty. of San Francisco v. USCIS, Case No. 19-4717, 2019 U.S. Dist. LEXIS 177379 (N.D. Cal. Oct. 11, 2019).................. 29, 30
City of Alton v. Madison Cty., 21 Ill. 115 (1859) ...................................................................................................................... 18
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013).................................................................................................................... 7
Clarke v. Sec. Indus. Ass’n, 479 U.S. 388 (1987).................................................................................................................... 9
Clearwater v. Indep. Sch. Dist. No. 166, 231 F.3d 1122 (8th Cir. 2000) .................................................................................................. 43
Competitive Enter. Inst. v. U.S. Dep’t of Transp., 863 F.3d 911 (D.C. Cir. 2017) .................................................................................................. 26
Consumer Elecs. Ass’n v. FCC, 347 F.3d 291 (D.C. Cir. 2003) .................................................................................................. 37
Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015) ...................................................................................................... 8
Defs. of Wildlife v. Zinke, 856 F.3d 1248 (9th Cir. 2017) .................................................................................................. 40
Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) .......................................................................................................... 7, 36
Derby & Co, Inc. v. Dep’t of Energy, 524 F. Supp. 398 (S.D.N.Y. 1981) ............................................................................................. 9
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EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247 (2nd Cir. 2014)...................................................................................................... 5
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) .............................................................................................................. 24
Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 733 F.3d 393 (2d Cir. 2013)........................................................................................................ 8
Ex Parte Horn, 292 F. 455 (W.D. Wash. 1923) ................................................................................................. 21
Ex Parte Mitchell, 256 F. 229 (N.D.N.Y. 1919) ..................................................................................................... 21
Ex Parte Pugliese, 209 F. 720 (W.D.N.Y. 1913) .................................................................................................... 25
F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (2009)...................................................................................................... 12, 32, 33
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).................................................................................................................. 12
Fed’n for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897 (D.C. Cir. 1996) .................................................................................................... 10
Gegiow v. Uhl, 239 U.S. 3 (1915).......................................................................................................... 19, 20, 21
Harris v. Mills, 572 F.3d 66 (2nd Cir. 2009)........................................................................................................ 5
Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018) .............................................................................................................. 13
In Re: Application for Temporary Resident Status, 2009 WL 4983092 (USCIS AAO Sept. 14, 2009).................................................................... 29
In re Day, 27 F. 678 (C.C.S.D.N.Y. 1886) ................................................................................................ 18
In re MTBE Prods. Liability Litig., 725 F.3d 65 (2d Cir. 2013)...................................................................................................... 8, 9
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).................................................................................................................. 15
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Case 1:19-cv-07777-GBD Document 141 Filed 02/14/20 Page 6 of 53
INS v. Jong Ha Wang, 450 U.S. 139 (1981).................................................................................................................. 24
INS v. Legalization Assistance Proj., 510 U.S. 1301 (1993)................................................................................................................ 10
Inv. Co. Inst. v. CFTC, 720 F.3d 370 (D.C. Cir. 2013) .................................................................................................. 40
Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 191 F.3d 229 (2d Cir. 1999)........................................................................................................ 7
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014).................................................................................................................... 9
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992)................................................................................................................ 5, 6
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012).................................................................................................................. 10
Matter of B-, 3 I. & N. Dec. 323 (BIA 1948) ................................................................................................. 15
Matter of Harutunian, 14 I. & N. Dec. 583 (INS Reg’l Comm’r 1974) ................................................................. 25, 39
Matter of Perez, 15 I. & N. Dec. 136 (BIA 1974) ............................................................................................... 26
Matter of Vindman, 16 I. & N. Dec. 131 (INS Reg’l Comm’r 1977) ................................................................. 25, 39
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).................................................................................................................. 32
Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998).................................................................................................................... 9
Overseers of Princeton Twp. v. Overseers of S. Brunswick Twp., 23 N.J.L. 169 (N.J. 1851).......................................................................................................... 18
Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990).................................................................................................................. 15
Pers. Adm’r of Massachusetts v. Feeney, 442 U.S. 256 (1979)............................................................................................................ 41, 42
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Sec. Indus. Fin. Markets Ass’n v. CFTC, 67 F. Supp. 3d 373 (D.D.C. 2014) ............................................................................................ 40
Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001).................................................................................................................. 15
State v. The S.S. “Constitution”, 42 Cal. 578 (1872) .................................................................................................................... 18
Summers v. Earth Island Inst., 555 U.S. 488 (2009).................................................................................................................... 6
Trump v. Hawaii, 138 S. Ct. 2392 (2018) .............................................................................................................. 42
United States ex rel. Iorio v. Day, 34 F.2d 920 (2d Cir. 1929)........................................................................................................ 21
United States v. Moore, 54 F.3d 92 (2d Cir. 1995).......................................................................................................... 41
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)............................................................................................................ 41, 43
Wallis v. U.S. ex rel. Mannara, 273 F. 509 (2d Cir. 1921).......................................................................................................... 25
Washington v. Davis, 426 U.S. 229 (1976).................................................................................................................. 42
Whitmore v. Ark., 495 U.S. 149 (1990).................................................................................................................... 6 Statutes
7 U.S.C. § 2017....................................................................................................................... 30, 31 8 U.S.C. § 1182(a) ................................................................................................................. passim 8 U.S.C. § 1182(s)......................................................................................................................... 13 8 U.S.C. § 1184............................................................................................................................. 27 8 U.S.C. § 1252......................................................................................................................... 8, 10 8 U.S.C. § 1258............................................................................................................................. 28 8 U.S.C. § 1601....................................................................................................... 1, 17, 23, 33, 34
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8 U.S.C. § 1641............................................................................................................................. 32 29 U.S.C. § 794............................................................................................................................. 29 Illegal Immigration Reform and Immigrant Responsbility Act (“IIRIRA”)
Pub. L. No. 104-208, 1110 Stat. 2105 (1996)............................................................................. 2 Personal Responsibility and Work Opportunity Reconciliation Act (“PRWORA”)
Pub. L. No. 104-193, 110 Stat. 2105 (1996)............................................................................... 3 Immigration Act of 1882, 47th Cong. ch. 376, 22 Stat. 214 (1882) ............................................... 2 Immigration Act of 1891, 51st Cong. ch. 551, 26 Stat. 1084 (1891) ............................................. 2 Immigration Act of 1907, 59th Cong. ch. 1134, 34 Stat. 898 (1907) ............................................. 2 Immigration Act of 1917, 64th Cong. ch. 29, 39 Stat. 874 (1917) ..................................... 2, 20, 21 INA of 1952, 82nd Cong. ch. 477, 66 Stat. 163 (1952).................................................................. 2
Legislative Materials 26 Cong. Rec. 657 (1894) ............................................................................................................. 17 142 Cong. Rec. S11872 (1996)..................................................................................................... 15 H.R. Doc. No. 64-886 (1916) ................................................................................................. 18, 21 H.R. Rep. No. 104-828 (1996)...................................................................................................... 15 S. Rep. No. 64-352 (1916) ............................................................................................................ 21 S. Rep. No. 81-1515 (1950) .......................................................................................... 2, 24, 25, 26 S. Rep. No. 113-40 (2013) ............................................................................................................ 15
Regulations 47 C.F.R. § 54.409 ........................................................................................................................ 31 Inadmissibility on Public Charge Grounds (“1999 NPRM”)
64 Fed. Reg. 28676 (May 26, 1999) ..................................................................................... 3, 26 Field Guidance on Deportability and Inadmissibility on Public Charge Grounds
(“Field Guidance”), 64 Fed. Reg. 28689 (May 26, 1999) ................................................ 3, 4, 34 Inadmissibility on Public Charge Grounds (“NPRM”)
83 Fed. Reg. 51114 (Oct. 10, 2018)................................................................................... passim
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Case 1:19-cv-07777-GBD Document 141 Filed 02/14/20 Page 9 of 53 Inadmissibility on Public Charge Grounds (“Rule”)
84 Fed. Reg. 41292 (Aug. 14, 2019) ................................................................................. passim Other Authorities Arthur Cook, et al., Immigration Laws of the U.S. (1929)..................................................... 17, 21 Black’s Law Dictionary (3d ed.1933)........................................................................................... 19 Black’s Law Dictionary (4th ed. 1951)......................................................................................... 19 Century Dictionary & Cyclopedia (1911)..................................................................................... 18 Stewart Rapaljb et al., Dict. Of Am. and English Law (1888) ..................................................... 18 Webster’s Dictionary (1828)......................................................................................................... 18
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INTRODUCTION On October 11, 2019, the Court issued a preliminary injunction against the Department of Homeland Security’s final rule Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41292 (Aug. 14, 2019) (“Rule”). See Mem. Decision and Order, ECF No. 110 (“PI Order”). The Court based its decision on a determination that promulgation of the Rule exceeded DHS’s delegated authority and was arbitrary and capricious under the Administrative Procedure Act (“APA”). The Court also held that there is “at least a colorable argument” that the Rule “may violate the Rehabilitation Act.” PI Order at 18. On January 27, 2020, the Supreme Court stayed this Court’s injunction, necessarily finding both that Plaintiffs are not threatened with irreparable harm by application of the Rule and also that the Defendants are likely to succeed on the merits of the case. Previously, the Ninth Circuit Court of Appeals issued a detailed opinion concluding that the Rule falls well within the Executive Branch’s discretion to interpret and implement the public charge inadmissibility provision in the Immigration and Nationality Act (“INA”). City and Cty. of San Francisco v. USCIS, 944 F.3d 773 (9th Cir. 2019). In light of the Supreme Court’s Stay of Injunction, the Ninth Circuit’s detailed ruling, and for the reasons discussed herein, Defendants respectfully submit that the Court should dismiss Plaintiffs’ Complaint in full.
BACKGROUND “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.” 8 U.S.C. § 1601(1). “[T]he immigration policy of the United States [is] that aliens within the Nation’s borders not depend on public resources to meet their needs.” Id. § 1601(2)(A). Rather, aliens must “rely on their own capabilities and the resources of their families, their sponsors, and private organizations.” Id. Relatedly, “the availability of public benefits [is] not [to] constitute an incentive for immigration to the United States.” Id.
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§ 1601(2)(B). These statutorily enumerated policies are effectuated in part through the public charge
ground of inadmissibility in the INA. With certain exceptions, the INA provides 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 [or 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). An unbroken line of predecessor statutes going back to at least 1882 have contained a similar public charge inadmissibility ground, and those statutes have, without exception, delegated to the Executive Branch the authority to determine who constitutes a public charge for purposes of that provision. See Immigration Act of 1882, 47th Cong. ch. 376, §§ 1-2, 22 Stat. 214 (“1882 Act”); 1891 Immigration Act, 51st Cong. ch. 551, 26 Stat. 1084 (“1891 Act”); Immigration Act of 1907, 59th Cong. ch. 1134, 34 Stat. 898 (“1907 Act”); Immigration Act of 1917, 64th Cong. ch. 29 § 3, 39 Stat. 874, 876 (“1917 Act”); INA of 1952, 82nd Cong. ch. 477, section 212(a)(15), 66 Stat. 163, 183. Indeed, in a Report leading up to the enactment of the INA, the Senate Judiciary Committee emphasized that because “the elements constituting likelihood of becoming a public charge are varied, there should be no attempt to define the term in the law,” and that the public charge inadmissibility determinations properly “rest[] within the discretion of” the Executive Branch. S. Rep. No. 81-1515, at 349 (1950).
In 1996, Congress enacted immigration and welfare reform statutes that bear on the public charge inadmissibility determination. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Division C of Pub. L. No. 104-208, 1110 Stat. 3009-546 (1996) strengthened the enforcement of the public charge inadmissibility ground in several ways. First, Congress instructed that, in making public charge inadmissibility determinations, “the
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consular officer or the Attorney General shall at a minimum consider the alien’s: (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills,” 8 U.S.C. § 1182(a)(4)(B), but otherwise left in place the broad delegation of authority to the Executive Branch to determine who constitutes a public charge. IIRIRA also raised the standards and responsibilities for individuals who must “sponsor” an alien by pledging to provide support to maintain that immigrant at the applicable threshold for the period of enforceability and requiring that sponsors demonstrate the means to maintain an annual income at the applicable threshold. Contemporaneously, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”), Pub. L. No. 104-193, 110 Stat. 2105 (1996), restricted most aliens from accessing many public support programs, including Supplemental Security Income (“SSI”) and nutrition programs. PRWORA also made the sponsorship requirements in IIRIRA legally enforceable against sponsors.
In light of the 1996 legislative developments, the legacy Immigration and Naturalization Service (“INS”) started in 1999 to engage in formal rulemaking to guide immigration officers, aliens, and the public in understanding public charge inadmissibility and deportability determinations. See Inadmissibility and Deportability on Public Charge Grounds, 64 Fed. Reg. 28676 (May 26, 1999) (“1999 NPRM”). No final rule was ever issued, however. Instead, the agency adopted the 1999 NPRM interpretation on an interim basis by publishing Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689 (May 26, 1999) (“Field Guidance”). The Field Guidance dramatically narrowed the public charge inadmissibility ground by defining “public charge” as an alien who is likely to become “primarily dependent on the government for subsistence,” and by barring immigration officers from considering any non-cash public benefits, regardless of the value or length of receipt, as part of
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public charge inadmissibility and deportability determinations. See id. at 28689. Under that standard, an alien receiving Medicaid (other than for institutionalization for long-term care), food stamps, and public housing, but not cash assistance, would have been treated as no more likely to become a public charge than an alien who was entirely self-sufficient.
The Rule revises this approach and adopts, through notice-and-comment rulemaking, a well-reasoned definition of public charge providing practical guidance to DHS officials making public charge inadmissibility determinations. DHS began by publishing a Notice of Proposed Rulemaking, comprising 182 pages of description, evidence, and analysis. See Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51114 (Oct. 10, 2018) (“NPRM”). The NPRM provided a 60-day public comment period, during which 266,077 comments were received. See Rule at 41297. After considering these comments, DHS published the Rule, addressing comments, making several revisions to the proposed rule, and providing over 200 pages of analysis in support of its decision. Among the Rule’s major components are provisions defining “public charge” and “public benefit” (which are not defined in the statute), an enumeration of factors to be considered in the totality of the circumstances when making a public charge determination, and a requirement that aliens seeking an extension of stay or a change of status show that they have not received public support in excess of the Rule’s threshold since obtaining nonimmigrant status. The Rule supersedes the Interim Field Guidance, establishing a new definition of public charge based on a minimum durational threshold for the receipt of public benefits. Under this “12/36 standard,” a public charge is an alien who receives designated public benefits for more than 12 months in the aggregate within a 36-month period. Id. at 41297. Such “public benefits” are extended by the Rule to include an enumerated list of non-cash benefits: with some exceptions, an alien’s participation in the Supplemental Nutrition Assistance Program (“SNAP”), Section 8 Housing Programs, Medicaid,
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and Public Housing may now be considered as part of the public charge inadmissibility determination. Id. at 41501-02. The Rule also provides a non-exclusive list of factors for assessing whether an alien is likely at any time to become a public charge and explains how DHS officers should apply these factors as part of a totality-of-the-circumstances determination.1
STANDARD OF REVIEW The Rule 12(b)(6) standard “require[s] that a complaint support the viability of its claims by pleading sufficient nonconclusory factual matter to set forth a claim that is plausible on its face.” EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 253 (2nd Cir. 2014) (alteration in original). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Harris v. Mills, 572 F.3d 66, 72 (2nd Cir. 2009) (quoting Iqbal, 556 U.S. at 678).2
ARGUMENT I. Plaintiffs Have Not Established Standing Or Ripeness
As the party invoking federal jurisdiction, Plaintiffs bear the burden of establishing standing, “an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “To seek injunctive relief, a plaintiff must show that [it] is under threat of suffering ‘injury in fact’ that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to
1 A correction to the Rule was published in the Federal Register on October 2, 2019. See Inadmissibility on Public Charge Grounds; Correction (2019), https://www.federalregister.gov/documents/2019/10/02/2019-21561/ inadmissibility-on-public-charge-grounds-correction. 2 Internal quotation marks are omitted throughout.
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the challenged action . . . ; and it must be likely that a favorable judicial decision will prevent or redress the injury.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). The “threatened injury must be certainly impending to constitute injury in fact”; allegations of “possible future injury do not satisfy . . . Art. III.” Whitmore v. Ark., 495 U.S. 149, 158 (1990). Where, as here, “the plaintiff is not [itself] the object of the government action,” standing “is ordinarily ‘substantially more difficult’ to establish.” Lujan, 504 U.S. at 562.
Plaintiffs’ alleged injuries consist of potential future harms that, if they ever came to pass, would be spurred by decisions of third parties not before the Court. Here, the Rule governs DHS personnel and certain aliens. It “neither require[s] nor forbid[s] any action on the part of” Plaintiffs, Summers, 555 U.S. at 493, nor does it expressly interfere with any of their programs applicable to aliens. To be sure, Plaintiffs allege harms of (i) a theoretical economic impact that might arise should aliens choose to rely more on State and local services; (ii) speculation that a public health episode could occur should noncitizens choose to forgo health services altogether; and (iii) interference with certain administrative programs. See, e.g., Compl. ¶¶ 180, 194, 213 (ECF No. 17). But none of these alleged harms would be sufficient to confer standing on any State or City Plaintiff.
Plaintiffs’ purported economic harms from the possibility that certain aliens may unnecessarily choose to forgo all federal health and housing benefits (thereby resulting in greater reliance on state and local benefits) do not establish standing. See, e.g., Compl. ¶¶ 213, 216. As an initial matter, this theory is inconsistent with Plaintiffs’ assertion that immigrants will generally “forgo public assistance altogether,” rather than just federal assistance. Compl. ¶ 182; Mem. in Supp. of Pls.’ Mot. for Prelim. Inj. at 6, ECF No. 35 (“PI Mot.”) (aliens will disenroll from “benefits that are beyond the express scope of the Final Rule”). Further, plaintiffs do not have
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“standing to sue [in] situations where the chain of causation leading to damages” is “complicated by the intervening agency of third parties.” Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 191 F.3d 229, 240 (2d Cir. 1999); see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410, 414 (2013) (courts are “reluctan[t] to endorse standing theories that rest on speculation about the decisions of independent actors”). For any Plaintiff to suffer a net-increase in public benefit expenditures (i) a material number of aliens must unnecessarily choose to forgo all federal health benefits (a result not required by the Rule); (ii) these aliens must then either apply for, and receive, additional state or local health benefits, or use emergency room services ultimately financed by the government; and (iii) the increased state or local expenses for these aliens must be greater than the costs they would have incurred for aliens who would have resided in the State, and consumed State and local resources, but for the Rule.3 Plaintiffs’ allegation that the Rule may harm their economies because fewer aliens may receive and then spend federal funds within their territories is equally speculative. Plaintiffs do not even allege that this speculative injury would noticeably affect their total state economies.
In its preliminary injunction order, the Court credited Plaintiffs’ theory that they would bear greater health costs due to health epidemics, since “patients [would] avoid preventive care.” PI Order, at 8. But like the alleged economic impacts, this allegation is too speculative to support standing—it turns on individual choices by aliens to forgo all federal health benefits and, as a result, contract and spread “communicable diseases,” or otherwise cause a public health crisis. See Clapper, 568 U.S. at 410 (rejecting “highly attenuated chain” theory of standing).
The Court likewise credited Plaintiffs’ alleged “programmatic costs” from changes to the
3 This is distinct from New York’s standing theory in Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019). There, plaintiff did not rely on an elongated causal chain of independent third-party decisions. The Court noted that plaintiff relied on a single, “predictable” reaction to a new federal policy (lower census response rates) resulting in definitive injuries to the State itself. Id. at 2565-66.
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public charge ground of inadmissibility. PI Order, at 8. Bureaucratic inconvenience occasioned by a change in federal policy, however, is insufficient to confer standing. See, e.g., Crane v. Johnson, 783 F.3d 244, 253 (5th Cir. 2015) (rejecting government officials’ claim that they have standing since DACA would require that them to “alter their current processes to ensure” compliance).
“Constitutional ripeness is a doctrine that, like standing, is a limitation on the power of the judiciary” and serves as another prerequisite of justiciability. Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 733 F.3d 393, 429 (2d Cir. 2013). Ripeness “prevents courts from declaring the meaning of the law in a vacuum and from constructing generalized legal rules unless the resolution of an actual dispute requires it.” Id. Here, the gravamen of Plaintiffs’ claims is that individual aliens—not the Plaintiffs themselves—may be erroneously determined as “likely at any time to become a public charge” under the totality of the circumstances test set forth in the Rule. Plaintiffs’ claims therefore present the precise circumstance in which ripeness precludes review: resolving questions about the application of “public charge” in the context of an “actual dispute” over application of that ground of inadmissibility is needed to avoid “constructing generalized legal rules” in a “vacuum.” Id.; see 8 U.S.C. § 1252 (providing individuals who have a final order of removal from the United States based on a public charge determination an opportunity to file a petition for review before a federal court of appeals to contest the definition of public charge as applied to them).
Prudential ripeness also counsels against consideration of Plaintiffs’ claims. This doctrine is “‘an important exception to the usual rule that where jurisdiction exists a federal court must exercise it,’ and allows a court to determine ‘that the case will be better decided later.’” In re MTBE Prods. Liability Litig., 725 F.3d 65, 110 (2d Cir. 2013). “In determining whether a claim is prudentially ripe,” courts examine “whether the claim is fit for judicial resolution” and “whether
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and to what extent the parties will endure hardship if decision is withheld.” Id. Fitness is generally lacking where the reviewing court “would benefit from further factual development of the issues presented.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998). Here, Plaintiffs’ claims are all premised on hypothesizing about the potential future applications of the Rule to individuals, speculation about the effects of the Rule on individual decision-making, and disagreement with DHS’s predictions based on the available evidence. In such a context, “judicial appraisal . . . is likely to stand on a much surer footing in the context of a specific application” of the Rule, rather than “in a factual vacuum.” Derby & Co, Inc. v. Dep’t of Energy, 524 F. Supp. 398, 408 (S.D.N.Y. 1981) (internal quotations omitted).
In addition, withholding judicial consideration of Plaintiffs’ claims will not cause them any significant hardship. With respect to the Plaintiffs bringing this case, the Rule “do[es] not create adverse effects of a strictly legal kind, that is, effects of a sort that traditionally would have qualified as harm,” and therefore cannot serve as the basis for a ripe claim. Ohio Forestry Ass’n, 523 U.S. at 733. Instead, the harms alleged are possible cumulative side effects of third party individuals’ decisions to take action not required by the Rule or the Plaintiffs’ own decisions to spend money in response to the Rule, so they do not create a ripe facial challenge. II. Plaintiffs Are Outside The Zone of Interests Regulated By The Rule
Plaintiffs’ claims fail because they are outside the zone of interests served by the limits of the “public charge” inadmissibility provision in § 1182(a)(4)(A) and related sections. The “zoneof-interests” requirement limits the plaintiffs who “may invoke [a] cause of action” to enforce a particular statutory provision or its limits. Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129-30 (2014). Under the APA, a plaintiff falls outside this zone when its “interests are . . . marginally related to or inconsistent with the purposes implicit in the statute.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987). This standard applies with equal force where, as here,
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Plaintiffs seek to challenge the government’s adherence to statutory provisions in the guise of an APA claim. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012).
Plaintiffs plainly fall outside the zone of interests served by the limits of the meaning of public charge in the inadmissibility statute. At issue in this litigation is whether DHS will deny admission or adjustment of status to certain aliens deemed inadmissible on public charge grounds. By using the term “public charge” rather than a broader term like “non-affluent,” Congress ensured that only certain aliens could be determined inadmissible on the public charge ground. It is aliens improperly determined inadmissible, not States or a city, who “fall within the zone of interests protected” by any limitations implicit in § 1182(a)(4)(A) and § 1183, because they are the “reasonable—indeed, predictable—challengers” to DHS’s inadmissibility decisions. Patchak, 567 U.S. at 227; see 8 U.S.C. § 1252 (providing individuals who have a final order of removal from the United States based on, inter alia, a public charge determination, an opportunity to file a petition for review before a federal court of appeals to contest the charge of removability, including the definition of public charge as applied to them). Plaintiffs’ attenuated, alleged harms— downstream economic and health effects—are not even “marginally related” to those of an alien seeking to demonstrate that the “public charge” inadmissibility ground has been improperly applied to his detriment. Cf. INS v. Legalization Assistance Proj., 510 U.S. 1301, 1304-05 (1993) (O’Connor, J., in chambers) (concluding that relevant INA provisions were “clearly meant to protect the interests of undocumented aliens, not the interests of organizations [that provide legal help to immigrants],” and that the fact that a “regulation may affect the way an organization allocates its resources . . . does not give standing to an entity which is not within the zone of interests the statute meant to protect”); Fed’n for Am. Immigration Reform, Inc. v. Reno, 93 F.3d
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897, 899 (D.C. Cir. 1996) (dismissing under zone-of-interests test a suit challenging parole of aliens into this country, where plaintiffs relied on incidental effects of that policy on workers).
In the preliminary injunction order, the Court noted that Plaintiffs’ interests are “intertwined” with the interests of aliens who may be subject to the Rule. PI Order at 10. But Defendants are aware of no case law suggesting that a party may fall within a statute’s zone-ofinterests simply because it has some connection with another party directly impacted by the statute. Furthermore, Plaintiffs have not identified any injury within the public-charge statute’s zone of interests because their purported interest is fundamentally at odds with the goal of that statute. The clear purpose of the public-charge statute is to protect federal and state governments from having to expend taxpayer resources to support aliens admitted to the country or allowed to adjust to lawful-permanent-resident status. The interest plaintiffs seek to further through this lawsuit— more widespread use of taxpayer-funded benefits by aliens—is thus diametrically opposed to the interests Congress sought to further through the public-charge inadmissibility statute. III. The Court Should Dismiss Count One
Count One alleges that the Rule violates the APA by exceeding DHS’s statutory authority. Compl. ¶¶ 263-71. Plaintiffs advance four theories: (1) the Rule’s “public charge” definition is contrary to the “long-standing” and “well-settled meaning of that term,” id. ¶ 266; (2) the Rule impermissibly considers an applicant’s use of non-cash benefits programs, id. ¶ 267; (3) the Rule’s “weighted circumstances test” targets applicants whom Congress never intended to consider public charges, id. ¶ 268; and (4) the Rule would permit DHS to apply the public-charge determination to “applicants seeking to adjust nonimmigrant visas and deprive them of a totality of circumstances inquiry,” id. ¶ 269. Because none of these theories is sound, Count One does not state a plausible claim for relief and should be dismissed.
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The Court’s analysis of Count One is governed by the Chevron framework. See San Francisco, 944 F.3d at 790; accord PI Order at 11. Under Chevron, courts first ask whether the statute is clear. Chevron, U.S.A. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). If so, “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. Where there is ambiguity, however, courts defer to the agency’s interpretation so long as it is reasonable. Id. at 843-44. Such deference “is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000).
Respectfully, the question is not whether the Rule’s current interpretation of “public charge” is novel. Contra PI Order at 13. Rather, the question is whether that interpretation— regardless of whether it has previously been adopted—is within the bounds of the statute. See F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (“It suffices that the new policy is permissible under the statute [for Chevron purposes].”). As explained below, while the Rule may offer a “new definition,” PI Order at 13, that definition nonetheless fits comfortably within the statutory term “public charge” as it has been interpreted over time.
A. The Rule’s Definition of “Public Charge” Is Consistent With The Statute As the Ninth Circuit recently held, the Rule’s definition of “public charge” is well within the bounds of the statute. San Francisco, 944 F.3d at 799 (“We conclude that DHS’s interpretation of ‘public charge’ is a permissible construction of the INA.”). The Ninth Circuit made four principal observations: (1) that the word “opinion” is classic “language of discretion,” under which immigration “officials are given broad leeway”; (2) that “public charge” is neither a “term of art” nor “self-defining,” and is thus ambiguous under Chevron as “capable of a range of meanings”; (3) that Congress set out five factors for consideration but
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expressly did not limit officials to those factors, which gave officials “considerable discretion”; and (4) that Congress granted DHS the power to adopt regulations, by which “Congress intended that DHS would resolve any ambiguities in the INA.” Id. at 791-92.
Following these observations and a comprehensive, detailed account of the history of the “public charge” provision, id. at 792-97, the Ninth Circuit had little trouble concluding either that “the phrase ‘public charge’ is ambiguous,” id. at 798, or that “DHS’s interpretation of ‘public charge’ is a permissible construction of the INA,” id. at 799. The same result should follow here.
1. The Rule’s Definition of “Public Charge” Is Consistent With The INA, Administrative Interpretations, And U.S. Immigration Policy
Related provisions of the INA illustrate that the receipt of public benefits, including noncash benefits, is relevant to the determination of whether an alien is likely at any time to become a public charge. Congress expressly instructed that, when making a public charge inadmissibility determination, DHS “shall not consider any benefits the alien may have received,” 8 U.S.C. § 1182(s), including various noncash benefits, if the alien “has been battered or subjected to extreme cruelty in the United States by [specified persons],” id. § 1641(c); see also id. §§ 16111613 (specifying the public benefits for which battered aliens and other qualified aliens are eligible). The inclusion of that provision prohibiting the consideration of a battered alien’s receipt of public benefits presupposes that DHS will ordinarily consider the past receipt of benefits in making public charge inadmissibility determinations. Cf. Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833, 1844 (2018) (“There is no reason to create an exception to a prohibition unless the prohibition would otherwise forbid what the exception allows.”).
In addition, Congress mandated that many aliens seeking admission or adjustment of status submit affidavits of support executed by sponsors to avoid a public charge inadmissibility determination. See 8 U.S.C. § 1182(a)(4)(C) (requiring most family-sponsored immigrants to
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submit enforceable affidavits of support); § 1182(a)(4)(D) (same for certain employment-based immigrants), § 1183a (affidavit-of-support requirements). Aliens who fail to submit a required affidavit of support are inadmissible on the public charge ground by operation of law, regardless of their individual circumstances. Id. § 1182(a)(4). Congress further specified that the sponsor must agree “to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line,” id. § 1183a(a)(1)(A), and it granted federal and state governments the right to seek reimbursement from the sponsor for “any means-tested public benefit” that the government provides to the alien during the period of enforceability, id. § 1183a(b)(1)(A); see also id. § 1183a(a) (affidavits of support are legally binding and enforceable contracts “against the sponsor by the sponsored alien, the Federal Government, any State (or any political subdivision of such State), or by any other entity that provides any means-tested public benefit”).
The import of the affidavit-of-support provision is clear: To avoid being found inadmissible on the public charge ground, an alien governed by the provision must submit an affidavit of support executed by a sponsor—generally the individual who filed the immigrant visa petition on the alien’s behalf—who has agreed to reimburse the government for any means-tested public benefits the alien receives while the sponsorship obligation is in effect, even if the alien receives those benefits only briefly and only in minimal amounts. Congress thus provided that the mere possibility that an alien might obtain unreimbursed, means-tested public benefits in the future was sufficient to render that alien inadmissible on the public charge ground, regardless of the alien’s other circumstances.
Moreover, since at least 1948, the Executive Branch has taken the authoritative position that an alien may qualify as a “public charge” for deportability purposes if the alien or the alien’s sponsor or relative fails to repay a public benefit upon a demand for repayment by a government
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agency entitled to repayment. See Matter of B-, 3 I. & N. Dec. 323, 326 (BIA 1948), aff’d, id. at 337 (A.G. 1948). Under that rubric, an alien can be subject to deportation on the public charge ground based on a failure to repay upon demand, regardless of whether the alien was “primarily dependent” on the benefits at issue. See id. Indeed, although the Attorney General and Board of Immigration Appeals concluded that the alien in Matter of B- was not deportable as a public charge because Illinois law did not allow the State to demand repayment for the care she received during her stay in a state mental hospital, the opinion makes clear that the alien would have been deportable as a public charge if her relatives had failed to pay the cost of the alien’s “clothing, transportation, and other incidental expenses,” because Illinois law made the alien “legally liable” for those incidental expenses. Id. at 327. That was so even though Illinois was not entitled to recover the sums expended for plaintiff’s lodging, healthcare, and food. See id.
Finally, the Rule’s definition of “public charge” is entirely consistent with Congress’s codified statements of U.S. immigration policy. In its prior analysis of “Congress’s Intent,” PI Order at 13-14, the Court focused on certain failed legislative initiatives in 1996 and 2013. “Failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute,” because “[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 Eng’rs, 531 U.S. 159, 160, 170 (2001). As a result, “several equally tenable inferences may be drawn from such inaction.” Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990).
That is particularly true here. There is no indication that Congress believed the proposed definitions were fundamentally inconsistent with the statutory term “public charge.” Congress did not “discard[]” the proposed definitions of public charge “in favor of other language” eventually enacted. INS v. Cardoza-Fonseca, 480 U.S. 421, 443 (1987). It did not adopt an alternate definition
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in the 1996 legislation, which left the term undefined, and it enacted no legislation on the subject in 2013. See San Francisco, 944 F.3d at 798 (“[T]he failure of Congress to compel DHS to adopt a particular rule is not the logical equivalent of forbidding DHS from adopting that rule.”). In addition, the legislative history of the 1996 proposal indicates that the proposal was dropped at the last minute because the President objected to the proposal’s rigid definition of “public charge,” as well as other provisions, and threatened to veto the bill unless changes were made. See H.R. Rep. No. 104-828, at 241; 142 Cong. Rec. S11872, S11881-82 (Sept. 30, 1996). Far from suggesting that Congress attributed an unambiguous meaning to the still-undefined term “public charge,” these circumstances suggest that Congress acceded to the President’s demands that the Executive Branch retain the discretion to define the term. See San Francisco, 944 F.3d at 798 n.15 (“If anything, this legislative history proves only that Congress decided not to constrain the discretion of agencies in determining who is a public charge.”).
The circumstances surrounding the 2013 proposal’s failure similarly do not support the inference that Congress would have viewed the Rule as an impermissible construction of the public-charge inadmissibility provision. The 2013 proposal was rejected by a Senate committee, S. Rep. No. 113-40, at 42 (2013), but Congress then failed to enact the bill the committee agreed on. The question of what significance to assign to a rejected committee proposal that formed a part of a bill subsequently rejected by the full Congress underscores the problems inherent in relying on unenacted legislation.
Finally, both the 1996 and 2013 proposals were significantly broader than the Rule: the 1996 proposal covered a similar amount of benefits usage within a period of seven years rather than three, see H.R. Rep. No. 104-828, at 138, 240-41, and the 2013 proposal included receipt of any amount of public benefits, S. Rep. No. 113- 40, at 42, 63. Even if Congress’s failure to codify
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those stricter standards were evidence of its understanding of the term “public charge” (which it is not), they would not support the conclusion that Congress rejected the Rule’s narrower definition.
The Court’s preliminary injunction order focused on failed legislation, but did not address the legislation that did pass. PI Order at 13-14. In PRWORA, for example, Congress reiterated 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)-1601(2)(A). As the Ninth Circuit had no trouble concluding, “[r]eceipt of non-cash public assistance is surely relevant to ‘self-sufficiency’ and whether immigrants are ‘depend[ing] on public resources to meet their needs.’” San Francisco, 944 F.3d at 799 (citing 8 U.S.C. § 1601(1)–(2)).
2. Early Definitions Support the Rule’s Definition of “Public Charge” The Rule’s definition of “public charge” is also consistent with its historical statutory meaning. The term has always been understood as one that the Executive Branch could, in its discretion, interpret to encompass individuals partially or temporarily dependent on public support. Indeed, there is longstanding evidence that the term “[p]ublic charge means any maintenance, or financial assistance, rendered from public funds.” Arthur Cook et al., Immigration Laws of the U.S., § 285 (1929); see also 26 Cong. Rec. 657 (1894) (statement of Rep. Warner) (explaining that under the public charge inadmissibility ground, “[i]t will not do for [an alien] [to] earn half his living or three-quarters of it, but that he shall presumably earn all his living . . . [to] not start out with the prospect of being a public charge”). When Congress originally enacted the public charge ground of inadmissibility, the term “pauper,” not “public charge,” was in common use for a person
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so impoverished they would be expected to be permanently dependent on public support. See, e.g., Century Dictionary & Cyclopedia (1911) (defining “pauper” as “[a] very poor person; a person entirely destitute”); see also Overseers of Princeton Twp. v. Overseers of S. Brunswick Twp., 23 N.J.L. 169, 172 (N.J. 1851) (treating “a pauper” and “a person likely to become chargeable” as two separate classes).
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.” San Francisco, 944 F.3d at 793 (citing “Charge,” Webster’s Dictionary (1828 Online Edition), http://webstersdictionary1828.com/Dictionary/charge). Another contemporary dictionary defined “charge” as “an obligation or liability.” Id. (citing 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)).
This definition was also reflected in contemporary judicial opinions. See generally San Francisco, 944 F.3d at 793 (citing 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)). And it is reflected in more recent sources: both the 1933 and 1951 editions of Black’s Law Dictionary defined the term “public charge,” “[a]s used in” the 1917 Immigration Act, to mean simply “one who produces a money charge upon, or an expense to, the public for support
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and care”—without reference to amount. Public Charge, Black’s Law Dictionary (3d ed. 1933); Black’s Law Dictionary (4th ed. 1951).
3. Gegiow v. Uhl and the Immigration Act of 1917 The original, broad meaning of “public charge” was not refuted or narrowed by the Supreme Court’s decision in Gegiow v. Uhl, 239 U.S. 3 (1915), on which Plaintiffs rely for the proposition that the Supreme Court understood “public charge” in 1915 to mean “individuals who depend completely or nearly completely on government support.” Compl. ¶ 28. Gegiow neither defined “public charge” nor foreclosed Defendants’ interpretation of that term. At most, the case suggests that public charge inadmissibility determinations be based on an alien’s personal characteristics—which is precisely the approach the Rule employs, see Rule at 41501 (mandating that individual public-charge inadmissibility determinations must be “based on the totality of the alien’s [individual] circumstances”). In Gegiow, an immigration official found a group of aliens likely to become public charges, and thus denied them entry, solely because the city to which they were headed (Portland, Oregon) had few jobs available. 239 U.S. at 8-9. Thus, “[t]he single question” in the case was “whether an alien [could] 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 Supreme Court held that such a finding was improper for two reasons, neither relevant here. The first was that, in the 1907 Immigration Act, the phrase “public charge” appeared within a list that included “paupers,” “professional beggars,” and “idiots,” id. at 10. The Court observed that the other “persons enumerated” in the list were “to be excluded on the ground of permanent personal objections.” Id. And thus it noted that “[p]resumably” the phrase “public charge” was “to be read as generically similar to the others.” Id. But the close association of “public charge” with “paupers” and “professional beggars” was a feature peculiar to the 1907 Immigration Act, as
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amended in 1910, not seen in statutes before or since, and which would later be undone expressly to overcome the Gegiow Court’s misunderstanding of the term.
The Supreme Court’s other ground for decision is likewise irrelevant here: the Court thought that “[i]t would be an amazing claim of power if commissioners decided not to admit aliens because the labor market of the United States was overstocked.” Id. at 10. Thus, when the Court referred to reliance on “permanent personal objections,” it was contrasting an approach centered on the alien’s own circumstances with an approach centered on general labor conditions. It would be implausible to attribute to that language, in that context, a holding that an individual alien who will rely on public resources for a significant period, but not necessarily indefinitely, may not be excluded as a public charge. Indeed, even the 1999 Guidance, which Plaintiffs seek to reinstate, did not reflect that meaning of the term.
Even if Gegiow had given the term “public charge” Plaintiffs’ preferred definition, which it did not, that definition was fleeting at best. Shortly after the Gegiow decision, the Secretary of Labor sent a letter to Congress, requesting that the statute be amended to supersede the Supreme Court’s ruling. See Letter from Sec. of Labor to House Comm. on Immig. and Naturalization, H.R. Doc. No. 64-886, at 3 (Mar. 11, 1916); NPRM at 51125. The Secretary defined “public charge” in accordance with its meaning at the time: as “a charge (an economic burden) upon the community” in which an alien intends to reside. The Secretary then explained that the Court’s opinion in Gegiow had highlighted a never-before recognized “defect in . . . the arrangement of the wording,” which, if left uncorrected, would “materially reduce[] the effect of the clause” in protecting the public fisc.
Congress agreed. The next year, it amended the Immigration Act to move the public-charge ground of inadmissibility toward the end of the list of exclusions, see 1917 Act § 3, so that the
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Gegiow Court’s mistaken inference about the phrase’s placement in the list would be dispelled. That was how a Senate Report described the amendment: “The purpose of this change is to overcome recent decisions of the courts limiting the meaning of the description of the excluded class. . . . (See especially Gegiow v. Uhl, 239 U.S., 3.).” S. Rep. No. 64-352, at 5 (1916); see also H.R. Doc. No. 64-886, at 3-4 (1916); 1917 Act § 3 n.5; as reprinted in Immigration Laws and Rules of January 1, 1930 with Amendments from January 1, 1930 to May 24, 1934 (1935) (explaining that “[t]his clause . . . has been shifted . . . to indicate the intention of Congress that aliens shall be excluded upon said ground for economic as well as other reasons” and “overcoming the decision of the Supreme Court in Gegiow”).
Courts subsequently recognized that the term “public charge” is “not associated with paupers or professional beggars.” Ex Parte Horn, 292 F. 455, 457 (W.D. Wash. 1923) (explaining that “public charge” in the 1917 Act “is differentiated from the application in Gegiow”); see also United States ex rel. Iorio v. Day, 34 F.2d 920, 922 (2d Cir. 1929) (L. Hand, J.) (explaining that in the wake of the 1917 Immigration Act, the public-charge statute “is certainly now intended to cover cases like Gegiow”); Arthur Cook, Immigration Laws, §§ 128-34. But see Ex Parte Mitchell, 256 F. 229, 232 (N.D.N.Y. 1919) (declining to give effect to relocation of “public charge” within the 1917 Act).
* * * Defendants easily clear the hurdle of Chevron step one. Congress has never defined “public charge,” let alone foreclosed the interpretation adopted in the Rule. Instead, Congress has repeatedly and intentionally left the definition and application of the term to the discretion of the Executive Branch. See San Francisco, 944 F.3d at 796-97 (finding that “‘public charge’ does not have a fixed, unambiguous meaning” and that “[i]t is apparent that Congress left DHS and other
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agencies enforcing our immigration laws the flexibility to adapt the definition of ‘public charge’ as necessary”). Here, the Rule gives the statute its most natural meaning by specifying that an alien who depends on public assistance for necessities such as food and shelter for extended periods may qualify as a public charge even if that assistance is not provided through cash benefits or does not provide the alien’s sole or primary means of support.
Defendants also prevail at Chevron step two, at which the Court “ask[s] whether the agency’s interpretation of the statute is reasonable.” PI Order. at 11. The Ninth Circuit held that the Rule “easily satisfies this test.” San Francisco, 944 F.3d at 799. Because the Rule adopts a reasonable interpretation of the statutory provision, Plaintiffs cannot succeed on their theory that the Rule’s definition of “public charge” exceeds DHS’s statutory authority.
B. The Weighted-Circumstances Test Is Also Consistent With the Statute The ostensibly separate ground for finding the Rule contrary to law is, in reality, a reformulation of the preceding argument. Plaintiffs’ allegation, at bottom, is that the weightedcircumstances test sweeps in persons who are not “likely to become permanently and primarily dependent on the government for support.” Compl. ¶ 157-59.4 But of course, that is Plaintiffs’ definition of “public charge.” And as detailed at length above, that has never been the statutory definition. More importantly, the Rule’s broader definition of “public charge,” to include those who are not permanently and primarily dependent on the government, is within the bounds of the statute. Because this theory is premised entirely on Plaintiffs’ preferred definition of “public charge,” which has been rebutted above, it should be rejected for the same reasons. C. The Public Charge Statute Does Not Require That Government Benefits Be
Paid In Cash
4 Plaintiffs separately allege that the weighted-circumstances test is discriminatory, arbitrary, and capricious. Those allegations are addressed elsewhere.
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Plaintiffs further allege in Count One that the Rule impermissibly mandates consideration of non-cash benefits programs. Compl. ¶ 267. This theory, too, fails to state a plausible claim.
The Ninth Circuit had no difficulty disposing of this same question: “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.” San Francisco, 944 F.3d at 799. That court emphasized that PRWORA set forth a “national policy with respect to welfare and immigration,” which policy includes in pertinent part: “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.” Id. (quoting 8 U.S.C. §§ 1601, 1601(1)). “PRWORA thus lends support to DHS’s interpretation of the INA,” which “is a permissible construction of the INA.” San Francisco, 944 F.3d at 799. This Court should agree.
Nothing in the meaning of “public charge” suggests a distinction between non-cash benefits and services and “cash assistance,” as Plaintiffs allege. Compare Compl. ¶ 129 (“As the relevant statutory language, history, case law, and long-standing agency practice demonstrate, Congress never intended that an immigrant’s lawful receipt of non-cash supplemental benefits be used to render a public charge determination.”); with San Francisco, 944 F.3d at 799 (“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.”). Both types of assistance create an obligation on the part of the public, and both equally relieve recipients from the conditions of poverty. And, as discussed above, Congress’s instruction that DHS not consider benefits received by a battered alien indicates that Congress expected DHS to consider past receipt of benefits, including noncash benefits, in other circumstances. See Section III(A)(1) supra.
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D. DHS’s Interpretation Is Reinforced By Congress’s Unequivocal, Longstanding Delegation Of Authority To The Executive Branch
For the foregoing reasons, the Rule’s definition of “public charge,” including the application of a weighted-circumstances test and consideration of non-cash benefits, is well within the statute’s ambit. But the Court’s analysis is made easier by the undisputed, expressed, and consistent delegation of authority by Congress to the Executive in this sphere. Indeed, this was the Ninth Circuit’s foremost conclusion when examining the statute. See San Francisco, 944 F.3d at 791 (“First, the determination is entrusted to the ‘opinion’ of the consular or immigration officer. That is the language of discretion, and the officials are given broad leeway.”) (footnote omitted). The Ninth Circuit also relied on the fact that “Congress granted DHS the power to adopt regulations to enforce the provisions of the INA,” and thereby “intended that DHS would resolve any ambiguities in the INA.” Id. at 792 (citing Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016)).
The Ninth Circuit was right. The statutory term “public charge” has “never been [explicitly] defined by Congress in the over 100 years since the public charge inadmissibility ground first appeared in the immigration laws.” Rule at 41308. Congress implicitly delegates interpretive authority to the Executive Branch when it omits definitions of key statutory terms, thereby “commit[ting] their definition in the first instance to” the agency, INS v. Jong Ha Wang, 450 U.S. 139, 144 (1981), to be exercised within the reasonable limits of the meaning of the statutory term, Chevron, 467 U.S. at 844. Congress has long recognized this implicit delegation of authority to interpret the meaning of “public charge.” See, e.g., S. Rep. No. 81-1515, at 349 (1950) (stating that because “there is no definition of the term [public charge] in the statutes, its meaning has been left to the interpretation of the administrative officials and the courts”). This delegation is reinforced by Congress’s directive that the determination be made “in the opinion of the
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Attorney General [or Secretary of Homeland Security]” or a “consular officer.” 8 U.S.C. § 1182(a)(4)(A). The expansive delegation of authority by Congress grants DHS wide latitude to interpret “public charge” within the reasonable limits set by the broad meaning of the term itself.
This delegation is reinforced by the explicit overall delegation of authority by Congress to the Secretary of Homeland Security to “establish such regulations . . . as he deems necessary for carrying out” the INA. San Francisco, 944 F.3d at 782 (citing 8 U.S.C. § 1103(a)(1) & (a)(3)). Congress has also provided the Secretary with specific responsibility to carry out the INA and to make public charge inadmissibility decisions, as spelled out in detail in the NPRM and Rule. See NPRM at 51124; Rule at 41295.
Congress’s comprehensive delegation of interpretive authority has been recognized in precedent dating back to the early public charge statutes. See, e.g., Ex Parte Pugliese, 209 F. 720, 720 (W.D.N.Y. 1913) (affirming the Secretary of Labor’s authority “to determine [the] validity, weight, and sufficiency” of evidence going to whether an individual was “likely to become a public charge”); Wallis v. U.S. ex rel. Mannara, 273 F. 509, 510 (2d Cir. 1921) (deference required even if “evidence to the contrary [is] very strong”). It is also recognized in Executive Branch practice. Administrative decisions have explained that Congress’s broad delegation of authority in this area was necessary because “the elements constituting likelihood of becoming a public charge are varied.” Matter of Harutunian, 14 I. & N. Dec. 583, 588-90 (INS Reg’l Comm’r 1974) (quoting S. Rep. No. 81-1515 at 349 (1950) (holding that alien’s receipt of “old age assistance benefits” in California was sufficient to render the alien a “public charge”)); see also Matter of Vindman, 16 I. & N. Dec. 131, 132 (INS Reg’l Comm’r 1977) (citing regulations in the visa context, and explaining that the “elements constituting likelihood of an alien becoming a public charge are varied . . . [and] are determined administratively”).
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The long history of congressional delegation of definitional authority over the meaning of “public charge” demonstrates the error in Plaintiffs’ claim that Congress has “repeatedly rejected efforts to expand public charge.” Compl. ¶¶ 37-42. That history cuts in precisely the opposite direction. By its inaction, Congress left the definition of “public charge” to the Executive Branch. See San Francisco, 944 F.3d at 797 (“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.’”). In no event could this inaction be read as a withdrawal of the longstanding delegation to the Executive Branch to exercise definitional authority over the “varied” elements of the meaning of “public charge.” S. Rep. No. 81-1515, at 349; see also San Francisco, 944 F.3d at 798 (“And no change to § [1182] means that consular officers, the Attorney General, and DHS retain all the discretion granted them in the INA.”). Certainly the INS, when it adopted the 1999 Field Guidance and proposed to issue a sweeping new definition of “public charge” through notice-andcomment rulemaking in 1999, did not understand Congress’s 1996 action to have altered the statute by withdrawing the long-understood delegation. See 1999 NPRM at 28677 (“[T]he proposed rule provides a definition for the ambiguous statutory term ‘public charge.’”).
At a minimum, the likelihood that Congress intended to preserve the delegation means that, under the circumstances, “[c]ongressional inaction lacks persuasive significance” because competing “inferences may be drawn from such inaction.” Competitive Enter. Inst. v. U.S. Dep’t of Transp., 863 F.3d 911, 917 (D.C. Cir. 2017). And the more plausible of the competing inferences is that Congress intended for DHS to retain the authority delegated to it to analyze the “totality of the alien’s circumstances” to make “a prediction” about the likelihood that an alien will become a public charge, Matter of Perez, 15 I. & N. Dec. 136, 137 (BIA 1974), including the delegated
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authority for DHS to adopt further procedures to guide its officers, aliens, and the public at large in understanding the application of the public charge ground of inadmissibility.
E. DHS Has Statutory Authority to Impose Public-Benefits Conditions on Applications by Nonimmigrants for Extensions or Status Changes
Plaintiffs’ final contrary-to-law theory also fails. See Compl. ¶ 269 (“The Final Rule further exceeds Defendants’ statutory authority because the Final Rule would permit Defendants to apply the public charge determination to applicants seeking to adjust nonimmigrant visas and deprive them of a totality of circumstances inquiry.”); id. ¶¶ 133-37.
First, DHS is not imposing a public-charge determination on nonimmigrants who seek to extend their visas or change their statuses. See generally Rule at 41329. Rather, DHS is setting a new condition for approval of extension-of-stay and change-of-status applications by nonimmigrants. Although that condition requires such an applicant to establish that he has not received more than 12 months of public benefits in a 36-month period since obtaining his nonimmigrant status, that is manifestly not a public-charge determination—which only applies to immigrants and which imposes other statutory considerations. See 8 U.S.C. § 1182(a)(4).5 In fact, DHS removed a prospective element of the public-benefits condition specifically because such an element “might have been similar to a public charge inadmissibility assessment.” Rule at 41329. At bottom, the Rule imposes a condition of approval, not a public-charge determination, on nonimmigrant visa holders.
Second, DHS has ample statutory authority to impose such conditions. See Rule at 41329 (citing 8 U.S.C. §§ 1184, 1258). DHS governs by regulation “[t]he admission to the United States of any alien as a nonimmigrant.” 8 U.S.C. § 1184(a)(1). But DHS’s role does not end upon the
5 Ironically, if DHS acceded to Plaintiffs’ demand that requests by nonimmigrants be examined under a “totality of the circumstances,” Compl. ¶¶ 135-36, that would more closely resemble the very public-charge-inadmissibility analysis that they say is forbidden. See 8 U.S.C. § 1182(a)(4).
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nonimmigrant’s admission; DHS also governs how long, and under what conditions, the nonimmigrant can stay, id., or change nonimmigrant statuses, id. § 1258.6 And because it is national policy “that aliens within the Nation’s borders not depend on public resources to meet their needs,” id. § 1601(2)(A) (emphasis added), it is reasonable and consistent with the statute that DHS require, as a condition of obtaining an extension of stay or change of status, evidence that nonimmigrants inside the United States have remained self-sufficient during their stay.
* * * Because all four theories on which Plaintiffs allege that the Rule is contrary to law are baseless, Count One should be dismissed for failure to state a plausible claim. IV. The Court Should Dismiss Count Two Count Two alleges that the Rule is contrary to law under the APA. For the reasons stated below, Plaintiffs fail to state a claim for which relief may be granted as to violation of the Rehabilitation Act of 1973, PRWORA, and the Supplemental Nutrition Aid Program (“SNAP”), and each claim should be dismissed. A. The Rehabilitation Act Plaintiffs contend that the Final Rule “conflicts with Section 504 of the Rehabilitation Act, which provides that no individual with a disability ‘shall, solely by reason of his or her disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity[.]’” Compl. ¶ 274. In its PI Order, the Court held that Plaintiffs raised “at least a colorable argument that the Rule as to be applied may violate the Rehabilitation Act,” because the Rule “clearly considers disability a negative factor in the public
6 If a nonimmigrant is eligible and applies for legal permanent residency, then the public-charge inadmissibility determination would apply under 8 U.S.C. § 1182(a)(4). This again illustrates the difference between the publicbenefits condition imposed on changes among nonimmigrant statuses under 8 U.S.C. § 1258 and a true publiccharge determination under § 1182(a)(4).
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charge assessment,” and “do[es] not explain how disability alone is itself a negative factor indicative of being more likely to be a public charge.” PI Order at 18. Critically, however, the requirement of § 504 is premised on the denial of services or discrimination “solely by reason of . . . disability.” 29 U.S.C. § 794(a) (emphasis added). The fact that disability may constitute one factor to be considered in the totality of the circumstances does not run afoul of § 504. Both the Ninth Circuit and the Northern District of California rejected this same Rehabilitation Act argument in their decisions concerning preliminary injunction of the Final Rule. San Francisco, 944 F.3d at 799-800 (reversing the Eastern District of Washington’s holding that the Final Rule was inconsistent with the Rehabilitation Act); City & Cty. of San Francisco v. USCIS, Case No. 19-4717, 2019 U.S. Dist. LEXIS 177379, at *111-12 (N.D. Cal. Oct. 11, 2019) (reversed in part on other grounds by San Francisco, 944 F.3d 773 (9th Cir. 2019)).
Both of these courts concluded that the plaintiffs in those cases had no likelihood of success on the merits of their Rehabilitation Act claims because: (1) the INA specifically directs federal immigration authorities to consider “health” in making public charge determinations. San Francisco, 944 F.3d at 800; San Francisco, 2019 U.S. Dist. LEXIS 177379 at *111-12; and (2) disability cannot be the sole reason for a denial of adjustment of status under the Rule’s totality of the circumstances test. For the same reasons, Plaintiffs’ claim based on the Rehabilitation Act fails.
First, the INA explicitly lists “health” as a factor that an officer “shall . . . consider” in making a public charge determination. 8 U.S.C. § 1182(a)(4)(B)(i). “Health” certainly includes an alien’s medical conditions, and it is therefore Congress, not the Rule, that requires DHS to take this factor into account. See, e.g., In Re: Application for Temporary Resident Status, 2009 WL 4983092, at *5 (USCIS AAO Sept. 14, 2009) (considered application for disability benefits in public charge inquiry). A specific, later statutory command, such as the INA’s, supersedes section
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504’s general proscription to the extent the two are in conflict, which they are not. See San Francisco, 944 F.3d at 800.
Second, the Rule is fully consistent with § 504. Plaintiffs’ complaint does not even allege that disability can be the sole reason for denial of adjustment of status under the Rule. Even if they had made that claim, however, it is clear on the face of the Rule that the Rule does not deny any alien admission into the United States, or adjustment of status, “solely by reason of” disability. San Francisco, 944 F.3d at 800. All covered aliens, disabled or not, are subject to the same inquiry: whether they are likely to use one or more covered federal benefits for the specified period of time. Although an alien’s medical condition is one factor (among many) that may be considered, it cannot be dispositive, and is relevant only to the extent that an alien’s particular medical condition tends to show that he is “more likely than not to become a public charge” at any time. Rule at 41368; see also San Francisco, 2019 U.S. Dist. LEXIS 177379 at *111. Further, any weight assigned to this factor may be counterbalanced by other factors, including “[an] affidavit of support,” “employ[ment],” “income, assets, and resources,” and “private health insurance.” Id. Thus, any public charge determination cannot be based “solely” on an applicant’s disability.
B. SNAP Plaintiffs also fail to state a claim that the Rule violates the SNAP statute because the Rule does not consider SNAP benefits as “income or resources.” 7 U.S.C. § 2017(b). Section 2017(b) provides that: The value of benefits that may be provided under [SNAP] shall not be considered income or resources for any purpose under any Federal, State, or local laws, including, but not limited to, laws relating to taxation, welfare, and public assistance programs, and no participating State or political subdivision thereof shall decrease any assistance otherwise provided an individual or individuals because of the receipt of benefits under this chapter.
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7 U.S.C. § 2017(b) (emphasis added). The context of this full version, rather than the abbreviated quotation relied on by Plaintiffs, reveals the error in Plaintiffs’ argument. The Rule does not consider the “value” of SNAP benefits as “income or resources,” only the fact of receipt. Indeed, the Rule specifically prohibits including the amount of SNAP benefits received in the computation of income or assets. See Rule at 41375 (“The rule explicitly excludes the value of public benefits including SNAP from the evidence of income to be considered” and “[a]ssets and resources do not include SNAP benefits”). Nothing in § 2017(b) precludes consideration of the fact of receipt of SNAP benefits by other statutes or regulations. See, e.g., 47 C.F.R. § 54.409 (providing eligibility for consumer telephone or Internet subsidies based on fact of receipt of SNAP benefits). Therefore, the Rule does not violate § 2017(b) and Plaintiffs cannot state a claim.
C. PRWORA Plaintiffs also contend that the Rule “conflicts with Welfare Reform Act, which provides that ‘a State is authorized to determine the eligibility of an alien . . . for any designated Federal program.’ 8 U.S.C. § 1612(b)(1).” Compl. ¶ 276. However, the Rule’s consideration of receipt of public benefits, as defined by the Rule, does not limit or prohibit aliens’ entitlement to such benefits or alter states’ authority to determine aliens’ eligibility. Rather, the Rule directs immigration authorities to consider whether aliens have used such benefits as part of the totalityof-the-circumstances analysis required by 8 U.S.C. § 1182(a)(4)(B). See Rule at 41365-66. Although individual aliens may choose, for a variety of reasons related or unrelated to the Rule, not to access certain benefits to which they are entitled, the Rule does nothing to alter the nature or extent of that entitlement or States’ authority to administer those programs, and there is therefore no conflict between the Rule and PRWORA. Because there is no set of facts under which the
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Rule’s post hoc consideration of the use of benefits can actually change any qualified alien’s7 legal entitlement to access those benefits or States’ authority related to them, Plaintiffs cannot state a claim that the Rule is contrary to PWRORA. V. The Court Should Dismiss Count Three
Count Three of Plaintiffs’ Complaint alleges that the Rule is arbitrary and capricious in violation of the APA for various reasons. See Compl. ¶¶ 279-89. Count Three should be dismissed because none of the theories alleged in the Complaint plausibly suggest the Rule is arbitrary or capricious.
A. The Rule Meets The Standards Required For An Agency To Change Its Position Through Notice-and-Comment Rulemaking
Plaintiffs allege that the Rule is arbitrary and capricious because DHS “failed to reasonably justify their departure” from past practice regarding the definition of “public charge.” Compl. ¶ 282. But the “fact that DHS has changed policy does not substantially alter the burden in the challengers’ favor.” San Francisco, 944 F.3d at 801. It is well-settled that there is “no basis in the Administrative Procedure Act . . . for a requirement . . . [of] more searching review” when an agency changes its position. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514 (2009). And there is certainly no basis to find that the agency’s prior interpretation in nonbinding guidance could possibly foreclose DHS from adopting a different reasonable interpretation through noticeand-comment rulemaking. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982-83 (2005). As the Supreme Court explained in Fox, all that DHS was required to do to permissibly change course from the 1999 Field Guidance was to acknowledge that the Rule is adopting a policy change, provide a reasoned explanation for the change, and explain how it
7 Plaintiffs’ claim also ignores that many of the “qualified aliens” to whom PRWORA’s authorization of certain public benefits applies are generally not subject to the public charge ground of inadmissibility. See 8 U.S.C. § 1641(b) (“qualified alien” includes, inter alia, asylum recipients and refugees).
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believes the new interpretation is reasonable. See Fox, 556 U.S. 514-16. The Rule readily meets these standards, and so DHS is entitled to full deference to its changed interpretations, consistent with its obligation to “consider varying interpretations and the wisdom of its policy on a continuing basis.” Chevron, 467 U.S. at 863-64 (recognizing agencies receive deference to a “changed . . . interpretation of [a] term”).
First, the NPRM and Rule acknowledged that DHS was changing course. In the former, DHS announced it was proposing “major changes,” see, e.g., NPRM at 51116, and that these changes included “a new definition of public charge,” id. at 51158; see also id. at 51163. DHS also stated that it would change and “improve upon the 1999 Interim Field Guidance” by changing the treatment of non-cash benefits. Id. at 51123. In the Rule, DHS “agree[d] with commenters that the public charge inadmissibility rule constitutes a change in interpretation from the 1999 Interim Field Guidance,” Rule at 41319, and repeatedly explained that it was “redefin[ing]” public charge, and adopting a “new definition” of “public benefit” that would be “broader” than before. Id. at 41295, 41297, 41333; see also id. at 41347.
Second, DHS explained the reasons for the change. DHS described how the “focus on cash benefits” in the 1999 Field Guidance had proved “to be insufficiently protective of the public budget, particularly in light of significant public expenditures on non-cash benefits.” NPRM at 51164. DHS presented statistics that reasonably support DHS’s conclusion that, under the 1999 Field Guidance, the agency was failing to carry out the principles mandated by Congress that “aliens . . . not depend on public resources to meet their needs,” and instead “rely on their own capabilities” and support from families, sponsors, and private organizations. 8 U.S.C. § 1601; see also NPRM at 51160-63 & Tables 10-12; Rule at 41308, 41319 (explaining that the prior guidance “failed to offer meaningful guidance for purposes of considering the mandatory factors and was
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therefore ineffective”). DHS also adequately explained how the new approach reasonably advances the stated
purposes, including by “implement[ing] the public charge ground of inadmissibility consistent with . . . [Congress’s goal of] minimiz[ing] the incentive of aliens to attempt to immigrate to, or to adjust status in, the United States due to the availability of public benefits.” Rule at 41305 (citing 8 U.S.C. § 1601(2)(B)). Accordingly, the fact that the Rule presents a revised interpretation does not render it arbitrary or capricious. See San Francisco, 944 F.3d at 804-05.
Relatedly, Defendants respectfully disagree with this Court’s conclusion that the Rule is arbitrary because it “change[d] the public charge assessment into a benefits issue, rather than an inquiry about self-subsistence[.]” PI Order at 15. Self-subsistence is merely the converse of reliance on public benefits, as Congress itself averred. It was thus rational for DHS to conclude that aliens who rely on the public benefits enumerated in the Rule for months at a time are aliens who “depend on public resources to meet their needs,” 8 U.S.C. § 1601(2)(A), and are not “selfsufficien[t],” id. § 1601(1). Even the 1999 Field Guidance tied the definition of public charge to the receipt of public benefits. Field Guidance at 28689. The Rule simply redefines what benefits received over what time period qualify an alien as a public charge.
B. DHS Adequately Considered Potential Harms Plaintiffs also allege that the Rule is arbitrary and capricious because Defendants did not “adequately quantify or consider the harms that will result.” Compl. ¶ 286. But DHS rationally weighed the benefits and costs of the Rule. It explained that, by excluding from the country those aliens likely to rely on public benefits and by encouraging those within the country to become selfsufficient, the Rule is likely to save federal and state governments billions of dollars annually in benefit payments and associated costs. See NPRM at 51228. At the same time, DHS recognized
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that the disenrollment of aliens from public-benefit programs could have certain adverse effects. It noted, for example, that a reduction in public-benefit enrollment and payments could negatively affect third parties who receive such payments as revenue, including, for example, health-care providers who participate in Medicaid and local businesses who accept SNAP benefits. NPRM at 51118; Rule at 41313. DHS also recognized that disenrollment in public-benefit programs by aliens subject to the Rule or those who incorrectly believe they are subject to the Rule could have adverse consequences on the health and welfare of those populations, while also potentially imposing some “costs [on] states and localities.” Rule at 41313.
Although it recognized these potential costs, DHS explained that there were reasons to believe that the costs would not be as great as some feared. Id. at 41313. Among other things, in response to commentator concerns, DHS took steps to “mitigate . . . disenrollment impacts,” including by exempting certain public benefits from the list of those covered by the Rule. Id. at 41313-14. DHS also noted that the majority of aliens subject to the Rule do not currently receive public benefits, either because they reside outside the United States or because, following the 1996 welfare-reform legislation, they are generally precluded from receiving such benefits. Id. at 4121213.
DHS also explained that those classes of aliens who are eligible for the noncash benefits covered by the Rule, such as lawful permanent residents and refugees, are, except in rare circumstances, not subject to a public-charge inadmissibility determination and are thus not affected by the Rule. Id. at 41313. DHS also considered and made plans to address disenrollment by those not covered by the Rule. To the extent such individuals disenroll from public benefits out of confusion over the Rule’s coverage, the agency reasoned that the effect might be short-lived, as such individuals might re-enroll after realizing their error. Id. at 41463. DHS included in the Rule
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detailed tables listing categories of aliens and indicating whether or not the public charge ground of inadmissibility applied, as well as tables of nonimmigrants indicating whether the public benefit condition would apply. See id. at 41336-46; see also id. at 41292 (summarizing populations to whom the rule does not apply). And, to clear up any potential remaining confusion as quickly as possible—thus minimizing disenrollment among populations not subject to the Rule—DHS further stated that it planned to “issue clear guidance that identifies the groups of individuals who are not subject to this rule, including, but not limited to, U.S. citizens, [certain] lawful permanent residents, . . . and refugees.” Id. at 41313.
Ultimately, DHS rationally concluded that the benefits obtained from promoting selfsufficiency outweighed the Rule’s potential costs. Id. at 41314. As the agency explained, the precise costs of the Rule were uncertain, given the impossibility of estimating precisely the number of individuals who would disenroll from public-benefit programs as a result of the Rule, how long they would remain disenrolled, and to what extent such disenrollment would ultimately affect state and local communities and governments. See, e.g., id. at 41313. At the same time, the Rule provided clear but similarly difficult-to-measure benefits, such as helping to ensure that aliens entering the country or adjusting status are self-reliant and reducing the incentive to immigrate that the availability of public benefits might otherwise provide to aliens abroad. DHS’s ultimate decision about whether to move forward with the Rule thus “called for value-laden decisionmaking and the weighing of incommensurables under conditions of uncertainty.” Dep’t of Comm., 139 S. Ct. at 2571. Given Congress’s clear focus on ensuring that aliens admitted to the country rely on private resources and not public benefits, DHS’s decision to prioritize self-reliance among aliens is plainly reasonable. See San Francisco, 944 F.3d at 800-05 (finding DHS likely to prevail in defending against APA claim that the Rule is arbitrary and capricious because DHS inadequately
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considered harms); Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 303 (D.C. Cir. 2003) (“When . . . an agency is obliged to make policy judgments where no factual certainties exist . . . we require only that the agency so state and go on to identify the considerations it found persuasive.”).
C. The Rule Retains The Totality Of The Circumstances Standard And Relies On Appropriate Factors
Plaintiffs further allege that the Rule “replaces the statutory ‘totality of the circumstances’ test with a test that is vague, arbitrary, and unsupported by the evidence.” Compl. ¶ 284. But the Rule could not be more clear that it retains the “totality of the circumstances” approach under which Executive Branch officials make individualized determinations regarding whether “in the opinion of [the officer] at the time of application for admission or adjustment of status, [the alien] is likely at any time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A). In addition, unlike the 1999 Field Guidance, the Rule clearly and transparently sets out the relevant factors and considerations that DHS will take into account in the totality-of-the-circumstances analysis. By contending otherwise, Plaintiffs disregard the plain text of the Rule.
The Rule, by its terms, “contains a list of negative and positive factors that DHS will consider as part of [the public charge] determination, and directs officers to consider these factors in the totality of the alien’s circumstances.” Rule at 41295. “The presence of a single positive or negative factor, or heavily weighted negative or positive factor, will never, on its own, create a presumption that an applicant is inadmissible . . . or determine the outcome of the . . . inadmissibility determination. Rather, a public charge inadmissibility determination must be based on the totality of the circumstances presented.” Id. (emphasis added); see also id. at 41309 (“DHS has established a systematic approach to implement Congress’ totality of the circumstances standard.”). In fact, DHS made changes between the NPRM and the final version of the Rule to emphasize that the “totality of the circumstances” approach is retained—for example, by
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“amend[ing] the definition of ‘likely at any time to become a public charge’” by clarifying that this means “more likely than not at any time in the future . . . as determined based on the totality of the alien’s circumstances.” Id. at 41297.
D. The Rule Considers Relevant Factors in Assessing an Alien’s Likelihood of Becoming a Public Charge
Plaintiffs further allege that the Rule is arbitrary and capricious because it “runs counter to the evidence before the agency, relies on factors Congress did not intend the agency to consider, and disregards material facts and evidence.” Compl. ¶ 281. But DHS explained, at length, its reasons for including in the Rule the various factors it identified as weighing on the question whether an alien is likely to become a public charge. NPRM at 51178-207. The factors implemented Congress’s mandate that the agency consider, at a minimum, each alien’s “age”; “health”; “family status”; “assets, resources, and financial status”; and “education and skills” in making a public charge determination. See id. at 51178; 8 U.S.C. § 1182(a)(4)(B). DHS described in detail how each of the various factors bore positively or negatively on the determination whether an alien is likely to depend on public benefits in the future, while retaining the “totality of the circumstances” approach that allows each adjudicating officer to make a decision appropriate to each alien’s particular circumstances.
For example, in concluding that English proficiency was a relevant factor in the publiccharge inadmissibility calculus, DHS cited Census Bureau data and other studies indicating that non-English speakers earned considerably less money and were more likely to be unemployed than English speakers, thus supporting the conclusion that non-English speakers were more likely to become public charges than their English-proficient counterparts. NPRM at 51195-96. DHS also cited evidence indicating that noncitizens who reside in households where English is spoken “[n]ot well” or “[n]ot at all” received public benefits at much higher rates than noncitizens residing in
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households where English was spoken “[w]ell” or “[v]ery well,” lending further support to the conclusion that English proficiency is a relevant consideration. Id. at 51196. The Rule’s suggested reliance on an alien’s credit score was likewise not irrational. Credit scores provide an indication of the relative strength or weakness of an individual’s financial status, and thus provide insight into whether the alien will be able to support himself or herself financially in the future. Id. at 51189; Rule at 41425.
E. Plaintiffs’ Additional Allegations Do Not Show Any Arbitrariness Or Capriciousness
Plaintiffs next allege that the Rule is “arbitrary and capricious because it relies on incorrect legal interpretations of” two administrative decisions. Compl. ¶ 287. But the Rule is entirely consistent with both of those decisions as both decisions emphasized the Executive Branch’s broad discretion to make public charge determinations. In Matter of Vindman, the Regional Commissioner emphasized that the “elements constituting likelihood of an alien becoming a public charge are varied,” and that the term is “not defined by statute,” but rather “determined administratively.” 16 I. & N. Dec. 131, 132 (Reg’l Comm’r 1977). Likewise, Matter of Harutunian explained that Congress’s broad delegation of authority in this area was necessary because “the elements constituting likelihood of becoming a public charge are varied.” 14 I. & N. Dec. 583, 588-90 (Reg’l Comm’r 1974). Moreover, as the Ninth Circuit explained, Matter of Harutunian “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.” San Francisco, 944 F.3d at 795.
Lastly, Plaintiffs allege that the Rule is arbitrary and capricious because it allegedly discriminates against individuals with disabilities and immigrants of color. Compl. ¶¶ 283, 28586. As discussed above and below, neither contention is correct. See Section IV.A supra; Section
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VII infra. VI. The Court Should Dismiss Count Four
Count Four of Plaintiffs’ Complaint alleges that the Rule was promulgated “without observance of procedure required by law.” Compl. ¶¶ 290-95. As to Plaintiffs’ allegation that the Rule does not “quantify” harms, id. ¶ 293, the law does not require an agency to “quantify” all potential effects of a rule in order to comply with the APA. See Inv. Co. Inst. v. CFTC, 720 F.3d 370, 379 (D.C. Cir. 2013) (the “law does not require agencies to measure the immeasurable”); Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1263 (9th Cir. 2017) (finding agency action was not arbitrary and capricious notwithstanding agency’s “failure to quantify” effects). “As predicting costs and benefits without reliable data is a primarily predictive exercise, the [agency] need[s] only to acknowledge [the] factual uncertainties and identify the considerations it found persuasive in reaching its conclusions.” Sec. Indus. Fin. Markets Ass’n v. CFTC, 67 F. Supp. 3d 373, 432 (D.D.C. 2014). As discussed above, DHS easily met this standard. See Section V.B supra.
Also, there is no merit to Plaintiffs’ argument that they were deprived of an opportunity to comment on certain aspects of the 12/36 standard. Compl. ¶ 294. An “agency’s final rule need only be a logical outgrowth of its notice.” Agape Church, Inc. v. FCC, 738 F.3d 397, 411 (D.C. Cir. 2013). A final rule qualifies as the logical outgrowth of the proposed rule if interested parties should have anticipated that the change was possible. Id. Here, Plaintiffs complain that the Rule did not adopt the 15% federal poverty guidelines threshold for the use of public benefits that was proposed in the NPRM, and instead used a standard that considers the duration and intensity of benefit usage. Compl. ¶ 294. But the NPRM discussed the proposed standard at length, NPRM at 51158-69, leading to extensive comments on the standard, including the 15% threshold, Rule at 41357-58. In the Rule, DHS explained in great detail why it was adopting the 12/36 standard
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instead. Id. at 41357-63, 41358. Plaintiffs clearly had a sufficient opportunity to comment on what they believed the appropriate standard should be, as the submitted comments demonstrate. VII. The Court Should Dismiss Count Five
In Count Five, Plaintiffs allege that the Rule violates the equal protection component of the Fifth Amendment to the Constitution. Plaintiffs fail to state an equal protection claim because their complaint includes no well-pled allegation that DHS issued the Rule based on any improper discriminatory motive. Plaintiffs do not deny that the Rule is facially neutral, but claim that the Rule violates Equal Protection because its alleged purpose is to disproportionately affect a particular racial or ethnic subset of immigrants. See Compl. ¶¶ 298-99. In support, Plaintiffs rely primarily on a handful of stray comments by certain non-DHS, government officials concerning immigration in general, rather than the Rule in particular. See, e.g., Compl. ¶¶ 175, 178. Plaintiffs’ allegations are insufficient to establish a plausible equal protection claim.
“[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977). “Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Id. at 265. “Discriminatory purpose . . . implies more than intent as volition or intent as awareness of consequences.” Pers. Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979). “It implies that the decisionmaker . . . selected . . . a particular course of action at least in part ‘because of,’ not merely “in spite of,” its adverse effects upon an identifiable group.” Id. (emphasis added). Additionally, contrary to Plaintiffs’ assertion, strict scrutiny does not apply simply because a plaintiff alleges a disproportionate impact on a particular racial or ethnic group. Unless a plaintiff adequately “allege[s] actual discriminatory intent, the deferential ‘rational basis’ standard is used to review the challenged” policy. United States v. Moore, 54 F.3d
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92, 96 (2d Cir. 1995); Washington v. Davis, 426 U.S. 229, 242 (1976) (“Disproportionate impact . . . [s]tanding alone . . . . does not trigger the rule . . . that racial classifications are to be subjected to the strictest scrutiny”).
A narrow standard of review here is particularly appropriate because this case implicates the Executive Branch’s authority over the admission and exclusion of foreign nationals, “a matter within the core of executive responsibility.” Trump v. Hawaii, 138 S. Ct. 2392, 2418 (2018); id. at 2419 (highly deferential standard is appropriate “[g]iven the authority of the political branches over admission”). Indeed, this “deferential standard of review” applies “across different contexts and constitutional claims” because “‘it is not the judicial role in cases of this sort to probe and test the justifications of immigration policies.” Id. “A conventional application of” this standard, “asking only whether the policy is facially legitimate and bona fide,” would plainly require dismissal of Plaintiffs’ equal protection claims because Plaintiffs do not contend there is anything facially discriminatory about the Rule. Id. at 2420. But dismissal is also appropriate if the Court were to apply rational basis review to Plaintiffs’ claim.
Here, Plaintiffs’ allegations do not suggest that DHS issued the Rule “because of” any alleged “adverse effects upon an identifiable” racial or ethnic group. First, “the [stated] purposes of the” Rule “provide the surest explanation for its” design and implementation. Feeney, 442 U.S. at 275, 279. The Rule’s preamble (spanning roughly 200 pages) thoroughly explains the Rule’s non-discriminatory justifications, including the need to facilitate self-sufficiency among immigrants. See Rule at 41295 (“DHS is revising its interpretation of ‘public charge’ . . . to better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient”); id. at 41308 (“DHS believes [the] broader definition [of public charge] is consistent with Congress’ intention that aliens should be self-sufficient. Self-sufficiency is, and has long been, a basic
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principle of immigration law in this country. DHS believes that this rule aligns DHS regulations with that principle.”). Additionally, the Rule’s construction was guided by an extensive noticeand-comment process, following a NPRM that was just under 200 pages long. See NPRM, 83 Fed. Reg. 51114 (Oct. 10, 2018). The Rule included a number of changes from the proposed rule in response to public comments. See, e.g., Rule at 41297. The Rule’s procedural history undermines Plaintiffs’ conclusory assertion that the Rule’s design may somehow be attributed to any alleged improper bias.
Second, to show that DHS issued the Rule due to improper motives, Plaintiffs rely almost exclusively on alleged public statements by non-DHS officials that have no express connection to the Rule. The vast majority of the alleged public statements in the Complaint reflect general views on immigration. See Compl. ¶¶ 175-76, 178. And the few statements that arguably relate to the Rule are consistent with DHS’s stated, non-discriminatory justifications for the Rule, including the need to incentivize self-sufficiency. See Compl. ¶ 178(b) (“new immigration rules” must ensure that “those seeking admission into our country must be able to support themselves financially”); Compl. ¶ 178(e) (aliens may come “from all the countries of the world” regardless of “whether they can pay their own way” (emphasis added)). Regardless, “contemporary statements” may be relevant to the question of whether an “invidious discriminatory purpose was a motivating factor,” if made “by members of the decisionmaking body.” Arlington Heights, 429 U.S. at 266, 268 (emphasis added); see also Clearwater v. Indep. Sch. Dist. No. 166, 231 F.3d 1122, 1126 (8th Cir. 2000) (“Evidence demonstrating discriminatory animus in the decisional process needs to be distinguished from stray remarks . . . statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process.”). Here, Plaintiffs rely almost exclusively on statements made by non-DHS personnel, and Plaintiffs provides no explanation for how these
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statements reveal that DHS harbored an improper motive in implementing the Rule. Although

Plaintiffs refer to statements from certain personnel affiliated with components of DHS, these

statements provide no indication of why these individuals supported the Rule. See Compl. ¶ 176.

CONCLUSION

For the foregoing reasons, the Court should grant Defendants’ Motion to Dismiss.

Dated: February 14, 2020

Respectfully submitted,

GEOFFREY S. BERMAN United States Attorney

JOSEPH H. HUNT Assistant Attorney General
ALEXANDER K. HAAS Branch Director
/s/ Joshua M. Kolsky JOSHUA M. KOLSKY JASON C. LYNCH ERIC SOSKIN KUNTAL CHOLERA KERI L. BERMAN Trial Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch Washington, D.C. 20530 Tel: (202) 305-7664 / Fax: (202) 616-8460 joshua.kolsky@usdoj.gov
Attorneys for Defendants

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 Case 1:19-cv-07777-GBD Document 183 Filed 05/15/20 Page 1 of 17

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK, CITY OF NEW YORK, STATE OF CONNECTICUT, and STATE OF VERMONT,
Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY; KEVIN K. McALEENAN, in his official
capacity as Acting Secretary of the United States Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; KENNETH T. CUCCINELLI II, in his official capacity
as Acting Director of United States Citizenship and Immigration Services; and UNITED STATES OF AMERICA,
Defendants.
MAKE THE ROAD NEW YORK, AFRICAN SERVICES COMMITTEE, ASIAN AMERICAN FEDERATION, CATHOLIC CHARITIES COMMUNITY SERVICES, and CATHOLIC LEGAL IMMIGRATION NETWORK, INC.,
Plaintiffs, v. KEN CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services; UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES; KEVIN K. McALEENAN, in his official capacity as Acting Secretary of Homeland Security; and UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
Defendants.

CIVIL ACTION NO. 19 Civ. 07777 (GBD)
CIVIL ACTION NO. 19 Civ. 07993 (GBD)

REPLY MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND STAY OR TEMPORARY RESTRAINING ORDER
PENDING NATIONAL EMERGENCY

Case 1:19-cv-07777-GBD Document 183 Filed 05/15/20 Page 2 of 17 TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1 ARGUMENT .................................................................................................................................. 1
A. This Court has jurisdiction to issue a new injunction. ........................................................ 1 B. A targeted injunction is necessary to mitigate the harms of the Rule during the COVID19 emergency. ............................................................................................................................. 3 C. DHS’s Alert does not remedy the Rule’s harms during this crisis. .................................... 6 D. The remaining factors strongly favor temporary injunctive relief during the pendency of the national emergency. .............................................................................................................. 8 E. Nationwide relief is necessary and appropriate .................................................................. 9 CONCLUSION............................................................................................................................. 10
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TABLE OF AUTHORITIES
Page(s)
CASES
Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004).......................................................................................................3
Amarin Pharm. Ireland Ltd. v. Food & Drug Admin., 139 F. Supp. 3d 437 (D.D.C. 2015) ...........................................................................................3
Appalseed Prods., Inc. v. MediaNet Digital, Inc., No. 11 Civ. 5922 (PGG), 2012 WL 2700383 (S.D.N.Y. July 6, 2012).....................................5
Brenntag Int’l Chems., Inc. v. Bank of India, 175 F.3d 245 (2d Cir.1999) .......................................................................................................5
California v. Azar, 911 F.3d 558 (9th Cir. 2018) .....................................................................................................2
Dep’t. of Commerce v. New York, 139 S. Ct. 2551 (2019) ...............................................................................................................4
Drywall Tapers & Pointers of Greater NY v. Bovis Lend Lease Interiors, Inc., No. 05 Civ. 2746 (JG), 2006 WL 322384 (E.D.N.Y. Feb. 10, 2006)........................................2
Friends of Merrymeeting Bay v. NextEra Energy Res., LLC, No. 2:11 Civ. 38 (GZS), 2013 WL 145733 (D. Me. Jan. 14, 2013) ......................................5, 6
Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989) ...................................................................................................9
I.M. Wilson, Inc. v. Grichko, Civil Action No. 18-, 2019 WL 5394113 (E.D. Pa. Oct. 22, 2019) ..........................................5
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d 803 (9th Cir. 2018) .................................................................................................5, 6
Ret. Bd. of Policemen’s Annuity & Ben. Fund of City of Chicago v. Bank of New York Mellon, 297 F.R.D. 218 (S.D.N.Y. 2013) ...............................................................................................3
Sierra Club v. U.S. Dep’t of Energy, 825 F. Supp. 2d 142 (D.D.C. 2011) .......................................................................................4, 5
Webb v. GAF Corp., 78 F.3d 53 (2d Cir. 1996) ..........................................................................................................2
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Case 1:19-cv-07777-GBD Document 183 Filed 05/15/20 Page 4 of 17 Wolf v. Cook Cty., Illinois,
140 S. Ct. 681 (2020) .................................................................................................................8 RULES Federal Rules of Civil Procedure
Rule 62.1 ..............................................................................................................................3, 10 Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,463 (Aug. 14,
2019) ..........................................................................................................................................4 MISCELLANEOUS AUTHORITIES Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure
(3d ed. Aug. 2019 update)..........................................................................................................1
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PRELIMINARY STATEMENT The fundamental purpose of a stay is “to balance the equities as the litigation moves forward” rather than to “conclusively determine the rights of the parties.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (“IRAP”). Here, as Plaintiffs’ motion explained, the unprecedented COVID-19 crisis has so drastically altered the balance of the equities that Plaintiffs require new, temporary relief during the pendency of the national emergency. Defendants do not seriously dispute that there is a direct connection between the COVID19 crisis and the Public Charge Rule at issue here—indeed, they have already been forced to limit the Rule in light of the COVID-19 crisis, and they have announced further changes for the first time in their response to Plaintiffs’ motion in the Supreme Court. Their arguments against the narrow relief that Plaintiffs request are meritless.
ARGUMENT A. This Court has jurisdiction to issue a new injunction.
This Court retains authority to make new factual findings and issue new, temporary relief in response to the unprecedented changed circumstances presented by the COVID-19 pandemic. Defendants’ contention that any overlap between this motion and issues implicated in Plaintiffs’ prior injunction divests this Court of jurisdiction, Defs.’ Mem. in Opp’n. to Pls.’ Mot. for Preliminary Injunction, Dkt. No. 176 (“Defs.’ Mem.”) at 8, has no basis in law.
Defendants do not dispute that the district court may proceed with adjudicating the underlying case while the appeal of a preliminary injunction is pending. See Pls.’ Mot. for Preliminary Injunction, Dkt. No. 169 (“Pls.’ Mem.”) at 13-14; Defs.’ Mem. at 6. Jurisdiction to “continue with proceedings,” Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 3949.1 (3d ed. Aug. 2019 update), will frequently require the district court to rule
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on matters that may relate to—but do not perfectly overlap with—issues on appeal. For example, Defendants do not contend that the district court lacks jurisdiction to consider Defendants’ motion to dismiss, though that motion rehashes arguments about standing and justiciability that Defendants are also pressing on appeal. Defs.’ Mem. at 8.1 District courts regularly consider the merits of disputes on motions for summary judgment, even where the same issues are presented by a pending appeal of a preliminary injunction. See, e.g., California v. Azar, 911 F.3d 558, 583 (9th Cir. 2018) (“We have repeatedly admonished district courts not to delay trial preparation to await an interim ruling on a preliminary injunction”). As Plaintiffs have explained, see Pls.’ Mem. at 16-19, the public health and global economic crisis engendered by the COVID-19 pandemic has shifted the balance of equities, requiring new determinations to be made by the court best situated to make factual findings—this Court—and the issuance of new, narrowly tailored relief to stave off those harms.
To the extent that there was doubt concerning this Court’s jurisdiction to make new factual findings and issue new relief, the Supreme Court has obviated those concerns. In Plaintiffs’ application to the Supreme Court, Plaintiffs acknowledged potential uncertainty regarding this Court’s jurisdiction to provide relief and, accordingly, requested that the Supreme Court “clarify that its stay order does not preclude the lower court from considering whether the new circumstances arising out of the COVID-19 pandemic warrant temporary relief” enjoining the Rule. Dep’t Homeland Sec. v. New York, No. 19A785, Mot. by Gov’t Pls. to Temporarily Lift
1 Defendants’ cases are not to the contrary, but instead involve materially different situations. See Webb v. GAF Corp., 78 F.3d 53, 55–56 (2d Cir. 1996) (holding appeal of preliminary injunction moot where district court issued a permanent injunction). Drywall Tapers & Pointers of Greater NY v. Bovis Lend Lease Interiors, Inc., No. 05 Civ. 2746 (JG), 2006 WL 322384, at *2 (E.D.N.Y. Feb. 10, 2006) (where union filed a non-party appeal of the district court’s consent judgment and “placed the question of its rightful role in this case plainly at the door of the court of appeals,” district court lacked jurisdiction consider union’s intervention motion). In contrast, Plaintiffs’ instant request would not undermine or moot the pending appeal.
2

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of Modify the Court’s Stay, at 16 (Jan. 22, 2020).2 While the Court could have denied Plaintiffs’ request, or ignored it altogether, it chose not to; instead, it explained that while it was denying Plaintiffs’ application to modify its stay, it did “not preclude a filing in the District Court.” See Dkt. No. 170-2 (Supreme Court Order). It is a “basic canon” of textual interpretation that there is “a purpose for each sentence, clause or phrase”; this Court should reject any attempt to render the text of the Supreme Court’s order meaningless. Abimbola v. Ashcroft, 378 F.3d 173, 179 (2d Cir. 2004). That is, even if the Supreme Court’s stay somehow divested this Court of jurisdiction to consider a new request for an injunction—which it did not—the Supreme Court’s order clarified that this Court is the proper forum to resolve these new and urgent problems.
Moreover, Rule 62.1 of the Federal Rules of Civil Procedure is designed to ameliorate any lingering concerns about this Court’s jurisdiction. Rule 62.1(a)(3) authorizes this Court to make factual findings and in issue an indicative ruling that “promote[s] judicial efficiency and fairness by providing a mechanism for the district court to inform the parties and the court of appeals how it would rule on a motion.” Amarin Pharm. Ireland Ltd. v. Food & Drug Admin., 139 F. Supp. 3d 437, 447 (D.D.C. 2015). Issuance of both new, temporary injunctive relief and an indicative ruling allows the Circuit maximum flexibility in the event of a subsequent appeal.3
B. A targeted injunction is necessary to mitigate the harms of the Rule during the COVID-19 emergency.
A temporary halt on the Rule’s implementation during the pendency of this national
2 Available at https://www.supremecourt.gov/DocketPDF/19/19A785/141515/20200413153014307_19A785%20Motion%20to%2 0Temporarily%20Lift%20or%20Modify%20Stay.pdf. 3 Defendants’ reliance on Bank of New York Mellon is misplaced, as that case involved a party that sought an indicative ruling on an identical matter that it had lost in the district court and already appealed. See Ret. Bd. of Policemen's Annuity & Ben. Fund of City of Chicago v. Bank of New York Mellon, 297 F.R.D. 218, 223 (S.D.N.Y. 2013) (declining to issue an indicative opinion where party contended that the district court “wrongly decided” underlying issue and by appealing and seeking an indicative ruling improperly “placed the same issue in front of two courts at the same time”).
3

Case 1:19-cv-07777-GBD Document 183 Filed 05/15/20 Page 8 of 17
emergency is necessary to remedy the widespread deterrent effects of the Rule. It will allow Governmental Plaintiffs to better mitigate the spread of disease and combat the devastating impacts of the pandemic, and the MRNY Plaintiffs to better address the needs of immigrant communities they serve. Defendants do not dispute that the Governmental Plaintiffs are suffering from unprecedented public health and economic harms, or that the Rule is in fact deterring immigrants in the Plaintiffs’ jurisdictions and client communities from accessing crucial medical and nutritional benefits. Defendants contend that a temporary suspension of the Rule would not redress the irreparable harms that Plaintiffs identify. But Defendants’ position is without support in either the law or the factual record.
As an initial matter, the Court should not, as Defendants urge, ignore evidence of the Rule’s harms simply because they may result from immigrants’ “mistaken beliefs about the Rule’s application and content.” Defs.’ Mem. at 15-16. The Supreme Court has recognized that cognizable injury can be based on the “predictable effect[s]” of a challenged government action—including the effects on individuals who are not directly subject to the government’s action and who react based on purportedly “unfounded fears.” Dep’t. of Commerce v. New York, 139 S. Ct. 2551, 2566 (2019). Defendants have cited no case that would preclude the Court from similarly considering such predictable harms—particularly when the Rule’s deterrent effects, and their resulting harms to both the parties and the public interest, are not only predictable but are actually happening now. Indeed, Defendants do not deny that, as they anticipated during the rulemaking, the Rule is in fact causing immigrants and their families to forgo and disenroll even from benefits “not directly regulated by this [R]ule.” Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,463 (Aug. 14, 2019); id. at 41,300.
Plaintiffs will “suffer irreparable harm ‘but for’ the issuance of an injunction.” Sierra
4

Case 1:19-cv-07777-GBD Document 183 Filed 05/15/20 Page 9 of 17
Club v. U.S. Dep't of Energy, 825 F. Supp. 2d 142, 153 (D.D.C. 2011) (citing Brenntag Int’l Chems., Inc. v. Bank of India, 175 F.3d 245, 249 (2d Cir.1999)). While there “must be a ‘sufficient causal connection’ between the alleged irreparable harm and the activity to be enjoined. . . a plaintiff ‘need not further show that the action sought to be enjoined is the exclusive cause of the injury.’” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d 803, 819 (9th Cir. 2018) (internal citations omitted); see also Friends of Merrymeeting Bay v. NextEra Energy Res., LLC, No. 2:11 Civ. 38 (GZS), 2013 WL 145733, at *7 (D. Me. Jan. 14, 2013), (plaintiffs need only establish that “an injunction could redress [p]laintiffs’ injuries by decreasing the [alleged harms]”), vacated on other grounds, 759 F.3d 30 (1st Cir. 2014). 4
Here, Plaintiffs have supplied ample, uncontroverted evidence that the implementation of the Rule is deterring participation in public benefits programs that are integral to Plaintiffs’ efforts to mitigate the economic and public health harms of the pandemic. Enrollment in benefits programs declined when the Rule took effect in February 2020, not during the period that the Rule was enjoined.5 And doctors and other frontline service providers aver that immigrants have been refusing COVID-related testing and treatment since March 2020 specifically because of
4 The cases Defendants cite, which support the general proposition that a causal connection must exist between an injunction and an alleged harm, are not to the contrary. See I.M. Wilson, Inc. v. Grichko, Civil Action No. 18-, 2019 WL 5394113, at *5 (E.D. Pa. Oct. 22, 2019) (causal nexus insufficient where injunction would not halt conduct that plaintiff alleged caused irreparable harm); Appalseed Prods., Inc. v. MediaNet Digital, Inc., No. 11 Civ. 5922 (PGG), 2012 WL 2700383, at *8-9 (S.D.N.Y. July 6, 2012) (injunction not proper remedy where plaintiffs’ harms could be compensated by monetary damages); Sierra Club, 825 F. Supp. 2d at 153 (causal nexus insufficient where plaintiff failed to show that it would suffer comparable harm absent an injunction). Here, Plaintiffs have shown that the Rule causes irreparable harms and that an injunction will ameliorate those harms. 5 See Dkt. No. 170-10 (Benito Decl.) ¶ 5; Dkt. No. 170-11 (Chavez Decl.) ¶ 5; Dkt. No. 170-13 (Heinrich Decl.) ¶¶ 3-4; Dkt. No. 170-14 (Kennedy Decl.) ¶¶ 7, 9; Dkt. No. 170-15 (Kritzman Decl.) ¶ 2; Dkt. No. 170-18 (Mostofi Decl.) ¶¶ 7 -8; Dkt. No. 170-19 (Newstrom Decl.) ¶ 14; Dkt. No. 170-20 (Newton Decl.) ¶ 26; Dkt. No. 170-21 (Pyror Decl.) ¶¶ 13, 15-17; Dkt. No. 170-22 (Voit Decl.) ¶ 22; Dkt. No. 170-24 (Oshiro Decl.) ¶ 5; Ex. 27 (Aguilar Decl.) ¶¶ 9-13.
5

Case 1:19-cv-07777-GBD Document 183 Filed 05/15/20 Page 10 of 17
concerns about how these services will affect any public charge determination under the Rule.6 A targeted injunction halting implementation of the Rule—far from resting on “speculative assumptions” about the “behavior of third parties,” Defs.’ Mem. at 18—would directly redress the Rule’s deterrent effects and allow Plaintiffs to better combat the harms of COVID-19.
Furthermore, that some immigrants continue to avoid benefits, even after receiving advice that they need not do so, does not cast doubt on whether an injunction is appropriate. See Defs.’ Mem. at 16-17. Instead, it underscores that any remedy short of an injunction would be insufficient to alleviate the confusion surrounding the complex public charge and benefits schemes at issue. Where an injunction would reduce the irreparable harms attendant to the Rule, speculation that some immigrants may, regardless of the Rule’s status, continue to avoid benefits does not weigh against granting relief. See Nat’l Wildlife Fed’n, 886 F.3d at 823 (it is permissible for a court to “issue an injunction that does not completely prevent the irreparable harm that it identifies”); see also Friends of Merrymeeting Bay, 2013 WL 145733, at *7 (to demonstrate that injunction would remedy damage, “[p]laintiffs need not establish that their requested relief will bring about” full or complete recovery).7 Temporary injunctive relief will permit Plaintiffs and frontline advocates to send a clear message that the Rule is not operative during the national emergency, and that immigrants and their families need not choose between accessing health care or nutritional benefits and remaining in the country.
C. DHS’s Alert does not remedy the Rule’s harms during this crisis. Contrary to Defendants’ unsupported assertion, DHS’s Alert does not meaningfully
6 Dkt. No. 170-8 (Almasude Decl.) ¶¶ 4-8; Dkt. No. 170-18 (Mostofi Decl.) ¶¶ 13, 15; Dkt. No. 170-17 (Moreno Decl.)¶ 4; Dkt. No. 170-22 (Voit Decl.) ¶¶ 27-28, 30; Dkt. No. 170-21 (Pryor Decl.) ¶ 19; Dkt. No. 170-14 (Kennedy Decl.) ¶ 13. 7 Indeed, the Court has rejected similar arguments in the past and should do so again here. See Transcript of October 7, 2019 Hearing at 123-125, New York v. Dep’t of Homeland Sec. (No. 19 Civ. 7777 (GBD)) (rejecting the argument that evidence that disenrollment by some people before the Rule went into effect was evidence that the “harm [would not be] ameliorated by a preliminary injunction”).
6

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address fears about benefits use during the pandemic. Defendants’ assurance that DHS will not penalize immigrants for receiving COVID-related testing, treatment, or preventative services misses the mark. See Defs.’ Mem. at 12. Plaintiffs have already explained why Defendants’ Alert is inadequate and thus no substitute for the relief requested here. See Pls.’ Mem. at 21-23. Indeed, Defendants acknowledge the “uncertainty” attendant to the Alert, Defs.’ Mem. at 13, but purport to have “eliminated” that uncertainty by stating for the first time in their opposition papers in the Supreme Court that for enrollment in Medicaid “to receive COVID-19-related care, that enrollment will not be a negative factor in a public-charge inadmissibility determination,” id. As Plaintiffs have explained, however, Defendants’ substantial modification to the Alert—which appears nowhere in DHS guidance materials, on its website, or elsewhere other than in its Supreme Court briefing, which is not reasonably calculated to reach the general public—is not only an improper attempt to conduct rulemaking through opposition brief, but also contradicts the Alert’s express text. See Pls.’ Mem. at 22-23.8
Although the confusion over the application of the Rule during the pandemic is largely the product of Defendants’ own actions, Defendants argue, remarkably, that Plaintiffs are responsible for “creat[ing] ambiguity” by identifying the obvious defects of the Alert. See Defs.’ Mem. at 14. But Plaintiffs do not “create” ambiguity merely by pointing out that ambiguity exists. And contrary to Defendants’ contention, id., officials and agencies in the Governmental Plaintiffs’ jurisdictions, as well as many other state and local officials and private organizations across the country, are expending significant resources to educate the public and clarify the
8 Defendants’ examples of the differing interpretations of the Alert from the District of Columbia and New York City highlights the potential for confusion. While the District of Columbia interprets the Alert to mean that Medicaid enrollment will not be penalized if used for COVID-19 testing and treatment, New York City states only that the testing and treatment itself will not be penalized. See Defs.’ Mem. at 14. And as the factual record makes clear, Plaintiffs’ efforts to encourage testing and treatment are inadequate so long as the Rule remains in effect.
7

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scope of the Rule.9
Defendants fail to rebut Plaintiffs’ showing of the numerous ways in which DHS’s
equivocal and ambiguous Alert is patently inadequate to redress the irreparable harms at issue.
See Pls.’ Mem. at 21-23. Given these ambiguities, the Alert cannot provide—and as
demonstrated by the uncontroverted evidence, has not provided10—adequate assurance to
immigrants that they may use public benefits to address COVID-19-related needs without
consequence. Accordingly, absent immediate, temporary equitable relief from this Court, the
Rule will continue to undermine Plaintiffs’ efforts to mitigate the spread of COVID-19 and
economic devastation resulting from the pandemic. See Pls.’ Mem. at 22-23.
D. The remaining factors strongly favor temporary injunctive relief during the pendency of the national emergency.
As this Court has previously recognized, Plaintiffs are likely to succeed on the merits of
their claims. The Supreme Court stay opinion, which was silent on the merits, does not alter that
conclusion. See IRAP, 137 S. Ct. at 2087 (recognizing that a stay is “often dependent as much on
the equities of a given case as the substance of the legal issues it presents”); Dkt. No. 170-1; see
also Wolf v. Cook Cty., Illinois, 140 S. Ct. 681, 682 (2020) (Sotomayor, J., dissenting) (“No
Member of the Court discussed the application’s merit [in the Department of Homeland Security
9 See Dkt. No. 170-11 (Chavez Decl.) ¶ 7; Dkt. No. 170-14 (Kennedy Decl.) ¶¶ 5-7; Dkt. No. 170-15 (Kritzman Decl.) ¶¶ 3-4; Dkt. No. 170-27 (Aguilar Decl.) ¶ 6; Dkt. No. 170-18 (Mostofi Decl.) ¶¶ 5-9, 11; Dkt. No. 170-19 (Newstrom Decl.) ¶¶ 19, 23-27; Dkt. No. 170-20 (Newton Decl.) ¶¶ 9, 11-13; Dkt. No. 170-22 (Voit Decl.) ¶¶ 2224; 27-28; Dkt. No. 17023 (Nolan Decl.) ¶¶ 5-6, 8; Dkt. No. 170-24 (Oshiro Decl.) ¶ 3; Dkt. No. 170-25 (Russell Decl.) ¶¶ 5-6.
10 Dkt. No. 170-10 (Benito Decl.) ¶ 7; Dkt. No. 170-11 (Chavez Decl.) ¶ 9; Dkt. No. 170-13 (Heinrich Decl.) ¶ 8; Dkt. No. 170-14 (Kennedy Decl.) ¶ 14; Dkt. No. 170-17 (Moreno Decl.) ¶ 8; Dkt. No. 170-18 (Mostofi Decl.) ¶¶ 13, 15, and 18; Dkt. No. 170-20 (Newton Decl.) ¶ 20 (explaining that guidance issued by USCIS “has not offered any comfort or clarity . . . [and] [i]f anything, it only introduced more fear among noncitizen communities . . .”); Dkt. No. 170-21 (Pryor Decl.) ¶ 10; Dkt. No. 170-22 (Voit Decl.) ¶¶ 27-30; Dkt. No. 170-24 (Oshiro Decl.) ¶ 12 (noting that the guidance “has not helped us to alleviate client concerns about benefits use during the COVID-19 pandemic and public charge inadmissibility. In fact, it has only created more confusion for our clients and required us to expend additional resources to adequately provide counsel”) and ¶¶ 13-14; Dkt. No. 170-27 (Aguilar Decl.) ¶ 17.
8

Case 1:19-cv-07777-GBD Document 183 Filed 05/15/20 Page 13 of 17
v. New York case] apart from its challenges to the injunction’s nationwide scope.”).11
And the balance of equities favors an injunction. Defendants will not be harmed by
temporarily continuing to enforce a standard that has been in place for the past century. See Pls.’
Mem. at 24-25; Pls.’ Opp’n. to Defs.’ Mot. to Dismiss, Dkt. No. 145, at 3-12. By contrast, the
COVID-19 pandemic is the largest public-health and economic disaster that the United States
has faced in at least a century. And the Public Charge Rule is impeding Plaintiffs’ efforts to halt
the virus’s spread in our communities and to stabilize the economy. The temporary and targeted
relief that Plaintiffs request is warranted by the severe problems that we face; lives depend on it.
E. Nationwide relief is necessary and appropriate
“[T]he ordinary result” of a determination that an agency’s regulation is unlawful under
the Administrative Procedure Act (“APA”), as the Rule is here, “is that the rules are vacated—
not that their application to the individual petitioners is proscribed.” Harmon v. Thornburgh, 878
F.2d 484, 495 n.21 (D.C. Cir. 1989). Moreover, nationwide relief is necessary to remedy the
harm caused by the Rule for the simple reason that the spread of the coronavirus is not geographically limited. COVID-19 “knows no bounds” and “doesn’t respect state lines.”12
COVID-19 has been reported to have originally spread across the country through interstate
11 Nor should the Ninth Circuit’s stay of the injunctions in California and Washington sway the assessment of merits in this case. Defendants notified of the Court of the Ninth Circuit’s decision in December 2019, Dkt. No. 127, and cited to the decision in their motion to stay the injunction, Dkt. No. 130. The Court properly declined to adopt the Ninth Circuit’s analysis. See Dkt. No. 136. 12 See, e.g., Homeland Security Council, National Strategy for Pandemic Influenza, Homeland Security Council, 2 (Nov. 2005), available at https://www.cdc.gov/flu/pandemic-resources/pdf/pandemic-influenza-strategy-2005.pdf; Bart Jansen, Maureen Groppe, and William Cummings, Fauci warns of ‘needless suffering’ if US fumbles reopening procedures, USA Today (May 12, 2020), available at https://www.usatoday.com/story/news/politics/2020/05/12/coronavirus-dr-anthony-fauci-testify-senate-panelreopening/3108593001/ (Dr. William Schaffner, a professor of preventive medicine in the Department of Health Policy at Vanderbilt University, stating that “[t]he virus knows no bounds”); @CNNPolitics, Twitter (Apr. 24, 2020, 4:50 PM), available at https://twitter.com/CNNPolitics/status/1253788494255849476 (“North Carolina Gov. Roy Cooper says he’s concerned about how quickly neighboring state Georgia is reopening some businesses: ‘The virus doesn’t respect state lines.’”).
9

Case 1:19-cv-07777-GBD Document 183 Filed 05/15/20 Page 14 of 17
travel,13 and interstate travel will continue to be a primary means by which the virus crosses state
lines, particularly as jurisdictions begin to lift stay-at-home restrictions.14
Defendants do not dispute that immigrants are at particular risk of exposure to the virus
as a significant number work in essential industries and must continue to work outside of their
homes and interact with others, whether or not stay-at-home orders are in place. See Pls.’ Mem.
at 18. In turn, the nature of “community spread” of the virus means that new infections put
everyone at risk.15 Discouraging noncitizens nationwide, including essential workers, from
obtaining medical care undermines efforts by Plaintiffs and others to combat the pandemic and
mitigate its devastating harms. A nationwide injunction is necessary and appropriate.16
CONCLUSION
For the reasons stated above and in Plaintiffs’ opening memorandum, Plaintiffs
respectfully request that the Court make factual findings recognizing the harmful effects of the
Rule during this crisis, issue a new preliminary injunction forbidding implementation of the Rule
during the national emergency declared on March 13, 2020, a stay of the effective date of the
Rule pursuant to Section 705 of the APA, and, in addition, issue an indicative ruling pursuant to
Fed. R. Civ. P. 62.1 confirming that that the Court would grant Plaintiffs’ motion.
13 See Benedict Carey and James Glanz, Travel From New York City Seeded Wave of U.S. Outbreaks, N.Y. Times (May 7, 2020), available at https://www.nytimes.com/2020/05/07/us/new-york-city-coronavirus-outbreak.html. 14 See Gabriel J.X. Dance and Lazaro Gamio, As Coronavirus Restrictions Lift, Millions in U.S. Are Leaving Home Again, N.Y. Times (May 12, 2020), available at https://www.nytimes.com/interactive/2020/05/12/us/coronavirusreopening-shutdown.html. 15 See Dkt. No.170-12 (Fong Decl.) ¶¶ 12−13; Dkt. No.170-15 (Kennedy Decl.) ¶ 15; Dkt. No.170-16(Ku Decl.) ¶¶ 9, 11−12, 20; Dkt. No.170-17 (Moreno Decl.) ¶ 9; Dkt. No.170-21 (Pryor Decl.) ¶¶ 10, 12; Coronavirus Disease 2019 (Covid-19), Centers for Disease Control and Prevention (updated Apr. 19, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html. See also Dkt. No. 170-8 (Almasude Decl.) ¶ 9; Dkt. No. 170-9 (Barbot Decl.) ¶ 10; Dkt. No. 170-14 (Kennedy Decl.) ¶¶ 13, 15; Dkt. No. 170-16 (Ku Decl.) ¶ 20; Dkt. No. 170-17 (Moreno Decl.) ¶¶ 4, 9; Dkt. No. 170-19 (Newstrom Decl.) ¶ 27. 16 At the very least, any injunction should cover states in the Second Circuit and New Jersey, in order to minimize the risk of regional spread of the virus. See Testing, Coronavirus News:Tri-State cooperation will be keys to restarting life, ABC News (Apr. 7, 2020), available at https://abc7ny.com/health/how-do-we-restarting-life-aftercoronavirus/6083892/.
10

Case 1:19-cv-07777-GBD Document 183 Filed 05/15/20 Page 15 of 17

DATED: May 15, 2020

Respectfully submitted,
LETITIA JAMES Attorney General of the State of New York
By: /s/ Elena Goldstein Elena Goldstein, Deputy Bureau Chief, Civil Rights Bureau
Matthew Colangelo Chief Counsel for Federal Initiatives Ming-Qi Chu, Section Chief, Labor Bureau Amanda Meyer, Assistant Attorney General Abigail Rosner, Assistant Attorney General Office of the New York State Attorney General New York, New York 10005 Phone: (212) 416-6201 elena.goldstein@ag.ny.gov
Attorneys for the State of New York

JAMES JOHNSON

WILLIAM TONG

Corporation Counsel of the City of New York Attorney General of Connecticut

By: /s/ Tonya Jenerette Tonya Jenerette Deputy Chief for Strategic Litigation Cynthia Weaver, Senior Counsel Doris Bernhardt, Senior Counsel Melanie Ash, Senior Counsel 100 Church Street, 20th Floor New York, NY 10007 Phone: (212) 356-4055 tjeneret@law.nyc.gov

By: /s/ Joshua Perry Joshua Perry* Special Counsel for Civil Rights 165 Capitol Avenue Hartford, CT 06106-0120 (860) 808-5318 Joshua.perry@ct.gov
Attorneys for the State of Connecticut

Attorneys for the City of New York

11

Case 1:19-cv-07777-GBD Document 183 Filed 05/15/20 Page 16 of 17
THOMAS J. DONOVAN, JR. Attorney General of Vermont
By: /s/ Benjamin Battles Benjamin Battles, Solicitor General Eleanor Spottswood, Assistant Attorney General Julio Thompson,* Assistant Attorney General Office of the Attorney General 109 State Street Montpelier, VT 05609-1001 (802) 828-5500 benjamin.battles@vermont.gov
Attorneys for the State of Vermont
*Application for admission pro hac vice forthcoming
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Andrew J. Ehrlich Jonathan H. Hurwitz Elana R. Beale Robert J. O’Loughlin Daniel S. Sinnreich Amy K. Bowles
1285 Avenue of the Americas New York, New York 10019-6064 (212) 373-3000 aehrlich@paulweiss.com jhurwitz@paulweiss.com ebeale@paulweiss.com roloughlin@paulweiss.com dsinnreich@paulweiss.com abowles@paulweiss.com
CENTER FOR CONSTITUTIONAL RIGHTS Ghita Schwarz Brittany Thomas Baher Azmy
666 Broadway 7th Floor
12

Case 1:19-cv-07777-GBD Document 183 Filed 05/15/20 Page 17 of 17
New York, New York 10012 (212) 614-6445 gschwarz@ccrjustice.org bthomas@ccrjustice.org bazmy@ccrjustice.org
THE LEGAL AID SOCIETY Susan E. Welber, Staff Attorney, Law Reform Unit Kathleen Kelleher, Staff Attorney, Law Reform Unit Susan Cameron, Supervising Attorney, Law Reform Unit Hasan Shafiqullah, Attorney-in-Charge, Immigration Law Unit 199 Water Street, 3rd Floor New York, New York 10038 (212) 577-3320 sewelber@legal-aid.org kkelleher@legal-aid.org scameron@legal-aid.org hhshafiqullah@legal-aid.org
Attorneys for Plaintiffs Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), and Catholic Legal Immigration Network, Inc.
13

 
 No. 19A-
IN THE SUPREME COURT OF THE UNITED STATES
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., APPLICANTS v.
STATE OF NEW YORK, ET AL.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL. , APPLICANTS v.
MAKE THE ROAD NEW YORK, ET AL.
APPLICATION FOR A STAY OF THE INJUNCTIONS ISSUED BY THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
NOEL J. FRANCISCO Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

PARTIES TO THE PROCEEDING Applicants (defendants-appellants below) are the United States Department of Homeland Security; Chad F. Wolf, in his official capacity as Acting Secretary of Homeland Security; the United States Citizenship and Immigration Services, an agency within the United States Department of Homeland Security; and Kenneth T. Cuccinelli II, in his official capacity as Senior Official Performing the Duties of the Director of the United States Citizenship and Immigration Services.* Respondents (plaintiffs-appellees below) are the State of New York; the City of New York; the State of Connecticut; the State of Vermont; Make the Road New York; African Services Committee; Asian American Federation; Catholic Charities Community Services (Archdiocese of New York); and Catholic Legal Immigration Network, Inc.

*

The complaints in both cases named Kevin K. McAleenan,

then the Acting Secretary of Homeland Security, as a defendant in

his official capacity. Chad F. Wolf has since assumed the role of

Acting Secretary, and has thus been automatically substituted as

a party in place of former Acting Secretary McAleenan. See Fed.

R. App. P. 43(c)(2); Fed. R. Civ. P. 25(d). Similarly, the

complaints named Kenneth T. Cuccinelli II in his role as Acting

Director of the United States Citizenship and Immigration

Services. Mr. Cuccinelli is now serving as Senior Official

Performing the Duties of the Director, and seeks relief in that

capacity.

IN THE SUPREME COURT OF THE UNITED STATES
No. 19A-
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., APPLICANTS v.
STATE OF NEW YORK, ET AL.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL., APPLICANTS v.
MAKE THE ROAD NEW YORK, ET AL.
APPLICATION FOR A STAY OF THE INJUNCTIONS ISSUED BY THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Pursuant to Rule 23 of the Rules of this Court and the All Writs Act, 28 U.S.C. 1651, the Solicitor General, on behalf of applicants the United States Department of Homeland Security et al., respectfully applies for a stay of a pair of substantively identical preliminary injunctions issued on October 11, 2019, by the United States District Court for the Southern District of New York (App., infra, 66a-68a, 69a-71a), pending the consideration and disposition of the government's appeals from those injunctions to the United States Court of Appeals for the Second Circuit and, if the court of appeals affirms the injunctions, pending the filing

2 and disposition of a petition for a writ of certiorari and any further proceedings in this Court.
This application concerns a Department of Homeland Security (DHS) rule, promulgated through notice-and-comment rulemaking, interpreting a statutory provision stating that an alien is inadmissible if, "in the opinion of" the Secretary, the alien is "likely at any time to become a public charge." 8 U.S.C. 1182(a)(4)(A); see 84 Fed. Reg. 41,292 (Aug. 14, 2019) (Rule). Whereas a 1999 guidance document had interpreted "public charge" to mean an alien who was at a minimum "primarily dependent" on a limited set of cash benefits from the government, the Rule extends the set of covered benefits to include certain designated non-cash benefits providing for basic needs such as housing and food and asks whether the alien is likely to receive such benefits for more than 12 months in aggregate within any 36-month period.
The Ninth Circuit, in the only reasoned appellate decision to address the Rule to date, held that the Rule "easily" qualified as a permissible interpretation of the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq. City & County of San Francisco v. USCIS, 944 F. 3d 773, 799 (2019). It accordingly stayed a preliminary injunction entered by a district court in Washington that had prevented implementation of the Rule nationwide. See id. at 780-781. The Fourth Circuit, too, concluded that DHS is likely to prevail, and thus stayed a second nationwide preliminary

3

injunction entered by a district court in Maryland. See Order,

Casa de Maryland, Inc, v. Trump, No. 19-2222 (Dec. 9, 2019) .

Notwithstanding those two appellate decisions, the government

remains unable to implement the Rule

even in the Fourth and

Ninth Circuits

because of a pair of nationwide injunctions

issued by a district judge in New York. See App., infra, 66a-68a;

id. at 69a-71a. In a one-paragraph order, the Second Circuit

declined to stay those nationwide injunctions pending appeal,

thereby allowing the district court's judgment here to override

the views of the Executive Branch and two other courts of appeals

with respect to important national immigration policies.

In deciding whether to grant a stay in this posture, the Court

considers whether an eventual petition for certiorari in the case

would likely be granted, whether there is a fair prospect that the

Court would rule for the moving party, and whether irreparable

harm is likely to occur if a stay is not granted. Those criteria

are readily met here. First, the Court's review would plainly be warranted. Two

. courts of appeals have already concluded that the Rule is likely

to be upheld; a decision by the Second Circuit affirming the

preliminary injunctions here would necessarily reach the opposite

conclusion, presenting a circuit conflict over important questions

of federal immigration law. Moreover, the nationwide scope of the injunctions independently warrants review. The circumstances here

4

in which the considered decisions of two federal courts of

appeals have been rendered effectively academic by a single

district judge's nationwide injunctions -- starkly illustrate the

problems with allowing district courts to award relief untethered

to the actual cases or controversies before them.

Second, there also is a fair prospect that this Court would

vacate, or at least narrow, the injunctions. As the Ninth Circuit

held, the Rule "easily" qualifies as an appropriate exercise of

the discretion that Congress has vested in the agency to determine

which aliens are likely, in its w \ opinion, f ft to become public

charges. City & County of San Francisco, 944 F.3d at 799 (quoting

8 U.S.C. 1182(a) (4) (A)) . And even setting aside the merits, the

scope of the injunctions extends well beyond the district court's

limited Article III authority to resolve only the cases before it

-- not hypothetical cases that it envisioned other plaintiffs in

other parts of the country might bring. ,

Third and finally, allowing the district court's erroneous

and overbroad injunctions to remain in effect until this Court has

been able to undertake plenary review would result in effectively

irreparable harm to the government.

As a result of the

injunctions, the government is precluded from implementing its

chosen policy and, indeed, will grant lawful permanent resident

status to aliens who are statutorily "inadmissible" because, "in

the opinion of" the Executive Branch, each is "likely * *

to

5 become a public charge." 8 U.S.C. 1182 (a) (4) (A) . No practical means exist to reverse those determinations once made.
For those reasons, the Court should stay the district court's nationwide injunctions in their entirety, or at least limit them to the actual parties before the district court.
STATEMENT A. The Public-Charge Inadmissibility Rule 1. The INA provides that an alien is "inadmissible" if, "in the opinion of the [Secretary of Homeland Security] at the time of application for admission or adjustment of status, [the alien] is likely at any time to become a public charge." 8 U.S.C. 1182(a) (4) (A) . 1 That assessment "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." 8 U.S.C. 1182(a) (4) (B) . A separate INA provision states that an alien is deportable if, within five years of entry, the alien "has become a public charge from causes not affirmatively shown to have arisen" since entry. 8 U.S.C. 1227 (a) (5) . Three agencies make publie-charge inadmissibility determinations under Section 1182(a)(4): DHS for aliens seeking
1 The statute refers- to the Attorney General, but in 2002, Congress transferred the Attorney General's authority to make inadmissibility determinations in the relevant circumstances to the Secretary of Homeland Security. See 6 U.S.C. 557; 8 U.S.C. 1103; see also 6 U.S.C. 211(c)(8).

6 admission at the border and aliens within the country who apply to adjust their status to that of a lawful permanent resident; the Department of State when evaluating visa applications filed by aliens abroad; and the Department of Justice when the question arises during removal proceedings. See 84 Fed. Reg. 41,292, 41,294 n. 3 (Aug. 14, 2019) . The Rule at issue governs DHS's publiccharge inadmissibility determinations. Ibid. DHS indicated in adopting the Rule that the State Department and Department of Justice were planning to adopt consistent guidance. Ibid.
2 . Although the public-charge ground of inadmissibility dates back to the first immigration statutes, Congress has never defined the term "public charge," instead leaving the term's definition and application to the Executive Branch's discretion. In 1999, the Immigration and Naturalization Service (INS) proposed a rule to "for the first time define 'public charge, r ff 64 Fed. Reg. 28,676, 28,689 (May 26, 1999), a term that the INS noted was "ambiguous" and had "never been defined in statute or regulation," id. at 28,676-28,677. The proposed rule would have provided that in determining whether an alien was W A likely at any time to become a public charge f u w \ in the opinion of' the consular officer or Service officer making the decision," "public charge" would mean an alien "who is likely to become primarily dependent on the Government for subsistence as demonstrated by either: (i) [t]he receipt of public cash assistance for income maintenance purposes,

7 or (ii) [i]nstitutionalization for long-term care at Government expense. " Id. at 28,681 (quoting 8 U.S.C. 1182(a)(4)(A)). When it announced the proposed rule, INS also issued "field guidance" adopting the proposed rule's definition of "public charge." Id. at 28,689. The proposed rule was never finalized, leaving only the 1999 field guidance in place. 84 Fed. Reg. at 41,348 n.295.
3. In October 2018, DHS announced a new approach to publiccharge inadmissibility determinations. It did so through a proposed rule subject to notice and comment. 83 Fed. Reg. 51,114 (Oct. 10, 2018) . After responding to comments received during the comment period, DHS promulgated the final Rule in August 2019. 84 Fed. Reg. at 41,501. The Rule is the first time the Executive Branch has defined the term "public charge," and established a framework for evaluating whether an alien is likely to become a public charge, in a final rule following notice and comment.
The Rule defines "public charge" to mean "an alien who receives one or more [designated] public benefits * * * for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months ) . " 84 Fed. Reg. at 41,501. The designated public benefits include cash assistance for income maintenance and certain non-cash benefits, including most Medicaid benefits, Supplemental Nutrition Assistance Program benefits, and federal housing assistance. Ibid. As the agency explained, the Rule's

8

definition of "public charge" differs from the 1999 field guidance

in that (1) it incorporates certain non-cash benefits; and (2) it

replaces the "primarily dependent" standard with the 12-month/36-

month measure of dependence. Id. at 41,294-41,295.

The Rule also sets forth a framework the agency will use to

evaluate whether, considering the "totality of an alien's

individual circumstances," the alien is "likely at any time in the

future to become a public charge." 84 Fed. Reg. at 41,369; see

id. at 41,501-41,504. Among other things, the framework identifies

a number of factors an adjudicator must consider in making a

public-charge inadmissibility determination, such as the alien's

age, financial resources, employment history, education, and

health. Ibid. The Rule was set to take effect on October 15,

2019. Id. at 41,292.

B. Procedural History

1. Respondents are four governmental entities (three States

and the City of New York) and five non-governmental organizations

that provide services to immigrants. In August 2019, they filed

two suits -- one by the governmental entities, the other by the

non-governmental organizations

challenging the Rule in the

United States District Court for the Southern District of New York.

See App., infra, la-2a; id. at 25a-26a. They argued that the

Rule's definition of "public charge" is not a permissible

construction of the INA, that the Rule is arbitrary and capricious,

9

that the Rule violates the Rehabilitation Act, and that

according to the non-governmental organizations

the Rule

violates constitutional equal-protection principles. See id. at

lla-18a; id. at 36a-45a.

2. On October 11, 2019, the district court granted

respondents' requests for nationwide preliminary injunctions and

stays under 5 U.S.C. 705 barring DHS from implementing the Rule.

App., infra, 66a-68a; id. at 69a-71a.

In a pair of largely overlapping opinions, the district court

first concluded that plaintiffs had standing and that they had

asserted injuries within the zone of interests protected by the

public-charge provision, App., infra, 7a-10a (opinion in suit by

governmental plaintiffs); id. at 31a-36a (opinion in suit by non-

governmental plaintiffs) . Turning to the merits, the court

concluded that plaintiffs were likely to prevail on their claim

that the Rule's definition of- "public charge" is not a reasonable

interpretation of the statute. Id. at lla-14a; id. at 36a-39a.

After reciting the statute's text and some of its history, the

court stated that "one thing is abundantly clear -- 'public charge'

has never been understood to mean receipt of 12 months of benefits

within a 36-month period." Id. at 13a; id. at 38a (same). In the

court's view, Congress was "content with the current definition

set forth in the Field Guidance, which defines public charge as

someone who has become or is likely to become primarily dependent

10

on the government for cash assistance." Ibid. In support of that

view, the court cited a pair of legislative proposals in 1996 and

2013 that would have "extend[ed] the meaning of public charge to

include the use of non-cash benefits" but that were not ultimately

enachted. Ibid.

The district court also concluded that respondents were

likely to succeed in demonstrating that the Rule is arbitrary and

capricious, because DHS allegedly failed to provide reasoned

explanations for departing from the 1999 field guidance's

definition of "public charge" and adopting its chosen framework.

App. , infra, 14a-17a; id. at 39a-43a. The court stated that

respondents had raised a "colorable argument" that the Rule

violates the Rehabilitation Act because it "considers disability

as a negative factor in the public charge assessment." Id. at

18a; id. at 43a-44a (same). And the court stated that the non-

governmental respondents had "a likelihood of success on the merits

of their equal protection claim," because the court could find "no

reasonable basis for Defendants' sharp departure from the current

public charge determination framework." Id. at 44a-45a.

Regarding the other preliminary-injunction factors, the

district court concluded that the injuries respondents anticipated

as a result of the Rule

the "burden of providing services to

those who can no longer obtain federal benefits without

jeopardizing their [immigration] status"

were irreparable.

11 App., infra, 19a; id. at 45a-46a (similar). The court also found that the balance of equities and public interest weighed in favor of preliminary injunctions. Id. at 20a-21; id. at 46a-48a.
Finally, the district court concluded that nationwide injunctions were appropriate, rejecting the government's argument that any relief should be narrower. App., infra, 21a-24a; id. at 4 8a-50a. The court concluded that "[i]t would clearly wreak havoc on the immigration system if limited injunctions were issued, resulting in different public charge frameworks spread across the country" that it believed \\ \ would likely create administrative problems for the Defendants. r // Id. at 23a (citation omitted); id. at 49a (same). Moreover, in the court's view, nationwide injunctions were "necessary to accord [respondents] and other interested parties with complete redress," because "an individual should not have to fear that moving from one state to another could result in a denial of adjustment of status." Id. at 23a; id. at 50a (same). In a footnote, the court observed that "[t]he standard for a stay under 5 U.S.C. 705 is the same as the standard for a preliminary injunction," and " [a]ccordingly * * * grant[ed] the stay[s] for the same reasons it grant[ed] the injunction[s] ." Id. at 24a n.5; id. at 50a n.4 (same).
3. The government filed motions to stay the preliminary injunctions pending appeal, which the district court denied on December 2, 2019. App., infra, 52a-57a; id. at 58a-63a.

12 4 . While these cases were pending, the government also was litigating challenges to the Rule filed in four other district courts. Two of those district courts issued nationwide injunctions against implementation of the Rule. See Casa de Maryland, Inc, v. Trump, 19-cv-2715 (D. Md.); Washington v. DHS, No. 19-cv-5210 (E.D. Wash.). The remaining two courts issued more limited injunctions in the three cases before them. See Cook County v. Wolf, 19-cv6334 (N.D. Ill.) (Illinois); City & County of San Francisco v. USCIS, No. 19-cv-4717 (N.D. Cal.) (plaintiff counties); California v. DHS, No. 19-cv-4975 (N.D. Cal.) (plaintiff States and D.C.). On December 5, 2019, the Ninth Circuit granted the government's motions for stays pending appeal in the three cases filed in that circuit, including one case in which the district court had entered a nationwide injunction. City & County of San Francisco v. USCIS, 944 F. 3d 773. In a lengthy opinion that canvassed the history of the public-charge provision and related immigration laws, the Ninth Circuit held that "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." Id. at 781. In particular, it held that the statutory term "public charge" was "ambiguous" and "capable of a range of meanings," id. at 792, that Congress had historically granted the Executive Branch broad discretion to define the term, and that the Executive Branch had, in fact, interpreted the term

13 differently over the previous 150 years, id. at 792-797. The court then held that the Rule was "easily" a reasonable interpretation of the statute, particularly in light of Congress's express intent that its 1996 welfare-reform and immigration-reform legislation would help ensure that "aliens within the Nation's borders not depend on public resources to meet their needs." Id. at 799 (quoting 8 U.S.C. 1601(2)).
On December 9, 2019, the Fourth Circuit likewise granted the government's motion for a stay pending appeal of the nationwide injunction entered by a district court in Maryland. Order, Casa de Maryland, supra, No. 19-2222.
On December 23, 2019, the Seventh Circuit denied, without opinion, the government's motion for a stay pending appeal of the injunction, applicable only in Illinois, entered by a district court in Chicago. Order, Cook County v. Wolf, No. 19-3169.2
5. Notwithstanding the decisions by the Fourth and Ninth Circuits, the nationwide injunctions entered by the district court here continued to prevent the government from implementing the Rule anywhere in the country. On January 8, 2020, the court of appeals issued a one-paragraph order denying the government's motions to stay these remaining nationwide injunctions. App. ,

2

If this Court grants the present stay application, the

government intends to ask the Seventh Circuit to reconsider its

denial of a stay pending appeal.

14 infra, 65a. The court noted that it had "set an expedited briefing schedule on the merits of the government's appeals, with the last brief due on February 14," and oral argument to "be scheduled promptly thereafter." Ibid.
ARGUMENT The government respectfully requests that this Court grant a stay of the district court's preliminary injunctions pending completion of further proceedings in the court of appeals and, if necessary, this Court. A stay pending the disposition of a petition for a writ of certiorari is appropriate if there is (1) "a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari"; (2) "a fair prospect that a majority of the Court will conclude that the decision below was erroneous"; and (3) "a likelihood that irreparable harm will result from the denial of a stay." Conkriqht v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers) (brackets, citation, and internal quotation marks omitted).3 All of those requirements are met here.

3

Under this Court's Rule 23 and the All Writs Act, 28

U.S.C. 1651, a single Justice or the Court has authority to enter

a stay pending proceedings in a court of appeals. See, e.g., Trump

v. International Refugee Assistance Project, 138 S. Ct. 542 (2017).

15 I. THERE IS A REASONABLE PROBABILITY THAT THIS COURT WOULD GRANT
CERTIORARI IF THE COURT OF APPEALS UPHOLDS THE DISTRICT COURT'S NATIONWIDE INJUNCTIONS If the court of appeals ultimately upholds the district court's nationwide preliminary injunctions in this case, there is a "reasonable probability" that the Court will grant certiorari. Conkriqht, 556 U.S. at 1402 (citation omitted). That is true for at least two reasons. First, such a decision would implicate a "conflict" among the courts of appeals "on the same important matter." Sup. Ct. R. 10(a). As explained more fully below, the Ninth Circuit concluded that "Congress left DHS and other agencies enforcing our immigration laws the flexibility to adapt the definition of 'public charge' as necessary," and held that the definition DHS has adopted "easily" fits within the range of permissible definitions. City & County of San Francisco, 944 F.3d at 797, 799. The Fourth Circuit likewise held that DHS is likely to prevail. See Nken v. Holder, 556 U.S. 418, 426 (2009) (stay pending appeal requires the applicant to make "a strong showing that he is likely to succeed on the merits") . To uphold the district court's preliminary injunctions here, however, the Second Circuit would need to find precisely the opposite -- namely, that respondents are likely to succeed in showing that the Rule is unlawful. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) . It is at least reasonably probable that this Court would grant a writ of certiorari to review such a conflict, especially given that it

16 concerns an important Rule implicating the Executive Branch's discretion in making inadmissibility determinations.
Second, a decision by the court of appeals upholding the injunctions here would also squarely present the question of whether nationwide injunctions are consistent with the federal courts' targeted authority to redress the concrete injuries shown by the parties before them in specific cases and controversies. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) ("The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion."). In the past three years, federal courts have issued dozens of nationwide or even global injunctions, blocking a wide range of significant policies involving immigration, national security, and domestic issues.
The circumstances here, in which decisions by multiple courts of appeals have been rendered effectively meaningless within their own territorial jurisdictions because of a single district court's nationwide injunctions, starkly illustrate the problems that such injunctions pose. If the Second Circuit were to uphold the nationwide scope of those injunctions, that result would present an additional "important federal question" warranting a writ of certiorari, and indeed would call out for "an exercise of this Court's supervisory power," Sup. Ct. R. 10(a) and 10(c). See Trump

17 v. Hawaii, 138 S. Ct. 2392, 2429 (2018) (Thomas, J. , concurring) ("If federal courts continue to issue [universal injunctions], this Court is duty-bound to adjudicate their authority to do so.").
II. THERE IS AT LEAST A FAIR PROSPECT THAT THE COURT WOULD VACATE THE INJUNCTIONS IN WHOLE OR IN PART There is also at least a "fair prospect" that if this Court
granted a writ of certiorari, it would vacate the injunctions in whole or in part. Conkright, 556 U.S. at 1402. That is true both because respondents' claims are unlikely to succeed, and because the nationwide scope of the preliminary injunctions is not an appropriate means of redressing respondents' alleged injuries.
A. As a threshold matter, respondents are unlikely to succeed because they have not adequately alleged a cognizable injury within the relevant zone of interests.
The district court concluded otherwise with respect to the governmental respondents because the Rule will "decrease enrollment in benefits programs," which it thought might reduce revenue at their hospitals, increase consumption of emergency and other services for which they sometimes pay, and cause adverse "ripple effects" in their economies. App., infra, 7a-8a (citation omitted). But the Rule exempts Medicaid coverage for emergency services, and other reductions in benefit-program enrollment are likely to save money for the governmental respondents, who fund such programs. See 84 Fed. Reg. at 41,363, 41,300-41,301. Their claims of harm thus depend on an "attenuated chain of

18

possibilities," not the "certainly impending" injury Article III

requires. Clapper v. Amnesty Int'l USA, 568 U.S. 398, 410 (2013) .

The district court was likewise incorrect in concluding that

the non-governmental respondents have organizational standing

because, if the Rule goes into effect, they will "devote

substantial resources to mitigate its potentially harmful

effects." App., infra, 33a. This Court has held that merely

showing that governmental action would be a "setback to [an]

organization's abstract social interests" is insufficient to

establish standing, Havens Realty Corp. v. Coleman, 455 U.S. 363,

379 (1982); that insufficiency is not cured by an organization's

insistence that it would seek to "mitigate" the "effects" of that

setback, App., infra, 33a. Cf. Clapper, 568 U.S. at 418 (finding

"self-inflicted injuries" insufficient to establish standing).

In any event, even if respondents' claims of harm were

sufficient to satisfy Article III, their asserted interest in

maintaining enrollment in public-benefits programs is

"inconsistent" with the purpose of the public-charge

inadmissibility ground

namely, to reduce the use of public

benefits

and thus outside the relevant zone of interests.

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,

567 U.S. 209, 225 (2012).

B. As the Ninth Circuit recognized, challenges to the Rule

are also unlikely to succeed because they lack merit. The INA's

19

text and structure make clear that receipt of public benefits,

including non-cash benefits that are not intended to serve as a

primary means of support, is an important consideration in

determining whether an alien is inadmissible on public-charge

grounds. The Rule thus gives the statute its most natural meaning

by specifying that an alien who depends on public assistance for

necessities such as food and shelter for extended periods may

qualify as a "public charge" even if that assistance is not

provided through cash benefits or does not provide the alien's

sole or primary means of support. That interpretation also follows

Congress's direction — in legislation adopted contemporaneously

with the current public-charge provision -- that it should be the

official "immigration policy of the United States" to ensure that

"availability of public benefits not constitute an incentive for

immigration to the United States." 8 U.S.C. 1601(2). At the very

least, the Rule represents a reasonable and lawful exercise of the

substantial discretion Congress has long vested in the Executive

Branch to make public-charge inadmissibility determinations.

1. The INA renders inadmissible "[a]ny alien who * * in

the opinion of the [Secretary]

* * is likely at any time to

become a public charge," based "at a minimum" on an assessment of

specified factors such as "health," "financial status," and

"education and skills." 8 U.S.C. 1182(a)(4)(A) and (B). As the

Ninth Circuit explained, that statutory text provides four

20 important indicators that Congress intended to give DHS substantial discretion over publie-charge inadmissibility determinations.
First, Congress's reference to the "opinion" of the relevant Executive Branch official "is the language of discretion," under which "the officials are given broad leeway." • City & County of San Francisco, 944 F.3d at 791; see Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 540 (1979) (recognizing that where a statute specifies that a determination be made "in the opinion of" an agency official, it confers "broad discretion" on the official to make that determination) . Second, "the critical term 'public charge' is not a term of art. It is not self-defining. * * * In a word, the phrase is 'ambiguous' under Chevron; it is capable of a range of meanings." City & County of San Francisco, 944 F.3d at 792. Third, although the statute provides a non-exhaustive list of factors that the Executive Branch official must take into account \\ \ at a minimum, r ft it "expressly d’id not limit the discretion of officials to those factors." Ibid. Fourth, Congress expressly "granted DHS the power to adopt regulations to enforce the provisions of the INA," indicating that "Congress intended that DHS would resolve any ambiguities in the INA." Ibid. (citing Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016)).
Related statutory provisions show that Congress also recognized that receipt of public benefits, including non-cash

21

benefits, could often be relevant to determining whether an alien

is likely to become a public charge. One such set of provisions

requires that many aliens seeking admission or adjustment of status

must submit "affidavit[s] of support" executed by sponsors -- such

as a family member or employer

to avoid a public-charge

inadmissibility determination. See 8 U.S.C. 1182(a)(4)(C) and

(D) . Aliens who fail to obtain the required affidavit are treated

by operation of law as inadmissible on public-charge grounds,

regardless of their individual circumstances.

8 U.S.C. }

1182(a) (4) . Moreover, Congress specified that the sponsor must

agree "to maintain the sponsored alien at an annual income that is

not less than 125 percent of the Federal poverty line," 8 U.S.C.

1183a (a) (1) (A), and Congress granted federal and state governments

the right to seek reimbursement from the sponsor for "any means-

tested public benefit" the government provides to the alien,

8 U.S.C. 1183a(b) (1) (A) , including non-cash benefits. Taken

together, those provisions mean that to avoid being found

inadmissible on public-charge grounds, a covered alien must have

a sponsor who is willing to reimburse the government for any means-

tested public benefits the alien receives while the sponsorship

obligation is i'n effect (even if those benefits are only minimal) .

Congress itself thus provided that the mere possibility that an

alien might obtain unreimbursed, means-tested public benefits in

the future would in some circumstances be sufficient to render

22

that alien likely to become a public charge, regardless of the

alien's other circumstances..

Likewise supporting the Rule's consideration of non-cash

benefits are INA provisions stating that when making public-charge

inadmissibility determinations for certain aliens who have "been

battered or subjected to extreme cruelty in the United States,"

8 U.S.C. 1641(c)(1)(A), DHS "shall not consider any benefits the

alien may have received," including various non-cash benefits,

8 U.S.C. 1182 (s) ; see 8 U.S.C. 1611-1613 (specifying the public

benefits for which battered aliens and other qualified aliens are

eligible, such as "public or assisted housing," "food assistance,"

and "disability" benefits). The inclusion of that express

prohibition for a narrow class of aliens presupposes that DHS

generally can consider the past receipt of non-cash benefits such

as public housing and food assistance in making public-charge

inadmissibility determinations for other aliens. Cf. Husted v. A.

Philip Randolph Inst., 138 S. Ct. 1833, 1844 (2018) ("There is no

reason to create an exception to a prohibition unless the

prohibition would otherwise forbid what the exception allows.").

Surrounding statutory provisions also leave no doubt about

why Congress would have intended the Executive Branch to take such

public benefits into account in making public-charge

inadmissibility determinations.

In legislation passed

contemporaneously with the 1996 enactment of the current public-

23

charge provision, Congress stressed the government's "compelling"

interest in ensuring "that aliens be self-reliant in accordance

with national immigration policy." 8 U.S.C. 1601 (5) . Congress

emphasized that "[s]elf-sufficiency has been a basic principle of

United States immigration law since this country's earliest

immigration statutes," 8 U.S.C. 1601(1), and it "continues to be

the immigration policy of the United States that * * * (A) aliens

within the Nation's borders not depend on public resources to meet

their needs, -k * * and (B) the availability of public benefits

not constitute an incentive for immigration to the United States,"

8 U.S.C. 1601(2). Congress equated a lack of "self-sufficiency"

with the receipt of "public benefits" by aliens, 8 U.S.C. 1601(3),

which it defined broadly to include any "welfare, health,

disability, public or assisted housing * * * or any other similar

benefit," 8 U.S.C. 1611(c)(1)(B).

2 . Respondents have no persuasive answer to the INA's text

and structure, which make the receipt of public benefits, including

non-cash benefits, an important aspect of "public charge"

determinations.

Respondents argue instead that the Rule's

interpretation is inconsistent with historical usage of the phrase

"public charge," which they contend refers exclusively and

unambiguously to aliens who are W \ likely to become primarily and

permanently dependent on the government for subsistence. f // App. ,

infra, 12a (citation omitted); see id. at 37a.

24

As the Ninth Circuit explained, historical evidence does not

support that contention. City & County of San Francisco, 944 F.3d

at 792-798.

Instead, the common thread through Congress's

enactment of various public-charge provisions has been an intent

to preserve Executive Branch flexibility to "adapt" public-charge

provisions to "change[s] over time" in "the way in which federal,

state, and local governments have cared for our most vulnerable

populations." Id. at 792. In the late nineteenth and early

twentieth century, for example, those who were not self-sufficient

were often "housed in a government or charitable institution, such

as an almshouse, asylum, or penitentiary." Id. at 793. In that

context, therefore, it made sense that "the likelihood of being housed in a state institution" would be "considered * * * to be

the primary factor in the public-charge analysis." Id. at 794.

As the "movement towards social welfare" broadened the

availability of other types of more limited public benefits over

the twentieth century, however, the open-ended phrase allowed the

Executive Branch to take into account those changes. Id. at 795.

For example, both the 1933 and 1951 editions of Black's Law

Dictionary indicated that the term "public charge," " [a]s used in"

the 1917 Immigration Act, meant simply "one who produces a money

charge upon, or an expense to, the public for support and care"

without reference to the type of expense. Black's Law

Dictionary (3d ed. 1933); Black's Law Dictionary (4th ed. 1951).

25 A 1929 treatise did the same. See Arthur Cook et al., Immigration Laws of the United States § 285 (1929) (noting that "public charge" meant a person who required "any maintenance, or financial assistance, rendered from public funds, or funds secured by taxation") . And as early as 1948, the Board of Immigration Appeals (Board) held that an alien may qualify as a "public charge" for deportability purposes if the alien (or a sponsor or relative) fails to repay a public benefit upon demand by a government agency entitled to repayment, even where the benefits in question are "clothing, transportation, and other incidental expenses." In re • B-, 31. & N. Dec. 323, 326-327 (B.I.A. 1948); see City & County of San Francisco, 944 F.3d at 795 (discussing In re B-).4
Congress's intent to preserve the Executive Branch's flexibility has not just been implicit. In an extensive report that served as a foundation for the original enactment of the INA, the Senate Judiciary Committee recognized that "[djecisions of the courts have given varied definitions of the phrase 'likely to

4

The Board concluded that the alien in In re B- was not

deportable as a public charge based on the care she received at a

state mental hospital because Illinois law did not allow the State

to demand repayment for those expenses. 3 1. & N. Dec. at 327 .

But the Board indicated that she would have been deportable as a

public charge if her relatives had failed to pay the cost of her

"clothing, transportation, and other incidental expenses," because

Illinois law made her "legally liable" for repayment of those non­

cash benefits. Ibid.

26

become a public charge, t // and that w A different consuls, even in

close proximity with one another, have enforced [public-charge] standards highly inconsistent with one another. / // S . Rep . No .

1515, 81st Cong., 2d Sess., 347, 349 (1950). Rather than adopt

one of those specific standards, the Committee indicated that

because "the elements constituting likelihood of becoming a public

charge are varied, there should be no attempt to define the term

in the law." Id. at 349.

Consistent with that recommended approach, neither'the INA

nor any subsequent congressional enactment has provided a more

specific definition of "public charge." Instead, Congress has

"described various factors to be considered 'at a minimum,' without

even defining those factors," making it "apparent that Congress

left DHS and other agencies enforcing our immigration laws the

flexibility to adapt the definition of 'public charge' as

necessary." City & County of San Francisco, 944 F.3d at 797.

The district court drew a different conclusion from a pair of

never-enacted legislative proposals in 1996 and 2013. See App.,

infra, 13a-14a. Those proposals would have resulted in statutory

definitions of "public charge" that, like the Rule, contained

specific public-benefit thresholds

though they would have

covered a significantly larger number of aliens.5 The court

5

The 1996 proposal would have included aliens who

received benefits during twelve months over a seven-year, rather

than three-year, period. See H.R. Rep. No. 828, 104th Cong., 2d

27 concluded from those respective non-enactments that Congress must have wanted to "endorse[]" a narrower understanding of "public charge." Id. at 13a. But the far better inference in light of the history is that Congress simply wanted to preserve Executive Branch discretion by leaving the statutory term undefined -- not that it wanted to constrain Executive Branch discretion by silently "endors[ing]," App., infra, 13a, a narrower definition that would then be fixed for all time. Indeed, the legislative history of the 1996 proposal indicates that it was dropped at the last minute in part because the President objected to the proposal's rigid definition of "public charge" and threatened to veto the bill. See H.R. Rep. No. 828, 104th Cong., 2d Sess, 241 (1996); 142 Cong. Rec. 26,666, 26,679-26,680 (Sept. 30, 1996).
Given Congress's direction that "the availability of public benefits" should not be "an incentive for immigration to the United States," 8 U.S.C. 1601(2), and its longstanding history of preserving flexibility in the meaning of "public charge," the Rule "easily" qualifies as a reasonable interpretation of the statute, City & County of San Francisco, 944 F.3d at 799. Nothing in the statute precludes the agency from considering non-cash benefits or
Sess., 138, 240-241. The 2013 proposal would have included aliens who received any covered public benefits. S. Rep. No. 40, 113th Cong., 1st Sess., 42, 63.

28

public benefits that do not provide an alien's sole or primary

means of support, and the Rule's use of the 12-months in 36-months

standard establishes a sensible and administrable framework for

making individualized public-charge determinations. Respondents

are unlikely to succeed in arguing otherwise.

3. Respondents' arguments that the Rule is arbitrary and

capricious are similarly unlikely to succeed. For many of the

same reasons discussed above, the Rule -- including its definition

of "public charge" and its framework for evaluating which aliens

are, in the opinion of the Executive Branch, likely to become

public charges

is well "within the bounds of reasoned

decisionmaking." Baltimore Gas & Elec. Co. v. Natural Res. Def.

Council, Inc., 462 U.S. 87, 105 (1983).

As discussed, the Rule differs from the agency's previous

interpretation of "public charge" in that it requires adjudicators

to consider specified non-cash benefits (not only cash benefits)

in determining whether an alien is likely to become a public

charge, and defines the term "public charge" to include those who

receive such benefits for more than 12 months in the aggregate

within any 36-month period.

The agency "forthrightly acknowledged" its change in approach

in the rulemaking, and provided "good reasons for the new policy."

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515, 517

(2009). It explained that the Rule is designed "to better ensure

29 that applicants for admission to the United States and applicants for adjustment of status to lawful permanent resident who are subject to the public charge ground of inadmissibility are selfsufficient - i.e., do not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their family, sponsor, and private organizations." 83 Fed. Reg. at 51,122; 84 Fed. Reg. at 41,317-41,319. Because Congress itself viewed the receipt of any public benefits, including non­ cash benefits, as indicative of a lack of self-sufficiency, the agency reasoned that the Rule, which it promulgated through noticeand-comment rulemaking, is more consistent with congressional intent than the 1999 agency field guidance and abandoned attempt at rulemaking. 83 Fed. Reg. at 51,123.
The agency also explained, at length, its reasons for including in the Rule the various factors it identified as weighing on the question whether an alien is likely to become a public charge. See 83 Fed. Reg. 51,178-51,207. The factors implemented Congress's mandate that the agency consider, at a minimum, each alien's "age"; "health"; "family status"; "assets, resources, and financial status"; and "education and skills" in making a "public charge" determination. See id. at 51,17 8; 8 U.S.C. 1182 (a) (4) (B) . The agency described in detail how each of the various factors bore positively or negatively on the determination whether an alien is likely to receive public benefits over the designated threshold

30 in the future, while retaining the "totality of the circumstances" approach that allows each adjudicating officer to make a decision appropriate to each alien's individual circumstances.
As the Ninth Circuit recognized, those explanations were clearly sufficient to satisfy the deferential arbitrary-andcapricious standard. See City & County of San Francisco, 944 F.3d at 800-805. For purposes of applying that standard, it is immaterial whether DHS demonstrated to the district court's W A satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better. r n Id. at 801 (quoting Fox Television, 556 U.S. at 515) . DHS made all of those showings here. Id. at 805. Respondents' arbitrary-and-capricious claim is therefore unlikely to succeed.
4 . Respondents are also unlikely to succeed on their Rehabilitation Act and equal-protection claims.
The Rehabilitation Act provides that "[n]o otherwise qualified individual * * * shall, solely by reason of her or his disability," be denied the benefits of a federal program. 29 U.S.C. 794(a). " [B] y its terms," the statute "does not compel [governmental] institutions to disregard the disabilities of" individuals; instead, it merely requires them not to exclude a person who is W \ otherwise qualified I // w > solely by reason of his

31

[disability]. I !/ Southeastern Cmty. Coll, v. Davis, 442 U.S. 397,

405 (1979). The Rule complies with that requirement, taking

relevant medical conditions into account as ,one factor among many

in a totality-of-the-circumstances analysis of whether the alien

is likely to become a public charge. Moreover, the Rule is

required to account for those conditions under the INA, which

directs that public-charge determinations "shall * * * consider"

the alien's "health" as a factor, 8 U.S.C. 1182(a)(4)(B)(i). See

Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976) (A

"specific statute will not be controlled or nullified by a general

one.") (citation omitted). Accordingly, even the district court

in California

which enjoined the Rule on other grounds

recognized there is no "serious question]]" the Rule complies with

the Rehabilitation Act. City & County of San Francisco v. USCIS,

No. 19-cv-4717, 2019 WL 5100718, at *30 (N.D. Cal. Oct. 11, 2019).

The equal-protection claims are similarly meritless. The

district court suggested that W \ minimizing the incentive of aliens

to immigrate to the United States due to the availability of public

benefits r u does not provide a "reasonable basis" for adopting the

Rule, such that the Rule might not survive rational-basis review.

App., infra, 45a (citation omitted). But as explained, see supra,

pp. 22-23, that objective is set out by statute as the official

policy of the United States. See 8 U.S.C. 1601. Attempting to

pursue it more effectively cannot possibly be irrational.

32 G. Finally, there is also a "fair prospect," Conkright, 556 U.S. at 1402, that any decision of the court of appeals upholding the district court's nationwide injunctions would be reversed on the additional ground that those injunctions are overly broad. Nationwide injunctions like the ones here transgress both Article III and longstanding equitable principles by affording relief that is not necessary to redress any cognizable, irreparable injury to the parties in the case. They also frustrate the development of the law, while obviating the requirements for and protections of class-action litigation. This case exemplifies those harms: the nationwide injunctions here have in effect permitted a single district judge to veto the contrary decisions of two different courts of appeals, even within their respective jurisdictions. 1. a. To the extent that respondents have Article III standing at all, but see pp. 17-18, supra, that standing cannot support injunctive relief any further than what is needed to redress an actual or imminent injury-in-fact to respondents themselves. "[SJtanding is not dispensed in gross," and "a plaintiff must demonstrate standing * * * for each form of relief that is sought." Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (citations omitted) . The remedy sought thus "must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established." Gill v. Whitford, 138 S. Ct. 1916, 1931 (2018) (quoting Lewis v.

33 Casey, 518 U.S. 343, 357 (1996)). "The actual-injury requirement would hardly serve [its] purpose ... of preventing courts from undertaking tasks assigned to the political branches, if once a plaintiff demonstrated harm from one particular inadequacy in government administration, the court were authorized to remedy all inadequacies in that administration." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006) (brackets and citation omitted).
Applying that principle, this Court has invalidated injunctions that afforded relief that was not shown to be necessary to prevent cognizable injury to the plaintiff himself. For example, in Lewis, the Court held that an injunction directed at certain prison practices was overbroad, in violation of Article III, because it enjoined practices that had not been shown to injure any plaintiff. 518 U.S.^at 358. The injunction "mandated sweeping changes" in various aspects of prison administration designed to improve prisoners' access to legal services, including library hours, lockdown procedures, access to research facilities and training, and W \ direct assistance r n from lawyers and legal support staff for "illiterate and non-English-speaking inmates." Id. at 347-348 (citation omitted). This Court held that the plaintiffs lacked standing to seek, and the district court thus lacked authority to grant, such broad relief. Id. at 358-360. The district court had "found actual injury on the part of only one named plaintiff," who claimed that a legal action he had filed

34 was dismissed with prejudice as a result of his illiteracy and who sought assistance in filing legal claims. Id. at 358. This Court therefore held that "[it] c[ould] eliminate from the proper scope of th[e] injunction provisions directed at" the other claimed inadequacies that allegedly harmed "the inmate population at large." Ibid. "If inadequacies of th[at] character exist[ed]," the Court explained, "they ha[d] not been found to have harmed any plaintiff in this lawsuit, and hence were not the proper object of this District Court's remediation." Ibid.
b. This Court also has recognized and applied the corollary principle that, where a plaintiff faces actual or imminent injury at the outset of a suit but that injury is subsequently redressed or otherwise becomes moot, the plaintiff no longer can seek injunctive relief to redress alleged harms to anyone else. For example, in Summers v. Earth Island Institute, 555 U.S. 488 (2009), the Court held that a plaintiff lacked standing to seek to enjoin certain Forest Service regulations after the parties had resolved the controversy regarding the application of those regulations to the specific project that had caused the plaintiff's own claimed inj ury, id. at 494-497. The plaintiff's "injury in fact with regard to that project," the Court held, "ha[d] been remedied," and so he lacked standing to maintain his challenge to the regulations. Id. at 494. The Court expressly rejected a contrary rule that, "when a plaintiff has sued to challenge the lawfulness

35 of certain action or threatened action but has settled that suit, he retains standing to challenge the basis for that action" - in Earth Island, "the regulation in the abstract" -- "apart from any concrete application that threatens imminent harm to his interests." Ibid. Such a rule would "fly in the face of Article Ill's injury-in-fact requirement." Ibid.; see Alvarez v. Smith, 558 U.S. 87, 92-93 (2009) (holding that plaintiffs could no longer seek declaratory or injunctive relief against a state policy once their "dispute [wa]s no longer embedded in any actual controversy about the plaintiffs' particular legal rights").
c. Those principles have clear application here. As in Lewis, applications of the Rule to an alien seeking admission at the southern border in San Diego, or to an alien seeking adjustment of status in South Carolina, would not "harm[] any plaintiff in this lawsuit, and hence were not the proper object of this District Court's remediation." 518 U.S. at 358. And as in Earth Island and Alvarez, entry of an injunction protecting respondents from concrete injury while the case proceeds would eliminate any "threat[]" of "imminent harm to [their] interests," Earth Island, 555 U.S. at 494, such that broader relief would not be "embedded in any actual controversy about the plaintiffs' particular legal rights," Alvarez, 558 U.S. 93. Accordingly, if any relief were appropriate at all, it would be properly limited to only those applications of the Rule that harm respondents in concrete and

36

particularized ways. At most, that would encompass applications

to aliens whom respondents identify as receiving services in the

jurisdictions in which they operate.

Neither of the grounds offered by the district court to

justify the unlimited scope of its injunctions requires a different

result. First, the district court thought that "an individual

should not have to fear that moving from one state to another could

result in a denial of adjustment of status." App. , infra, 23a.

But there are no "individual" plaintiffs in this case, let alone

a certified class of such individuals. The district court's focus

here on how the Rule would affect such non-party aliens was no

different from the reliance on the interests of non-party prisoners

that this Court rejected in Lewis. See 518 U.S. at 358.

Second, the district court believed that applying "different

public charge frameworks * * * across the country * *

'would

likely create administrative problems for the Defendants. r // App. ,

infra, 23a (citation omitted). But the appropriate parties to

make that determination are the defendants, not the plaintiffs or

the court. Any "administrative problems for the Defendants" are

not Article III injuries of the plaintiffs. And in supplanting

the Executive Branch's determinations about whether it would be

preferable to suspend the Rule's effect in just three States or

all fifty, the court "undert[ook] tasks assigned to the political

37 branches" in just the way that Article III is intended to prevent. DaimlerChrysler Corp., 547 U.S. at 353 (citation omitted).
2 . Independent of Article III, the nationwide preliminary injunctions here violate fundamental rules of equity by granting relief broader than necessary to prevent irreparable harm to respondents. This Court has long recognized that injunctive relief must "be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs." Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 765 (1994) (citation omitted). Section 705 of the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq., on which the district court also relied, likewise limits relief to that which is "necessary to prevent irreparable injury," 5 U.S.C. 705. See App., infra, 24a n.5 (noting that "[t]he standard for a stay under 5 U.S.C. § 705 is the same as the standard for a preliminary injunction" and "grant[ing] the stay for the same reasons it grants the injunction"); see also 5 U.S.C. 703 (providing that absent a "special statutory review proceeding," "[t]he form of proceeding for judicial review" under the APA is "any applicable form of legal action, including actions for ★ * * writs of prohibitory or mandatory injunction").
When, as here, no class has been certified, a plaintiff must show that the requested relief is necessary to redress the plaintiff's own irreparable harm; the plaintiff cannot seek injunctive relief in order to prevent harm to others. See Monsanto

38

Co. v. Geertson Seed Farms, 561 U.S. 139, 163 (2010) (plaintiffs

"d[id] not represent a class, so they could not seek to enjoin [an

agency order] on the ground that it might cause harm to other

parties"). Even where a class has been certified, relief is

limited to what is necessary to redress irreparable injury to

members of that class. See Lewis, 518 U.S. at 359-360, 360 n.7.

History confirms that the injunctions in this case violate

"traditional principles of equity jurisdiction." Grupo Mexicano

de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 319

(1999) (citation omitted). Absent-party injunctions were not

"traditionally accorded by courts of equity." Ibid.; Samuel L.

Bray, Multiple Chancellors: Reforming the National Injunction, 131

Harv. L. Rev. 417, 424-445 (2017) (detailing historical practice).

Thus, in the late 19th century, this Court rejected injunctive

relief that barred enforcement of a law to nonparties. Bray 429

(discussing Scott v. Donald, 165 U.S. 58 (1897)).

As a

consequence, for example, in the 1930s courts issued more than

1600 injunctions against enforcement of a single federal statute.

Bray 434. The nationwide injunctions in this case are thus

inconsistent with "longstanding limits on equitable relief."

Hawaii, 138 S. Ct. at 2425 (Thomas, J., concurring).

3. Nationwide injunctions like this one also disserve this

Court's interest in allowing an issue to percolate in the lower

courts. See United States v. Mendoza, 464 U.S. 154, 160 (1984) .

39

While other suits may proceed even after a nationwide injunction

is issued, once that injunction is affirmed on appeal, other

plaintiffs may strategically drop their suits and rely on the first

nationwide injunction

forcing this Court to either accept

plenary review of the first case to tee up the issue, or risk never

having the issue come before it again. Permitting nationwide

injunctions also undercuts the primary mechanism Congress has

authorized to permit broader relief: class actions. It enables

all potential claimants to benefit from nationwide injunctive

relief by prevailing in a single district court, without satisfying

the prerequisites of Federal Rule of Civil Procedure 23, while

denying the government the corresponding benefit of a definitive

resolution as to all potential claimants if it prevails instead.

In other words, if multiple plaintiffs file multiple suits

against a governmental policy, they potentially need to win only

a single suit for all of them to prevail, while the government

must run the table to enforce its policy anywhere. That point is

vividly on display here, where the government has successfully

defended the Rule before two courts of appeals and yet remains

unable to put it into effect anywhere in the country because of a

single district judge's nationwide injunctions.

III. THERE IS A LIKELIHOOD THAT IRREPARABLE HARM WILL RESULT FROM THE DENIAL OF A STAY Finally, "irreparable harm will result from the denial of a
stay." Conkright, 556 U.S. at 1402 (brackets and citation

40 omitted) . As the Ninth Circuit recognized, "the preliminary injunctions will," unless stayed, "force DHS to grant status to those not legally entitled to it." City & County of San Francisco, 944 F. 3d at 806. DHS "currently has no practical means of revisiting public-charge determinations once made," making that harm effectively irreparable. Id. at 805. And given the "compelling" interest that Congress has attached to ensuring selfsufficiency among aliens admitted to the United States, 8 U.S.C. 1601(5), that harm substantially outweighs whatever limited and speculative fiscal injuries respondents claim they will suffer during the pendency of this litigation.
CONCLUSION For the foregoing reasons, this Court should stay the district court's injunctions in their entirety pending the completion of further proceedings in the court of appeals and, if necessary, this Court. At the least, the Court should stay the nationwide effect of the injunctions such that they apply only to aliens whom the governmental and non-governmental respondents identify as receiving services in the jurisdictions in which they operate. Respectfully submitted.
NOEL J. FRANCISCO Solicitor General
JANUARY 2020

 
 No. 19A785 In the
Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al.,
Applicants, v. NEW YORK, et al.,
Respondents.
OPPOSITION OF GOVERNMENT PLAINTIFFS TO DEFENDANTS’ APPLICATION FOR A STAY OF THE ORDERS
ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
LETITIA JAMES Attorney General State of New York BARBARA D. UNDERWOOD* Solicitor General 28 Liberty Street New York, New York 10005 (212) 416-8020 barbara.underwood@ag.ny.gov
*Counsel of Record for Government Plaintiffs
Dated: January 22, 2020 (Complete counsel listing appears on signature pages.)

TABLE OF CONTENTS
Page
INTRODUCTION .....................................................................................................................1
STATEMENT........................................................................................................................... 4
A. The Public-Charge Statute ....................................................................................4
B. The Final Rule.......................................................................................................8
C. Procedural Background.........................................................................................9
1. The district court’s order of preliminary relief ............................................9
2. Defendants’ expedited appeal....................................................................10
3. The lower courts’ denials of a stay pending appeal...................................10
4. Pending appeals in other courts of appeals................................................11
ARGUMENT
THE COURT SHOULD DENY DEFENDANTS’ REQUEST FOR A STAY PENDING THE SECOND CIRCUIT’S IMMINENT REVIEW OF DEFENDANTS’ APPEAL....................................12
A. The Balance of Hardships and the Public Interest Weigh Decisively Against Defendants’ Request for a Stay That Would Upend the Status Quo for No Good Reason. ..................................................................................14
1. Defendants have identified no urgent reason for a stay that would disrupt rather than preserve the status quo. ...............................................14
2. Disrupting the status quo would wreak havoc on public-charge determinations and public-benefits administration and seriously injure plaintiffs and the public. ..................................................................17
B. There Is No Basis to Assess Whether This Court Will Grant Certiorari Given That No Petition for Certiorari Has Yet Been Filed and No Court of Appeals Has Yet Ruled on the Merits of the Orders Below...........................21
C. There Is Not a Fair Prospect That This Court Would Conclude That the District Court Abused Its Discretion in Finding That the Rule is Likely Contrary to Law and Arbitrary and Capricious. .................................................22
i

Page 1. The Rule is likely contrary to law..............................................................22 2. The Rule is likely arbitrary and capricious................................................31 3. The Rule is likely unlawful and arbitrary under the Rehabilitation
Act. ............................................................................................................. 34 4. Defendants’ threshold arguments lack merit. ............................................35 D. There Is No Basis to Limit the Scope of the Preliminary Relief Ordered. .........36 CONCLUSION....................................................................................................................... 39
ii

INTRODUCTION Defendants—the United States Department of Homeland Security (DHS); Chad F. Wolf, Acting Secretary of DHS; and Kenneth T. Cuccinelli II, Senior Official Performing the Duties of the Director of the United States Citizenship and Immigration Services (USCIS)—seek a stay of an order issued by the United States District Court for the Southern District of New York (Daniels, J.) preliminarily postponing the effective date and enjoining enforcement of a Final Rule by DHS. The Rule radically alters the test for evaluating whether an immigrant is likely to become a “public charge” under 8 U.S.C. § 1182(a)(4)(A), and thus be ineligible for a green card. See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019). The Rule’s vast expansion of “public charge”—to include employed individuals who receive any amount of certain means-tested benefits for even brief periods of time—is a stark departure from a more-than-century-long consensus that has limited the term to individuals who are primarily dependent on the government for long-term subsistence. There is no basis for the truly extraordinary stay that defendants seek. The fundamental purpose of a stay is to preserve the status quo, but the relief that defendants seek here would do the opposite. A stay of the district court’s order would allow defendants to immediately implement the Final Rule’s unprecedented change to the meaning of “public charge”—one that has never been applied since that statutory term first came into use in the nineteenth century. But defendants have identified no reason whatsoever for such precipitous action. Unlike in other cases, defendants have not claimed that a stay is needed for public safety, national security, or military effectiveness, let alone an emergency touching on any of these areas of concern. There are no imminent discovery obligations or statutory deadlines that defendants must meet. It is undisputed that the current public-charge framework is lawful, even

if defendants would prefer to change it. And four courts of appeals, including the Second Circuit, have agreed to expedite defendants’ appeals of various district court orders about the Final Rule and will be ready to issue decisions on the merits within only a month or two. There is thus no compelling reason for this Court to intervene now, before the lower courts can complete their expedited merits review, and disrupt the status quo by endorsing the immediate implementation of the novel Final Rule.
By contrast, granting a stay here would inject confusion and uncertainty into immigration decisions and plaintiffs’ administration of their public-benefits programs, and deter potentially millions of noncitizens residing in plaintiffs’ jurisdictions from accessing public benefits that they are legally entitled to obtain. Plaintiffs presented extensive, concrete evidence below of the harms that would follow from the Final Rule’s significant changes to the public-charge framework. Defendants presented no evidence whatsoever to rebut this showing. The radical disruption of the status quo and the serious harms that the Rule would cause to plaintiffs and the public are enough to deny defendants’ motion for a stay.
Defendants have also failed to satisfy the remaining stay factors. A stay is not warranted unless there is a reasonable probability that this Court will grant certiorari. But that inquiry is entirely premature here, when no appellate court has yet decided whether to affirm the preliminary relief issued by various district courts, and when defendants have not sought this Court’s direct review of the district court’s decision by means of a petition for certiorari before judgment. Defendants assert that this Court would grant certiorari in this case if four courts of appeals were to rule a certain way and if defendants were then to seek certiorari, but that assertion depends on rank speculation about the future actions of not only the four courts of appeals but also this Court.
2

Even if this Court were to assume that it will eventually grant certiorari in this case, defendants’ request for a stay would fail because they have not met their burden of showing that they would be likely to succeed on the merits. The Final Rule’s unprecedented redefinition of “public charge” violates the law because it vastly exceeds the long-established understanding of that term, contrary to Congress’s intent to incorporate this consensus understanding into federal immigration law. And the Rule’s novel multifactor test for assessing whether an immigrant will likely be a public charge is arbitrary and capricious for multiple reasons, including its arbitrary targeting of even temporary use of benefits and its reliance on multiple factors that have no rational connection to whether an immigrant will receive public benefits at all, let alone become primarily dependent on the government.
Finally, the scope of the preliminary relief ordered below provides no basis for a partial stay. The district court postponed the effective date of the Rule under 5 U.S.C. § 705, a statutory remedy authorized by the Administrative Procedure Act (APA) that, by its plain terms, allows district courts to delay the effect of a rule as a whole. This case thus does not require this Court to address any general question about the scope of district courts’ power to grant nationwide equitable relief, although defendants’ arguments on that score are meritless in any event. Defendants’ motion should thus be denied.
3

STATEMENT A. The Public-Charge Statute
Under the Immigration and Nationality Act (INA), noncitizens who lawfully entered the country may adjust their status to legal permanent resident (LPR) if they are “admissible.” 8 U.S.C. § 1255(a). One of the narrow categories that would render such a noncitizen inadmissible is if he is “likely at any time to become a public charge.” Id. § 1182(a)(4). DHS makes public-charge determinations principally for noncitizens who have lawfully entered the country and are thus already living here.1 Id. § 1185(d).
“Public charge” under federal immigration law is a term of art that has developed a settled meaning after more than a century of usage. “Public charge” has never included employed persons who receive modest or temporary amounts of government benefits designed to promote health or upward mobility—individuals now covered by the Final Rule. Instead, from its inception, the term “public charge” has been limited to an individual who does not work and is consequently primarily dependent on the government for long-term subsistence.
This understanding of “public charge” appeared as early as nineteenth-century state laws that required ship captains to execute bonds to support infirm passengers “likely to become permanently a public charge.” Ch. 195, § 3, 1847 N.Y. Laws 182, 184; see Ch. 238,
1 The Immigration and Naturalization Service (INS), a component of the United States Department of Justice (DOJ), made public-charge determinations for applicants living in the country until March 2003, when its authority was delegated to the USCIS, a component of DHS. Two other agencies also apply the public charge statute. Individuals seeking to obtain an immigrant visa must satisfy the Department of State’s separate public-charge inquiry, which is conducted abroad by consular officers. 8 U.S.C. §§ 1182(a)(4), 1201(a). And DOJ is authorized to conduct another public-charge inquiry to deport an already admitted LPR who actually becomes a “public charge” within five years of entry from causes that did not arise after entry. Id. § 1227(a)(5).
4

§ 21, 1837 Mass. Acts 270-71. In these statutes, “public charge” referred to “persons utterly unable to maintain themselves,” Friedrich Kapp, Immigration, and the Commissioners of Emigration of the State of New York 87 (1870). It did not refer to “able-bodied and industrious” immigrants who merely lacked wealth or might receive modest assistance. See Report of the Commissioners of Alien Passengers and Foreign Paupers, Mass. S. Doc. No. 14, at 17 (1852). States allowed such employable immigrants to land without any bond, and instead collected a per-immigrant tax that was often used in part to help immigrants find transportation and work. See Annual Reports of the Commissioners of Emigration of the State of New York 135 (1861).
In 1882, Congress incorporated this narrow meaning of “public charge” into federal law. Following prior state laws, Congress prohibited any “lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge” from entering the country. Immigration Act of 1882, ch. 376, § 2, 22 Stat. 214, 214 (1882). “Public charge” thus adhered to its already settled meaning to refer to the fraction of immigrants likely to “become life-long dependents on our public charities.” 13 Cong. Rec. 5109 (1882) (Rep. Van Voorhis). Congress did not exclude immigrants who received any public benefits. Rather, in the same statute that incorporated the “public charge” concept into federal law, Congress also directed the collection of a per-person tax “for the support and relief” of immigrants who “may fall into distress or need public aid.” 1882 Act §§ 1-2, 22 Stat. at 214. Like the prior state taxes, these funds were used in part “for protecting and caring for” immigrants “until they can proceed to other places or obtain occupation for their support.” See 13 Cong. Rec. 5106 (1882) (Rep. Reagan).
5

From 1891 to 1951, Congress reenacted public-charge provisions substantially similar to the one in the 1882 Act.2 Throughout this time, the scope of “public charge” remained limited to individuals likely to rely almost entirely on government support to survive. See Gegiow v. Uhl, 239 U.S. 3, 10 (1915); Howe v. United States, 247 F. 292 (2d Cir. 1917). “Public charge” did not include an immigrant “able to earn her own living,” Ex parte Mitchell, 256 F. 229, 230 (N.D.N.Y. 1919), even if he received minor public assistance.
Against this background of nearly a century of statutory and regulatory usage of the term “public charge,” Congress enacted the INA’s public-charge provision in 1952. Congress declined to enact a new definition of “public charge,” thus incorporating that term’s wellestablished meaning into the INA. Federal immigration authorities adhered to this understanding, repeatedly confirming that “public charge” refers narrowly to immigrants who are “incapable of earning a livelihood” to sustain themselves, In re Harutunian, 14 I. & N. Dec. 583, 589 (B.I.A. 1974), and does not include employable immigrants who might receive modest amounts of public assistance, see In re Martinez-Lopez, 10 I. & N. Dec. 409, 421-22 (A.G. 1962) (“public charge” does not include “healthy person” in “prime of life”); In re Perez, 15 I. & N. Dec. 136, 137 (B.I.A. 1974).
In 1996, Congress amended the public charge statute to require DHS to consider certain factors in making public-charge determinations, specifically, an immigrant’s age; health; family status; financial resources; and “education and skills.” Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, 3009-674.
2 See Immigration Act of 1891, ch. 551, § 1, 26 Stat. 1084, 1084; Immigration Act of 1907, ch. 1134, § 2, 34 Stat. 898, 898-99; Immigration Act of 1917, ch. 29 § 3, 39 Stat. 874, 876.
6

But Congress did not alter the established meaning of “public charge.” To the contrary,
Congress rejected a proposal that would have transformed the meaning of “public charge” in
the deportation context to mean an immigrant’s receipt of any amount of public benefits within
a short time period. H.R. Rep. No. 104-828, at 138, 241 (1996) (Conf. Rep.).
Separately, in 1996, Congress enacted a complex set of statutory provisions directed at
the use of specific public benefits by specific categories of noncitizens after they had already
entered the country or been admitted as LPRs. To satisfy a declared “national policy with
respect to welfare and immigration” under which “aliens within the Nation’s borders not depend
on public resources to meet their needs,” 8 U.S.C. § 1601(2)(A), the 1996 provisions and
subsequent amendments generally limited LPRs from using Medicaid and Supplemental Nutrition
Assistance Program (SNAP) benefits until they had lived here for five years. Id. §§ 1612(a)(2)(L),
1613(a). Additional limits on Medicaid and SNAP use apply to LPRs who have sponsors, until
the sponsored immigrant has worked a certain amount or become a citizen. See id. §§ 1183a(a)(2),
1631(b). (No similar restrictions ultimately applied to LPRs’ use of Section 8 housing benefits,
many other federal means-tested benefits, or a wide array of federal public benefits that are not means tested.3 See id. §§ 1611(a), (c); 1641(b)(1).) Congress explained that these limitations on
3 Congress did not define the term “federal means-tested public benefit” for purposes of its benefits-use provisions. See 8 U.S.C. § 1613(a); 8 C.F.R. § 213a.1. The benefit-administering agencies have determined that the only federal means-tested public benefits for purposes of the Welfare Reform Act are Supplemental Security Income, Temporary Assistance for Needy Families, Medicaid, and SNAP. PRWORA: Federal Means-Tested Public Benefits Paid by the Social Security Administration, 62 Fed. Reg. 45,284, 45,284-85 (Aug. 26, 1997); PRWORA: Interpretation of “Federal Means-Tested Public Benefit,” 62 Fed. Reg. 45,256, 42,257 (Aug. 26, 1997); Food Stamp Program: Noncitizen Eligibility, and Certification Provisions, 65 Fed. Reg. 10,856, 10,876 (Feb. 29, 2000). Certain statutory limits also apply to social services block grants. 8 U.S.C. § 1612(3)(b)(3)(B).
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accessing benefits promoted “self-sufficiency” and prevented “the availability of public benefits” from incentivizing immigration. Id. § 1601(3), (6). Again, however, Congress did not amend the definition of “public charge” in the 1996 amendments or thereafter.
In 1999, DHS’s predecessor agency (the Immigration and Naturalization Service) issued guidance confirming that the 1996 amendments had not altered the long-settled meaning of “public charge.” Consistent with over a century of usage, the guidance explained that “public charge” refers only to individuals “primarily dependent on the government for subsistence,” as evidenced by publicly funded long-term institutionalization or cash assistance for income maintenance. Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689 (Mar. 26, 1999). The Guidance prohibited consideration of supplemental benefits—such as food stamps, Medicaid, and Section 8 housing—in rendering public-charge determinations because, as the benefit-granting agencies had explained, such benefits are often available to employed individuals “with incomes far above the poverty level” and thus reflect Congress’s “broad public policy decisions” about improving public health and upward mobility. Id. at 28,692.
B. The Final Rule In August 2019, DHS issued the Final Rule challenged here. The Rule radically alters
the meaning of “public charge” to include, for the first time, an immigrant likely to receive any amount of “public benefit[s],” defined to include certain supplemental benefits such as Section 8 housing assistance, Medicaid, and SNAP benefits. 84 Fed. Reg. at 41,501. The Rule deems an immigrant to be a “public charge” based on short-term receipt of such benefits: a DHS official need merely believe that an immigrant “will receive[ ] one or more public
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benefits” during “more than 12 months in the aggregate within any 36-month period” during his life. Id. The Rule separately considers the time period for each benefit an immigrant may receive, so that, for example, “receipt of two benefits in one month counts as two months.” Id.
The Rule sets forth weighted factors that DHS officials must consider to predict whether an applicant is likely to receive an aggregate of 12 months of benefits within any 36-month period during his entire life. Actual receipt of enumerated benefits is a heavily weighted factor counted against an applicant. Id. at 41,504. The Rule also lists several other negative factors that support a “public charge” finding, including, low credit scores; lack of English-language skills; merely applying for public benefits; or having a medical condition that requires extensive treatment or interferes with work or school, regardless of whether reasonable accommodations enable the applicant to work or learn.
Heavily weighted positive factors include having household income or assets of at least 250% of the federal poverty guidelines, and having private health insurance not funded with tax subsidies under the Patient Protection and Affordable Care Act (ACA). Id. at 41,502-04.
C. Procedural Background Plaintiffs challenged the Final Rule under the APA, alleging, among other things, that
the Rule was contrary to law and arbitrary and capricious.
1. The district court’s order of preliminary relief In October 2019, the district court granted plaintiffs’ motion to stay the Rule’s effective date pending judicial review, see 5 U.S.C. § 705, and for a preliminary injunction. The court concluded that plaintiffs and the public will suffer concrete, irreparable harm absent
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preliminary relief; by contrast, the court found that defendants will not suffer any irreparable harm from maintaining the long-existing status quo for a short time. (App. 19a-21a.) On the merits, the court concluded that the Final Rule’s transformation of “public charge” to include even temporary receipt of any amounts of supplemental benefits was likely contrary to the INA, and arbitrary and capricious. (App. 11a-18a.)
2. Defendants’ expedited appeal On October 30, defendants filed an interlocutory appeal from the order of preliminary relief. The Second Circuit granted defendants’ request to expedite the appeal and set the accelerated briefing schedule that defendants had proposed: defendants filed their opening brief on December 13; plaintiffs’ opposition brief is due on January 24; and defendants’ reply brief is due on February 14. The Second Circuit has proposed holding oral argument on defendants’ appeal during the week of March 2. Notification, No. 19-3591 (Jan. 8, 2020), ECF No. 164.
3. The lower courts’ denials of a stay pending appeal The district court denied defendants’ motion for a stay pending appeal. The court concluded that defendants did not have “any rational justification or urgent need” to upend the status quo that had governed public-charge determinations for at least two decades. (App. 56a.) By contrast, the court explained, a stay would cause immediate and irreparable injuries to plaintiffs and the public, including by injecting uncertainty into LPR-status applications and deterring “law-abiding immigrants from receiving available benefits to which they are legally
10

entitled.” (App. 56a.) Moreover, the court concluded, defendants did not have a strong likelihood of success on appeal. (App. 55a-56a.)
The Second Circuit subsequently denied defendants’ request to that court for a stay pending appeal or a partial stay limiting the scope of the district court’s preliminary relief. The court emphasized that the extraordinary relief of a stay was not warranted given that defendants’ appeal had been expedited and oral argument “will be scheduled promptly” after February 14. (App. 65a.) On defendants’ objections to the scope of the district court’s preliminary relief, the Second Circuit observed that, “[a]s always, the merits panel . . . has full authority to consider the scope of the existing injunction.” (App. 65a.)
4. Pending appeals in other courts of appeals Different plaintiffs separately challenged the Rule in four other district courts. Each of those courts issued orders preliminarily postponing the effective date of the Rule or preliminarily enjoining its implementation. See Casa de Maryland, Inc. v. Trump, 2019 WL 5190689 (D. Md. Oct. 14, 2019); Cook County v. McAleenan, 2019 WL 5110267 (N.D. Ill. Oct. 14, 2019); Washington v. DHS, 2019 WL 5100717 (E.D. Wa. Oct. 11, 2019); City & County of San Francisco v. USCIS, 408 F. Supp. 3d 1057 (N.D. Cal. 2019). Defendants have appealed these rulings to the Fourth, Seventh, and Ninth Circuits, respectively. Defendants sought to stay each district court order pending appeal. On December 23, the Seventh Circuit declined to issue a stay. Order, Cook County v. Wolf, No. 19-3169, ECF No. 41. Defendants have not sought from this Court any stay of the Illinois district court’s order pending the Seventh Circuit’s review of the merits of defendants’ appeal.
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The Fourth Circuit, over a dissent, stayed the order issued by the Maryland district court, and the Ninth Circuit, over a dissent, stayed the orders issued by the district courts in California and Washington. Order, Casa de Maryland, Inc. v. Trump, No. 19-2222 (Dec. 9, 2019), ECF No. 21; Order, City & County of San Francisco v. USCIS, No. 19-17213 (Dec. 5, 2020), ECF No. 27.
No court of appeals has yet issued any decision on the merits of any of defendants’ appeals. Each court is proceeding on an accelerated briefing schedule, with briefing to be completed in all cases by February 14. The Seventh Circuit has scheduled oral argument on February 26. Argument Notice, No. 19-3169 (Jan. 9, 2020), ECF No. 44. The Second Circuit, as noted, has proposed oral argument for the week of March 2. And the Fourth Circuit has tentatively scheduled oral argument for the week of March 17. Tentative Calendar Order, No. 19-2222 (Dec. 19, 2019), ECF No. 26. As of the date of this brief, the Ninth Circuit had not yet scheduled oral argument.
ARGUMENT THE COURT SHOULD DENY DEFENDANTS’ REQUEST FOR A STAY PENDING THE SECOND CIRCUIT’S IMMINENT REVIEW OF DEFENDANTS’ APPEAL Because a stay intrudes on “the ordinary processes of administration and judicial review,” Nken v. Holder, 556 U.S. 418, 427 (2009) (quotation marks omitted), defendants bear the “heavy burden” of justifying such “extraordinary” and disruptive relief, see Whalen v. Roe, 423 U.S. 1313, 1316 (1975) (Marshall, J., in chambers). Defendants have “an especially heavy burden” here given the truly exceptional nature of their request: they ask this Court to intervene now to stay the district court’s order of preliminary relief, even though their already expedited appeal from that order “is pending before” the Second Circuit; three other courts of appeals
12

are considering defendants’ expedited appeals from similar orders issued by other district courts; and all four of the courts of appeals will likely issue decisions on the merits in a matter of months. Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319, 1320 (1994) (Rehnquist, C.J., in chambers).
There is no basis for such extraordinary intervention by this Court. Defendants have not even attempted to identify any urgent need to radically disrupt the status quo that has lawfully governed public-charge determinations for over a century. Instead, they rely on nothing more than their bare desire to implement a new policy in this area. But that interest— which is present in every case where the government has adopted a new policy—is not enough for this Court to exercise its extraordinary powers and effectively endorse a controversial expansion of “public charge” before the lower courts can fully consider defendants’ expedited appeals. By contrast, plaintiffs and the public will suffer severe and irreparable harms if this Court were to issue a stay that would allow the Final Rule to come into effect immediately. The balance of the equities alone thus requires the denial of a stay. See Trump v. International Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam).
Given the preliminary posture of this case, and the three other cases currently pending in the courts of appeals, there is also no reasonable basis to assess whether this Court will ultimately grant certiorari. See Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). Indeed, defendants have not sought certiorari here, and there is no plausible basis to guess how the Second Circuit will rule, whether the issues raised in that ruling (which may include threshold issues, the merits, or the scope of relief) will warrant further review, or whether the Second Circuit’s ruling will conflict with the decision of any other court of appeals. Finally, even if it were possible to
13

determine whether certiorari would eventually be granted, defendants have failed to meet their burden of showing that they are likely to succeed on the merits of such an appeal.
A. The Balance of Hardships and the Public Interest Weigh Decisively Against Defendants’ Request for a Stay That Would Upend the Status Quo for No Good Reason. 1. Defendants have identified no urgent reason for a stay that would disrupt rather than preserve the status quo. The fundamental purpose of a stay is to preserve the status quo. See Nken, 556 U.S. at
429. But the stay requested here would do the opposite by allowing the immediate implementation of a Final Rule that would radically disrupt over a century of settled immigration policy and public-benefits programs. Faced with that disruption, defendants have identified no compelling reason, let alone a time-sensitive one, to implement the Rule immediately: not public safety, not national security, and not foreign policy. Defendants instead claim that they are entitled to a stay merely because they want to implement their chosen policy. But that interest cannot by itself justify this Court’s extraordinary intervention—particularly when defendants have conceded that the status quo public-charge framework is both lawful and administrable. The Court should deny the motion on these grounds alone.
As the district court explained, the Rule will upend the status quo that has governed public-charge determinations for over a century by adopting a new definition of “public charge” and a novel multifactor methodology. (App. 21a, 62a.) Unlike in other cases in which the federal government has recently sought stays from this Court, defendants here provide no reason to effect these radical changes immediately, before the Second Circuit and three other courts of appeals can adjudicate their expedited appeals. For example, in contrast to other recent
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immigration matters, defendants do not claim that a stay is needed to allow the federal government to address any pressing concerns related to national security, foreign relations, or law enforcement. See Application for a Stay Pending Appeal 4, Barr v. East Bay Sanctuary Covenant, No. 19A230 (U.S. Aug. 26, 2019) (“crisis at the southern border”); Application for a Stay Pending Appeal 2, Trump v. Sierra Club, No. 19A60 (U.S. July 12, 2019) (“combatting the enormous flow of illegal narcotics”); Application for a Stay Pending Appeal 25, Trump v. Hawaii, No. 17A550 (U.S. Nov. 20, 2017) (“foreign-policy, national-security, and counterterrorism objectives”). Nor do defendants identify any other urgent concern that might warrant precipitous action, such as “a risk to military effectiveness and lethality,” Application for a Stay in the Alternative to a Writ of Certiorari Before Judgment 2, Trump v. Karnoski, No. 18A625 (U.S. Dec. 13, 2018); or any practical or statutory deadlines, see Application, Sierra Club, supra, at 35-38 (contracting and funding deadlines).
Defendants’ silence is unsurprising because no urgent need for a stay exists. There is no dispute that the status quo public-charge framework is lawful and administrable. There is no deadline, let alone an important or imminent one, that DHS might fail to meet absent a stay. And DHS displayed no urgency in promulgating this Final Rule, taking over two years under the current administration to finalize it. See 84 Fed. Reg. at 41,292; cf. Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1317-18 (1983) (Blackmun, J., in chambers) (stay applicants’ “failure to act with greater dispatch tends to blunt [their] claim of urgency”). It thus beggars belief that defendants (or the public) would be harmed—let alone irreparably so—by extending for the few months of defendants’ underlying appeal the public-charge framework that has been in place for over a century since Congress’s initial enactment; for two decades since the 1999 Guidance; and for the first three years of the current administration.
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Without any urgent need to support their motion, defendants claim that they are nonetheless entitled to a stay solely because of their desire to “implement[] [their] chosen policy” (Mot. 4). But that interest cannot plausibly justify a stay because it will be present in every case where the government seeks to implement a new policy. Granting a stay under these circumstances would transform this Court’s intervention in pending litigation from a “rare and exceptional” occurrence into a routine one. See Fargo Women’s Health Org. v. Schafer, 507 U.S. 1013, 1014 (1993) (O’Connor, J., concurring).
Nor is it sufficient that, under the status quo, defendants will grant LPR status to some immigrants who would otherwise be excluded by the Final Rule. (Mot. 4.) Because defendants are unlikely to succeed on the merits, the public interest weighs against allowing them to implement a policy of dubious legality. See League of Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (government lacks any cognizable “interest in the perpetuation of unlawful agency action”). Moreover, although DHS may not revoke LPR status once granted (Mot. 5), DOJ retains authority to deport a LPR who actually becomes a “public charge” within five years of admission from causes that did not arise after admission. Id. § 1227(a)(5). The lack of any need to implement the Rule now warrants denial of a stay. See International Refugee, 137 S. Ct. at 2087; Ruckelshaus, 463 U.S. at 1317.
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2. Disrupting the status quo would wreak havoc on public-charge determinations and public-benefits administration and seriously injure plaintiffs and the public.
By contrast, allowing the Rule to take effect immediately will inject severe confusion and uncertainty into immigration proceedings and public-benefits administration, cause widespread disenrollment from public benefits, undermine the healthcare systems operated by plaintiffs, and harm public health. Such chaos is especially unwarranted here because the courts of appeals and this Court may ultimately agree that the Final Rule must be vacated as either unlawful or arbitrary and capricious—thus subjecting the public-charge framework to massive, short-term fluctuations for no reason at all. The balance of the equities thus tilts decisively against a stay.
Implementing the Rule’s radical new definition of public charge and its novel and complex multifactor test will upset the administration of adjustment-of-status decisions issued by both DHS officers and immigration courts during removal proceedings. In place of familiar factors that have dictated public-charge determinations for over a century—such as an applicant’s likely ability to work, use of long-term institutional care, or receipt of income maintenance—the Rule imposes a welter of new and differently weighted factors without providing any concrete guidance on how DHS officers will actually evaluate many of these factors. For example, the Rule requires officers to weigh negatively an applicant’s low English proficiency, but provides no parameters for how an officer should evaluate applicants’ language skills or determine whether a particular skill-level warrants a positive or negative mark. The Rule is similarly unclear about how an officer should determine the weight to give to each particular factor, or about how an officer should ultimately determine whether positive factors outweigh negative ones. Indeed, in the district court, defendants were unable to explain
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“how the new framework would operate” in practice or “to provide an example of the ‘typical person’ that Defendants could predict is going to receive 12 months of benefits in a 36-month period.” (App. 16a.) The confusion and uncertainty that will inevitably follow from implementing this untested public-charge framework counsels strongly against allowing defendants to implement that framework immediately, particularly when defendants have not identified any problems from continuing the status quo pending appeal.
A stay would also disrupt plaintiffs’ administration of their public-benefit programs. As extensive and unrebutted evidence here established, immediate implementation of the Rule would force plaintiffs to overhaul their systems for determining benefits eligibility and enrollment. If the district court’s order were ultimately affirmed, plaintiffs would then be forced to undo all of these major changes. For example, Connecticut currently automatically reenrolls Medicaid beneficiaries each year and automatically confers eligibility for SNAP or Medicaid if an applicant receives other benefits; but because such processes would lead to severe negative consequences for applicants under the Rule, Connecticut would be forced to alter its systems if a stay were to allow the Final Rule to immediately come into effect. (Addendum (“Add.”) 49-50.) Similarly, a stay would force New York’s Special Supplemental Nutrition Program for Women, Infants, and Children to conduct costly and time-consuming eligibility verification procedures rather than rely on existing streamlined processes that leverage applicants’ existing SNAP and Medicaid eligibility. (Add. 180-183.) The imposition of such substantial and irreparable harms on public-benefits administrators is entirely unwarranted when defendants have offered no compelling reason to support the immediate implementation of the Final Rule.
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Allowing the Rule to take effect now will also irreparably harm plaintiffs and the public in other ways. As the district court found and DHS acknowledged, the Rule will cause many individuals and their families to forgo supplemental benefits—to which they are legally entitled—to avoid a public-charge finding under the Rule’s radical new framework. See 84 Fed. Reg. at 41,300, 41,307. These reductions in benefits use will “reduce[ ] revenues for healthcare providers participating in Medicaid,” Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114, 51,118 (Oct. 10, 2018), including public healthcare facilities operated by plaintiffs. (Add. 47, 54, 102-111; see Add. 57-58 (NYC Health + Hospitals expects to lose $42 million in Medicaid revenue in first year of Rule’s implementation).) Although defendants claim, without any support, that these losses will be offset by plaintiffs spending less to fund Medicaid (Mot. 17), this argument ignores the fact that plaintiffs’ healthcare costs will increase as newly uninsured patients avoid preventative care, suffer worse health outcomes, and seek more costly care from public healthcare systems. (Add. 58 (NYC Health + Hospitals expects losses to rise to at least $121 million given increased costs); Add. 103-111, 165-167.)
Public health and economic welfare will be further harmed in plaintiffs’ jurisdictions as the Rule causes residents to avoid benefits. For example, as defendants do not contest, families who forgo Section 8 benefits will need to leave their homes, live in more dangerous neighborhoods, and suffer harms to their health, education, and employment. (Add. 15-29, 152-155.) And lower SNAP usage means less nutritious food for families, lower revenues for grocery stores, and economic losses for plaintiffs. (Add. 127-132.)
If the Rule comes into effect immediately, the injuries to plaintiffs and the public will be disruptive, irreparable, and long-lasting. For example, families that disenroll from Section 8 housing cannot easily reenter the program because the waiting lists are long. (Add. 157-158.)
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Immigrants deemed “public charges” under the Rule may be forced to leave the country or face removal, 8 U.S.C. § 1227(a)(1)(A); may be subject to multi-year bars to reentering, id. § 1182(a)(9)(A)-(B); and will likely lose their path to LPR status or citizenship.
The disruption, confusion, and harm from implementing the Rule immediately weigh strongly against a stay. In urging otherwise, defendants make the conclusory assertion that all of these harms are “speculative.” (Mot. 40; see id. at 17-18.) But “[i]t is disingenuous for DHS to claim” that the harms “are too attenuated…when it acknowledged these costs in its own rulemaking process.” San Francisco, 944 F.3d at 787. Indeed, defendants failed to present any evidence below to contradict plaintiffs’ extensive factual record demonstrating the harmful effects of the Rule on plaintiffs and the public.
Rather than grapple meaningfully with the largely uncontested harms that will occur (see Mot. 17-18, 39-40), defendants make the conclusory and astounding assertion that “whatever” harms plaintiffs and the public “will suffer” are automatically outweighed by defendants’ mere preference to implement the Rule now (id. at 40). If such empty treatment of “the relative harms to applicant and respondent, as well as the interests of the public at large,” International Refugee, 137 S. Ct. at 2087 (quotation marks omitted), were enough to obtain a stay here, then applicants, or at least the federal government, may expect to obtain the extraordinary intervention of a stay from this Court in nearly any case. Accordingly, the Court should deny a stay.
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B. There Is No Basis to Assess Whether This Court Will Grant Certiorari Given That No Petition for Certiorari Has Yet Been Filed and No Court of Appeals Has Yet Ruled on the Merits of the Orders Below. The truly extraordinary nature of defendants’ stay motion is further highlighted by their
request for this Court’s premature intervention in ongoing appellate proceedings, before there can be any plausible basis to discern whether this Court’s review will be warranted.
Defendants ask this Court to stay the district court’s order of preliminary relief when the Second Circuit is currently reviewing that order on an expedited basis; when the Fourth, Seventh, and Ninth Circuits are reviewing similar orders issued by four other district courts; and when decisions on the merits from these courts will likely be issued in a matter of months. Until these courts issue their decisions, there is no reasonable basis to predict how they will rule, whether their decisions will conflict with each other, or whether any issues they address (whether on threshold issues like standing, on the merits, or on the scope of relief) might warrant this Court’s review. Defendants thus rely on nothing beyond rank speculation in contending that there is a “reasonable probability” that four Justices will grant certiorari to review the Second Circuit’s yet-to-be-issued decision. See Hollingsworth, 558 U.S. at 190.
Given the preliminary posture of this case and the other proceedings involving the Final Rule, defendants are simply wrong to contend (Mot. 15-16) that a decision from the Second Circuit upholding the district court’s order will “conflict” with contrary decisions from the Fourth or Ninth Circuits. The Fourth and Ninth Circuits have not issued any such “conflicting” decisions because they have not yet had the opportunity to decide whether to uphold the preliminary relief issued by the other district courts. Instead, they have issued only interim stay decisions. But such decisions based on truncated briefing do not dictate, let alone necessarily predict, how the courts will ultimately rule after full briefing, oral argument, and deliberation.
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The speculative nature of defendants’ predictions is highlighted by the fact that the interim decisions of the Fourth, Seventh, and Ninth Circuits were each issued over a dissent. Given that this Court is “a court of review, not of first view,” Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144, 1151 (2017) (quotation marks omitted), and given that each of the courts of appeals considering challenges to the Final Rule will likely issue decisions within the next few months, the circumstances here support allowing the issues to percolate in the lower courts.
The preliminary posture of this case also belies defendants’ contention (Mot. 16-17) that this Court must intervene now to resolve the scope of relief that district courts may order. In denying defendants’ stay motion, the Second Circuit made clear that “the merits panel, as soon as constituted, has full authority to consider the scope of the existing injunction.” (App. 65a.) There is no reason for this Court to decide this question now when the Second Circuit has expressly flagged that issue for resolution and is moving expeditiously to complete briefing and hold argument on that question.
C. There Is Not a Fair Prospect That This Court Would Conclude That the District Court Abused Its Discretion in Finding That the Rule is Likely Contrary to Law and Arbitrary and Capricious. 1. The Rule is likely contrary to law. The district court did not abuse its discretion in finding that the Final Rule’s unprecedented
definition of “public charge” exceeds the well-established understanding of that term as incorporated into the INA. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-44 (1984).
a. In the district court, defendants acknowledged that the permissible scope of “public charge” turns on that term’s historical meaning. (Mem. in Opp. to Mot. for Prelim. Inj.
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13-22 (S.D.N.Y. Sept. 27, 2019), ECF No. 99.) But as the district court properly concluded (App. 13a), the Final Rule’s definition of “public charge” represents a sharp and untenable break from that historical meaning and thus exceeds “the bounds of reasonable interpretation.” Utility Air Regulatory Grp. v. EPA, 573 U.S. 302, 321 (2014).
The Rule now defines “public charge” to include employed immigrants who might “receive only hundreds of dollars, or less, in public benefits.” See 84 Fed. Reg. at 41,360-61. The Rule also considers disqualifying an applicant’s possible receipt of certain supplemental benefits that do not provide long-term subsistence, but instead boost public health and economic mobility. See infra, at 26-28. And the Rule’s aggregate counting system, which counts each benefit used in a single month as a separate month for calculating the duration of benefits use, means that noncitizens will be considered “public charges” based on the likelihood of using multiple benefits temporarily, even for just a few months, to address an acute period of financial strain or emergency.
These changes represent a radical and unprecedented departure from what had previously been a well-settled understanding of “public charge.” When Congress originally enacted the public-charge provision in 1882, it adopted the prevailing understanding—reflected in early state laws—that “public charge” was limited to “persons utterly unable to maintain themselves.” Kapp, supra, at 87. See supra, at 4-5. As precedents and contemporaneous sources from this era demonstrate, “public charge” meant individuals “physically and mentally incapacitated for labor,” Kapp, supra, at 91, not hard-working individuals who might receive minor amounts of assistance. See, e.g., City of Boston v. Capen, 61 Mass. 116, 124 (1851) (Massachusetts statute applied to individuals “without means of support”); American Dictionary of the English Language (N. Webster 1828 online ed.), at https://archive.org/download/
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americandictiona01websrich/americandictiona01websrich.pdf (defining the noun “charge” as a “person or thing committed to another[’]s custody, care or management”) (entry 6). Consistent with this understanding, the 1882 statute excluded the few immigrants unable “to support themselves by honest industry and labor,” 13 Cong. Rec. 5112 (Rep. Van Voorhis), while allowing employable immigrants to enter the country subject to a per-person tax used to assist immigrants until they could “obtain occupation for their support,” id. at 5106 (Rep. Reagan).
This established meaning of “public charge” carried forward through the early twentieth century. As courts and immigration agencies repeatedly made clear, “public charge” is a term of art in immigration law that has always meant individuals unlikely “to earn a living.” Wallis v. United States ex rel, Mannara, 273 F. 509, 509 (2d Cir. 1921). It has never been understood to include employed or employable immigrants who might receive some modicum of public benefits. See Gegiow, 239 U.S. at 10 (“public charge” means persons with “permanent personal objections” preventing them from employment); Howe v. United States, 247 F. 292, 294 (2d Cir. 1917) (“We are convinced that Congress meant the act to exclude persons who were likely to become occupants of almshouses for want of means with which to support themselves in the future.”).
Congress incorporated this established understanding of “public charge” when it enacted the INA’s public-charge provision in 1952, without redefining the term. See McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 342 (1991); Lorillard v. Pons, 435 U.S. 575, 580 (1978) (“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change.”). Indeed, a Senate report about the INA, on which defendants rely (Mot. 25-26), confirms that Congress understood the extensive history of the public-charge provision and the precedents interpreting
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it, and retained the preexisting scope of “public charge” rather than expand it. See S. Rep. No. 1515, at 45-53, 335-50 (1950).
b. Tellingly, defendants’ motion abandons most of the historical sources they referenced below. And the Ninth Circuit’s stay order acknowledged the extensive history establishing that “public charge” has a commonly understood meaning of persons “unwilling or unable to care for themselves.” San Francisco, 944 F.3d at 793.
The few sources cited by defendants and the Ninth Circuit do not support their alternative reading of the historical meaning of “public charge.” For example, defendants cite a sentence from a treatise and two dictionaries to argue that “public charge” includes anybody who imposes any “money charge” or “expense” on “‘the public for support and care.’” (Mot. 24-25.) But that sentence is drawn from a district court case that involved a noncitizen who was institutionalized because he was “unable to care for himself” and would have “starve[d] to death within a short time” absent institutional care. Ex parte Kichmiriantz, 283 F. 697, 698 (N.D. Ca. 1922); see, e.g., Black’s Law Dictionary (3d ed. 1933) (citing Kichmiriantz, 283 F. at 698). And the case held that even this noncitizen could not be deemed a public charge because the “money charge” for his institutional care had been paid for by his relatives rather than the public. Kichmiriantz, 283 F. at 698.
Defendants and the Ninth Circuit’s stay order also badly misread a decision of the Board of Immigration Appeals, In re B-, 3 I. & N. Dec. 323 (B.I.A. 1948), as allowing alreadyadmitted LPRs to be deported for failure to repay any public benefit they receive. (See Mot. 25.) In that decision, the BIA actually narrowed the public-charge provision applicable to admitted LPRs by requiring that, to be deportable, an LPR must both have become a “public charge”—i.e., substantially reliant on government funds to survive—and actually failed to
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repay those funds when demanded. See In re B-, 3 I. & N. Dec. at 325 (immigrant institutionalized for eight years). This additional failure-to-repay requirement was thus a further protection against deportation of already-admitted LPRs, see In re Harutunian, 14 I. & N. Dec. at 588-89, not an expansion of the meaning of “public charge.”4
c. Defendants’ remaining attempts to support their sweeping new definition of “public charge” are equally unavailing.
First, echoing the Ninth Circuit’s flawed reasoning, defendants contend (Mot. 20) that the public-charge statute confers discretion on DHS to determine the definition of “public charge” by rendering inadmissible “[a]ny alien who . . . in the opinion of [DHS] . . . is likely at any time to become a public charge,” 8 U.S.C. § 1182(a)(4)(A). But discretion to determine whether “[a]ny alien” meets the statutory standard in a particular case is not the same as discretion to redefine the statutory standard itself. And even if there were some play in the joints in applying the historical meaning of “public charge” to modern benefits programs (see Mot. 24-25)—for instance, identifying which current programs serve the truly destitute—that flexibility would not authorize DHS to simply abandon the historical understanding of “public charge” altogether, as the Final Rule does. See Utility Air, 573 U.S. at 321-24.
Here, the Final Rule goes far “beyond the meaning that the statute can bear,” MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218, 229 (1994), by adopting the unprecedented view that an individual can become a “public charge” simply by receiving
4 Contrary to defendants’ contention (Mot. 25 n.4), the BIA did not indicate that the institutionalized LPR in In re B- could have been deported for failure to repay incidental expenses. The BIA noted that the LPR was required to pay for her own minor expenses to emphasize that, by contrast, the government could not seek reimbursement for her publicly funded institutional care and therefore could not deport her. Id. at 327.
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minor and temporary amounts of certain supplemental benefits. Contrary to the unsupported assumptions of defendants and the Ninth Circuit, the supplemental benefits targeted by the Rule do not serve only the truly destitute who might plausibly be “public charges” under the established meaning of the INA. Rather, as DHS’s predecessor and the federal agencies that actually administer these benefits made clear in the 1999 Guidance, Congress made these programs available as well to many employed individuals who have “incomes far above the poverty level”—not to support their subsistence, but rather to further “broad public policy decisions” about improving public health, nutrition, and economic opportunities, 64 Fed. Reg. at 28,692. For example, in plaintiffs’ jurisdictions, more than 60% of adult Medicaid recipients are working;5 in New York City, recipients of Section 8 benefits may retain those benefits while earning up to $85,350 annually (Add. 6); and in 2011, 44% of all SNAP participants lived in households with earnings.6 An individual may be “fully capable of supporting herself without government assistance but elect[] to accept” a supplemental benefit “simply because she is entitled” to use it to obtain more nutritious food, safer housing, or better healthcare. (App. 15a.)
The supplemental benefits targeted by the Rule are a far cry from almshouses, institutional care, or income-maintenance programs—programs that are designed to serve destitute individuals who are “extremely unlikely” to meet their “basic subsistence requirements” without relying
5 Kaiser Family Foundation, Medicaid in Connecticut (Oct. 2019), at http://files.kff.org/ attachment/fact-sheet-medicaid-state-CT (67% of adult Medicaid enrollees work); Kaiser Family Foundation, Medicaid in Vermont (Oct. 2019), at http://files.kff.org/attachment/factsheet-medicaid-state-VT (65%); Kaiser Family Foundation, Medicaid in New York (Oct. 2019), at http://files.kff.org/attachment/fact-sheet-medicaid-state-NY (61%).
6 U.S. Dep’t of Agriculture, Building a Healthy America: A Profile of SNAP 1 (2012). 27

primarily on the government in the long term. Inadmissibility and Deportability on Public Charge Grounds, 64 Fed. Reg. 28,676, 28,678 (May 26, 1999); see id. (long-term care institutions provide all subsistence needs); id. at 28,687 (Supplemental Security Income protects “from complete impoverishment”). The Rule’s inclusion of these supplemental benefits thus stretches “public charge” far past the breaking point of reasonable interpretation.
Second, defendants misplace their reliance on policy statements in the 1996 Welfare Reform Act and related provisions addressing noncitizens’ use of public benefits after they have already entered the country or been admitted as LPRs. Defendants cite the Welfare Reform Act’s goals of furthering “[s]elf-sufficiency” in “immigration policy” and preventing “the availability of public benefits” from incentivizing immigration. 8 U.S.C. § 1601. But Congress effectuated those goals in the 1996 Act by limiting immigrants’ use of specific benefits in particular ways, such as by imposing a waiting period for eligibility for alreadyadmitted LPRs and denying benefits altogether to undocumented immigrants. The same Congress pointedly did not pursue these “self-sufficiency” goals through amending the threshold public-charge provision. To the contrary, Congress in 1996 affirmatively rejected a proposal to transform the meaning of “public charge” in the deportation context to mean an immigrant’s receipt of any amount of public benefits within a short time period. H.R. Rep. No. 104-828, at 138, 241. And in 2013, Congress again rejected an attempt to make a similar change to the meaning of “public charge.” See S. Rep. No. 113-40, at 42 (2013) (Judiciary Committee report noting that senators opposing amendment cited “strict benefit restrictions and requirements.”). There is thus no plausible basis to import the Welfare Reform Act’s “selfsufficiency” goals into the public-charge provision. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174-75 (2009).
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For similar reasons, the actual access-to-benefits rules that Congress enacted in 1996 do not support the Rule’s redefinition of “public charge” for admissibility purposes. The new eligibility rules were meant to limit certain public benefits to those immigrants who Congress believed displayed adequate “self-sufficiency” and who were not incentivized to enter this country due to “the availability of public benefits.” 8 U.S.C. § 1601. But the Final Rule improperly disregards Congress’s policy choice by treating the receipt of these benefits as instead automatically indicating that an immigrant is so destitute as to be a “public charge”— precisely the opposite of Congress’s judgment. See Rodriguez v. United States, 480 U.S. 522, 525-26 (1987) (per curiam) (deciding which “competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice”).
Third, defendants are fundamentally incorrect in finding support for the Final Rule in statutory provisions requiring some (but not all) applicants to provide affidavits of support from third-party sponsors to avoid being deemed a public charge. (Mot. 20-21.) Contrary to defendants’ contention, affidavits of support do not require the sponsor to repay “any meanstested public benefit” the applicant may receive. (Mot. 21 (emphasis added).) The repayment obligation does not currently apply to Section 8 housing benefits at all, as the Final Rule does. See 8 C.F.R. § 213a.1. See supra, at 7. And the affidavits’ contractual obligation is substantially narrower than the Final Rule in multiple additional ways—it applies primarily to certain applicants with family-based visas (not employment-based visas), is enforceable only after an immigrant has been admitted, and encompasses only the covered benefits received during defined time periods. 8 U.S.C. §§ 1182(a)(4)(C)-(D), 1183a(2)-(3). This limited postadmission remedy does not remotely suggest that Congress silently transformed the threshold meaning of “public charge” for all applicants to include any individual likely to receive any
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means-tested benefits at any time in the future—including time periods well beyond which affidavits of support would be enforceable. As the Final Rule acknowledges, affidavits are at most a “separate requirement” in certain cases. 84 Fed. Reg. at 41,448. And such affidavits primarily serve a purpose distinct from the threshold admissibility review: “to provide a reimbursement mechanism” for the government or the LPR after the applicant’s admission “to recover from the sponsor” who broke a contract to support the LPR, id. at 41,320.
Finally, there is also no merit to defendants’ assertion (Mot. 22) that a provision prohibiting DHS from considering “any benefits” received by battered immigrants in rendering public-charge determinations necessarily authorizes DHS to consider “any benefits” for other immigrants. 8 U.S.C. § 1182(s); see id. § 1641(c). There is no indication that Congress intended a shield for some immigrants to be used as a sword against others. Congress spoke broadly in enacting this provision to make clear its intent to protect vulnerable immigrants who often lack any means of support outside their abusive relationships. See Battered Immigrant Women Protection Act, Pub. L. No. 106-386, §§ 1502-1505, 114 Stat. 1464, 1518-27 (2000). Indeed, Congress likely referred to “any benefits” to ensure that battered immigrants could receive any benefits that might actually reflect primary reliance on the government to subsist long-term, such as income maintenance, without risking a public-charge determination. It would be perverse to read into such broad protective legislation, directed at a distinct problem, an implicit intent to withdraw similar protections from other immigrants. And such implied intent is particularly implausible when Congress was operating against a backdrop in which the well-settled public-charge framework did not consider receipt of supplemental public benefits.
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At base, all of defendants’ arguments about these scattershot provisions suffer from the same basic defect: they infer radical changes to the well-established meaning of public charge through provisions that did not alter that meaning, and instead serve very different roles in the complex legislative scheme governing public benefits or immigration. But Congress does not “hide elephants in mouseholes.” Whitman v. American Trucking Ass’ns, 531 U.S. 457, 468 (2001). And whatever discretion DHS may have to apply the term “public charge,” it does not have authority to “undo what [Congress] has done” by radically remaking immigration law and benefit programs—particularly when DHS has no authority over benefits programs or the complex rules that govern them. See King v. Burwell, 135 S. Ct. 2480, 2496 (2015). The district court thus properly concluded that DHS likely violated the INA by drastically expanding the meaning of public charge in a way that Congress has not authorized. See Bob Jones Univ. v. United States, 461 U.S. 574, 600-01 (1983).
2. The Rule is likely arbitrary and capricious. The Final Rule is also likely arbitrary and capricious for multiple, independent reasons. First, as the district court correctly determined (App. 15a), DHS failed to provide any reasonable explanation for determining that likely receipt of any amount of supplemental benefits, even temporarily, automatically means that an applicant cannot afford the “basic necessities of life” and is thus a “public charge,” 83 Fed. Reg. at 51,159. That determination “rests upon factual findings that contradict those which underlay [defendants’] prior policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515-16 (2009). Based on the expertise of benefit-granting agencies, the 1999 Guidance concluded that receiving supplemental benefits does not automatically suggest that the recipient is unable to afford her basic needs because
31

such benefits are often available to working individuals to promote public health and upward mobility. 64 Fed. Reg. at 28,692. DHS’s failure to provide any rational basis for departing so drastically from these prior findings renders the Rule arbitrary and capricious.
Second, the Rule’s aggregate-counting system—which, for example, counts the use of three benefits in one month as three months of benefits use—irrationally undermines DHS’s own stated goal of not including as “public charge” immigrants who suffer only a short-term emergency. (See App. 16a.) In the Rule, DHS stated that it had imposed a durational threshold requiring likely benefits use for 12 out of 36 months to ensure that “short-term and intermittent access to public benefits” will not render applicants public charges. 84 Fed. Reg. at 41,361. But the aggregate counting system does the opposite by deeming the use of multiple benefits over just a few months to satisfy the Rule’s new definition of “public charge.” DHS failed to provide any reasoned explanation for arbitrarily shortening the 12-month durational threshold that it selected as the “bright-line rule,” 84 Fed. Reg. at 41,360. Although “receipt of multiple benefits” in a single month may indicate that an immigrant used more assistance during that month, id. at 41,361, it does not alter the short-term nature of such benefits use.
Third, multiple factors in the Rule’s new public-charge test do not reasonably predict that an immigrant is likely to receive supplemental benefits at all—let alone receive them to such an extent she could rationally be considered a public charge. For example, the Rule assigns negative weight to low credit scores, lack of English proficiency, and a larger family. But the data on which DHS relies demonstrate that the vast majority of people with such factors do not use any public benefits at all. See 83 Fed. Reg. at 51,196 (no benefits use by 75.4% of people who do not speak English well); id. at 51,186 (no benefits use by 79.3% of people in families of four). Moreover, the Rule denies the heavily positive factor of having private health insurance
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to immigrants who use ACA credits to obtain insurance. But ACA credits are available to immigrants who earn up to 400% of the federal poverty line—approximately $100,000 a year for a family of four—and using such credits to purchase private insurance makes it extremely unlikely that the immigrant will use Medicaid.7
Finally, the Rule failed to adequately justify the need to radically alter the wellestablished public-charge framework, particularly given the grievous harms imposed by the Rule. DHS declared that it lacked information to make such a justification. See 84 Fed. Reg. at 41,312-14. But DHS received extensive information on these harms and simply failed to “adequately analyze…the consequences” of its actions. See American Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 932 (D.C. Cir. 2017). And given the information provided, DHS’s conclusion that the Rule “will ultimately strengthen public safety, health, and nutrition,” 84 Fed. Reg. at 41,314, is contrary to the evidence and impermissibly based on “sheer speculation.” Sorenson Commc’ns Inc. v. FCC, 755 F.3d 702, 708 (D.C. Cir. 2014). Moreover, the Rule contains no reasoned explanation for how these harms may be justified by any purported gains: DHS identified no concrete problems caused by the current public-charge regime aside from the fact that it grants LPR status more often than the Rule would.
7 See U.S. Centers for Medicare & Medicaid Services, Federal Poverty Level, at https://www.healthcare.gov/glossary/federal-poverty-level-fpl/.
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3. The Rule is likely unlawful and arbitrary under the Rehabilitation Act. The district court correctly concluded that the Rule is likely arbitrary and capricious and contrary to law because it violates Section 504 of the Rehabilitation Act by discriminating against individuals with disabilities. (App. 18a.) Section 504 provides that no individual “shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination” under any activity conducted by a federal agency. 29 U.S.C. § 794(a) (emphasis added). This provision does not, as defendants contend (Mot. 30-31), prohibit only public-charge determinations that are based solely on an applicant’s disability. Rather, it also prohibits DHS from subjecting an applicant to “a more onerous condition” based solely on disability, Henrietta D. v. Bloomberg, 331 F.3d 261, 276 (2d Cir. 2003)—including, as DHS’s own regulations provide, different “criteria or methods of administration,” 6 C.F.R. § 15.30(b)(4). The Rule violates these principles by automatically “consider[ing] disability as a negative factor in the public charge assessment” (App. 18a). The Rule is also likely arbitrary and capricious given that it provides no rational basis for concluding that “disability alone is itself a negative factor indicative of being more likely to become a public charge” when reasonable accommodations would allow the applicant to work. (App. 18a.) And the Rule’s irrational treatment of individuals with disabilities is compounded by its use of multiple, duplicative factors that essentially double- and triple-count a person’s disability against them. For example, a person’s disability could underlie both a negative factor for a serious medical condition, and a heavily negative factor for past use of Medicaid (a common resource for people with disabilities who have incomes far above the poverty line). See 84 Fed. Reg. at 41,504.
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Contrary to defendants’ arguments (Mot. 31), Congress’s requirement that DHS consider “health” in making public-charge determinations does not authorize the agency to make the irrational conclusion that disability alone—particularly with a reasonable accommodation— will automatically render an applicant incapable of supporting himself. And that conclusion is further belied by the evidence submitted to DHS, which confirms “the reality that many individuals with disabilities live independent and productive lives” (App. 18a).
4. Defendants’ threshold arguments lack merit. The district court correctly determined that plaintiffs have standing and are within the applicable zone of interests. Article III standing: The “predictable effect[s]” of the Final Rule give plaintiffs standing. Department of Commerce v. New York, 139 S. Ct. 2551, 2566 (2019). Plaintiffs presented unrebutted evidence that the Rule will concretely injure plaintiffs’ proprietary, economic, and sovereign interests by causing many of plaintiffs’ residents to forgo publicbenefit programs. Such drops in benefits enrollment will reduce Medicaid revenue, increase costs to healthcare systems, burden plaintiffs’ public-benefit programs, and harm plaintiffs’ economies. See supra, at 17-20. Such injuries are “precisely the kind of ‘pocketbook’” injuries that confer standing. Air Alliance Houston v. EPA, 906 F.3d 1049, 1059-60 (D.C. Cir. 2018). Zone of interests: The district court also correctly concluded that plaintiffs are within the INA’s zone of interests. Given the APA’s “generous review provisions,” the zone-ofinterests test is satisfied unless plaintiffs’ interests are “so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 399-400 & n.16
35

(1987) (quotation marks omitted). Plaintiffs easily satisfy this lenient standard here. As defendants acknowledge (Mot. 18), Congress enacted the public-charge provision in part to protect state and city fiscs. But Congress also maintained a narrow meaning of “public charge” to ensure that States and their subdivisions will continue to receive the economic and other benefits that flow from employable immigrants becoming “a valuable component part of the body-politic.” 13 Cong. Rec. 5108 (Rep. Van Voorhis). The Rule acknowledges that it will impose substantial costs on these state fiscal interests. The zone-of-interests test is thus satisfied.
D. There Is No Basis to Limit the Scope of the Preliminary Relief Ordered. Defendants’ demand that this Court limit the scope of the district court’s injunction
ignores the separate provision of the district court’s order postponing the Rule’s effective date under 5 U.S.C. § 705. Section 705 provides that “[o]n such conditions as may be required and to the extent necessary to prevent irreparable injury,” a court “may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.” By authorizing the court to suspend “the effective date” of an agency’s action, this express statutory remedy applies to a rule as a whole rather than to particular parties or locations. See Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 562 (D.C. Cir. 2015) (Kavanaugh, J., dissenting in part) (§ 705 “authorizes courts to stay agency rules pending judicial review”) (emphasis omitted).
The scope of the provisional relief authorized by § 705 parallels the ultimate remedies of vacatur or remand that a court is authorized to issue under the APA—remedies that also apply to an entire regulation, not to particular parties. See 5 U.S.C. § 706(2); National Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409-10 (D.C. Cir. 1998). Likewise, when
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agencies have invoked § 705 to postpone the effective dates of their own rules, they have routinely done so on a nationwide basis. See, e.g., Sierra Club v. Jackson, 833 F. Supp. 2d 11, 21-22 (D.D.C. 2012). The district court did not abuse its discretion in issuing similar relief under § 705 here. See West Virginia v. EPA, 136 S. Ct. 1000 (Mem.) (2016) (staying regulation); Application for Stay of Final Agency Action 5, 13, West Virginia v. EPA, No. 15A773 (U.S. Jan 26, 2016) (requesting § 705 stay).
The district court’s postponement of the Rule’s effective date under § 705 means that this case may not squarely present any issues regarding the scope of courts’ “equity jurisdiction” (Mot. 38). Contrary to defendants’ conclusory assertion (Mot. 37), a § 705 stay is not “one and the same” as a preliminary injunction. See Nken, 556 U.S. at 428, 434 (“An injunction and a stay have typically been understood to serve different purposes.”). Although courts have looked to similar factors in issuing both forms of relief, a § 705 stay is directly authorized by statute and does not rely on the courts’ inherent authority to issue equitable relief. Moreover, unlike an injunction, a § 705 stay operates on a regulation’s effective date rather than directing the “conduct of a party.” See id. A § 705 stay thus does not risk exposing DHS or its officials to conflicting injunctions issued by different courts.
The prospect that courts may reach different decisions about whether to issue a § 705 stay (Mot. 4, 39) is a feature of Congress’s statutory remedies rather than any judicial overreach. The APA authorizes different plaintiffs to challenge the same regulation in different courts, see 5 U.S.C. § 703, and each “reviewing court” is authorized to stay a regulation’s effective date if circumstances so warrant. When Congress wanted to remove judicial authority to issue a stay under § 705, it knew how to do so. See, e.g., 16 U.S.C. § 1855(f)(1)(A) (§ 705 “not applicable” to judicial review of fishery-management regulations); 15 U.S.C. § 3416(b)
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(same for natural gas regulations). The absence of any such limitation here precludes any argument that the district court improperly relied on § 705 to do exactly what Congress authorized—postpone the effective date of the Rule as a whole “pending conclusion of the review proceedings.” 5 U.S.C. § 705.
In any event, the district court also properly issued a preliminary injunction without geographic limitation. The “scope of injunctive relief is dictated by the extent of the violation established, not by the geographical” location of plaintiffs. Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Here, plaintiffs do not challenge any individual public-charge determination (see Mot. 32-36). Rather, plaintiffs claim, and the district court found, that the Rule likely violated the APA—a finding that would require vacatur of the Rule altogether. See National Mining, 145 F.3d at 1409-10. The district court’s preliminary injunction thus appropriately protects against precisely the harm that plaintiffs ultimately seek to prevent—implementation of an unlawful regulation. See Madsen v. Women’s Health Ctr. Inc., 512 U.S. 753, 765 (1994).
Moreover, the district court properly exercised its “sound discretion to consider” both the harms to plaintiffs and “the necessities of the public interest when fashioning injunctive relief.” United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 496 (2001) (quotation marks omitted). For example, as the district court found (App. 22a-24a), the preliminary injunction is particularly appropriate here given the immigration context—both because a nationwide scope is necessary to protect plaintiffs and the public from irreparable harms, and in view of the importance of uniformity in the application and enforcement of federal immigration law. An injunction allowing the Rule’s disruptive and complicated multifactor system to take effect in some States but not others would likely exacerbate the fear and
38

confusion about that Rule that is harming plaintiffs, their residents, and the public interestthe very harms that the injunction is meant to prevent. No partial stay is warranted.

CONCLUSION

For the reasons stated above, the Court should deny the motion.

Dated: New York, New York January 22, 2020

MATTHEW COLANGELO
Chief Counsel for Federal Initiatives
ELENA GOLDSTEIN
Deputy Bureau Chief, Civil Rights
MING-QI CHU
Section Chief, Labor Bureau

Respectfully submitted,
fb~~.~
LETITIA JAMES
Attorney General State ofNew York
BARBARA D. UNDERWOOD*
Solicitor General
STEVENC. Wu
Deputy Solicitor General
JUDITHN. VALE
Senior Assistant Solicitor General (212) 416-8020 barbara.underwood@ag.ny.gov
* Counsel of Record

WILLIAM TONG
Attorney General State ofConnecticut 55 Elm St. P.O. Box 120 Hartford, CT 06106

THOMAS J. DONOVAN, JR.
Attorney General State of Vermont 109 State St. Montpelier, VT 05609

JAMES E. JOHNSON
Corporation Counsel City ofNew York 100 Church St. New York, NY 10007

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ADDENDUM

Case 1:19-cv-07777-GBD Document 34-1 Filed 09/09/19 Page 2 of 58

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK, et al.,

Plaintiffs,

v.

19 Civ. 7777 (GBD)

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

DECLARATION OF RYAN ALLEN

Declaration of Ryan Allen I, Ryan Allen, declare pursuant to 28 U.S.C. § 1746 that the following is true and correct:
Background 1. My name is Ryan Allen, and I make this declaration in support of Plaintiffs’ Request for a preliminary injunction. I am an Associate Professor of Urban and Regional Planning at the Humphrey School of Public Affairs at the University of Minnesota in Minneapolis, Minnesota. In addition to my role as a faculty member, I am also the Director of Graduate Studies for the Urban and Regional Planning Program at the Humphrey School of Public Affairs. 2. I am a housing and community development researcher with over 12 years of experience as a faculty member. I have conducted substantial research about the experience of immigrants in U.S. housing. I have authored or co-authored over one dozen journal articles and reports about immigrants and housing, including publications in peer-reviewed journals such as Housing Policy Debate, Urban Studies, Ethnic and Racial Studies, and the Journal of Planning Education and Research. I have taught graduate courses on immigration, urban planning and
1
Add1

Case 1:19-cv-07777-GBD Document 34-1 Filed 09/09/19 Page 3 of 58
policymaking for over 10 years at the University of Minnesota. I am a faculty affiliate of University of Minnesota Extension, the Minnesota Population Center, and the Department of Sociology, and have served as a visiting scholar at the University of New South Wales in Sydney, Australia. I am frequently invited to give guest lectures on topics related to immigration, housing, economic development, and urban planning, and I serve as a commentator on regional and national media outlets, including National Public Radio and the Los Angeles Times.
3. I have a Ph.D. in Urban Studies and a Master’s Degree in City Planning, both from the Massachusetts Institute of Technology. Training in both of these degrees emphasizes an interdisciplinary approach, drawing from geography, sociology, economics, political science, and other disciplines, and a mixed-method research approach that incorporates quantitative and qualitative methodologies. Prior to my graduate studies, I was on the staff of the Urban Institute. I have attached my Curriculum Vitae as Exhibit A to this Declaration. I. Overview and Key Findings
4. The Department of Homeland Security’s recently released rule, Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (August 14, 2019) (“Final Rule”), which directs officials at the Department of Homeland Security (DHS) in U.S. Citizenship and Immigration Services (USCIS) to consider—for the first time—a noncitizen’s use or potential use of specified federally subsidized housing programs when determining whether an applicant for legal permanent residency in the United States (a “green card”) or an individual applying to enter the United States on certain visas is subject to the “public charge” ground of inadmissibility.
5. The specific federally-subsidized housing programs included in the Final Rule are: Section 8 Housing Choice Voucher Program, Project-Based Section 8 Rental Assistance, and Public Housing (collectively referred to herein as “Federal housing programs”).
2
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In addition to Federal housing programs, the Final Rule specifies receipt or potential receipt of SNAP and Medicaid benefits as well as other non-cash benefits that officials should consider when assessing public charge.
6. According to the Final Rule, living in federally subsidized housing and receiving a subsidy in aggregate for more than 12 months during a 36-month period would be considered a heavily-weighted negative factor in determining whether a given applicant for adjustment is a public charge. The Final Rule contains many other features that go beyond the scope of this Declaration.
7. The Final Rule is scheduled to go into effect on October 15, 2019. This declaration describes the following: (1) the Federal housing benefits included in the Final Rule, including supply and demand for these programs, financial eligibility, and immigrant eligibility; (2) the benefits of living in federal housing programs for individuals; and (3) the negative impact the Final Rule will have on noncitizens if it is not enjoined by the Court.
8. It is my opinion that if the Final Rule goes into effect, a certain number of noncitizens who reside in federally-assisted housing will choose to disenroll from the Federal housing programs encompassed by the Final Rule. Using the estimates of disenrollment from DHS (2.5 percent), the result would be substantial harm. As explained herein, given the welldocumented positive impact living in federally-assisted housing has on residents, especially children, even a minimal amount of disenrollment can be expected to result in substantial harm. Individuals who disenroll will lose an affordable source of housing and other benefits in the areas of health, educational attainment, and earnings.
3
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Case 1:19-cv-07777-GBD Document 34-1 Filed 09/09/19 Page 5 of 58
II. Background A. Characteristics of Federal Housing Programs Included in the Final Rule 9. I have been asked by counsel to describe the key features and eligibility
criteria of the Federal housing programs included in the Final Rule, including the income households can receive while maintaining eligibility for public housing. Section 8 Housing Choice Vouchers
10. The Section 8 Housing Choice Voucher Program (“HCV” program) is the largest federally subsidized housing program in the United States, serving approximately 2.5 million households and 5.3 million residents in 2018. First established by the Housing and Community Development Act of 1974, Section 8 Housing Choice Vouchers are used by lowincome families to rent housing in the private market. A low-income family that uses a voucher pays 30 percent of its income for rent and utilities (or $50, whichever is larger), and the voucher pays the balance of the rent and utility costs, up to a limit. Local public housing authorities set these limits as a proportion of Fair Market Rents (FMRs), which are adjusted by apartment size and calculated annually by HUD for over 2,600 housing markets across the U.S.1 FMRs vary considerably in municipalities across the United States and sometimes within municipalities, depending upon rental housing costs in each area.
11. Initial Eligibility. To participate in the program, an apartment must be inspected and certified to meet minimum standards related to space and physical quality. In terms of financial eligibility, vouchers tend to be targeted to very needy families, with 75 percent of new families receiving a voucher each year classified as “extremely low income” (generally, household incomes not exceeding 30 percent of the area median income (“AMI”) or the federal
1 Schwartz, Alex F. 2015. Housing Policy in the United States (Third Edition). New York: Routledge.
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Case 1:19-cv-07777-GBD Document 34-1 Filed 09/09/19 Page 6 of 58
poverty line, whichever is higher).2 The balance of new families receiving a voucher must have household incomes no more than 80 percent of the AMI. Project-Based Section 8 Rental Assistance
12. The Project-Based Section 8 Rental Assistance program (“PBRA”) creates multi-year rental assistance agreements with owners of private multi-family properties to make all or some of the units available to low-income families. The PBRA program includes about 1.3 million housing units and approximately 2 million residents nationwide.
13. Similar to the HCV Program, families renting housing in the PBRA program pay 30 percent of their household income (or $25, whichever is greater) each month. A monthly payment to the owner of the building and the PBRA program supplies the balance of the costs associated with maintaining and operating the apartment. In addition, about two-thirds of households living in PBRA housing are headed by seniors (i.e., individuals over age 65) or people with disabilities.
14. Financial eligibility. At least 40 percent of units in each building that become vacant are allocated for “extremely low income” families (defined as households earning 30 percent or less of the AMI) and most of the remainder of units are allocated to very lowincome families (household incomes of no more than 50 percent of AMI).3 Public Housing
15. In contrast to the HCV and PBRA programs described above, public housing is housing that is owned and operated by the federal government under the auspices of local public housing authorities. Families living in public housing contribute 30 percent of their
2 “Policy Basics: The Housing Choice Voucher Program.” Center on Budget and Policy Priorities, Washington, DC (https://www.cbpp.org/research/housing/policy-basics-the-housing-choice-voucherprogram, last accessed on August 21, 2019). 3 Ibid.
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income each month toward rent or a minimum rent set by the housing authority. Nationwide the public housing program includes about 1 million units and serves nearly 2 million residents.
16. Financial eligibility. At least 40 percent of families newly admitted to the program each year must be “extremely low-income” households, with the balance of households earning no more than 80 percent of the AMI.4 Continued eligibility for HCV, PBRA and Public Housing.
17. In order to maintain eligibility for each of the Federal housing benefits, the household’s income may not exceed household income limits determined by HUD, generally no greater than 80 percent of the AMI. The below chart lists 50 percent and 80 percent AMI income limits for four-person households in each of the key jurisdictions encompassed by the cases in which I am serving as an expert for fiscal year 2019:

Geographic Area

50% AMI Family Income Limit ($) 80% AMI Family Income Limit ($)

Connecticut New York New York City (Metro Area)
Vermont

50,450 41,100
53,350 39,750

75,500 65,750
85,350 63,600

Note: Income limit data are from HUD’s FY 2019 Income Limits Documentation System (https://www.huduser.gov/portal/datasets/il/il2019/select_Geography.odn, accessed on September 5, 2019).
18. Note that each of these income limits exceeds 125 percent of the Federal
Poverty Guideline for a family four which is $32,187.50. As discussed below, and as these
numbers show, many families who use federal housing benefits start out with low income, but

4 Ibid.

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having the stability that comes with subsidized rent, they are able to achieve greater economic stability while maintaining eligibility for the Federal housing programs.
B. Volume of Federal Housing Program Units and Demand 19. As Table 1 in Exhibit B describes, in 2018 these programs in aggregate
represented 4,827,662 housing units, or 96 percent of the federally subsidized units of housing available in the United States. The supply of these subsidized housing units has shrunk in recent years. In 2015, the available number of housing units in these three programs numbered 4,798,257, about 29,000 more units than in 2018. In addition to representing the vast majority of the federally subsidized housing units, these programs also represent nearly all of the residents living in federally subsidized housing. In 2018, the programs accommodated 9,308,020 individual residents, or about 98 percent of the total residents living in federally subsidized housing units.5
20. The current demand for federally subsidized housing units is substantial. Most public housing authorities maintain a wait list for families that are eligible to live in federally subsidized housing, but are unable to move into a unit because none are available. Recent estimates indicate that nationally there are 1.5 families waiting for every Housing Choice Voucher program unit under contract and 1.7 families waiting for every public housing unit.6
21. However, these are underestimates because so many public housing authorities (“PHAs”) have closed their wait lists. In 2012, about 60 percent of HCV wait lists and 17 percent of public housing wait lists were closed, effectively limiting the number of families that appear on wait lists. If wait lists remained open for all PHAs then presumably the number of
5 While there are a variety of other subsidized housing programs operated by HUD, the three programs described above are the largest in terms of number of housing units and number of residents. 6 Housing Agency Waiting Lists and the Demand for Housing Assistance, 2019. https://www.housingcenter.com/wp-content/uploads/2017/11/waiting-list-spotlight.pdf
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eligible families waiting for federally subsidized housing would be significantly larger. After correcting for closed wait lists, nationally there are about 4 families waiting for each HCV unit and 1.8 families for each public housing unit.7 This translates into a wait of 1.5 years for the median family on the waitlist for HCV and nine months for the median family on the waitlist for public housing.8 These median values obscure significant variation in wait times, particularly at the high end of the distribution. For example, 25 percent of HCV waitlists had a wait time of 3 years or longer and 25 percent of public housing waitlists had a wait time of 1.5 years or longer.9
22. In some cases, waitlists for public housing and HCV are particularly long. For example, counsel has advised me that in New York City the waits can be substantially longer due to low turn-over, high demand, and depending on the type of housing, factors like household size and the availability of the requisite size apartment and other priority factors.
C. Immigrant Eligibility for Federal Public Housing 23. Counsel has advised me that under current law, the following categories of
noncitizens are eligible for Federal housing benefits: (a) lawful permanent residents (“LPRs”) (regardless of time in LPR status); (b) refugees; (c) asylees; (d) persons granted parole; (e) persons granted withholding of removal; (f) persons granted 1986 amnesty status (entered U.S. pre-January 1, 1982); (g) lawful U.S. residents under the Compacts of Free Association with Micronesia, the Marshall Islands, Palau, and Guam; (h) certified victims of trafficking; and (i) VAWA self-petitioners (includes VAWA cancellation of removal applicants; VAWA suspension of deportation applicants).
7 Ibid. 8 These estimates come from a survey of PHAs in 2015-2016 by the National Low Income Housing Coalition (NLIHC) (https://nlihc.org/sites/default/files/HousingSpotlight_6-1.pdf, last accessed August 21, 2019). 9 Ibid.
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24. Noncitizens who do not fall into one of the above categories can live in Federal housing program units, but are required to pay a pro rata share of the rent. It is important to note that the income of non-eligible members of families is included in the family income figure used to determine eligibility for living in the housing and the rent that the family owes, despite the fact that non-eligible family members cannot receive a subsidy.
25. A new Rule introduced by HUD for notice and comment on May 10, 2019 (the “Proposed HUD Rule”), would change these rules. Under the proposed new rule, noneligible noncitizens would not be permitted to remain in HUD-sponsored housing, including public housing, and would not be permitted to live in a household in which HCV or PBRA subsidizes the rent.10
26. Noncitizen eligibility for Federal housing programs is limited under current law, but noncitizens have always been present in such programs and have never been categorically excluded by Congress.
27. The United States Housing Act of 1937, sponsored by Representative Henry B. Steagall (D-AL) and Senator Robert F. Wagner (D-NY), created a United States Housing Authority that worked through newly created public housing agencies at the subnational level to create subsidized rental housing for low-income families. This legislation specified income eligibility criteria, but was silent on other eligibility requirements such as nativity or citizenship. The historical record indicates that many PHAs awarded a substantial number of units to households with noncitizen members. Of the 101,482 residents living in public housing in 1940, a total of 11,174 (11 percent) were foreign born with 8,161 residents
10 Housing and Community Development Act of 1980: Verification of Eligible Status.” Federal Register 84(91), RIN 2501-AD89, Docket No. FR-6124-P-01.
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naturalized citizens (8 percent) and 3,013 noncitizens (3 percent).11 While some local PHAs
limited access to public housing to citizens in the early years of the program,12 Congress passed
no legislation that prohibited access to public housing by immigrants regardless of citizenship
status.
28. Over the course of the next four decades, Congress modified the public
housing program in the United States incrementally in terms of its budget and goals for the
number of public housing units it created, while core eligibility features remained consistent.
Proposed eligibility requirements for public housing residents changed starting with provisions
included in Section 214 of the Housing and Community Development Act of 1980. The next
year, Congress proposed wider exclusions for immigrants through a revision of Section 214 in
the Omnibus Reconciliation Act of 1981, but the proposed rules for interpreting the regulatory
changes were not implemented immediately because Congress did not appropriate funds
necessary for implementation and the regulatory changes were challenged by various lawsuits.13
11 These figures are based on the author’s analysis of a unique dataset of all public housing residents in the United States at the time of the 1940 Census. For more information about the dataset, see the following reference: Allen, Ryan and Van Riper, David. Forthcoming. “The New Deal, the Deserving Poor and the First Public Housing Residents in New York City.” Social Science History. Of the naturalized citizens, it is unclear what percentage began residence in public housing prior to attaining citizenship, but it can be assumed that a number of them did given the noncitizens in public housing in that same year. In comparison, 8.8 percent of the U.S. population was foreign born in 1940 including 5.5 percent naturalized citizens, 2.6 percent noncitizens and 0.6 percent with unreported citizenship status. “1940 Census of Population: Volume 2. Characteristics of the Population.” U.S. Census Bureau: Washington, DC. https://www2.census.gov/library/publications/decennial/1940/population-volume2/33973538v2p1ch2.pdf 12 Vale, Lawrence J. 2000. From the Puritans to the Projects: Public Housing and Public Neighbors. Cambridge, MA: Harvard University Press. 13 In published notices in the Federal Register, the Department of Housing and Urban Development developed rules for implementation of the new regulations, but failed to specify an effective date for these rules. Dzubow, Jason. 1995. “HUD Shuts the Door: Restrictions on Housing Assistance to Noncitizens.” Georgetown Immigration Law Journal 9:801-826. Subsequently, Congress barred HUD from implementing the rule and HUD submitted multiple revised versions of the rule to implement the regulations in Section 214 throughout 1986, and delayed implementation of the rule until October 1, 1987.
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29. In 1987 Congress amended Section 214 once again to respond to the
issues raised in the lawsuits. As amended, Section 214 allowed aliens in federally-subsidized
housing who had been temporarily admitted or paroled into the United States as specified in
Section 245A of the Immigration and Naturalization Act or who had family members who were
ineligible. In the latter case, this provision preserved the integrity of mixed-status families by
letting families with some members who are ineligible noncitizens continue to live in subsidized
housing. After publishing a rule in 1988 related to this version of Section 214, HUD failed to
implement the rule citing a lack of authorization to collect information on citizenship or alien
status from residents or applicants to federally subsidized public housing. A final rule to
implement Section 214 was published in the Federal Register on March 20, 1995, about 15 years
after Congress passed the original restrictions from federally subsidized housing.14
Immediate implementation of the rule was delayed for two primary reasons. First, Congress did not allocate to HUD the additional funding required to implement the rule. The failure to allocate the necessary funds is most readily explained by the fact that Congress passed the Immigration Reform and Control Act of 1986 (IRCA), which changed the process used to verify immigrant status. Dzubow, Jason. 1995. “HUD Shuts the Door: Restrictions on Housing Assistance to Noncitizens.” Georgetown Immigration Law Journal 9:801-826. As a result, it remained unclear what protocols HUD should use to verify immigrant status before Congress issued final guidelines associated with IRCA. Second, a district court in California issued a nation-wide preliminary injunction on implementing the regulation based on arguments made in Yolano-Donnelly Tenants’ Association v. Pierce. Yolano-Donnelly Tenants’ Association v. Pierce, E.D. Cal. No. CIV. S-86-846-MLS (1986). In this case the court recognized that implementing the new regulation would result in the eviction of thousands of families currently residing in federally-subsidized housing because either they or some members of their households were ineligible to live in the housing due to a lack of documentation. Dzubow, Jason. 1995. “HUD Shuts the Door: Restrictions on Housing Assistance to Noncitizens.” Georgetown Immigration Law Journal 9:801-826. The court reasoned that in some cases this would result in the eviction of citizens and properly documented aliens. An additional lawsuit in 1986, City of New York v. Pierce, charged that the regulations would unduly burden the City of New York because it would increase the homeless population and the administrative burden experienced by the City. City of New York v. Pierce, 86-CIV-6068, U.S. District Court, Southern District of New York (1986). Together these lawsuits resulted in delayed implementation of the original restrictions to federally subsidized housing for certain groups of immigrants contemplated and enacted by Congress. 14 Dzubow, Jason. 1995. “HUD Shuts the Door: Restrictions on Housing Assistance to Noncitizens.” Georgetown Immigration Law Journal 9:801-826.
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30. Although the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 called for widespread changes to the eligibility criteria and structure of many parts of the U.S. welfare system, it ultimately did not have a meaningful impact on Federal housing programs.15 Battered qualified aliens were only recognized as eligible for public housing in 2016.16
31. HUD anticipates that the Proposed HUD Rule, if implemented, would have a large impact on the number of noncitizens residing in Federal housing programs. HUD’s Regulatory Impact Analysis estimates that 25,045 households living in federally subsidized housing would be affected by this rule change, including a total of 108,104 people.17 HUD believes that over three-quarters of the households that would be affected by this rule change will terminate housing assistance, with the remaining households splitting apart so that members of the household eligible to receive a subsidy remain in assisted housing. Overall, HUD estimates that 76,141 of the 108,104 individuals living in households that would be affected by this proposed rule change are eligible to receive federal housing subsidies. It is difficult to determine the likely degree of overlap between the households that HUD has estimated would be affected by the Proposed HUD Rule change and the households that may be affected by the Final Rule, but it is safe to assume that there will be at least some overlap given the focus on noncitizens by each rule change. Despite this potential for overlap, in the discussion below regarding the likely
15 P.L. 104-193 §431(c) (1) (A); 8 U.S.C. §1641, as cited in McCarty, Maggie and Siskin, Alison. 2015. “Immigration: Noncitizen Eligibility for Needs-Based Housing Programs.” Congressional Research Service, RL31753. 16 https://nlihc.org/sites/default/files/Eligibility-of-VAWA-Self-Petitioners_121416.pdf (accessed on September 5, 2019). 17 “Housing and Community Development Act of 1980: Verification of Eligible Status, Regulatory Impact Analysis.” Docket No. FR-6124-P-01, April 15, 2019.
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effect of the Final Rule on households with foreign-born members, I do not attempt to capture any of the effects associated with the Proposed HUD Rule.
D. Characteristics of Households Living in Federally Subsidized Housing 32. Table 1 in Exhibit B describes some basic descriptive information about
residents living in public housing, the Housing Choice Voucher Program, Project-Based Section 8 developments, and all HUD programs in 2018 in the U.S., Connecticut, New York, Vermont, and New York City. While households earning less than 80 percent of the AMI are eligible for living in public housing or Project Based Section 8 units, or using a Housing Choice Voucher, the majority of households in these programs are classified as very low-income (earning less than 50 percent of AMI). In 2018, 96 percent of households living in Project Based Section 8 units earned less than 50 percent of the AMI in the United States. In the Section 8 Housing Choice Voucher program and public housing 95 percent and 91 percent of households earned less than 50 percent of the AMI in the United States in 2018, respectively. Given the geographical variation in the AMI as described above, even families with income less than 50 percent of the AMI, do not necessarily have income below 125 percent of the FPG.
33. Compared to public housing and the Housing Choice Voucher program, the Project Based Section 8 program tends to have smaller family sizes living in its units. Nationally, the average size of a family in Project Based Section 8 in 2018 was 1.7 people, compared to 2.1 in public housing and 2.3 in Housing Choice Vouchers.
34. I do not have data on the length of stay in Federal housing programs among noncitizens, and they may vary considerably from the length of stay statistics for tenants generally. Nationally, households living in a federally subsidized housing unit typically do not remain in these units for an extended period of time. Based on the most current and comprehensive analysis available using HUD administrative data on exits from assisted
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housing,18 average households living in federally subsidized housing leave assisted housing after about six years.19 Differences in length of stay in federally subsidized housing by household type can be substantial. For example, in New York City, given the demand for public housing and lack of availability of affordable housing, the low vacancy rate, and the relatively high income a household can have and maintain eligibility, families stay in public housing much longer. Another estimate of length of stays in public housing uses longitudinal data from the Panel Survey of Income Dynamics (1987-2011) and found that most individuals who entered public housing stayed less than five years, with only 12 percent staying longer than 10 years.20 This evidence suggests that federally-assisted housing serves as a temporary source of support for most families that use it, but that there can be exceptions in housing markets characterized by high rents and low vacancy rates.
18 In this case, “assisted housing” is a general term that includes the three largest federally subsidized housing programs specified in the Final Rule, plus several smaller programs not included in the Final Rule. 19 McClure, Kirk. 2018. “Length of Stay in Assisted Housing.” Cityscape 20(1): 11-38. (https://www.jstor.org/stable/10.2307/26381219) 20 Dantzler, Prentiss A. 2019. “Reconsidering Poverty Dynamics by Analyzing Housing Spells.” The Social Science Journal (In Press, https://doi.org/10.1016/j.soscij.2019.06.004).
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III. Benefits of Living in Federally Subsidized Housing 35. In connection with preparing this declaration, I have undertaken a review
of research conducted regarding the positive impacts of living in housing subsidized by the Federal housing programs that are included in the Final Rule because the benefits, in turn, speak to the harm caused to noncitizen families who lose access to Federal housing programs because of the Final Rule.
36. Research on residents living in federally-assisted housing shows that residing in such housing is associated with positive health and economic outcomes.21 Living in public housing has positive associations with (a) better health outcomes, (b) educational attainment, (c) employment earnings, and (d) other benefits.
37. Health outcomes. A number of studies have found a positive association between living in assisted housing and positive health outcomes for children and adults. Relative to children in families on a waitlist for federally-assisted housing and controlling for neighborhood context, children in families living in public housing have fewer symptoms of mental health stress and experience fewer emotional difficulties.22 Similarly, relative to adults in families on a waitlist for federally-assisted housing and after controlling for neighborhood-level characteristics, adults in families in public housing had lower odds of being in fair or poor health
21 It is important to note that the most methodologically sound research on outcomes associated with living in Federal housing program appropriately controls for the selection bias inherent to applying for and obtaining a unit of assisted housing. Selection criteria for admission to Federal housing programs mean that families are low income, a characteristic that has an independent relationship with educational, employment, health, and other outcomes. It is important to distinguish the relationship between living in housing supplied by a Federal housing program with these outcomes and the relationship between living in a poor family and these outcomes. 22 Fénelon, Andrew, Slopen, Natalie, Boudreaux, Michel, and Newman, Sandra J. 2018. “The Impact of Housing Assistance on the Mental Health of Children in the United States.” Journal of Health and Social Behavior 59(3): 447-463.
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and lower odds of psychological distress.23 Children living in assisted housing have lower Blood
Lead Levels (BLLs) than children who did not receive housing assistance.24 Many residents of
public housing have poor health, but frequently health problems exist for residents prior to
becoming residents of public housing. For example, in a study of Atlanta public housing
residents 19 percent were diagnosed with diabetes and 23 percent were diagnosed with asthma,
but of those diagnosed with these health problems at least three-quarters received the diagnosis
prior to entering public housing.25 In general, research indicates that public housing tends to
provide a safety net for residents that had existing health problems when they arrived in assisted-
housing rather than cause these health problems.26
38. Educational achievement. Much of the available evidence suggests that
children living in federally-assisted housing experience comparable or better educational
achievement than children who do not live in federally-assisted housing. Children living in
public housing are less likely to be held back a grade than those not living in public housing27
and those living in voucher-assisted housing experience better math achievement.28 Research that
compares educational outcomes for children living in public housing and voucher-assisted
23 Fenelon, Andrew, Mayne, Patrick, Simon, Alan E., Rossen, Lauren M., Helms, Veronica, Lloyd, Patricia, Sperling, Jon, and Steffen, Barry L. 2017. “Housing Assistance Programs and Adult Health in the United States.” American Journal of Public Health 107(4): 571-578. 24 Ahrens, Katherine A., Haley, Barbara A., Rossen, Lauren M., Lloyd, Patricia C., and Aoki, Yutaka. 2016. “Housing Assistance and Blood Lead Levels: Children in the United States.” American Journal of Public Health 106(11): 2049-2056; Chiofalo, Jacqueline M., Golub, Maxine, Crump, Casey, and Calman, Neil. 2019. “Pediatric Blood Lead Levels Within New York City Public Versus Private Housing, 20032017.” American Journal of Public Health 109(6): 906-911. 25 Ruel, Erin, Oakley, Deirdre, Wilson, G. Elton, and Maddox, Robert. 2010. “Is Public Housing the Cause of Poor Health or a Safety Net for the Unhealthy Poor?” Journal of Urban Health 87(5): 827-838. 26 Ibid. 27 Currie, Janet and Yelowitz, Aaron. 2000. “Are Public Housing Project Good for Kids?” Journal of Public Economics 75:99-124. 28 Carlson, Deven, Miller, Hannah, Haveman, Robert, Kang, Sohyun, Schmidt, Alex, and Wolfe, Barbara. 2019. “The Effect of Housing Assistance on Student Achievement: Evidence from Wisconsin.” Journal of Housing Economics 44(1): 61-73.
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housing finds no differences in educational outcomes, suggesting that these housing programs have indistinguishable effects on educational outcomes.29
39. Employment outcomes and earnings. A variety of research indicates that living in federally-assisted housing either has no effect or improves employment outcomes and earnings. Despite the frequent location of federally-assisted housing in neighborhoods with high rates of poverty, which might be associated with reduced labor force activity, analysis of employment outcomes in the Multi-City Study of Urban Inequality (MSCUI) found no relationship between living in public housing and labor force activity.30 However, in a study that focused on the effects of living in public housing for a time between 1968 and 1982 on outcomes for young adults, researchers found that every year of residence in public housing between the ages of 10 and 16 increased the probability of working by seven percentage points when the youth was between the ages of 25 through 27.31 The result of this increased chance of employment increased annual earnings by $1,860.32
40. Based on a particularly strong longitudinal research design that compares the earnings of siblings from around the United States who lived in public housing for different lengths of time, the most recent study focused on the relationship between living in federallyassisted housing and earnings found that living in assisted housing as a teenager has a positive association with higher earnings and lower rates of incarceration as an adult. Females receive
29 Jacob, Brian A. 2004. “Public Housing, Housing Vouchers, and Student Achievement: Evidence from Public Housing Demolitions in Chicago.” American Economic Review 94(1): 233-258. 30 Reingold, David A., Van Ryzin, Gregg G., and Ronda, Michelle. 2001. “Does Urban Public Housing Diminish the Social Capital and Labor Force Activity of Its Tenants?” Journal of Policy Analysis and Management 20(3): 485-504. 31 Newman, Sandra J. and Harkness, Joseph M. 2002. “The Long-Term Effects of Public Housing on Self-Sufficiency.” Journal of Policy Analysis and Management 21(1): 21-43. 32 Ibid.
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about a five percent increase in earnings for each additional year in either public housing or
voucher housing, while males receive about a five percent increase in earnings for each
additional year in public housing and a 2.6 percent increase in earnings for each additional year in voucher housing.33 Each additional year of living in public housing as a teenager increased
estimated total discounted lifetime pre-tax earnings by $45,400 for females and $47,300 for males.34 For each additional year of living in voucher-assisted housing as a teenager, the
estimated total discounted lifetime pre-tax earnings increased by $43,600 for females and $24,100 for males.35 Based on assumptions about increased tax revenues due to the increased
estimated total discounted lifetime pre-tax earnings attributable to living in assisted housing and
the cost to the federal government of providing a subsidy for assisted housing, the study concludes that providing public housing and voucher programs are nearly cost-neutral.36 It is
important to point out that the study likely underestimates the benefit of federally-assisted
housing because it only estimates the intergenerational financial benefit to the federal
government from providing assisted housing to poor families. With increased lifetime earnings,
individuals who lived in assisted-housing as teenagers will probably be less likely to use welfare benefits as adults.37
33 Andersson, Fredrik, Haltiwanger, John C., Kutzbach, Mark J., Palloni, Giordano E., Pollakowski, Henry O., and Weinberg, Daniel H. 2018. “Childhood Housing and Adult Earnings: A Between-Siblings Analysis of Housing Vouchers and Public Housing.” NBER Working Paper Series, Working Paper 22721 (https://www.nber.org/papers/w22721). 34 Ibid. 35 Ibid. 36 Ibid. 37 One concern registered about Federal housing programs is that using assisted housing discourages employment and encourages dependence on government benefits. A review of the available early scholarship on the relationship between living in assisted housing and employment found no relationship between the two. Shroder, Mark. 2002. “Does Housing Assistance Perversely Affect Self-Sufficiency? A Review Essay.” Journal of Housing Economics 11(4): 381-417. A more recent study found a small suppressive effect of using a voucher on labor supply and earnings, though this study is limited to public housing residents in Chicago raising questions about its external validity. Jacob, Brian A. and Ludwig,
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41. Other benefits. Emerging evidence indicates that children growing up in assisted housing have relatively small chances of returning to assisted housing as adults38 and living in public housing has no effect on teenage parenthood for females and may decrease the probability of teenage parenthood for males.39 For families receiving housing assistance as well as cash assistance (“welfare”) benefits, receiving federal housing assistance does not appear to have a positive relationship with remaining on welfare40 and there is some evidence that living in public housing as a child reduces welfare use as an adult by 0.70 of a year.41 More recent research indicates that welfare use among families living in assisted housing declined after moving into assisted housing, although the rate of welfare use still exceeded that of families not living in assisted housing.42
42. At least two causal mechanisms could explain the relationship between living in assisted housing and better health outcomes, educational achievement and increased employment and earnings.
Jens. 2012. “The Effects of Housing Assistance on Labor Supply: Evidence from a Voucher Lottery.” American Economic Review 102(1): 272-304. Analysis of the Panel Study of Income Dynamics, which included assisted housing residents from across the U.S., found no evidence that moving into assisted housing was associated with sustained reductions in employment, work hours, or earnings. Newman, Sandra, Holupka, C. Scott, and Harkness, Joseph. 2009. “The Long-Term Effects of Housing Assistance on Work and Welfare.” Journal of Policy Analysis and Management 28(1): 81-101. 38 Kucheva, Yana A. 2014. “The Receipt of Subsidized Housing across Generations.” Population Research and Policy Review 33(6): 841-871. 39 Ibid. 40 Haley, Barbara A. and Dajani, Aref N. 2015. “Addicted to Government? The Impact of Housing Assistance on Program Participation of Welfare Recipients.” Poverty and Public Policy 7(4): 307-335. 41 Newman, Sandra J. and Harkness, Joseph M. 2002. “The Long-Term Effects of Public Housing on Self-Sufficiency.” Journal of Policy Analysis and Management 21(1): 21-43. 42 Ibid.
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43. First, evidence suggests that families living in voucher-supported housing
are less prone to moving43 and have more stable household compositions.44 Moving, particularly
when it is precipitated by economic necessity or stress, is associated with increased anxiety and
depression.45 Other measures of housing insecurity, such as doubling up, overcrowding, and
frequent moves, are associated with poor health outcomes for children, including food insecurity,
lower weight, and developmental risk.46 Women experiencing eviction, a particularly dramatic
form of housing insecurity, experienced difficulty obtaining necessities and were more likely to
experience depression, poor health outcomes and parenting stress.47 Finally, frequent moves that
include a change in schools for children are associated with poor education outcomes for
children.48 Increased residential stability that accompanies living in assisted housing may
promote better health and educational outcomes for children, and improved mental and physical
health for adults, eventually leading to better economic outcomes.
43 Berger, Lawrence M., Heintze, Theresa, Naidich, Wendy B., and Meyers, Marcia K. 2008. “Subsidized Housing and Household Hardship among Low-Income Single-Mother Households.” Journal of Marriage and the Family 70:934-949; Gubits, Danile et al. 2016. “Family Options Study: 3-Year Impacts of Housing and Services Interventions for Homeless Families.” Office of Policy Development and Research: U.S. Department of Housing and Urban Development. 44 Carlson, Deven, Haveman, Robert, Kaplan, Thomas, and Wolfe, Barbara. 2012. “Long-Term Effects of Public Low-Income Housing Vouchers on Neighborhood Quality and Household Composition.” Journal of Housing Economics 21(2): 101-120. 45 Burgard, Sarah A., Kristin S. Seefeldt, and Sarah Zelner. 2012. “Housing Instability and Health: Findings from the Michigan Recession and Recovery Study.” Social Science & Medicine 75(12):2215– 24. 46 Cutts, Diana Becker, Alan F. Meyers, Maureen M. Black, Patrick H. Casey, Mariana Chilton, John T. Cook, Joni Geppert, Stephanie Ettinger de Cuba, Timothy Heeren, and Sharon Coleman. 2011. “US Housing Insecurity and the Health of Very Young Children.” American Journal of Public Health 101(8):1508–14. 47 Desmond, Matthew, and Rachel Tolbert Kimbro. 2015. “Eviction’s Fallout: Housing, Hardship, and Health.” Social Forces 94(1):295–324. 48 Crowley, Sheila. 2003. “The Affordable Housing Crisis: Residential Mobility of Poor Families and School Mobility of Poor Children.” The Journal of Negro Education 72(1): 22-38.
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44. Second, living in assisted housing is associated with decreased housing cost burden, allowing households to spend a larger proportion of their household incomes on other household expenses that may lead to improved educational, health and economic outcomes. For example, a family spending around 30 percent of its income on housing is associated with increased investment in enrichment activities for children, leading to higher cognitive outcomes.49 Similarly, living in assisted housing is associated with less material hardship, including food insecurity, residential overcrowding, and postponed healthcare investments, resulting in better health and behavioral outcomes for children.50 In turn, these outcomes are related to improved educational outcomes, which lead to better employment and earnings outcomes. IV. The Effect of the Final Rule on Immigrant Use of Assisted Housing
45. The Final Rule requires immigration officials at DHS to determine whether applicants for adjustment of status not exempt from public charge are currently enrolled in a Federal housing program that supplies them with a housing subsidy or whether they are likely to be enrolled in such a program and receive a subsidy at any point in the future.51 Accordingly, of those persons currently eligible to adjust, or who will be eligible in the future, the Final Rule will likely have a greater impact on those noncitizens predicted to be likely to receive Federal housing benefits at any time in the future than those who are currently receiving Federal housing benefits and who are applying for adjustment. The reasoning behind this
49 Newman, Sandra J. and Holupka, C. Scott. 2015. “Housing Affordability and Child Well-Being.” Housing Policy Debate 25(1): 116-151. 50 Harkness, Joseph and Newman, Sandra J. 2005. “Housing Affordability and Children’s Well-Being: Evidence from the National Survey of America’s Families.” Housing Policy Debate 16(2): 223-255. 51 There are only a few categories of noncitizens eligible for Federal housing programs who are subject to public charge review at the time of adjustment – specifically, citizens of Micronesia, Marshall Islands. Palau and Guam, persons granted withholding of removal and parolees.
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assertion is that given supply limitations in Federal housing programs there are many more noncitizens living in families that are eligible for Federal housing programs than there are noncitizens in families that are currently living in housing that is part of a Federal housing program.
46. Counsel has asked me for purposes of this declaration to base my projections of harm on the numbers provided by DHS in the Regulatory Impact Analysis (“RIA”) accompanying the Final Rule.52 I reserve the right to provide additional analyses using different assumptions at a later date.
47. DHS estimates that 8,801 households will disenroll from public housing, the Section 8 Housing Choice Voucher Program, or the Project Based Section 8 Rental Assistance Program. DHS arrives at this number using the fact that 6.97 percent of the U.S. population is a foreign-born noncitizen (based on the 2012-2016 American Community Survey (ACS) 5-year Estimates from the U.S. Census Bureau). DHS multiplies this percentage by 5,051,000, the number of households residing in federally subsidized housing, to arrive at 352,055 as the number of households residing in federally-subsidized housing that contain at least one noncitizen. DHS further assumes that noncitizens that adjust their visa status and trigger a public charge review and determination by immigration officials at USCIS will be affected by the Final Rule. They estimate that approximately 2.5 percent of the foreign-born adjust their status on an annual basis. To determine the number of households that are likely to disenroll, DHS multiplies 2.5 percent and 352,055 households with at least one noncitizen to arrive at a figure of 8,801. They do not estimate the number or citizenship status of people living
52 “Regulatory Impact Analysis,” Inadmissibility on Public Charge Grounds, Final Rule (8 CFR Parts 103, 212, 213, 214, 245, and 248), RIN: 1615-AA22, CIS No. 2637-19, DHS Docket No.: USCIS-20100012, August 2019.
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in these families, nor do they attempt to estimate the costs or harm that disenrollment will create for these families or individuals.
48. As discussed below, the harm caused by 8,801 households disenrolling from federally-assisted housing benefits is substantial. There are multiple reasons to assume that the actual harm is likely to be greater and to view the 8,801 estimate as very conservative.
49. First, the Final Rule indicates that immigration officials will assess the use of benefits over a three year period when determining whether an immigrant should be designated a public charge. Using the logic DHS describes —that is, 2.5 percent of people will disenroll annually—it would be more appropriate to assume 7.5 percent of foreign born noncitizens would disenroll from a benefit at some point in a given three-year period. This would effectively triple DHS’s estimate of households that would disenroll from public housing and more closely match the estimate produced by HUD of the number of households living in federally subsidized housing that include at least one non-eligible immigrant (about 25,000).53
50. Second, DHS's use of the 6.97 percent of the foreign born population to estimate the number of noncitizen households residing in federally subsidized housing is likely to result in an underestimation of the households containing at least one noncitizen residing therein and consequently the number of individuals and households affected by the Final Rule. Using this figure to produce the estimates involves two faulty assumptions. The first mistake is to assume that the distribution of noncitizens in the U.S. population matches the distribution of noncitizens enrolled for or using one of the non-cash benefits named in the Final Rule (SNAP, Medicaid, and Federal housing programs). According to 2017 ACS data, 35 percent of households that contain at least one foreign born member are headed by noncitizens. Among
53 “Housing and Community Development Act of 1980: Verification of Eligible Status, Regulatory Impact Analysis.” Docket No. FR-6124-P-01, April 15, 2019.
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households eligible to live in federally-assisted housing, 46 percent of households that contain at least one foreign born member are headed by noncitizens. Being eligible to live in public housing is different than actually living in public housing, but the larger proportion of noncitizens in the eligible pool suggests that DHS underestimates the households with at least one noncitizen in its analysis. The second mistake is to assume that the 6.97 percent of the population who are noncitizens are the only residents that will disenroll due to the Final Rule. Evidence suggests that noncitizens are not alone in changing their behavior because of the Final Rule. A report by researchers at the Urban Institute indicates that noncitizen legal permanent residents and naturalized citizens withdrew from public benefits named in the Final Rule or declared that they would not apply, despite the fact that their immigration status would not be affected by the Final Rule.54
51. These flaws in the methodology used by DHS to estimate the chilling effect on foreign-born resident use of federally subsidized housing due to the Final Rule suggest a significant underestimate by DHS of the chilling effect related to the Final Rule.
52. Although I adopt DHS’s definition of the chilling effect as a dynamic that causes disenrollment for the purposes of this declaration, other studies have noted that the Final Rule is also likely to cause noncitizens to refrain from applying for benefits implicated by the Final Rule.55 DHS does not estimate the number of people who would not apply to Federal
54 Bernstein, Hamutal, Gonzalez, Dulce, Karpman, Michael, and Zuckerman, Stephen. 2019. “One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018.” Washington, DC: The Urban Institute. (https://www.urban.org/research/publication/one-seven-adults-immigrantfamilies-reported-avoiding-public-benefit-programs-2018, accessed on August 28, 2019). 55 Based on research results from a study by the Urban Institute that documented adults living in households with at least one foreign-born member reporting disenrolling from or choosing to not apply to federal benefit programs named in the Final Rule, individuals eligible for Federal housing programs by virtue of their family incomes will likely choose to not apply to Federal housing programs due to concerns about how the Final Rule could affect their immigration status or the immigration status of a
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housing programs due to the Final Rule. Nonetheless, the omission of such an estimate from DHS’s analysis is another reason the agency’s estimates should be viewed as conservative. In future analyses of the chilling effect I may elect to calculate a different chilling effect, using different data and a different methodology.
53. Using the DHS calculation of 8,801 households that would disenroll from Federal housing programs due to Final Rule, I can quantify some of the categories of harm, beyond the immediate harm to the individuals forced to move from their homes after disenrolling.
54. Loss of lifetime earnings. Given the benefits associated with living in federal housing, discussed above in Part III, the chilling effect associated with the Final Rule will be costly for the people who, absent the implementation of the Final Rule, would have continued to live in federal housing. Recent research estimates a substantial increase in life-time earnings for each additional year that a teenager lives in either public housing or voucher-assisted housing.56 While there are also benefits for young children and adults who live in federal housing, the estimates of increased lifetime earnings for teenagers allow me to make a conservative estimate of the future harm that will occur for people that disenroll from Federal housing programs because of the chilling effect of the Final Rule.
family member. Bernstein, Hamutal, Gonzalez, Dulce, Karpman, Michael, and Zuckerman, Stephen. 2019. “One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018.” Washington, DC: The Urban Institute. (https://www.urban.org/research/publication/one-seven-adultsimmigrant-families-reported-avoiding-public-benefit-programs-2018, accessed on August 28, 2019). 56 Andersson, Fredrik, Haltiwanger, John C., Kutzbach, Mark J., Palloni, Giordano E., Pollakowski, Henry O., and Weinberg, Daniel H. 2018. “Childhood Housing and Adult Earnings: A Between-Siblings Analysis of Housing Vouchers and Public Housing.” NBER Working Paper Series, Working Paper 22721 (https://www.nber.org/papers/w22721).
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55. The increased lifetime earnings (discounted to 2000 U.S. dollars) for each additional year that a teenager (aged 13-18) lives in public housing is $24,700 for females and $25,700 for males, or an average of $25,200.57 The increased lifetime earnings (discounted to 2000 U.S. dollars) for each additional year that a teenager lives in voucher-housing is $23,700 for females and $13,100 for males, or an average of $18,400.58 According to Table 1 in Exhibit B, public housing and Project-Based Section 8 housing units together accounted for about 47.6 percent of federal housing units, while vouchers accounted for 52.4 percent of federal housing units.59 Using these proportions, a weighted average of the life-time earnings for each additional year that a teenager lives in federal housing is $21,637. The lifetime earnings figures in this paragraph are discounted to present value.
56. Given that families with children live in public housing for an average of four years,60 I assume that teenagers who are 13 and 14 live in federal housing for four years before moving out. For teenagers aged 15, 16, 17, and 18, I assume that they live in federal housing for 4, 3, 2, and 1 years respectively. Given variation in length of stay in Federal housing programs by jurisdiction, using this approach will likely underestimate the number of years that teenagers between the ages of 13 and 14 stay in housing in New York and especially the high rent, low vacancy market of New York City. As a result, this approach will likely underestimate the lifetime earnings that these teens could expect to earn if they had not disenrolled from Federal housing programs.
57 Ibid. 58 Ibid. 59 I assume that Project-Based Section 8 are more similar to public housing than they are to HCVs, so I treat them as public housing units for the purposes of understanding what effect living in a Project-Based Section 8 unit will have on a teenagers life-time earnings. 60 McClure, Kirk. 2018. “Length of Stay in Assisted Housing.” Cityscape 20(1): 11-38. (https://www.jstor.org/stable/10.2307/26381219).
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57. Estimating the lifetime earnings that do not accrue to teenagers because they are chilled from living in federal housing due to the Final Rule is a simple matter of arithmetic: ((number of 13-year olds chilled from federal housing x 4 years x $21,637) + (number of 14-year olds chilled from federal housing x 4 years x $21,637) + (number of 15-year olds chilled from federal housing x 4 years x $21,637) + (number of 16-year olds chilled from federal housing x 3 years x $21,637) + (number of 17-year olds chilled from federal housing x 2 years x $21,637) + (number of 18-year olds chilled from federal housing x 1 year x $21,637)) = foregone lifetime earnings.
58. To estimate foregone lifetime earnings it is necessary to calculate the number of people living in the 8,801 families that DHS estimates will disenroll from Federal housing programs if the Final Rule is implemented. To produce this estimate, I use the ACS 50 percent of AMI sample to calculate the average family size of families eligible to live in Federal housing programs. ACS data indicate that 18,352,744 people in the United States live in 6,400,436 families that contain at least one foreign-born member and earn less than 50 percent of AMI.61 Therefore, the average family size among this population in the United States is 2.87 (18,352,744 / 6,400,436 = 2.867). Using this average family size estimate for the U.S., the 8,801 families estimated to disenroll from Federal housing programs by DHS contain 25,232 people (8,801 x 2.87 = 25,232).
59. To estimate foregone earnings for the people included in the national estimate from DHS I need to calculate the number of people aged 13 to 18 in the estimated
61 The population estimate comes from Table 2 in Exhibit B. The number of families is based on the author’s analysis of 2017 ACS and HUD determined family income limits based on 50 percent AMI. Steven Ruggles, Sarah Flood, Ronald Goeken, Josiah Grover, Erin Meyer, Jose Pacas and Matthew Sobek. IPUMS USA: Version 9.0 [dataset]. Minneapolis, MN: IPUMS, 2019. https://doi.org/10.18128/D010.V9.0.
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chilled population of 25,232 people. To achieve this I use the ACS 50 percent AMI data on the distribution of teenagers in the eligible population in Table 3 in Exhibit B. I divide the number of 13 through 18 year olds in this population by the total population amount to calculate the proportion of the total population that is each age. Next I multiply the proportion of each age group by the chilled population estimated by DHS (25,232) to determine the number of people for each age in the population. I present these results in Table 4 in Exhibit B.
60. Once I have estimated the number of teenagers in this population it is a simple matter of arithmetic to estimate the total foregone earnings among teenagers that DHS estimates would disenroll from Federal housing programs ((number of 13 year olds x 4 years x $21,637) + …+ (number of 18 year olds x 1 year x $21,637)). For the United States, the foregone earnings total $183,569,800.
61. As stated earlier, it is also important to note that DHS estimates of the number of people subject to a chilling effect are likely to be an underestimate. The Urban Institute’s report indicates that nearly 20 percent of adults living in low income families reported disenrolling from or choosing to not apply to federal non-cash benefits named in the Final Rule (compared to 13.7 percent in the overall sample).62 Since families living in Federal housing programs are low income, they may disenroll at greater rates than the 2.5 rate DHS estimates.
62. With these limitations in mind, the analysis of the chilling effect presented in this declaration has erred on the side of caution by using conservative estimates of the chilling effect. I also confine my estimates of the foregone earnings to teenagers disenrolling from Federal housing programs due to the Final Rule despite the fact that the benefits of public
62 Bernstein, Hamutal, Gonzalez, Dulce, Karpman, Michael, and Zuckerman, Stephen. 2019. “One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018.” Washington, DC: The Urban Institute. (https://www.urban.org/research/publication/one-seven-adults-immigrantfamilies-reported-avoiding-public-benefit-programs-2018, accessed on August 28, 2019).
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Case 1:19-cv-07777-GBD Document 34-1 Filed 09/09/19 Page 30 of 58 housing for young children and adults are substantial and their disenrollment will presumably cause them harm as well.
63. In this declaration I come to the conclusion that implementation of the Final Rule will result in harm to families that disenroll from Federal housing programs because they fear that remaining in these programs will affect their immigration status or the immigration status of a family member. Because living in Federal housing programs confers substantial benefits to residents, disenrolling will cause these individuals to experience substantial costs, including worse educational outcomes, lower earnings, and poorer health. Using the DHS estimate of chilling effect, I estimate that the foregone lifetime earnings of the teenagers who would disenroll due to the Final Rule would be $183,569,800.
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I declare under penalty of perjury that the foregoing is true and correct.

Executed on this ~ day of~

' 2019.

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EXHIBIT B
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Case 1:19-cv-07777-GBD Document 34-1 Filed 09/09/19 Page 55 of 58

Table 1: Characteristics of Federally Subsidized Housing Programs

Housing Choice Project Based Summary of All

Public Housing Vouchers

Section 8 HUD Programs

United States

Subsidized units available

1,015,505

2,527,803

1,284,354

5,035,824

Total number of residents

1,985,172

5,259,207

2,063,641

9,535,360

People per unit

2.1

2.3

1.7

2.1

Household income per year

(mean)

$

15,183 $

14,863 $

12,863 $

14,347

% very low income (< 50%

AMI)

91

95

96

94

Connecticut

Subsidized units available

14,104

42,329

23,731

82,830

Total number of residents

25,824

87,246

36,173

152,497

People per unit

2.0

2.3

1.6

2.0

Household income per year

(mean)

$

15,986 $

16,722 $

15,172 $

16,090

% very low income (< 50%

AMI)

96

96

99

97

New York

Subsidized units available

200,076

258,322

107,384

592,467

Total number of residents

408,772

526,365

169,931

1,134,562

People per unit

2.2

2.3

1.7

2.1

Household income per year

(mean)

$

22,550 $

17,318 $

17,260 $

19,046

% very low income (< 50%

AMI)

87

95

94

92

Vermont

Subsidized units available

1,291

7,756

3,392

12,866

Total number of residents

2,035

13,589

4,851

20,911

People per unit

1.7

2.0

1.5

1.8

Household income per year

(mean)

$

16,722 $

15,431 $

15,624 $

15,579

% very low income (< 50%

AMI)

93

95

93

95

New York City

Subsidized units available

170,039

146,134

62,785

393,993

Total number of residents

357,293

292,078

106,883

773,577

People per unit

2.2

2.3

1.8

2.1

Household income per year

(mean)

$

23,534 $

17,830 $

18,658 $

20,388

% very low income (< 50%

AMI)

87

95

92

91

Note: Picture of Subsidized Housing (POSH), Department of Housing and Community Development,

2018 (https://www.huduser.gov/portal/datasets/assthsg.html).

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Table 2: People Living in Households with a Foreign-Born Person, Eligible to Live in Federal Housing (50% AMI), 2017

Estimate

Lower Bound

Upper Bound

Native-Born Citizen Foreign-Born Naturalized Citizen Foreign-Born NonCitizen

7,464,412 7,334,584 7,594,240 4,409,184 4,346,268 4,472,100 6,479,148 6,371,779 6,586,517

Total

18,352,744 18,143,312 18,562,176

Note: Based on author’s analysis of 2017 ACS and HUD determined family income limits based on 50% area median incomes. Steven Ruggles, Sarah Flood, Ronald Goeken, Josiah Grover, Erin Meyer, Jose Pacas and Matthew Sobek. IPUMS USA: Version 9.0 [dataset]. Minneapolis, MN: IPUMS, 2019. https://doi.org/10.18128/D010.V9.0

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Table 3: Number and Percent of People Aged 13 to 18 Eligible to Live in Federal Housing Programs (50 Percent AMI), 2017

Upper

Lower

Upper

Number Lower Bound Bound Percent Bound

Bound

Age 13

368,873

352,100 385,646

2.0%

1.9%

2.1%

Age 14

366,068

349,473 382,663

2.0%

1.9%

2.1%

Age 15

330,126

314,863 345,389

1.8%

1.7%

1.9%

Age 16

337,771

322,407 353,135

1.8%

1.8%

1.9%

Age 17

312,068 297188.3817 326947.618

1.7%

1.6%

1.8%

Age 18

273,140 258454.8185 287825.181

1.5%

1.4%

1.6%

Total

1,988,046 1940189.006 2035902.99

10.8%

10.7%

11.0%

Note: Based on author’s analysis of 2017 ACS and HUD determined family income limits based on 50%

area median incomes. Steven Ruggles, Sarah Flood, Ronald Goeken, Josiah Grover, Erin Meyer, Jose

Pacas and Matthew Sobek. IPUMS USA: Version 9.0 [dataset]. Minneapolis, MN: IPUMS, 2019.

https://doi.org/10.18128/D010.V9.0

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Table 4: Number of Teenagers in the Department of Homeland Security’s Chilling Estimate for the U.S.

Upper

Number Lower Bound Bound

Age 13

507

484

530

Age 14

503

480

526

Age 15

454

433

475

Age 16

464

443

486

Age 17

429

409

450

Age 18

376

355

396

Total

2,733

2667

2799

Note: Based on the proportion of people from each age group in the population eligible to live in Federal

housing programs (Table 3), multiplied by the number of people estimated to live in families that DHS

estimates will disenroll from Federal housing programs due to implementation of the Final Rule

(25,232).

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Case 1:19-cv-07777-GBD Document 34-6 Filed 09/09/19 Page 2 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK, CITY OF NEW YORK, STATE OF CONNECTICUT, and STATE OF VERMONT,
Plaintiffs,
V.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; KEVIN K. McALEENAN, in his official capacity as Acting Secretary of the United States Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; KENNETH T. CUCCINELLI II, in his official capacity as Acting Director of United States Citizenship and Immigration Services; and UNITED STATES OF AMERICA,
Defendants.

CIVIL ACTION NO.1:19-cv-07777
DECLARATION OF DEIDRE S. GIFFORD, M.D., M.P.H.

I, Dr. Deidre S. Gifford, pursuant to 28 U.S.C. Section 1746, declare under penalty of perjury as follows:
1. I am the Commissioner-Designate of Connecticut's Department of Social Services ("DSS"). I respectfully submit this Declaration to place before the Court certain testimony and documents relevant to the relief requested in the above-captioned case. I am familiar with the matters set forth herein, either from professional knowledge, conversations with DSS staff, or on the basis of documents and information that have been provided to me and that I have reviewed.
2. I am a medical doctor with an M.D. from Cornell University Medical College. I trained in obstetrics and gynecology at University Hospitals of Cleveland and the UCLA Medical

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Center. I hold an M.P.H. in epidemiology and a B.S. from the University of California, Los Angeles.
3. In May of 2019, I was nominated by Connecticut Governor Ned Lamont to serve as DSS Commissioner. I have served as Commissioner-Designate since June 21, 2019, pending confirmation by the Connecticut General Assembly. Immediately before assuming my current role, I served as Deputy Director of the Center for Medicaid and CHIP Services (CMCS) at the federal Centers for Medicaid and Medicare Services, an office within the U.S. Department of Health and Human Services. I have also been Medicaid Director in the Rhode Island Executive Office of Health and Human Services and Director of State Policy and Programs at the National Association of Medicaid Directors (NAMD).
4. Created in 1993 when the Connecticut General Assembly merged two existing state agencies, DSS is charged by statute with administering key social support programs including, but not limited to: Medicaid; the Supplemental Nutrition Assistance Program (SNAP); Temporary Assistance for Needy Families (TANF); energy assistance for low-income families (LIHEAP); state supplements to the federal Supplemental Security Income (SSI) program (State Supplement); and federally-funded assistance programs for refugees and asylees. The DSS Commissioner is authorized to establish rules, regulations, and policies to carry out the Department's statutory responsibilities, including administering and operationalizing rules, regulations, and policies that determine how public assistance programs are provided in Connecticut.
5. DSS is working towards a Connecticut where every resident has the opportunity to be healthy, secure, and thriving. We fulfill our mission of enhancing the well-being of Connecticut's individuals, families, and communities through delivering and funding a wide range of health and human services programs and services. Every year, we serve about 1 million
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Connecticut residents of all ages - approximately 28% of the state's total population - across all of the state's 169 cities and towns.
6. DSS delivers services to Connecticut residents through more than 1,700 full-time staff members working at a central office and 12 field offices across the state. To promote easy and seamless access for residents, DSS has created a web portal, ConneCT, through which residents can obtain information about, apply for, and manage their participation in many of the critical services and supports that DSS provides. In compliance with the Affordable Care Act, DSS has also created a system to support state-based marketplace determinations of eligibility for Medicaid, CHIP, and qualified health plans (QHPs). The state-based marketplace is operated in conjunction with our partner, Access Health CT.
7. I am aware of, and strongly oppose, the public charge rule (the "Final Rule" or the "Rule") promulgated by the federal Department of Homeland Security. I understand that, among many troubling provisions, the Final Rule instructs immigration officials to consider an expanded range of public benefits in determining whether an immigrant is subject to a public charge inquiry. That expanded range of benefits, in my understanding, would include Medicaid and the Supplemental Nutrition Assistance Program (SNAP). Both of those programs are administered in Connecticut by DSS.
8. The Final Rule will severely and irreparably harm Connecticut and its residents. DSS strives to make Connecticut and its residents healthier and more economically secure. The Final Rule will directly frustrate those goals, leaving our residents less healthy and less secure, and damaging our statewide economy.
9. The Rule will disincentivize immigrants and their families from participating in public benefits programs. And many immigrants who are not directly implicated by the Rule will,
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out of fear or confusion, disenroll from or avoid enrolling in public benefits programs. The rules for determining whether someone is a "public charge" are technical and complex, and so are the eligibility rules for many of the benefits programs in which immigrants and their families may participate. For instance: In Connecticut, Medicaid- a benefit susceptible to public charge analysis - and CHIP - a benefit that is excluded from the analysis under the Final Rule - are both known as HUSKY. (They are called "HUSKY A" and "HUSKY B," respectively.) Potential recipients apply for both benefits through the same portal. It seems likely that many recipients do not know the distinction: Instead, they simply know that they receive public health insurance benefits, and that those benefits are now under threat.
10. So the number oflow-income immigrant families that choose not to receive benefits if the Final Rule is implemented would likely exceed - by a sizable amount - the number that would ultimately be subject to a "public charge" determination. Analysis of American Community Survey data suggests that nearly 200,000 Connecticut residents - fully 5.6% of our state's population - could be deterred, or "chilled," from participating in public benefits programs. This population comprises non-citizen residents of Connecticut, and their family members, with incomes less than 250% of the federal poverty level - residents who are likely to qualify for benefits that DSS delivers and therefore likely to experience hunger and endure unmet health needs if they are deterred from participating.
11. By disincentivizing, discouraging, and frightening families away from accessing vital health and food benefits, the Rule will leave up to 200,000 individuals in Connecticut, including children who are U.S. citizens, vulnerable to a lack ofpreventive health care or nutritious foods - benefits that have been shown to improve both short- and long-term health for individuals
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and advance population-scale public health interests such as curbing the spread of communicable diseases and reducing chronic health conditions.
12. In addition to the projected public health harms, analysts project that because of enrollment losses in federally-subsidized programs, states will suffer cuts in federal funding, significant economic ripple effects, and thousands oflostjobs because ofthe Final Rule. The Fiscal Policy Institute looked at the results for Connecticut, and all 49 other states, if the potentiallychilled population avoids benefits because of the Rule. Even a low-end estimate of a 15% disemollment rate in SNAP and Medicaid among the potentially-chilled population as a result of the rule is calculated to cost the state $79 million in federal funding; $154 million in economic ripple effects; and 1,046 jobs lost. If benefits disenrollment hits the higher-end mark of 35%, Connecticut will suffer a $183 million drop in federal funding; $359 million in ripple effects; and the loss of 2,441 jobs.
13. Finally, implementing the Rule would force DSS to expend resources and take on other administrative burdens that it cannot recover. By Reducing SNAP Participation, the Final Rule Will Cause Irreparable Harm to the Health and Wellbeing of Connecticut Residents and to the State's Economy
14. The purpose of the federally-funded Supplemental Nutrition Assistance Program (SNAP) is to reduce hunger and malnutrition by supplementing the food purchasing of eligible low-income individuals and families, including low-income working people, senior citizens, and the disabled. SNAP eligibility and benefit levels are based on household size, income, and other factors, including immigration status.
15. SNAP provides nutrition for some of Connecticut's most vulnerable residents; lifts families out of poverty; and boosts our state economy. Reducing SNAP participation without
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reducing underlying poverty will irreparably harm the health of the state's residents and damage our economy.
16. Over the course of CY 2018, a total of 493,600 Connecticut residents-nearly 14% of the state population- received SNAP benefits, including 168,489 children under the age of 18. Each month during CY 2018, on average nearly 16,000 non-citizens including over 3,000 noncitizen children received SNAP benefits. Over 5% of SNAP recipients lived in households with at least one non-citizen.
17. SNAP is narrowly targeted to help Connecticut's most vulnerable residents. In Fiscal Year 2017, 73% of Connecticut's SNAP households had incomes below the federal poverty line - including 32% of recipients whose incomes were at or below 50% of the poverty line. Between 2009 and 2012 -the most recent years for which such data is available - SNAP lifted an average of 70,000 Connecticut residents out of poverty every year.
18. The Final Rule will disincentivize and discourage Connecticut residents from participating in SNAP, whether or not their immigration status is actually implicated by the rule. Individuals whose immigration status is subject to the Final Rule will likely be disincentivized from applying for or continuing to receive those benefits implicated by the Final Rule, including SNAP. Additionally, policy experts agree that individuals whose immigration status may not be implicated by the Final Rule could also forgo benefits that the Final Rule covers - like SNAP because of fear or confusion. DSS expects that the Final Rule will drive many Connecticut residents to disenroll, or to refrain from enrolling, in SNAP.
19. By disincentivizing enrollment or continued participation in SNAP, the Final Rule will likely result in food insecurity for a large population of immigrants and their families in Connecticut. Food insecurity generally means that individuals have challenges meeting basic food
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needs because of a lack of money or resources. Food insecurity is costly for individuals and families. Because of food insecurity, individuals may face poor physical and mental health, reduced nutrient intake, and an increase in the likelihood of experiencing chronic diseases.
20. SNAP is particularly important for children, and depriving children and their families of SNAP does lifelong damage. Research shows that children of immigrants who receive SNAP benefits are more likely to be in good or excellent health, be food secure, and reside in stable housing. Compared to children in immigrant families without SNAP, families with children who participate in the program have more resources to afford medical care and prescription medications. Each additional year of SNAP eligibility for young children with immigrant parents is associated with health benefits in later childhood and adolescence.
21. By reducing SNAP participation, the Final Rule will also harm our state's economy. In 2017, the average Connecticut SNAP household member received $133 in monthly benefits. In total that year, Connecticut SNAP recipients spent $653.08 million at some 2,600 approved authorized retail locations. Those expenditures buoyed the state's economy: USDA's Economic Research Service has shown that for every dollar in SNAP benefits received, there is an approximate $1.79 in increased economic activity, and every billion dollars in SNAP benefits creates between 8,900 and 17,900 full-time jobs. By Reducing Medicaid Enrollment, the Final Rule Will Cause Irreparable Harm to the Health and Wellbeing of Connecticut Residents and to the State's Economy
22. DSS supports the medical, dental, and behavioral health of nearly 850,000 Connecticut residents through administering the HUSKY Health programs, which include both Medicaid and the Children's Health Insurance Program. In CY 2018, 566,045 Connecticut residents participated in Medicaid (called "HUSKY A" in Connecticut), and 31,672 Connecticut residents participated in CHIP ("Husky B").
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23. Medicaid is an important source of primary health insurance coverage and supplementary coverage for low-income residents and the most vulnerable Connecticut residents. Medicaid enrollees do not pay premiums and have little to no out-of-pocket costs for many services.
24. In Connecticut, nearly 161,000 citizen-children under the age of 18 have at least one foreign-born parent. An estimated 45,000 children with noncitizen parents -including children who are either naturalized or U.S.-born - participate in Medicaid or CHIP. As I noted above: Analysts have estimated that the Final Rule may deter 15%-35% of such eligible children from participating in Medicaid and CHIP, meaning that up to 15,750 U.S. citizen children in Connecticut may lose health care coverage under the Rule. Furthermore, the total number of Connecticut children otherwise eligible for Medicaid who may lose coverage due to confusion and concern about the Rule is likely to be greater, because Connecticut is one of the states that opts to provide Medicaid insurance for lawfully present immigrant children under the age of 21, without regard to the 5-year waiting period for qualified aliens.
25. Medicaid and CHIP have helped reduce the number of uninsured Connecticut residents. In Connecticut, the uninsured rate for people making less than 200% of the Federal Poverty Level fell from 27% in 2013 to 15% in 2017, while the overall uninsured rate fell from 9% to 6%. But the final rule, by deterring Medicaid and CHIP participation, will reverse this important public health progress.
26. Some people who are kept from Medicaid access by the Final Rule will likely go without coverage, with negative effects for their own health and productivity and the health and productivity of their families.
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27. Diminishedpublic health. By decreasing access to health insurance, the Final Rule will leave many Connecticut residents without preventive care, potentially leading to more acute and less treatable conditions in the future. Access to health insurance also improves the likelihood that patients receive recommended and potentially life-saving care. Studies have also shown that expanded Medicaid is associated with positive outcomes including lower mortality rates, higher cancer detection rates, and lower infant mortality rates.
28. Harms to maternal health. Medicaid also provides essential prenatal care to pregnant women, covering a full spectrum of prenatal and postpartum care services that are typically associated with positive health outcomes for mothers and children. Although the Final Rule excludes pregnant women who access Medicaid, because of the Final Rule's chilling effect, including Medicaid as a public benefit for purposes of a public charge determination could induce pregnant immigrants to refuse crucial prenatal care. Inadequate prenatal care increases the risk of premature birth, low birth weight, and a range of poor health outcomes for babies who, in many instances, will be U.S. citizens.
29. Harms to children's health. Although it excludes Medicaid coverage received by children under 21 years of age from the definition of "public benefit," the Final Rule will nevertheless discourage parents from enrolling their eligible children in Medicaid. By confusing and intimidating parents, the Rule will negatively impact long-term outcomes for children, including education and employment - both of which contribute to self-sufficiency and decrease the likelihood of needing public assistance in the future. Children's well-being is inseparable from their parents' and families' well-being, so help received by parents is central to children's health and well-being in the short- and long-term. Children thrive when their parents can access needed health care, and when their families have enough to eat and a roof over their heads. Conversely,
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parents' stress and health challenges impede effective caregiving and can undermine children's development. A parent's lack of access to health insurance can jeopardize a child's health and performance in school.
30. Without coverage, children will likely suffer the consequences of inconsistent wellchild visits and primary care, resulting in potentially serious health issues. Instead of early treatment for illness, children without health coverage will resort to emergency room visits for treatment of more serious conditions, at a greater cost than doctor's office visits.
31. Lack ofprimary care for some children has a ripple effect in the community, putting every child at risk. For example: Uninsured children are more likely to skip immunizations, increasing the likelihood that communicable diseases will spread.
32. A less-productive woriforce. By disincentivizing Medicaid participation, the Rule will reduce economic productivity and create instability in Connecticut's workforce. Having a reliable source of health insurance, such as Medicaid, improves individuals' overall health and well-being. Workers who receive Medicaid report performing better in their jobs and feeling better prepared to seek a new or better job. Likewise, jobseekers report feeling better prepared to enter the workforce when they have Medicaid coverage. Without stable, affordable health insurance, and the preventive care it provides, individuals that forgo Medicaid because of the Final Rule are likely to spend more time suffering from preventable illnesses and thus missing work. Working parents are at increased risk of harm; not only is their own health at risk, but they may be forced to take time off from work to care for children who are sicker due to lack of preventive care.
33. Decreased financial self-sufficiency. Workers with affordable health care - like Medicaid - enjoy improved financial well-being and self-sufficiency. Financial security and selfsufficiency are improved when a person can pay their medical bills, and Medicaid coverage puts
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full payment within reach for many. Other studies have shown that insurance coverage results in higher credit scores and lower medical debt, and reduces the probability of new bankruptcy filings. By contrast, individuals without health insurance have a harder time paying their medical bills and overall have worse financial health than those with coverage. Immigrants who are saddled with medical debt and low credit scores will be less likely to contribute to Connecticut's economic growth.
34. Rising costs ofhealth care and other social supports. Of course, some Connecticut residents who lose or are deterred from obtaining Medicaid coverage as a result of the Final Rule will still receive care - but the cost of that care will be borne by individuals, hospitals, and state and local governments. And because people without health insurance tend to wait longer to seek care during a health crisis, the care they eventually receive will be more costly, forcing state and local public health programs to undergo significant financial strain as immigrants rely on these expensive services instead of Medicaid. Connecticut Medicaid has extensive preventative medical, behavioral health and dental services, and has greatly increased provider capacity to support members. These preventative services enable early identification of chronic and acute health care conditions; support effective self-management; and often eliminate or forestall the need for high cost hospital and nursing facility care.
35. Reducing low-income immigrants' access to Medicaid will leave many of them covered only for care in hospital emergency departments. Not only will this exacerbate the costs of uncompensated care, but it will likely negatively influence people's work readiness and capacity to retain employment; compromise their ability to retain stable housing; and have cascade effects on their overall economic security. In the absence of Medicaid benefits, people will likely fall back
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on state, local, and nonprofit supports - including interventions designed to respond to homelessness - that could otherwise be entirely avoided.
36. Increasing the number of uninsured patients will, as was the case historically, expose hospitals to significant costs of uncompensated care, and will also reduce the overall pool of patients being served. The Affordable Care Act's (ACA) Medicaid expansion was of considerable support to hospitals in providing health care coverage for over a quarter of a million people in Connecticut, reducing uncompensated care. Medicaid expansion had an important role in mitigating hospital closures and improving the overall financial profile ofhospitals, particularly in rural areas with higher rates of uninsured adults. The contraction of coverage that is likely to result from implementation of this Rule could result in more hospital closures.
37. The Final Rule will also have a devastating impact on Connecticut's Federally Qualified Health Centers (FQHCs). One analysis estimates the cost of the Rule to Connecticut FQHCs at between $4.4 million and $11.4 million, with dozens of employees being laid off and significant loss of care capacity as a result. The Final Rule Will Impose Significant and Unrecoverable Costs and Administrative Burdens on DSS
38. The Final Rule will interfere with DSS' statutory obligations to assist vulnerable Connecticut families, and will create new and costly administrative and logistical burdens for the state.
39. Information .collection and document production for the federal government. The Final Rule will burden the state by forcing it to collect information and produce new documentation in response to federal government demands. The Rule appears to require applicants for status adjustment to gather and submit detailed supporting documentation about public benefits that they may have received. But DSS does not have such standardized historical documentation
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readily available. Developing standardized documentation of public benefits will be expensive and time-consuming, and require work across multiple computer systems. Further, the United States Citizenship and Immigration Services will likely request additional information from benefitgranting agencies if it has insufficient information to determine whether a public charge bond has been breached. These requests from USCIS will create additional work for DSS with time needed to review, process, and respond to requests.
40. The costs of enrollee churn. The Rule will force DSS to expend resources on enrollee "churn," to cover the transaction costs involved in participants leaving and re-enrolling in state programs. If the Final Rule becomes effective, DSS anticipates that many immigrants and family members of immigrants will terminate their participation in programs like SNAP and Medicaid. But, because these programs meet vital needs for families, some ofthese families would likely return to the caseload as services are needed, then request that assistance be discontinued at a later time in an attempt to limit the negative consequences ofreceiving assistance for a prolonged period of time. This on-again-off-again enrollment not only yields negative results for families, but also results in duplicative and expensive work for state agencies: In one study of SNAP-related churn, the costs averaged $80 for each instance of churn that requires a new application.
41. Responding to consumer inquiries. The 837-page Final Rule is overwhelmingly complex. Connecticut residents will be confused, and they will seek guidance and instruction from DSS. In response, DSS will experience increased call volume and walk-in traffic from consumers concerned about the new policies. Advising a family on whether they would be subject to a public charge determination and how receipt of various benefits might play out can require technical knowledge of immigration law beyond the expertise of most state employees or the state's call
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center contractors. We anticipate that these activities will occupy significant staff time and will displace other vital program administration responsibilities for DSS.
42. Modifying existing communications, web portals, and forms related to public charge. For almost twenty years, Connecticut has worked under consistent and clear rules about when a resident's use of public benefits could result in a public charge determination. The new rules, in addition to being vastly more complex, carry dramatically different and more onerous penalties for a much large swath of the department's clients. In order to properly inform clients of the new risks, a wide variety of forms, notices, websites, software applications and training materials will need to be modified before the rule goes into place.
43. Connecticut has created two integrated web-based applications for residents to apply for state and federal benefits. Residents apply for SNAP and some medical coverage through ConneCT, and most use Access Health CT to apply for Medicaid. If the Final Rule takes effect, these systems will need to be radically revised. Eligibility determinations will need to be delinked where the provision of one type of benefit automatically confers eligibility for another, and consumers will need to be provided with clear and accurate information about the nature of the programs to which they are applying and the implications of that application for their immigration status. Our information technology department anticipates costs in the millions of dollars for the programming work on the portals alone.
44. If the Rule takes effect, in addition to notifying thousands of current non-citizen beneficiaries who have already been determined eligible, the state must immediately plan to halt automated Medicaid benefit renewals for current beneficiaries (a process required by the Affordable Care Act) in order to give clients an opportunity to evaluate the new rules. These renewals are generally triggered approximately 60 days in advance of the expiration of the prior
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period of eligibility - or around September 1st for benefits expiring in October. Stopping this process and developing notices and procedures to support this change in operations requires costly and intensely rapid system changes. DSS reasonably anticipates a deluge of questions regarding application of this massive new rule, draining capacity for other work and increasing operational costs.
45. An additional example of the challenges faced by DSS concerns benefits that automatically confer eligibility for other benefits. For instance, a non-citizen may file an application with DSS requesting only cash assistance. IfDSS determines the non-citizen is eligible for State Supplement and grants this benefit, the computerized eligibility system will automatically grant Medicaid coverage as well, because eligibility rules provide that a recipient of State Supplement is categorically eligible for Medicaid coverage. Because the Final Rule changes the definition of "public charge" to mean an "alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period receipt (such that, for instance, receipt of two benefits in one month counts as two months)," 84 Fed. Reg. 41,295 (Aug. 14, 2019), and because non-emergency Medicaid is, in most instances, now one of the designated public benefits considered for public charge purposes, DSS will need to reprogram its computer eligibility system to "delink" these two benefits. DSS will need to create new correspondence for these situations that clearly explains a non-citizen's options and the potential ramifications of accepting Medicaid coverage. DSS will incur a cost for making these changes to its computer system and correspondence, and for providing training to its staff.
46. If implemented, the Rule will impose administrative burdens and costs on the state's health insurance Marketplace. Federal law requires state health insurance Marketplaces to first determine Medicaid eligibility for anyone applying for subsidized health insurance
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47. If enacted, the Rule will require Connecticut to make changes to its online eligibility platform and consumer notices to ensure immigrant applicants are informed ofthe potential risk that applying for or renewing existing health insurance may pose to their immigration status. Changing this platform would be tremendously costly and timeconsuming for Connecticut to implement.
I declare under penalty of perjury under the laws of the State of Connecticut and the United States of America that the foregoing is true and correct.
DATED this August 27, 2019 at Hartford, Connecticut.
DEIDRE S. GIFFORD, MD, MPH Commissioner
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, CITY OF NEW YORK, STATE OF CONNECTICUT, and STATE OF VERMONT,

Plaintiffs,

v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; KEVIN K. McALEENAN, in his official capacity as Acting Secretary ofthe United States Department ofHomeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; KENNETH T. CUCCINELLI II, in his official capacity as Acting Director of United States Citizenship and Immigration Services; and UNITED STATES OF AMERICA,

CIVIL ACTION NO. 19-CV-07777
DECLARATION OF DR. MITCHELL KATZ

Defendants.

I, Mitchell Katz, M.D., pursuant to 28 U.S.C. Section 1746, declare under penalty of perjury as follows:
l. I am the President and Chief Executive Officer ("CEO") of New York City Health and Hospitals Corporation ("NYC Health+ Hospitals"). I respectfully submit this Declaration in my capacity as President and CEO of NYC Health + Hospitals in order to place before the Court testimony relevant to the reliefrequested in this action. I am familiar with the

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matters set forth herein, either from professional knowledge, conversations with NYC Health+ Hospitals staff, or on the basis of documents that have been provided to and reviewed by me. I have also familiarized myselfwith the public charge inadmissibility rule (the "Public Charge Rule" or "the Rule'') in order to understand its immediate impact upon NYC Health+ Hospitals and its patients.
2. This Declaration provides: (i) general information on my background and NYC Health+ Hospitals' mission and work; (ii) examples of the Public Charge Rule's harmful effect
on NYC Health+ Hospitals' patients; (iii) an analysis of the impact the Public Charge Rule will
have on the NYC Health+ Hospitals' patients; and (iv) an assessment of the significant costs and burdens the Public Charge Rule will impose on the administration of our already overburdened facilities.
My Professional Background 3. I have dedicated my career to the service of public health systems. I have served as President and CEO at NYC Health+ Hospitals since January 8, 2018. Before coming to NYC Health+ Hospitals, I was the Director of the Los Angeles County ("LAC") Health Agency, which has a budget of $7 billion, 28,000 employees, and a large number of community partners, I also served as the Director of the LAC Department of Health Services, the second largest public safety~net health care system in the United States. 4. Prior to working in Los Angeles, I served as the Health Officer of the San Francisco Department of Health for 13 years. I worked on funding needle exchange programs, creating Healthy San Francisco (a health access program), outlawing the sale of tobacco at pharmacies, and winning ballot measures for rebuilding San Francisco's public hospitals. 5. I am a graduate of Yale College and Harvard Medical School, completed an internal medicine residency at the University of California, San Francisco Medical School and
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was a Robert Wood Johnson Clinical Scholar. Currently, I am the Deputy Editor of JAMA Internal Medicine and an elected member of the National Academy of Sciences.
6. In addition to my administrative leadership roles, throughout my professional career, I have continued to provide direct care to patients and currently provide primary care at one ofNYC Health+ Hospitals' federally qualified health center sites.
NYC Health+ Hospitals' Work and Mission 7. NYC Health+ Hospitals is New York City's municipal hospital system and the largest public health care system in the United States. Our dedicated, culturally competent, diverse workforce of40,000-plus health care professionals protects and promotes the health and well-being of 8.5 million New York City residents across all five boroughs, We estimate more than 40 percent of NYC Health+ Hospitals' patients were born outside the United States. In its
role as the public health care safety net, NYC Health + Hospitals' mission is to deliver the best c~ for all patients, regardless of ability to pay.
8. With an operating budget of approximately $8 billion, NYC Health+ Hospitals is an integrated health care system consisting of: eleven acute care hospitals; five post-acute/longterm care facilities; a federally qualified health center consisting of a network of ambulatory care clinics offering primary care services across the five boroughs; a certified home health agency; and one of the largest correctional health services in the nation.
9. NYC Health+ Hospitals' wholly-owned subsidiaries include: "MetroPlus," a low to no-cost health insurance plan serving more than 500,000 New York residents; and "OneCity Health," the largest Medicaid Performing Provide~ System in the State composed ofhundreds of health care providers, community-based organizations, and health systems.
10. On August l, 2019, NYC Health + Hospitals began implementing NYC Care, a
healthcare access program that guarantees low-cost and no-cost services to Nevv York City
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residents who do not qualify for public insurance coverage or cannot afford health insurance. This program is entirely funded by New York City and all health care services provided under
the NYC Care program are currently provided through NYC Health + Hospitals. Impact of the Public Charge Rule on NYC Health+ Hospitals Patients
Seeking Healthcare and Coverage fo1· Care
11. Staff at NYC Health + Hospitals has already seen how fear and confusion wrought by the Public Charge Rule has led, and will continue to lead, our patients and their
families to avoid obtaining critical health care services and coverage for those services. As the examples I provide below demonstrate, this fear and confusion has had a chiliing effect on our patients-immigrants not targeted by the Public Charge Rule (for example those with Green Cards or visas not targeted by the Public Charge Rule) are declining needed services and immigrant patients are avoiding services that would not be subject to the Public Charge Rule. Some of NYC Health+ Hospitals' patients have already declined to enroll in, or have requested to disenroll from, Medicaid and its MetroPlus health plan. Others have opted out of the Women, Infants, and Children ("WIC") program, a supplemental nutrition initiative for women, infants, and children.
12. After the proposed rule was published and before the Rule was finalized, an infant
girl was admitted to an NYC Health+ Hospitals inpatient setting in Manhattan due to severe
anemia and malnutrition. Her parents have three children, all born in the United States. The parents told our staff that they had avoided applying for WIC and Supplemental Nutrition Assistance Program ("SNAP") because others in their immigrant community had warned them that the children's receipt of food assistance might be held against the parents in the future. NYC Health+ Hospitals gave the parents nutritional advice and provided calories to the girl while she was at the hospital. She was able to rebound. She stopped losing weight Her anemia
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turned around. The parents experienced this fear of using benefits for their children even though the proposed rule clearly stated that usage of any new benefits added to the Rule, before the Rule becomes effective, would not be used against applicants subject to the Rule.
13. After the Public Charge Rule came out, an uninsured couple did not want to apply
for insurance or for H+H Options (NYC Health+ Hospitals' sliding fee scale program) due to
fear that they might be deemed public charges. The couple said they were advised by their
attorney to not apply for health insurance programs because the act can adversely affect their legal status as well as their sponsor. The couple was apprehensive even though H+H Options is not implicated by the Rule and the Rule had not yet taken effect.
14. In the Summer of2019 after the Rule was published, a patient in Queens who was enrolled in Medicaid managed care requested to cancel his insurance coverage because of what he heard on the news relating to the Public Charge Rule. A staff member referred the patient to an immigration legal hotline we make available to our patients. Although it was unclear whether this individual would have been subject to the public charge test after the Rule's effective date on October 15, 2019, his enrollment prior to this date would not be used in a public charge determination. The patient was extremely fearful and adamant about his desire to cancel his existing coverage.
15. In another instance during the Summer of 2019 after the Rule was finalized, two women participating in a breast cancer program at one of our acute care facilities in Manhattan declined to pursue follow-up care. These women were enrolled in H+H Options and each reported that she was declining follow-up care out of fear that continued participation in H+H Options would adversely affect her immigration case. Our staff exp] ained that the Rule does not apply to H+H Options, but the patients still refused care.
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16. As these examples show, the Public Charge Rule has had an actual chilling effect
on New York City residents receiving care at NYC Health+ Hospitals-including immigrants
who are not directly targeted by its provisions and others who are too afraid to access benefits
and services that are not affected by the Rule. Even if NYC Health+ Hospitals continues its
significant investment in educational efforts to help its immigrant patients understand the Rule's application, based on the pervasive fear and reactions we have seen, we believe that the chilling
effect will continue.
Sensitivity Analysis of the Public Charm~ Rule on NYC HcaJtb +Hospitals Patients
17. NYC Health+ Hospitals staffhas conducted an analysis ofhow the Public Charge
Rule may affect its patients and will continue to update the analysis as data becomes available.
NYC Health+ Hospitals estimates that, based on data from the 2017 American Community Survey and NYC Health+ Hospitals' data for fiscal year 2018, approximately 283,000 patients may be noncitizens (including 163,000 insured patients and 120,000 uninsured/self-pay patients)
and will either be directly affected by or be subject to the chilling effect of the Public Charge
Rule and respond simi]arly to the patients whose stories are shared above. 18. NYC Health + Hospitals has modeled a range of potential patient responses to the
Rule in its first year of implementation: disenrolling from federally-subsidized Medicaid and Medicaid managed care plans; reducing use of primary care and preventive services resulting in poorer health outcomes and more costly care; and providing incomplete contact or insurance information to avoid diagnoses and utilization being tied to themselves (i.e., "collectability"), resulting in lower collectability and reimbursement for NYC Health + Hospitals.
19. For each type of patient response, NYC Health+ Hospitals modeled a worst, medium, and best case scenario. For example, the medium case scenario for potential patient responses regarding disenrollment from Medicaid assumes 20 percent disenrollment by
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potentially directly affected patients. This assumption is based on a conservative estimate of the chilling effect resulting from the passage of the Personal Responsibility and Work Opportunity Act of 1996. Under the medium case scenario, 11,200 Medicaid patients would disenroll and become uninsured and NYC Health+ Hospitals could face a net financial loss of $42 million due to reduction in Medicaid reimbursement in the first year of the Rule's implementation. Layering in the medium case scenario for potential responses of patients, including a reduction in their use of primary care and preventive services as well as a reduction of the cost collectability from
these patients, the potential loss is S121 million in the first year. The potential loss
encompassing all types of potential patient responses to the Rule could range from $50 million in the best case scenario to as much as $187 million in the worst case scenario.
20. In addition to the potential financial impact of patient responses, NYC Health +
Hospitals estimates it would cost up to $1.8 million over the first year to implement necessary administrative steps to respond to the rule change. This reflects costs for multiple rounds of staff training for key frontline personnel, outreach, preparation of education materials, and additional financial counseling and legal services to support our patients.
21. Although not reflected in the above estimate of the Rule's impact on NYC Health
+ Hospitals, MetroPlus, the managed care plan owned by NYC Health + Hospitals, faces a
potential financial loss resulting from decreased enrollment and the cost of implementation. Based on experiences to date, it is expected that a number of individuals will disenroll from their Medicaid coverage through MetroPlus for fear of its impact on their immigration status. The
Rule will force MetroPlus to invest significant resources in staff training and member outreach to
ensure its membership understands the Rule's impacl and implications for their health care coverage.
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Increased Administrative Burdens on NYC Health + Hos pitals
22. The Rule has imposed, and will continue to impose administrative burdens and
costs on NYC Health+ Hospitals. Staff wilJ need to be retrajned to be prepared to understand questions from certain patients and make necessary referrals to pro bono immigration legal service attorneys. Education materials will need to be prepared, translated, and distributed.
The administrative and implementation costs, as well as the on-the-ground support needed
for staffregarding this rule, will be felt for years to come. 23. NYC Care: We expect that the Rule wi11 shift health and medical costs covered
by federal funds to the City of New York. Individuals who forgo Medicaid or other health insurance programs may seek services under NYC Care. NYC Care is available to all New York City residents regardless of their ability to pay and enrollment in NYC Care is not included in the public charge determination. Alternatively, some Medicaid or even NYC Care patients may disengage from health care entirely, posing individual and public health risk, as well as the potential for long-term increases in emergency care.
24. Stafftraining and resources: Since the proposed Public Charge Rule was released in the Fall of 2018, NYC Health+ Hospitals has spent hundreds of staff hours to analyze its impact and educate its staff and community members on the proposed Rule and now the final Rule.
25. Contact center; NYC Health+ Hospitals runs numerous telephonic contact centers to answer questions, including but not limited to those about insurance matters and eligibility for services. Beyond its core staff, an "overflow" model is used such that when call volumes are high, the "overflow" volume is transferred to an outside vendor which charges based on call volume. Given the inherent complexities among various types of health insurance coverage available to our patients, the Rule could cause an increase in calls
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as patients seek information about the health care access, their insurance coverage, and the potential impacts of the Rule. Such an increase in volume would place a financial burden on
NYC Health + Hospitals for every minute of additional "overflow" call time needed to
support our patients. 26. Lega/Health Partnership with New York Legal Assistance Group
("NYLAG''): NYC Health+ Hospitals has a long-standing partnership with NYLAG to provide pro bono legal services for its patients on a range of issues~ including immigration matters. NYC Health+ Hospitals provides this service through NYLAG at all of its hospitals and many neighborhood clinics. Telephonic services are also provided, and a new hotline has been established in order to specifically handle calls related to public charge issues. NYC Health+ Hospitals pays for this service and provides physical space at its facilities to host these services. If more patients were to call with concerns about the Rule, there may be a need for increased legal capacity, which would come at greater cost to NYC
Health + Hospitals.
CONCLUSION 27. For these reasons, NYC Health+ Hospitals opposes implementation of the Rule given its destructive, far-reaching, and irreversible consequences on the economy, health, and administration of NYC Health+ Hospitals and in tum, the City of New York. I respectfully request that this Court grant plaintiffs' motion for a preliminary injunction.
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I declare under penalty that the foregoing is true and correct and ofmy own personal
knowledge.
Executed on this IP ~September, 2019
President and Chief Executive Officer New York City Health and Hospitals Corporation
\
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK, et al.,

Plaintiffs,

v.

19 Civ. 7777 (GBD)

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

I, Leighton Ku, declare pursuant to 28 U.S.C. § 1746 that the following is true and correct:
1. My name is Leighton Ku. I have personal knowledge of and could testify in Court concerning the following statements of fact.
2. I am a Professor of Health Policy and Management and Director of the Center for Health Policy Research at the Milken Institute School of Public Health, George Washington University in Washington, DC. I have attached my Curriculum Vitae as Exhibit A to this Declaration.
3. I am a nationally-known health policy researcher with over 25 years of experience. I have conducted substantial research about immigrant health, and health care and costs. I have authored or co-authored more than a dozen articles and reports about immigrant health issues, including articles in peer-reviewed journals such as Health Affairs and American Journal of Public Health, as well as scholarly reports published by diverse non-profit organizations including the Social Science Research Network, the Migration Policy Institute, the Cato Institute and the Commonwealth Fund, as well as many more articles and reports on other subjects. I have testified before the U.S. Senate Finance Committee about immigrant health

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issues and provided analyses and advice to state governments and non-governmental organizations in many states about immigrant health.
4. I have expertise in quantitative data analysis and have conducted quantitative analyses for most of my career, including analyses for a federal agency, two think tanks and now at a university. I have taught statistical analysis and research methods at the graduate school level for over 25 years, training hundreds of graduate students, as well as dozens of federal and state budget and policy analysts. I have authored or co-authored more than 90 papers in peerreviewed journals and hundreds of other reports, most of which were quantitative analyses. As a quantitative health data analyst I have consulted with the Congressional Budget Office and numerous federal and state agencies.
5. I provided expert declarations about the effects of terminating DACA on health insurance coverage and states in State of New York, et al. v Trump, et al.1 in November 2017 and in State of Texas v. United States, et al. and Karla Perez, et al. in June 2018.2 On September 1, 2019 I provided an expert declaration very similar to the current one regarding the public charge rule in La Clinica de la Raze, et al, v Donald Trump, et al., in the U.S. District Court, Northern District of California..3 I have not provided testimony in any other court cases in the past four years.
1 Declaration of Leighton Ku in State of New York, et al. v Donald Trump, et al. in U.S. District Court for the Eastern District of New York. Nov. 22, 2017.
2 Declaration of Leighton Ku in State of Texas v. United States of America, et al. and Karla Perez, et al., Defendant-Intervenor in U.S. District Court for the Southern District of Texas, Brownsville Division, June 14, 2018.
3 Ku L. Declaration in Support of Plaintiffs' Motion for a Preliminary Injunction, La Clinica de la Raza, et al. v. Donald Trump, et al. United States District Court, Northern District of California, September 1, 2019. https://healthlaw.org/resource/declaration-of-leighton-ku-in-la-clinica-de-la-razav-trump/.
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6. I also have knowledge of health insurance and employment through my role as a voluntary (unpaid, appointed) Executive Board member for the District of Columbia’s Health Benefits Exchange Authority, which governs the District’s health insurance marketplace, formed under the federal ACA. This includes oversight of health insurance for small businesses as well as individual health insurance in the District of Columbia.
7. I have a PhD. in Health Policy from Boston University (1990) and Master of Public Health and Master of Science degrees from the University of California at Berkeley (1979). Prior to becoming a faculty member at George Washington University, I was on the staff of the Urban Institute and the Center on Budget and Policy Priorities.
8. I have been engaged by counsel for the Plaintiffs in this case to evaluate the effect of the new public charge rule on Medicaid enrollment, public health, and health systems.
Overview 9. This declaration examines the potential effects of the final regulation issued by the U.S. Department of Homeland Security (DHS) regarding inadmissibility on public charge grounds on August 14, 2019 (“the public charge rule” or “the rule”),4 specifically the health consequences and effects of the rule related to the receipt of health insurance benefits under the federal Medicaid5 program. In this declaration I:
(A) summarize key aspects of the public charge rule,
(B) describe the Medicaid program, and provisions related to lawful immigrants,
4 Department of Homeland Security. Final Regulations: Inadmissibility on Public Charge Grounds. Federal Register. Federal Register. Vol. 84, No. 157, pg: 41290-508. Aug. 14, 2019.
5 Unless otherwise specified, my use of the term “Medicaid” refers only to federally-funded Medicaid which is considered a “public benefit” under the public charge rule.
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(C) demonstrate how the public charge rule will have severe repercussions and create “chilling effects” that cause substantial numbers of members of immigrant families, including citizens in those families, to disenroll or forego Medicaid or other public benefits, even if they are not applying for adjustment in immigration status, (D) describe serious flaws in estimates by the Department of Homeland Security about the number of members of immigrant families who may forego or drop Medicaid coverage due to the public charge rule, (E) produce independent, evidence-based analyses and estimate that between 1.0 million and 3.1 million members of immigrant families would drop or forego Medicaid coverage or disenroll due to the public charge rule, (F) explain the documented benefits of Medicaid coverage and discuss the serious health harms that are likely to befall members of immigrant families, including premature death, due to dropping Medicaid coverage in response to the public charge rule, (G) analyze other consequences of the public charge rule including financial harm to state and local governments, such as New York and California, and to health care providers, such as community health centers and safety net hospitals, and to the patients they serve, (H) discuss other health-care-related harms from other provisions of the rule, such as provisions related to private health insurance or savings for medical care, and
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(I) explain why public charge policies, which rely on current or past characteristics of immigrants, specifically receipt of Medicaid, do not accurately predict immigrants’ future economic status.
I conclude that the public charge rule will lead between 1.0 to 3.1 million members of immigrant families, many of whom are United States citizens, to disenroll from or forego Medicaid benefits each year, even though they are eligible. Those harmed are disproportionately low-income members of racial and ethnic minority groups, especially Latino and Asian families, and many have serious chronic health problems. The loss of Medicaid will substantially reduce their ability to access affordable health care and will lead to serious health problems for many, such as diabetics who will no longer be able to afford insulin or other medications or medical services. As a result, there could be as many as 1,300 to 4,000 excess premature deaths per year. The reduction in Medicaid revenue, and subsequent increase in the number of low-income uninsured people will also cause financial harm to health care providers, especially safety net facilities like community health centers and safety net hospitals, as well as to local and state governments.
A. Summary of the Revised Public Charge Rule 10. Section 531 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) included five criteria that could be considered when making public charge determinations for admissibility to the United States, approval of lawful permanent residency (LPR) or other adjustments of immigration status: age; health; family status; assets, resources and financial status; and education and skills.6 In 1999, the Immigration and Naturalization Service (INS), which oversaw the immigration system at the time, specified that being primarily
6 Public Law 104-208, Div C. Section 531, 8 USC 1182(1)(4).
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dependent on cash assistance income maintenance (e.g., Supplemental Security Income (SSI) or Temporary Assistance for Needy Family (TANF) benefits) or institutionalized for long-term care at government expense (e.g., nursing home expenses paid by Medicaid) could result in public charge determinations.7 The INS explained that this was consistent with a historical approach to the concept of public charge, that it would apply to those who were “primarily dependent” on the government for income or for institutionalization. Non-cash benefits, such as Medicaid (other than the long-term care benefits mentioned above), the Children’s Health Insurance Program (CHIP), or the Supplemental Nutrition Assistance Program (SNAP), were not to be considered in determining public charge status under the 1999 guidance.
11. Under the new public charge rule, DHS will now include the receipt of non-cash benefits such as Medicaid, SNAP, and public housing as grounds to make a public charge determination to deny status adjustments, including approval for lawful permanent residency.
12. Under § 212.22(c)(1)(ii) of the final regulation, the following will be considered a “heavily weighted negative factor” in consideration of a determination of public charge inadmissibility: “The alien has received or has been certified or approved to receive one or more of the public benefits, as defined in § 212.21(b) for more than 12 months in the aggregate within any 36-month period, beginning no later than 36 months prior to the alien’s application for admission for admission or adjustment of status on or after October 15, 2019.” The public benefits in § 212.21(b) include non-cash benefits like Medicaid, SNAP, and public housing, and cash benefits like Temporary Assistance for Needy Families (TANF) and Supplemental Security Income (SSI). Section 212.21(b) indicates that receipt of Medicaid counts as a highly weighted negative factor, except for certain circumstances, such as the receipt of Medicaid due to
7 Immigration and Naturalization Service. Notice: Field Guidance on Deportability and Inadmissibility on Public Charge Grounds. (Federal Register. Mar. 26, 1999. Pg. 28689-92).
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emergency medical conditions, Medicaid services received under the Individuals with Disabilities Education Act, school-based Medicaid services and services provided to immigrants under the age of 21 or a woman who is pregnant (up to 60 days postpartum).
13. If the immigrant receives two or more benefits, the receipt of each benefit will be summed in reaching the 12-month limit; i.e., an immigrant who receives Medicaid, SNAP a-n-d public housing benefits for more than four months each would exceed the 12-month criterion. An immigrant may be considered “likely to become a public charge” if the immigration officer believes he or she will receive one or more of these benefits. Applying for Medicaid (or related benefits) after October 15, 2019 will not be considered “receipt” of benefits, but can be considered in determining public charge status (§ 212.22(b)(4)(E)).
14. Other factors which will be considered negative factors include: having an income below 125% of Federal Poverty Guidelines (“FPG”), being a child or elderly, low education, poor health, being uninsured and having been denied entry or adjustment in the past.
15. Although certain exclusions apply with respect to receipt of Medicaid benefits, many Medicaid enrollees with such exclusions are still at risk of public charge determinations for other reasons. For example, children or pregnant women enrolled in Medicaid could still be deemed public charges because they are: under 18 (§ 212.22(b)(1)), have serious health problems (§212.22(b)(2) and §212.22(c)(1)(iii)(A)), are members of large families (§212.22(b)(3)), have incomes below 125 percent of federal poverty guidelines (§212.22(b)(4)), or for other related reasons. For example, an immigration officer could interpret that pregnancy (and subsequent labor and delivery) constitutes a “medical condition that is likely to require extensive medical treatment or institutionalization” (§212.22(b)(2) and §212.22(c)(1)(iii)(A)) which therefore authorizes a public charge determination, even though the child born would be a native-born
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U.S. citizen. In fact, a pregnant woman could be considered a public charge even if she has not been enrolled in Medicaid, simply because of her health condition.
B. Brief Description of Medicaid 16. Medicaid, authorized under Title XIX of the Social Security Act, provides health insurance coverage to low-income populations. As of May 2019, 65.7 million individuals were enrolled in federally-funded Medicaid, about 20% of the U.S. population. (An additional 6.6 million children were enrolled in CHIP; as noted below some of these children could be considered Medicaid recipients as well, depending on how states have decided to structure their programs.)8 Medicaid is the nation’s largest health insurance program. Medicaid is an entitlement program whose eligibility rules and benefit levels are established by federal and state laws and regulations; total spending is not limited by appropriations limits. The Centers for Medicare and Medicaid Services, which administers Medicaid, does not provide detailed information about the immigration status of Medicaid participants. 17. Medicaid serves a wide range of low-income beneficiaries including children, the elderly, persons with disabilities, non-elderly adults and pregnant women. Eligibility is based on multiple criteria including age, income, category (e.g., child, adult, elderly, pregnant woman), disability status, state residency and immigration status. Medicaid offers a broad health benefit, including preventive and primary health care, acute medical care, emergency and inpatient hospital care, and long-term care services. Children on Medicaid receive other important services, including dental care and therapies that address developmental problems. For the
8 Centers for Medicare and Medicaid Services. May 2019 Medicaid & CHIP Enrollment Data Highlights. https://www.medicaid.gov/medicaid/program-information/medicaid-and-chipenrollment-data/report-highlights/index.html. Accessed Aug. 19, 2019. This is the number reported by the federal agency, there may be many others, as described below, who are enrolled in statefunded Medicaid plans, who might also disenroll or forego coverage due to the public charge rule.
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elderly or disabled who also participate in Medicare, Medicaid can provide “wrap around” insurance that covers fees not covered by Medicare, such as Medicare deductibles or copayments, or for certain services like long-term care or hearing aids not covered by Medicare.
18. Medicaid is a joint federal-state program. Within the federal regulatory framework, states have great flexibility to establish policies. The federal government funds the majority of Medicaid expenditures based on a federal medical assistance percentage (FMAP), which annually establishes the percent of total Medicaid expenditures that will be paid by the federal government, while state or local governments fund the remaining costs. Under Medicaid, 36 states (plus the District of Columbia) cover non-elderly adults with family incomes up to 138 percent of the federal poverty level (about $29,435 per year for a family of three), but 14 states have not expanded Medicaid as permitted by the Patient Protection and Affordable Care Act, and many do not provide any coverage to non-elderly adults without dependent children.9 The range of income eligibility criteria in Medicaid is very broad. At the high end, in the District of Columbia, adults with incomes up to 221 percent of the poverty level are eligible for Medicaid. Thirty-six states use 138 percent of the poverty level as the income cutoff. At the low end, twelve states use a threshold below 50 percent of the federal poverty level.10 The lowest threshold is in Texas where Medicaid eligibility for parents ends at 17 percent of poverty ($3,600 per year for a family of three) and non-disabled, non-elderly adults without dependent children are not eligible at all, regardless of income. Thus, eligibility criteria related to use of Medicaid would only affect very poor parents in Texas, but may affect low-income working class adults in
9 Kaiser Family Foundation. Medicaid Income Eligibility Limits as a Percent of the Federal Poverty Level. https://www.kff.org/health-reform/state-indicator/medicaid-income-eligibility-limits-foradults-as-a-percent-of-the-federal-poverty.level/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc %22%7D. Accessed July 26, 2019.
10 Ibid.
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36 states and the District of Columbia. Moreover, predicting future Medicaid use would depend
heavily on predicting where an individual will live in the future.
19. Medicaid Eligibility for Legal Immigrants. Special policies exist for Medicaid
eligibility for legal immigrants. Citizens, including naturalized citizens and citizen children with
noncitizen parents, are eligible for Medicaid and CHIP on the same terms as U.S.-born citizens.
Undocumented immigrants are not eligible for Medicaid or CHIP benefits. The Personal Responsibility and Work Opportunities Reauthorization Act of 1996 (PRWORA)11 restricted
legal immigrants’ eligibility for certain means-tested programs, including Medicaid. In 2009,
Congress modified the rules under Section 214 of the Children’s Health Insurance Program
Reauthorization Act of 2009 (CHIPRA) and gave states the option to expand eligibility for
lawfully residing children and pregnant women. This section is sometimes called the “ICHIA”
provision, named after a legislative proposal, Immigrant Children’s Health Improvement Act, that evolved into Section 214.12 Federal policies as of July 23, 2019 (prior to issuance of the
final regulation) are summarized by the Department of Health and Human Services’
HealthCare.gov website:
Immigrants and Medicaid and CHIP Immigrants who are “qualified non-citizens” are generally eligible for coverage through Medicaid and the Children’s Health Insurance Program (CHIP), if they meet their state’s income and residency rules. In order to get Medicaid and CHIP coverage, many qualified non-citizens (such as many LPRs or green card holders) have a 5-year waiting period. This means they must wait 5 years after receiving “qualified” immigration status before they can get Medicaid and CHIP coverage. There are exceptions. For example, refugees, asylees, or LPRs who used to be refugees or asylees don’t have to wait 5 years. The term “qualified non-citizen” includes:  Lawful Permanent Residents (LPR/Green Card Holder)

11 See 8 USC 1601-1646. 12 Public Law No: 111-3 (02/04/2009).

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 Asylees  Refugees  Cuban/Haitian entrants  Paroled into the U.S. for at least one year  Conditional entrant granted before 1980  Battered non-citizens, spouses, children, or parents  Victims of trafficking and his or her spouse, child, sibling, or parent or individuals
with a pending application for a victim of trafficking visa  Granted withholding of deportation  Member of a federally recognized Indian tribe or American Indian born in Canada
Medicaid & CHIP Coverage for Lawfully Residing Children and Pregnant Women. States have the option to remove the 5-year waiting period and cover lawfully residing children and/or pregnant women in Medicaid or CHIP. A child or pregnant woman is “lawfully residing” if they’re “lawfully present” and otherwise eligible for Medicaid or CHIP in the state…. Getting emergency care Medicaid provides payment for treatment of an emergency medical condition for people who meet all Medicaid eligibility criteria in the state (such as income and state residency), but don’t have an eligible immigration status. Medicaid, CHIP, and “public charge” status Applying for Medicaid or CHIP, or getting savings for health insurance costs in the Marketplace, doesn’t make someone a “public charge.” This means it won’t affect their chances of becoming a Lawful Permanent Resident or U.S. citizen. There’s one exception. People receiving long-term care in an institution at government expense may face barriers getting a green card.
Department of Health and Human Services. Coverage for lawfully present immigrants. https://www.healthcare.gov/immigrants/lawfully-present-immigrants/. Accessed July 23, 2019
20. The provisions decribed above concern eligibility for immigrants under federal
Medicaid policies that govern the availability of federal funds (i.e., FMAP). But many states
extend Medicaid or similar health insurance coverage to additional immigrants, including legal
immigrants who do not meet federal criteria as well as undocumented immigrants, using state
funds. In July 2019, California enacted Senate Bill 104 which will extend “eligibility for full-
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scope Medi-Cal benefits to individuals 19 to 25 years of age, inclusive, and who are otherwise eligible for those benefits but for their immigration status.”13 (Medi-Cal is California’s name for
Medicaid.) This expands upon a 2015 California law (SB 75) that expanded Medi-Cal eligibility for children 0 to 18 regardless of immigration status.14 The District of Columbia, Illinois,
Maryland (in some counties), Massachusetts, New York and Oregon provide state-funded health insurance coverage to income-eligible children regardless of immigration status.15 Sixteen states
provide prenatal care coverage to income-eligible women regardless of immigration status
(Arkansas, California, Illinois, Louisiana, Massachusetts, Michigan, Missouri, Nebraska, New Jersey, New York, Oklahoma, Oregon, Rhode Island, Tennessee, Texas and Washington)16
21. The public charge rule only applies to federally-funded Medicaid and does not count state-funded assistance in public charge determinations.17 However, it is important to note
that numerous state programs are called or considered Medicaid (often under a state-specific
name, like Medi-Cal in California, Arizona Health Care Cost Containment System (AHCCCS) in
Arizona or MassHealth in Massachusetts) although the source of funds may not include federal
Medicaid funds. As a result, many participants may not know whether the “Medicaid” in which
13 California Senate Bill 104. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB104. Accessed July 23, 2019.
14 California Senate Bill 75. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB75. Accessed July 23, 2019.
15 National Immigration Law Center. Medical Assistance Programs for Immigrants in Various States. Jan. 2018 update. https://www.nilc.org/wp-content/uploads/2015/11/med-services-for-imms-instates.pdf.
16 Ibid. 17 E.g., the preamble (Federal Register, Aug. 14, 2019, page 41313) says: “Notwithstanding the
inclusion of SNAP as a designated public benefit, DHS will not consider for purposes of a public charge inadmissibility determination whether applicants for admission or adjustment of status are receiving food assistance through other programs, such as exclusively state-funded programs, food banks, and emergency services, nor will DHS discourage individuals from seeking such assistance.”
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they are enrolled is Medicaid that counts under the rule or instead another form of government subsidized health insurance.
22. New York offers health coverage to residents who are not eligible for federallyfunded Medicaid, including many immigrants. These programs include state-funded Medicaid, Child Health Plus (New York’s version of CHIP) and Essential Plan, a Basic Health Program authorized under the Affordable Care Act.18 These programs provide services similar to Medicaid.. These programs are not federal Medicaid, and are not cited as a heavily-weighted negative factor under the public charge rule, but many recipients may not be able to distinguish these programs from federal Medicaid. State and federal Medicaid are indistinguishable to participants. Most Medicaid recipients in New York are covered through private Medicaid managed care plans, and most health insurance companies that offer Medicaid plans also provide coverage in the other programs listed above. In many cases, the insurance cards for these various programs look almost identical. Thus, many New Yorkers who are covered under these programs could be confused about whether they are in federally-funded Medicaid. As I explain below, this confusion will likely result in New Yorkers mistakenly disenrolling from healthcare coverage programs that are not federally-funded Medicaid in order to avoid potential negative consequences when seeking an adjustment of status for immigration purposes.
23. The draft form USCIS I-944, titled “Declaration of Self-Sufficiency,”19 must be completed by those applying for adjustment of status and will be used by DHS officials to determine public charge status. It is long and extremely complicated; its complexity (and lack of clarity) could lead to many erroneous determinations of public charge status by DHS officials.
18 https://info.nystateofhealth.ny.gov. 19 US Citizenship and Immigration Service. Declaration of Self Sufficiency. USCIS I-944. OMB No.
1615-0142. https://www.regulations.gov/document?D=USCIS-2010-0012-63772.
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The form is 19 pages long and asks for detailed information and documentation related to income, prior year tax filings, assets (including bank accounts, homes and cars), home value appraisals, mortgages, a credit score from within the past year, proof of education (such as degrees or transcripts), and occupational licenses, in addition to information about public benefit use. More pertinent to Medicaid, Form I-944 asks “Have you EVER received or are currently certified to receive in the future any of the following benefits,” one of which is “federal-funded Medicaid.” If the answer is yes, it asks for the beginning and ending dates of receiving Medicaid and the total value of benefits received.
24. There are at least three flaws that could lead to erroneous reporting using Form I944. First, it is not clear whether “you” in the sentence above applies to the individual or to his or her whole household. Because this question is in a section titled “You and Your Household Members’ Assets, Resources and Financial Status,” the implication is that “you” means the entire household. This can produce errors since an immigrant applicant might not receive Medicaid him or herself, while another family member, such as a U.S.-born citizen child, spouse or other household member is the recipient. But the public charge rule is supposed to apply only to the applicant’s use of benefits, not the use of benefits by other family members. The form, however, could lead to the determination that the immigrant applicant used Medicaid and is therefore a public charge, even though the immigrant him or herself did not actually receive Medicaid, only another household member. Second, many, perhaps most, applicants will not know if the Medicaid they received is “federal-funded Medicaid” or not. Presumably, DHS used this phrase to differentiate the benefit from state-funded medical assistance programs, such as those described above. But the definitions and names may not be clear to enrollees. All Medicaid programs are state-administered, they sometimes have names other than Medicaid
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(e.g., Medi-Cal in California, Arizona Health Care Cost Containment System (AHCCCS) in Arizona or MassHealth in Massachusetts) and the insurance card many enrollees receive may only have the name of a private managed care plan (e.g., Aetna or United) that is contracted to provide Medicaid benefits; thus many applicants will be unable to report if they used “federalfunded Medicaid.” Finally, Form I-944 asks for the dollar amount received. Almost no Medicaid recipient knows the dollar value of benefits received; it is not reported to them, and it is unclear whether such information could be obtained on demand, so how could they know? DHS provides no guidance on this point. The net effect is that it will be extremely difficult for an immigrant applying for adjustment of status to complete these parts of the I-944 correctly, leading to a substantial risk of erroneous public charge determinations. There is the further risk that many applicants may simply give up due to confusion and will therefore not apply for permanent residency or other status adjustments—even if they are individuals who are unlikely to be deemed public charges based on their receipt of public benefits.
C. The Public Charge Rule Will Have Substantial and Broad Effects in Reducing Immigrants’ Participation: the “Chilling Effect”
25. The public charge rule is ostensibly targeted at certain federal public benefits, including Medicaid. In reality, a substantial share of candidates for adjustment of status do not receive these benefits because they are already ineligible to receive them under existing law. Thus, the rule is not only disconnected from the reality of immigrants’ actual federal benefits usage, it also poses a significant threat to lawful use of benefits by members of immigrant families who are -no-t covered by the rule. In both the preamble to the rule and the regulatory
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impact analysis that accompanies the rule,20 DHS acknowledges that a large number of immigrants and members of their families who are eligible for Medicaid will lose benefits but declares that these are “indirect effects” of the rule, as the rule itself does not change the eligibility criteria for Medicaid or other programs. DHS concedes, however, that many members of immigrant families who are lawfully eligible for these programs will disenroll or forego enrollment in order to avoid a public charge determination, though as explained below its estimates of the number of people who will drop coverage is seriously flawed.
26. While the specifics of who is subject to the public charge rule are detailed in the more than 200-page regulation and preamble, experience and research indicates there will be much broader “chilling effects” for those in immigrant families, including U.S.-born citizen children, naturalized citizens, lawful permanent residents and others who are not specifically described by the rule. In this context, “chilling effect” refers to the likelihood that many members of immigrant families will disenroll or forego participation in public benefit programs, even if they are lawfully eligible, because they are fearful of harmful repercussions for themselves or members of their family. As described below, these fears extend beyond the directly affected immigrants, but creep out to other family members, who may be citizens, already have green cards, or whose benefit use is excluded from consideration. Stated differently, the chilling effect extends far beyond the specific individuals eligible for an adjustment of status who, in DHS’s view, rationally choose to forego public benefits in order to reduce the odds of a public charge determination. Many who are supposed to be exempt from the rule, such as pregnant women or refugees fleeing persecution in their homelands, will be understandably confused about the rule and will avoid Medicaid too.
20 Dep’t of Homeland Security. “Regulatory Impact Analysis: Inadmissibility on Public Charge Grounds.” Aug. 2019. https://www.regulations.gov/document?D=USCIS-2010-0012-63741.
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27. While the details of the public charge rule matter, the effects can be much larger and broader because of the ways that immigrant families perceive these rules. DHS references the existence of chilling effect in its regulatory impact analysis.21 On pages 90 and 91, DHS cites one study from the US Department of Agriculture which estimated that legal immigrants’ food stamp participation fell by 54 percent after the immigrant restrictions in the 1996 PRWORA went into effect22 and another Urban Institute report which found that welfare enrollment by foreign-born individuals, including both citizens and non-citizens, fell by 21 percent in the years after PRWORA’s immigrant restrictions.23 DHS, moreover, was well aware of potential chilling effects because various comments on the proposed rule raised concerns about them.
28. The most direct, recent evidence of the magnitude of the chilling effects comes from a study conducted by the non-partisan Urban Institute,24 which was based on a nationally representative survey conducted in December 2018, after the proposed rule was released in October 2018 and included a sample of 2,950 adults in immigrant families (i.e., at least one person in the family was an immigrant). The survey, called the Well-Being and Basic Needs Survey, was a nationally representative sample of adults 18 to 64. It is based on a stratified random sample drawn from Ipsos’ Knowledge Panel, a probability-based online basis; it included an oversample of noncitizen respondents. The survey was conducted in English and
21 Ibid. 22 Genser J. Who is leaving the Food Stamp Program: An analysis of Caseload Changes from 1994 to
1997. Food and Nutrition Service, USDA. 1999. Available at https://www.fns.usda.gov/snap/wholeaving-food-stamp-program-analysis-caseload-changes-1994-1997. 23 Fix M, Passel J. Trends in Noncitizens’ and Citizen’ Use of Public Benefits Following Welfare Reform: 1994-1997. 1999. The Urban Institute. https://www.urban.org/research/publication/trendsnoncitizens-and-citizens-use-public-benefits-following-welfare-reform. 24 Bernstein H, Gonzalez D, Karpman M, Zuckerman S. One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018. Urban Institute. May 2019. https://www.urban.org/sites/default/files/publication/100270/one_in_seven_adults_in_immigrant_fam ilies_reported_avoiding_publi_2.pdf.
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Spanish. To ensure that the findings corresponded to nationally accepted representativeness, the data were weighted based on benchmarks drawn from the Census Bureau’s American Community Survey. The researchers found that:
 Overall, about one-seventh (13.7%) of all adults in immigrant families reported that they avoided noncash public benefits in the past year because of concerns that they or a family member could be disqualified from obtaining a green card (lawful permanent resident status). Hispanics, low-income members of immigrant families, and immigrant families with children were more likely than other groups to avoid such benefits.
 The rate of avoidance was higher (20.7%) among low-income members of immigrant families whose incomes were below 200% of the federal poverty line ($25,100 for a family of four in 2018); this subpopulation is more likely to need public benefits and more prone to suffer long-term consequences from their avoidance.
 Of those who said they avoided noncash benefits, 46% said they avoided receiving Supplemental Nutrition Assistance Program (SNAP) benefits, 42% said they avoided Medicaid or CHIP, and 33.4% said they avoided public housing subsidies.
 These concerns were greatest among Hispanics (20.6%), more than double the levels expressed by non-Hispanic whites (8.5%).
 The share avoiding benefits was higher (17.4%) among immigrant families with children, but was still substantial in families without children (8.9%).
 Avoidance of public benefits occurred even in families where all the foreign-born members were naturalized citizens (9.3%) and where all the noncitizen family members were already permanent residents (14.7%). In other words, avoidance
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occurred even in families in which no one was subject to denial of an adjustment of status due to a public charge determination.  Awareness of the public charge rule was related to avoidance: Most adults in immigrant families reported awareness of the public charge rule (62.9 %). Adults who had heard “a lot” about the proposed rule were the most likely to report chilling effects in their families (31.1%).
These data form a credible lower bound of the impact of the public charge rule; it is reasonable to believe that the effects will be even larger once the public charge rule is implemented and enforced. Implementation, denials of adjustment applications, and word of mouth in the immigrant community will cause far more members of immigrant families to avoid Medicaid and related programs.
29. An example of the dramatic effect of the implementation of public charge rules can be seen from statistics from the State Department reporting on visa denials following the January 2018 issuance of a revised public charge policy in its Foreign Affairs Manual, which is used by consular offices across the globe in determining who can receive visas to enter the United States.25 The revised State Department policy was a precursor to DHS’s public charge rule. It revises how sponsor affidavits of support and the use of noncash benefits by applicants, family members, and sponsors are evaluated prior to entry to the United States. The number of visa applications denied on the basis of public charge determinations rose from 1,076 in 2016, using earlier public charge guidance, to 3,237 in 2017, at which time public charge restrictions
25 National Immigration Law Center. Changes to “Public Charge” Instructions in the U.S. State Department’s Manual. Aug. 7, 2018. https://www.nilc.org/issues/economic-support/public-chargechanges-to-fam/ https://www.nilc.org/wp-content/uploads/2018/02/PIF-FAM-Summary-2018.pdf.
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first came under discussion. The number of public-charge visa denials jumped to 13,450 in 2018 after more restrictive guidance was issued.26 By comparison, the number of visa applications denied due to drug abuse, criminal activity or terrorism remained relatively stable: 4,991 denied in 2016, 4,652 in 2017 and 4,916 in 2018.27 In other words, in 2018, after the public charge changes were implemented, the State Department denied about 12 times as many visa applicants due to public charge than in 2016 before the rule was modified, whereas the number of denials based on these other categories remained relatively constant. The level of denials rose even in 2017, when the issue was being discussed and then surged after formal adoption. These data collectively suggest that the rise in public charge denials was not due to a fundamental change in the composition of applicants but instead due to increasingly stringent criteria in public charge determinations. As rates of denials increase under the new rule, the corresponding chilling effect will also increase. Similarly, after the DHS public charge rule is implemented, the number of denials of adjustment applications on the basis of public charge can also be expected to surge. As the rate of denial increases under the rule, the corresponding chilling effect will also increase.
30. Other research on the chilling effect has also shown that policies designed to limit participation by noncitizen immigrants have repercussions on others, including citizen children in immigrant families. Soon after the 1996 PRWORA immigrant restrictions were enacted, data showed that there were significant reductions in use of Medicaid and similar
26 Based on statistics from Table XX of the State Department’s Annual Reports of the Visa Office for 2016, 2017 and 2018. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics.html. These statistics do not include counts of cases subsequently overturned. Since then, the State Department issued slightly lower numbers, as cited by Hesson T, Exclusive: Visa denials to poor Mexicans skyrocket under Trump’s State Department. Politico, Aug. 7, 2019. https://www.politico.com/story/2019/08/06/visa-denials-poor-mexicans-trump-1637094
27 Based on statistics from Table XX of the State Department’s Annual Reports of the Visa Office for 2016, 2017 and 2018. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics.html.
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benefits among citizen children in immigrant families, despite the fact that these citizen children
remained eligible. Participation also fell sharply among refugees, who were exempt from PRWORA eligibility changes.28 A rigorous analysis by researchers at Columbia University and
the University of Illinois at Chicago found that the reduction in participation by U.S.-born citizen
children in immigrant families was slightly higher than for children in immigrant families born
outside the U.S. (18% reduction for U.S.-born citizen children vs. 14% reduction for foreignborn children).29
31. It is clear from its regulatory impact analysis that DHS was aware of at least two research reports30 about chilling effects and, given the numerous comments in response to the
proposed regulation received, ought to have been aware of other related evidence, such as the
reports cited above, but disregarded them in its final analysis. All of the available analyses,
including those two studies cited by DHS and other reports cited in the paragraph above, find
that changes in policies aimed at noncitizen immigrants have substantial and broad repercussions
and lead to reductions in participation by others, including citizen members in immigrant
families.
28 Zimmerman W, Fix M. Declining Immigrant Applications for Medi-Cal and Welfare Benefits in Los Angeles County. Urban Institute. July 1998. https://aspe.hhs.gov/basic-report/declining-immigrantapplications-medi-cal-and-welfare-benefits-los-angeles-county. Fix M, Passel J. Trends in Noncitizens' and Citizens' Use of Public Benefits Following Welfare Reform: 1994-97. Urban Institute. March 1999. https://www.urban.org/research/publication/trends-noncitizens-and-citizensuse-public-benefits-following-welfare-reform.
29 Kaushal N, Kaestner R. Welfare Reform and Health Insurance of Immigrant. Health Services Research. 2005; 40(3): 697-721.
30 The DHS regulatory impact analysis cites Genser J. Who is leaving the Food Stamp Program: An analysis of Caseload Changes from 1994 to 1997. Food and Nutrition Service, USDA. 1999. Available at https://www.fns.usda.gov/snap/who-leaving-food-stamp-program-analysis-caseloadchanges-1994-1997 and Fix M, Passel J. Trends in Noncitizens’ and Citizen’ Use of Public Benefits Following Welfare Reform: 1994-1997. 1999. The Urban Institute. https://www.urban.org/research/publication/trends-noncitizens-and-citizens-use-public-benefitsfollowing-welfare-reform.
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32. There could be multiple reasons for the chilling effect. First of all, the policies are very complicated and difficult to understand. For example, the final public charge rule is 217 pages long in the Federal Register (three columns with a small font size) and is highly technical. Even the DHS website31 which tries to summarize the rule in plain language is 15,572 words long, or about 60 double-spaced, typed pages. According to a readability scoring system called the Gunning Fog index, a person would need over 14 years of formal education (completed sophomore year of college) in order to read the information in the website easily.32 Many, whether immigrant or U.S.-born, lack the literacy or time to comprehend such policies. (About half of Americans 18 to 64 have less than this level of education.33) Moreover, there are many technical immigration and public assistance issues embedded in the rule that require sophisticated understanding of policies to comprehend.
33. The extent to which immigrants take actions to avoid Medicaid or similar benefits after implementation of the rule is intensified by the climate of fear that already exists in immigrant communities. Since the rule was released, there has been substantial publicity pointing out that immigrants may face negative consequences for using these benefits, turning speculative suspicions into concrete hazards. As described earlier, the implementation of public charge policies in the State Department led to a massive increase in public charge denials.
31 US Citizenship and Immigration Services, DHS. Final Rule on Public Charge Grounds of Inadmissibility. Aug. 2019. https://www.uscis.gov/legal-resources/final-rule-public-charge-groundinadmissibility. Accessed Aug 15, 2019.
32 To get this assessment, I copied the entire text of the DHS website notice into an online Tests Document Readability Calculator found at https://www.onlineutility.org/english/readability_test_and_improve.jsp on Aug. 15, 2019.
33 Author’s analysis of the Census Bureau’s 2018 Current Population Survey. https://www.census.gov/cps/data/cpstablecreator.html.
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D. Serious Flaws in the Department of Homeland Security’s Regulatory Impact Analysis 34. The DHS analysis of the impact of the rule is flawed because it relies on faulty
assumptions to determine that only 2.5% of Medicaid recipients will be affected, fails to account for the three-year lookback of benefit use as provided by the DHS rule, and uses a severe undercount of the total number of Medicaid recipients in its calculations.
35. DHS presented its analysis of the potential effects of the public charge rule in a Regulatory Impact Analysis.34 Evidence cited by DHS in its regulatory impact statement indicates that participation reductions among members of immigrant households have been as high as 21 percent35 or 54 percent36 following prior changes to laws affecting immigrants’ access to public benefits. The preamble to the final rule itself, however, relies on the lowest of the agency’s estimates of the potential impact. DHS’s analyses of the chilling effect included critical omissions and was seriously flawed.
36. In Table 14 of the impact analysis, DHS begins by reporting that 34,706,865 people are Medicaid recipients and, based on 2012-2016 Census data, proceeds to estimate that 3,069,651 Medicaid recipients are members of households including foreign-born non-citizens. In Table 16, it estimates that 2.5 percent of the estimated Medicaid recipients (76,741 people) are “members of households that include foreign-born non-citizens expected to disenroll or forego
34 Dept of Homeland Security. “Regulatory Impact Analysis: Inadmissibility on Public Charge Grounds.” Aug. 2019. https://www.regulations.gov/document?D=USCIS-2010-0012-63741. Department of Homeland Security. Economic Analysis Supplemental Information for Analysis of Public Benefits Programs. Undated. https://www.regulations.gov/document?D=USCIS-2010-001263742.
35 Genser J. Who is leaving the Food Stamp Program: An analysis of Caseload Changes from 1994 to 1997. Food and Nutrition Service, USDA. 1999. Available at https://www.fns.usda.gov/snap/wholeaving-food-stamp-program-analysis-caseload-changes-1994-1997.
36 Fix M, Passel J. Trends in Noncitizens’ and Citizen’ Use of Public Benefits Following Welfare Reform: 1994-1997. 1999. The Urban Institute. https://www.urban.org/research/publication/trendsnoncitizens-and-citizens-use-public-benefits-following-welfare-reform.
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enrollment based on a 2.5% rate of disenrollment or foregone enrollment.” The 2.5 percent avoidance rate is based on DHS’s estimate of the share of non-citizens who seek to adjust their immigration status each year, such as applying for lawful permanent resident status. DHS presumes that all immigrants who are adjusting status that year drop Medicaid, but that no others do so. (Using a similar logic, DHS estimates that 129,563 will disenroll or forego SNAP benefits and 8,801 will avoid federal rental assistance.) In Table 17, DHS estimates that this would lead to a $1.06 billion reduction in federal spending for Medicaid benefits per year, which is about two-thirds of the $1.46 billion in federal public benefit payments foregone annually; the remainder is other lost benefits, including SNAP, TANF, Supplemental Security Income and federal rental assistance.
37. In Table 18, DHS provides alternative budget estimates that acknowledge that it might be more appropriate to consider a three-year lookback period given that public charge determinations focus on receipt of public benefits during the prior 36-month period. Assuming people avoid benefits for three years, not just one, the total projected annual foregone benefits (from all public benefit programs including Medicaid) would total $4.4 billion, or three times the $1.46 billion cited in the final regulation as the official estimate. It also notes that “the number of people who may disenroll from or forego enrollment in public benefit programs in one year could be as many as the combined three-year total,” i.e., it could be three times higher based on the three-year lookback period in the rule. In Table 19, DHS provides alternative evidence-based participation loss estimates much higher than 2.5 percent of the immigrant population that could
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reach as high as 21 percent or 54 percent, based on prior research about chilling effects; these lead DHS to estimate Medicaid enrollment losses between 644,627 and 1,657,612 individuals.37
38. Despite these alternative estimates, the official estimate used by DHS in the final rule is based on the lowest of these estimates, shown in Table 8 of the preamble for the rule, based on the reduction in federal benefit payments that would otherwise have been made on behalf of members of immigrant families who avoided Medicaid and other benefits.38 Table 8 also notes that there could be other costs, including “Potential lost productivity, Adverse health effects, Additional medical expenses due to delayed health care treatment,” but makes no effort to quantify them.
39. Although the regulatory impact analysis included alternative estimates of effects that could be over twenty times larger -- up to 1.66 million losing Medicaid (Table 19, page 100 of the impact analysis) rather than 76,741 – DHS chose to use the lowest estimates as the basis of impact for the final rule. DHS says: “While previous studies examining the effect of PRWORA in 1996 showed a reduction in enrollment from 21 to 54 percent, it is unclear how many individuals would actually disenroll from or forego enrollment in public benefits programs due to the final rule. The previous studies had the benefit of retrospectively analyzing the chilling effect characterized by disenrollment or forgone enrollment after passage of PRWORA using actual enrollment data, instead of being limited to prospectively estimating the number of
37 For the 21 percent estimate, DHS cites Genser J. Who is leaving the Food Stamp Program: An analysis of Caseload Changes from 1994 to 1997. Food and Nutrition Service, USDA. 1999. Available at https://www.fns.usda.gov/snap/who-leaving-food-stamp-program-analysis-caseloadchanges-1994-1997. For 54 percent, it cites Fix M, Passel J. Trends in Noncitizens’ and Citizens’ Use of Public Benefits Following Welfare Reform: 1994-1997. 1999. The Urban Institute. https://www.urban.org/research/publication/trends-noncitizens-and-citizens-use-public-benefitsfollowing-welfare-reform.
38 Dept of Homeland Security. Federal Register, Vol. 84, Issue 157, Aug. 14, 2019, pg. 41489.
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individuals who may disenroll or forego enrollment in the affected public benefits programs. This economic analysis must rely on the latter.”39 In essence, DHS says that although there is historical evidence that there could be a large chilling effect, it cannot use that evidence because it is about retroactive analysis of a somewhat different policy and DHS must assess changes prospectively before the public charge policy goes into effect. DHS furthermore says that its estimate should be related to the number who have to adjust status each year, but it presents no evidence that effects would occur only in that year (and in fact it also indicates that a three-year timeframe might be more appropriate).
40. DHS’s estimate flouts substantial evidence, including the recent Urban Institute report, that chilling effects are often far broader than the targeted individuals. I note that the Urban Institute report was released in May 2019; those data were available before DHS completed its August 2019 impact analysis. DHS disregards standard methods for sound policy analysis and research by rejecting actual evidence-based research findings and substituting a flawed metric that yields disenrollment estimates far below the range of other estimates. (The alternative estimates that I produce in the next section are more strongly based on recent and directly relevant evidence.)
41. It is noteworthy that DHS only discusses its estimate of 2.5 percent of immigrants adjusting status annually, rather than its own alternative estimate that the rate could be three times higher, based on the three-year lookback period actually included in the rule. DHS disregards the research evidence of the scope of effects caused by prior immigration policy changes to select a much lower number and also disregards a three-times higher rate that better corresponds with the rule.
39 DHS, Regulatory Impact Analysis, pages 91-92, just before Table 16.
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42. The only estimate in the preamble of the number who are expected to disenroll from or forego Medicaid, SNAP or public housing benefits is the reference to 2.5 percent of members of non-citizen households receiving benefits on page 41313 of the rule. It is only in the regulatory impact analysis that DHS converts this to actual human terms – reporting that 76,741 people would lose Medicaid. But this estimate is far too low.
43. As noted before DHS primarily assumes that 2.5 percent of members of noncitizen households will avoid Medicaid participation because 2.5 percent of immigrants seek to adjust immigration status each year. But since the public charge rule uses a three-year lookback period – receipt of benefits of at least 12 months out of the last 36 months – a more appropriate factor, even accepting DHS’s baseline estimate, would be three times higher, or 7.5 percent.40 In addition, as the Urban Institute analyses and other prior studies of chilling effects described earlier indicate, chilling effects are much broader and affect many who are in naturalized citizen households, mixed-status households and are likely to deter participation regardless of when the immigrant is considering applying for adjustment.
44. There are additional serious flaws with the DHS analysis. First of all, DHS begins with an estimate that there are 34.7 million Medicaid recipients, based on a five-year average of data from 2012 to 2016.41 However, more recent reports show that 65.7 million
40 This is because each year there would be a new group of individuals looking ahead to an adjustment of status in 36 months, so the dollar value associated with their Medicaid avoidance must be added to the group that already began avoiding Medicaid. In any given year, three years’ worth of expected adjusters—those applying in one year, those applying in two years, and those applying in three years—would be avoiding Medicaid.
41 Department of Homeland Security. Economic Analysis Supplemental Information for Analysis of Public Benefits Programs. Undated. https://www.regulations.gov/document?D=USCIS-2010-001263742.
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individuals were enrolled in Medicaid in May 2019.42 DHS begins by underestimating the total number of people on Medicaid by about half, which affects all subsequent calculations. Because the Affordable Care Act’s Medicaid expansion was largely implemented in 2014, inclusion of data from earlier years vastly reduces the average number of Medicaid participants per year. Further, several states, including Virginia, Pennsylvania, and Indiana expanded Medicaid after 2014, making the use of this five-year average even more flawed. Even if one accepted other parts of the DHS methodology, this flaw alone leads to a serious underestimate, even if the 2.5 percent assumption was correct.
45. Moreover, because DHS uses this flawed participation estimate to compute the average Medicaid expenditure per person, this leads to an unjustifably high estimate of the cost of federal Medicaid benefits per person, $13,755 per person (Table 17.) In contrast, an official estimate by the Department of Health and Human Services of federal Medicaid expenditures per person was $5,522 per person for 2019.43
E. Evidence-Based Estimates of the Effect of the Public Charge Rule in Reducing Medicaid Participation by Members of Immigrant Families
46. In this section, I provide an evidence-based analysis of the potential effects of the public charge rule on Medicaid participation by members of immigrant families, based on research and experience regarding the chilling effects. The summary of these calculations are shown in Table 1 below. Overall, these estimates indicate that between 1.0 million and 3.1
42 Centers for Medicare and Medicaid Services. May 2019 Medicaid & CHIP Enrollment Data Highlights. https://www.medicaid.gov/medicaid/program-information/medicaid-and-chipenrollment-data/report-highlights/index.html. Accessed Aug. 20, 2019.
43 US Department of Health and Human Services. 2017 Actuarial Report on the Financial Outlook for Medicaid. https://www.cms.gov/Research-Statistics-Data-andSystems/Research/ActuarialStudies/Downloads/MedicaidReport2017.pdf
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Case 1:19-cv-07777-GBD Document 34-11 Filed 09/09/19 Page 30 of 97 million members of immigrant families will forego Medicaid or disenroll due to the final public charge rule, each year after full implementation. This includes between 0.6 and 1.8 million adults 21 or older who will not receive Medicaid and between 0.4 and 1.2 million children 21 or younger who will not receive Medicaid because they are members of immigrant families, even if they remain eligible for benefits.
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Table 1. Estimates of Medicaid Enrollment Losses Due to the Final Public Charge Regulation

Number of People Potentially at Risk 1. Number of Medicaid Enrollees, May 2019 (1) 2. Percent of Medicaid Enrollees Who Are Members of Low-income
Immigrant Families (b) 3. Estimated Number of Members of Low-Income Immigrant Families
Enrolled in Medicaid (#1 times #2) 4. Adults 21 or Older Who Are Members of Low-Income Immigrant
Families Enrolled In Medicaid (b) 5. Children Under 21 Who Are Members of Low-Income
Immigrant Families Enrolled in Medicaid (b)

Number or % Affected 65,663,268 25.17% 16,526,558 6,946,405 9,580,153

Low and High Estimates of Number of Members of Immigrant Families Who Disenroll or Forego Medicaid Benefits Due to Public Charge Regulation 6. Low Estimate Adult Medicaid Reduction (c ) 7. High Estimate Adult Medicaid Reduction(d) 8. Low Estimate of Child Medicaid Reduction(e ) 9. High Estimate of Child Medicaid Reduction (f) 10. Low Estimate of Total Medicaid Reduction (#6 + #8) 11. Low Percent Reduction in Total Medicaid Enrollment (#10/#3) 12. High Estimate of Total Medicaid Reduction (#7 + #9) 13. High Percent of Total Medicaid Reduction (#12/#3)

603,920 1,813,012
416,258 1,248,773 1,020,178
6.2% 3,061,785
18.5%

a. Centers for Medicare and Medicaid Services. May 2019 Medicaid & CHIP Enrollment Data Highlights. b. Author's analysis of CDC's 2017 National Health Interview Survey. Low-income means family income below 200% of the poverty line. Immigrant family means the head of household and/or spouse is a foreign-born immigrant. Line 3 = lines 4 plus 5. c. Based on estimates from Bernstein, et al. (2019): 20.7% of members of immigrant families avoiding public benefits times 42.0% = 8.69% of adults in immigrant households. d. Assumes that after implementation and enforcement begin, the impact is three times higher = 26.1%. e. Assumes half the level of adult loss because receipt of Medicaid by children under 21 is not counted as a heavily weighted factor. 8.69%* times 50% = 4.35%. f. Assumes that after implementation and enforcement, the impact is three times higher = 13.0%. Note: Numbers may not sum due to rounding.
47. My estimates are conservative and evidence-based, using the most recent data and
evidence available, and present a range of effects due to the uncertainty surrounding

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implementation and application of the rule, public awareness and behavioral responses. Although there is ample evidence, cited earlier, that a chilling effect will reduce immigrants’ use of public benefits, some uncertainty exists because it is not completely clear how these rules will be implemented, publicized, or perceived by the immigrant community. Thus, I provide low and high estimates, expecting that the “true” impact would fall in between those limits. Although my estimates of those who lose coverage are higher than the 76,741 estimate used by DHS, they are more conservative than other independent estimates. For example, in October 2018, the Kaiser Family Foundation estimated that between 2.1 and 4.9 million members of immigrant families could lose Medicaid due to the proposed public charge rule.44 The Migration Policy Institute estimated, based on earlier estimates of chilling effect losses under PRWORA, that 5.4 million to 16.2 million immigrants and members of their families could disenroll from public benefit programs.45
48. My calculations begin with the number of people receiving Medicaid as of May 2019, as reported by the Centers for Medicare and Medicaid Services, 65.7 million.46 Note that because this data represents only federally-funded Medicaid, it is a conservative starting point because it does not include individuals enrolled in state-funded programs who may drop coverage. The federal agency does not have administrative data showing the immigration status
44 Artiga S, Garfield R, Damico A. Estimated Impacts of the Proposed Public Charge Rule on Immigrants and Medicaid. Kaiser Family Foundation. Oct. 2018. https://www.kff.org/reportsection/estimated-impacts-of-the-proposed-public-charge-rule-on-immigrants-and-medicaide-keyfindings/.
45 Batalova J, Fix M, Greenberg M. Chilling Effects: The Expected Public Charge Rule and Its Impact on Legal Immigrant Families’ Public Benefit Use. Migration Policy Institute. June 2018. https://www.migrationpolicy.org/research/chilling-effects-expected-public-charge-rule-impact-legalimmigrant-families.
46 Ibid.
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of Medicaid participants, so I analyzed data from the 2017 National Health Interview Survey, 47
which is a nationally representative survey conducted by the Centers for Disease Control and
Prevention of demographic and health characteristics of the non-institutionalized American
population, often used for research like this that includes immigration, socioeconomic and health
characteristics. I identify immigrant-headed families, i.e., where the respondent or spouse is a
foreign-born immigrant.48 Because Medicaid is a program for low-income people, I limit the
analyses to those who report having incomes below 200 percent of the federal poverty line. As
seen in Table 1, about one-quarter of Medicaid enrollees, 16.5 million, are members of a low-
income immigrant family. Of the 16.5 million members of immigrant families, 6.9 million are
adults 21 or older and 9.6 are children under 21. A large share of the members of immigrant
families, especially children, are U.S. citizens. As described above, there is ample evidence that
policies aimed at non-citizen immigrants also have harmful effects on their citizen children,
because of the chilling effect.
49. To estimate the effects of the public charge rule in causing people to forego or
disenroll from Medicaid, I use estimates from the Urban Institute’s May 2019 study,49 described
47 Centers for Disease Control and Prevention. National Center for Health Statistics. National Health Interview Survey. https://www.cdc.gov/nchs/nhis/index.htm. I downloaded the 2017 data and conducted statistical analyses using standard statistical methods; 2017 is the last year for which population characteristics and income were available as of August 2019.
48 I use the population of immigrant families, which includes some naturalized citizens, rather than of families containing one or more non-citizens, as DHS used. I use this population to align with the estimates of the Urban Institute report by Bernstein, et al. (2019), which found that 20.7% of adults in immigrant households avoided noncash benefits due to the chilling effect. While DHS used a base of non-citizen households, in that case the percentage of people avoiding benefits would be higher. That would produce a smaller population base, but a higher percentage of people affected, which ought to produce a similar level of estimates. Moreover, as the Urban Institute report found, and other studies corroborate, even citizens are affected by the chilling effect.
49 Bernstein H, Gonzalez D, Karpman M, Zuckerman S. One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018. Urban Institute. May 2019. Adults in Immigrant Families Report Avoiding Routine Activities Because of Immigration Concerns. Urban Institute. July 24, 2019. https://www.urban.org/research/publication/adults-immigrant-familiesreport-avoiding-routine-activities-because-immigration-concerns.
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earlier, which is the only study that provides direct evidence about the extent to which the public charge rule and fears about risking permanent resident (green card) status influence use of noncash benefits, including Medicaid. The public charge rule was proposed in October 2018, and the survey was fielded soon thereafter in December 2018. Its findings are comparable to prior studies about the effects of PRWORA immigrant benefit restrictions, but more specific about the reaction to the public charge rule and based on data from late 2018. The study found that 20.7% of members of low-income immigrant families avoided non-cash benefits due to green card concerns and that 42 percent of those who avoided noncash benefits specifically avoided Medicaid or CHIP; this leads to an estimate that 8.7 percent of low-income adults in immigrant families (20.7 percent times 42 percent) will forego or disenroll from Medicaid as the low estimate. This is the low estimate because those levels of avoidance were occurring before there was any implementation or enforcement of the policy and before there was as much publicity about impending changes in the public charge rules.
50. Because of evidence that effects increase after policies are adopted (including data about public charge denials at the State Department and about the consequences of implementation of PRWORA immigrant restrictions), I set a high estimate at three times that level (26.1 percent reduction), assuming that additional awareness increases avoidance. A few factors led me to conservatively determine that a three-fold increase is reasonable. First, the Urban Institute found that almost one third (31 percent) of immigrants who avoided benefits said they had heard a lot about the proposed rule; it is reasonable to assume that awareness and avoidance will rise sharply after implementation and enforcement.50 Second, visa denials rose from 1,076 in 2016, prior to the implementation of recent State Department public charge

50 Ibid.

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policies, to roughly three times more (3,237) in 2017 when the changes were under consideration, to an additional four-fold increase (to 13,450) in 2018 after the change was implemented.51 Large reductions in applications occurred in the wake of implementation of PRWORA immigrant restrictions; for example, in Los Angeles County the number of enrolled citizen children with immigrant parents fell by 48 percent from 1996-98, despite the fact that citizen children remained eligible for coverage.52 It is reasonable to assume that awareness of risks associated with public charge and avoidance will increase substantially after implementation, based on prior experiences.
51. For children, I use a similar approach, but reduce the estimated effects for children by 50 percent, compared to the level for adults. The final regulation excludes Medicaid benefits received by children under 21 from being considered as a heavily weighted factor. Despite this shift from the proposed rules, there is still strong evidence that children in immigrant families will be harmed, including citizen children, as found in the research on the impact of PRWORA immigrant restrictions, cited earlier. Moreover, as explained before, the confusing directions for Form I-944 about how to report use of Medicaid by the family suggest that erroneous determinations of public charge status could be common because immigrants might report other family members’ use of Medicaid rather than their own, such that families could be penalized for their children’s use of Medicaid benefits.
51 Based on statistics from Table XX of the State Department’s Annual Reports of the Visa Office for 2016, 2017 and 2018. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics.html. These statistics do not include counts of cases subsequently overturned. Since then, the State Department issued slightly lower numbers, as cited by Hesson T, Exclusive: Visa denials to poor Mexicans skyrocket under Trump’s State Department. Politico, Aug. 7, 2019. https://www.politico.com/story/2019/08/06/visa-denials-poor-mexicans-trump-1637094
52 Zimmerman W, Fix M. Declining Immigrant Applications for Medi-Cal and Welfare Benefits in Los Angeles County. Urban Institute. July 1998. https://aspe.hhs.gov/basic-report/declining-immigrantapplications-medi-cal-and-welfare-benefits-los-angeles-county.
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52. Finally, there is ample evidence indicating that parental participation in Medicaid
affects children’s participation: when parents gain Medicaid coverage, their children are more
likely to enroll, even if the eligibility criteria for children do not change. My research demonstrated this relationship about twenty years ago53 and the effect has been confirmed in multiple studies since.54 Evidence indicates that the reverse holds true too; when parents lose
Medicaid coverage, many of their children disenroll too, even though the children remain
eligible. For example, in 2012 the state of Maine cut Medicaid eligibility for parents. Although
eligibility levels for children did not change, about 6,000 Maine children lost Medicaid benefits.55 Insurance coverage is often considered as a family matter, so policies that force
parents off trigger the loss of children’s insurance coverage too. Since DHS only announced the
change in policy that exempts consideration of Medicaid benefits received by children under 21
as a heavily weighted negative factor in early August, I am not aware of any direct evidence
showing how this might reduce effects for children, so I determined that a 50 percent reduction
was a reasonable estimate, splitting the difference between no effect and the full adult effect.
Thus, in Table 1, I estimate that the number of children in immigrant families who lose Medicaid
will range from 0.4 million to 1.25 million.
53 Ku L, Broaddus M. The Importance of Family-Based Insurance Expansions: New Research on the Effects of State Health Reforms, Center on Budget and Policy Priorities, September 5, 2000.
54 E.g., Georgetown University Health Policy Institute. Health Coverage for Parents and Caregivers Helps Children. Mar. 2017. https://ccf.georgetown.edu/wp-content/uploads/2017/03/CoveringParents-v2.pdf. Hudson J, Moriya A. Medicaid Expansion for Adults Had Measurable ‘Welcome Mat’ Effects on Their Children. Health Affairs. 36(9): 1643-51. Haley J, et al. Uninsurance and Medicaid/CHIP Participation among Children and Parents. Urban Institute. Sept. 2018. https://www.urban.org/sites/default/files/publication/99058/uninsurance_and_medicaidchip_participa tion_among_children_and_parents_updated_1.pdf. Hamersma S. Kim M, Timpe B. The Effect of Parental Medicaid Expansions on Children’s Health Insurance Coverage. Contemporary Economic Policy. 37(2):297-311.
55 Maine Children’s Alliance. Ensuring Health Coverage for Maine Families with Children in 2014. 2014. http://www.mekids.org/assets/files/issue_papers/healthcoverage_children_2014.pdf.
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53. Taken together, these analyses indicate that between 1.02 million and 3.06 million members of low-income immigrant families will lose Medicaid coverage after the public charge rule is fully implemented and enforced. This corresponds to a 6.2 percent to 18.5 percent loss of Medicaid among those who are members of low-income immigrant families.
54. Using additional data from the 2017 National Health Interview Survey, we can also describe some characteristics of those who could be harmed by the public change rule.
 The low-income adults on Medicaid in immigrant families are about twice as likely to have serious health problems as adults who are not in immigrant families and not on Medicaid. Almost one-third (29 percent) of the low-income immigrant group report being in fair or poor health, compared with 11 percent of non-immigrant nonMedicaid adults. About one-quarter (27 percent) of the immigrant group report having a functional limitation, such as difficulty walking, vision problems or having a health problem that impairs work versus 15 percent of the non-immigrant, nonMedicaid adults. The burdens of the public charge rule will fall disproportionately on those with poorer health. Because the low-income adults on Medicaid in immigrant families are less healthy, they are more likely to need medical care and are more likely to experience harm to their health if they must forego Medicaid. In addition, the public charge rule also penalizes applicants in general if they are in poor health.
 Those affected by the public charge rule are far more likely to be members of racial/ethnic minorities. The low-income members of immigrant families receiving Medicaid group are 56 percent Hispanic, 13 percent non-Hispanic white, 9 percent non-Hispanic black and 21 percent Asian. In comparison, those who are not in immigrant families and not on Medicaid are 80 percent white, 7 percent Hispanic, 11
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percent non-Hispanic black, 2 percent Asian and 1 percent other/mixed race. Those who are harmed by the public charge rule are far more likely to be Hispanic or Asian and much less likely to be non-Hispanic whites.
F. Harm to Members of Immigrant Families Due to the Loss of Medicaid Benefits Due to the Public Charge Rule
55. A substantial body of research has demonstrated how Medicaid helps improve access to health care, helps people recover from illness or stay healthy, reduces mortality and has other important socially beneficial effects. Much of this literature has developed because of the Medicaid expansions that occurred under the Affordable Care Act or other high quality research studies. In turn, this means that the loss of Medicaid benefits, as caused by the public charge rule, will create serious harm for those who lose Medicaid benefits due to the public charge rule.
56. A March 2018 review of the literature by the Kaiser Family Foundation identified over 200 studies about the effects of Medicaid expansions across a variety of areas.56 The review found that Medicaid expansions (a) increased insurance coverage and reduced the number of uninsured, benefiting both rural and urban residents and those who are African-American, white and Latino, (b) strengthened access to health care services, increasing the ability of people to obtain preventive, primary and acute care services, medication and mental health care, (c) increased low-income families’ financial security, (d) improved a variety of health outcomes, and (e) reduced uncompensated care costs and stabilized safety net health care providers. A more focused review on health benefits conducted by faculty at Harvard University and
56 Antonisse L, Garfield R, Rudowitz R, Artiga S. The Effects of Medicaid Expansion under the ACA: Updated Findings from a Literature Review. Kaiser Family Foundation. Mar. 2018. https://www.kff.org/medicaid/issue-brief/the-effects-of-medicaid-expansion-under-the-aca-updatedfindings-from-a-literature-review-march-2018/.
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published in the New England Journal of Medicine found consistent evidence that expanding health insurance coverage, especially Medicaid, improves access to and utilization of appropriate health care such as cancer screening, improves assessments of health, eases depression and increases financial security.57 A recent study demonstrated that receiving Medicaid during pregnancy or early childhood can lead to demonstrable long-term benefits, including reductions in chronic disease hospitalizations for problems like diabetes or obesity as well as higher high school graduation rates.58
57. A new analysis by researchers at the University of Michigan, the National Institutes of Health, the Census Bureau and the University of California at Los Angeles found that expanding Medicaid eligibility was associated with significantly lower mortality, particularly disease-related deaths (e.g., as opposed to accidents) and the effect increases over time.59 Specifically, it estimated that Medicaid expansions were associated with 0.13 percent reduction in the mortality rate. If we assume that this estimated change in mortality rates can be applied to the number of persons that I have projected to lose Medicaid coverage, the public charge rule could eventually increase the number of premature deaths by between 1,300 and 4,000 (0.13 percent times 1.02 million to 3.06 million losing Medicaid coverage). This corroborates an earlier study that examined the reduction in mortality after Massachusetts increased insurance coverage under its state health reform, which found that every increase in
57 Sommers B Gawande A, Baicker K. Health Insurance Coverage and Health — What the Recent Evidence Tells Us. New England Journal of Medicine. 2017 Aug 10; 377(6): 586-93.
58 Miller S, Wherry L. The Long-Term Effects of Early Life Medicaid Coverage. J Human Resources. 2019; 54(3): 786-821.
59 Miller S, Altekruse S, Johnson N, Wherry L. Medicaid and Mortality: New Evidence from Linked Survey and Administrative Data. NBER Working Paper No. 26081. July 2019. www.nber.org/papers/w26081.
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insurance coverage by 830 people prevented one death per year, (0.12 percent),60 almost the same as the rate cited above. I note that mortality rates might be slightly lower among those in immigrant families. Other research indicates that immigrants have slightly lower mortality rates than those who are native-born, so the effect might be less pronounced.61 On the other hand, evidence indicates that the loss of health services for low-income people, many with poor health, would lead to more serious health problems, including higher mortality.
58. As noted earlier, a significant share of the immigrants who could be affected by the public charge rule have fair or poor health or have limitations because of health problems. This is because the final rule assigns negative weight to individuals who have a serious medical condition. Analyses of the 2018 Medical Expenditure Panel Survey reveal more detail about disease prevalence among immigrant adults now covered by Medicaid.62 About 14 percent of low-income immigrant adults enrolled in Medicaid report having diabetes, 27 percent have high blood pressure, 29 percent have high cholesterol, 3.4 percent have a history of cancer, and 5 percent have a history of coronary heart disease. These are all serious chronic diseases, which generally require ongoing medical care and/or medication.
59. To illustrate the consequences of the loss of Medicaid insurance coverage, I present a hypothetical example about problems for a person with diabetes. Loss of Medicaid would make it much harder for a diabetic to continue to afford insulin or other diabetes-related
60 Sommers B, Long S, Baicker K, Changes in Mortality after Massachusetts Health Care Reform: A Quasi-Experimental Study, Ann. Intern. Med. 2014; 160(9): 585-93.
61 Singh G, Miller B. Health, Life Expectancy, and Mortality Patterns Among Immigrant Populations in the United States. Can J Public Health. 2004; 95(3): I14-21. Singh G, et al. Immigrant Health Inequalities in the United States: Use of Eight Major National Data Systems. Scientific World Journal. 2013; Article ID 512313, 21 pages http://dx.doi.org/10.1155/2013/512313.
62 Author’s analysis of the 2017 Medical Expenditure Panel Survey, conducted by the federal Agency for Healthcare Research and Quality. https://meps.ahrq.gov/mepsweb/index.jsp.
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medications or other medical care. The average cost of insulin (without insurance) was $450 per month in 2016, compared to $234 in 2012.63 When diabetes is adequately controlled, diabetics can function well in work and other normal activities of life, but the loss of medical care could lead to severe medical problems, including death and impairments such as heart disease, loss of vision or amputation.64 With adequate medical care, an immigrant could hold a job, go to school, support a family and pay taxes, but the loss of Medicaid could put all of that at risk and lead to serious, long-term health problems.
60. A recent study examined some of the medical needs of children who could be affected by the public charge rule, looking at children who lived with at least one noncitizen adult, based on analyses of the 2015 Medical Expenditure Panel Survey. Of these children: 11 percent had asthma, 18 percent had experienced gastrointestinal problems, 14 percent had the flu, and 9 percent had neuromuscular problems. Forty percent needed care for an illness or injury and 18 percent needed medication.65 Forgoing Medicaid could have serious medical consequences for these children that could not only impair their health, but reduce their opportunities to function well in school.
61. The public charge rule creates other harms for immigrants. As noted earlier, many in immigrant families are already under serious psychological stress due to the public charge rule and perceptions of other Trump Administration policies. The loss of Medicaid would compound these problems. Research has shown that receiving Medicaid helps reduce
63 Thomas K. Express Scripts Offers Diabetes Patients a $25 Cap for Monthly Insulin. New York Times. Apr. 3, 2019.
64 American Diabetes Association. Standards of Medical Care in Diabetes—2019. Diabetes Care. 2019 Jan. (supplement)
65 Zallman L, et al. Implications of Changing Public Charge Immigration Rules for Children Who Need Medical Care. JAMA Pediatr. Published online July 1,m 2019. https://jamanetwork.com/journals/jamapediatrics/fullarticle/2737098.
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depression and increases the ability to get access to mental health care services.66 It also increases financial security, since beneficiaries know that their medical expenses will be covered.
62. Another harm of the public charge rule is the risk of family separation. As noted by the Cato Institute, about 40 percent of those subject to the public charge rule are spouses or minor children.67 If they do not meet the public charge rule’s requirements, their ability to remain in the United States – and their ability to remain with their citizen or permanent resident spouses or children – is jeopardized, increasing the risk of family separation. This risk increases the pressure for immigrant families to avoid public benefits, while also adding to their psychological distress.
G. Harm to State and Local Governments and Health Care Facilities Due to the Public Charge Rule
63. The harm caused by the public charge rule extends beyond the harm caused to members of immigrant families; there are broader repercussions that would create serious harm to state and local governments, health care providers and other members of these communities who are not in immigrant families. Safety net health care providers will lose Medicaid revenue, which will threaten their ability to serve their communities, including patients who are not members of immigrant families. Many state or local governments will be forced to spend more to provide health care to indigent patients, increasing their state and local budget pressures. Finally, the loss of federal Medicaid revenue (as well as the loss of federal SNAP benefits) would have broader effects on state and local economies and employment.
66 Baicker K, et al. The Effect of Medicaid on Management of Depression: Evidence from the Oregon Health Insurance Experiment. Milbank Q. 2018 Mar; 96(1): 29–56.
67 Bier D. An Explanation of the Public Charge Rule: Frequently Asked Questions. Cato Institute. Aug. 12, 2019. https://www.cato.org/blog/explanation-public-charge-rule-frequently-asked-questions
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64. The problem can be clearly understood in the case of health care. If fewer people have Medicaid coverage, then health care providers, such as hospitals or community health centers, will collect less insurance revenue; this is particularly a problem for safety net health care providers that care for a large number of Medicaid patients. But uninsured patients still need medical care and often seek care at these facilities as uninsured patients. Safety net facilities often continue to care for uninsured patients, whether because of legal mandates or because of their mission to serve needy patients. For example, as a condition of receiving federal funds under Section 330 of the Public Health Service Act, community health centers must serve all patients, regardless of their ability to pay for care.68 Thus, the health center must continue to provide care, even if patients are uninsured and cannot pay.
65. In this section, I summarize data from several reports that were released in late 2018 that examine the effects of the public charge rule, as it was proposed in October 2018. If these analyses were conducted now the results might be slightly different because of changes in the final regulation, such as the exclusion of consideration of Medicaid benefits used by children and pregnant women or the availability of more recent information. But the general methods used in these reports appear technically reasonable and the direction of findings should be approximately valid, even if they were revised in light of the final regulation or more recent data.
66. In a November 2018 report, I and colleagues at George Washington University examined the financial impact of the then-proposed public charge rule for community health centers.69 The key results from that report are reproduced in Table 2 below. Nationwide, we
68 42 U.S.C. 254b(k)(3)(G). 69 Ku L, Sharac J, Gunsalus R, Shin P, Rosenbaum S. How Could the Public Charge Proposed Rule
Affect Community Health Centers? Policy Brief # 55. Geiger Gibson RCHN Community Health Research Collaborative. Nov 2018. https://publichealth.gwu.edu/sites/default/files/downloads/GGRCHN/Public%20Charge%20Brief.pdf.
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Case 1:19-cv-07777-GBD Document 34-11 Filed 09/09/19 Page 44 of 97 estimated that health centers would sustain between $345 and $623 million in lost Medicaid revenue. In order to make up for that loss in revenue, we considered scenarios in which they would either reduce the number of patients served or reduce their staffing. We estimated that this would cause health centers to serve between 295,000 and 538,000 fewer patients or reduce staffing by around 3,400 to 6,100 staff. Because health centers cannot discriminate and must serve all patients regardless of their ability to pay (or their immigration status), they must lower their overall patient caseloads, which would result in losses in the broader patient community and most of those patients would not be immigrants or members of immigrant families, or reduce staff, most of whom are not immigrants. The public charge rule would have repercussions that reduce services for broader communities, not just members of immigrant families.
67. The report estimated that community health center losses in New York state could be between $55 and $102 million, in California from $126 to $240 million, in Connecticut from $4.4 to 11.4 million and in Vermont from $166,000 to $293,000.
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Table 2. Potential Effect of Proposed Public Charge Rule on Community Health Center Revenue and the Potential
Reduction in the Number of Patients Served or the Number of Health Center Staff Needed to Compensate for the Loss of Medicaid Revenue

Loss in Total Health CentLeorsMs oedf Hiceaal SltthafCfenter

Potential Compensatory Actions Due to

Medicaid Revenue Due

the Loss of Medicaid Revenue

to Public Charge Rule

Reduce Number

Reduce Number of Health

of Patients Served

Center Staff

Low Estimate High Estimate Low Estimate High Estimate Low Estimate High Estimate

Total, U.S.

-$345,673,184 -$623,753,853 -294,642

-537,683

-3,373

-6,075

Alabama

-$225,564 -$526,557

-365

-851

-2

-6

Alaska

-$471,897 -$996,953

-149

-315

-3

-7

Arizona

-$10,595,610 -$12,817,305

-9,900

-11,976

-116

-141

Arkansas

-$394,544 -$771,900

-425

-832

-5

-9

California

-$126,143,256 -$240,183,200 -102,201

-194,595

-1,139

-2,169

Colorado

-$5,696,253 -$11,848,222

-5,143

-10,697

-63

-131

Connecticut

-$4,408,901 -$11,391,917

-4,208

-10,873

-44

-113

Delaware

-$553,818 -$852,250

-696

-1,071

-6

-9

Dist. of Columbia -$9,953,898 -$14,464,689

-4,258

-6,188

-106

-154

Florida

-$7,813,025 -$15,909,023

-9,334

-19,006

-94

-192

Georgia

-$254,034 -$820,574

-310

-1,003

-3

-10

Hawaii

-$1,008,457 -$1,650,632

-736

-1,205

-10

-16

Idaho

-$225,677 -$900,226

-202

-805

-2

-9

Illinois

-$5,948,171 -$13,574,467

-7,417

-16,927

-64

-147

Indiana

-$1,817,859 -$2,930,27 4

-2,312

-3,727

-20

-32

Iowa

-$1,963,423 -$2,414,045

-2,249

-2,765

-19

-24

Kansas

-$471,669 -$789,340

-623

-1,042

-6

-10

Kentucky

-$1,951,046 -$2,143,024

-2,062

-2,265

-22

-24

Louisiana

-$155,599 -$563,779

-164

-595

-2

-6

Maine

-$233,447 -$457,375

-224

-438

-2

-5

Maryland

-$1,782,988 -$3,300,834

-1,628

-3,013

-20

-37

Massachusetts

-$32,471,101 -$44,392,363

-23,251

-31,787

-335

-458

Michigan

-$3,839,013 -$6,084,838

-3,899

-6,180

-40

-64

Minnesota

-$2,658,967 -$5,351,271

-2,530

-5,093

-25

-49

Mississippi

-$9,842 -$210,900

-15

-312

0

-2

Missouri

-$345,504 -$1,286,065

-417

-1,552

-4

-15

Montana

-$137,605 -$197,994

-124

-179

-1

-2

Nebraska

-$623,129 -$849,313

-742

-1,012

-8

-11

Nevada

-$581,865 -$1,463,941

-390

-981

-8

-20

New Hampshire

-$366,666 -$666,839

-290

-528

-4

-7

New Jersey

-$2,799,363 -$7,001,699

-3,406

-8,520

-27

-66

New Mexico

-$3,349,127 -$5,363,475

-2,693

-4,313

-35

-56

New York

-$55,237,669 -$101,597,422

-41,733

-76,758

-495

-911

North Carolina

-$1,070,195 -$3,276,186

-1,376

-4,211

-12

-38

North Dakota

-$273,951 -$370,515

-300

-405

-3

-5

Ohio

-$1,401,176 -$2,540,892

-1,799

-3,262

-16

-29

Oklahoma

-$312,067 -$1,079,861

-373

-1,291

-4

-12

Oregon

-$8,251,838 -$15,300,182

-4,890

-9,066

-80

-148

Pennsylvania

-$7,616,148 -$12,335,111

-7,967

-12,903

-83

-135

Rhode Island

-$3,003,273 -$4,439,375

-3,036

-4,488

-33

-49

South Carolina

-$209,046 -$1,263,821

-203

-1,227

-2

-15

South Dakota

-$485,598 -$597,119

-614

-755

-6

-7

Tennessee

-$347,224 -$938,841

-533

-1,440

-5

-12

Texas

-$13,410,285 -$26,466,577

-17,137

-33,822

-156

-308

Utah

-$1,369,508 -$2,516,979

-1,426

-2,622

-16

-29

Vermont

-$166,063 -$293,264

-167

-295

-2

-3

Virginia

-$458,375 -$1,173,334

-577

-1,477

-5

-13

Washington

-$19,832,337 -$32,646,223

-17,036

-28,043

-190

-312

West Virginia

-$172,518 -$330,056

-214

-409

-2

-4

Wisconsin

-$2,708,512 -$4,285,574

-2,806

-4,439

-28

-44

Source: Ku, Sharac, Gunsalus, Shin & Rosenbaum. 2018.

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68. Similar analyses were conducted about the impact of the proposed public charge rule on the Medicaid revenues of hospitals across the country by Manatt Health, on behalf of America’s Essential Hospitals, the Association of American Medical Colleges, the American Hospital Association, the Catholic Health Association of the United States, the Children’s Hospital Association, and the Federation of American Hospitals.70 Like the community health center report, this November 2018 report was issued before the final regulation was issued. Results today might differ somewhat, although the general nature and magnitude of results ought to remain similar. This report analyzed the potential effect of the loss of Medicaid revenues in every state and in many metropolitan areas across the nation. Like health centers, hospitals would need to compensate for the loss of revenue by reducing the number of patients served, including many who are not in immigrant families, reducing services and/or reducing staffing. Overall, the report concluded that American hospitals could lose an estimated $17 billion, harming them and the communities they serve. Because hospitals are so much larger and provide much costlier care, the size of the losses is far higher for hospitals than community health centers. The losses reported in this report include all types of hospitals, but the losses will be higher in hospitals that serve more Medicaid patients or in areas with higher immigrant populations, many of which are public hospitals or hospitals that receive substantial state or local subsidies. Table 3 provides the estimates of hospital losses by state; Table 4 shows them instead arrayed by metropolitan areas.
70 Mann C, Grady A, Orris A. Medicaid Payments to Hospitals at Risk Under the Proposed Public Charge Rule. Nov. 2018. https://www.manatt.com/Manatt/media/Documents/Articles/MedicaidPayments-at-Risk-for-Hospitals-Under-the-Public-Charge-Proposed-Rule_Manatt-Health_Nov2018.PDF.
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Table 3. Potential Medicaid/CHIP Hospital Payment Losses Due to Proposed Public Charge
Rule by State (2016, $ in millions)

State

$ millions

Alabama

$48

Alaska

$23

Arizona

$383

Arkansas

$24

California

$5,168

Colorado

$234

Connecticut

$163

Delaware

$31

District of Columbia

$117

Florida

$785

Georgia

$243

Hawaii

$51

Idaho

$27

Illinois

$554

Indiana

$117

Iowa

$57

Kansas

$40

Kentucky

$85

Louisiana

$52

Maine

$7

Maryland

$254

Massachusetts

$457

Michigan

$246

Minnesota

$157

Mississippi

$17

Missouri

$93

Source: Mann, Grady & Orris, 2018.

State Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming Total, U.S.

$ millions $6 $32
$223 $25 $608 $126 $2,710 $216 $7 $170 $98 $186 $216 $51 $54 $5 $96 $1,923 $70 $3 $112 $329 $8 $68 $1 $16,771

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Table 4. Potential Medicaid/CHIP Hospital Payment Losses Due to Proposed Public
Charge Rule by Metropolitan Area (2016, $ in millions)

Metropolitan Area Atlanta-Sandy Springs-Roswell, GA Baltimore-Columbia-Towson, MD Boston-Cambridge-Newton, MA-NH Chicago-Naperville-Elgin, IL-IN-WI Dallas-Fort Worth-Arlington, TX Denver-Aurora-Lakewood, CO Detroit-Warren-Dearborn, MI El Paso, TX Fresno, CA Houston-The Woodlands-Sugar Land, TX Las Vegas-Henderson-Paradise, NV Los Angeles-Long Beach-Anaheim, CA McAllen-Edinburg-Mission, TX Miami-Fort Lauderdale-West Palm Beach, FL Minneapolis-St. Paul-Bloomington, MN-WI New York-Newark-Jersey City, NY-NJ-PA Philadelphia-Camden-Wilmington, PA- NJ-DE-MD Phoenix-Mesa-Scottsdale, AZ Portland-Vancouver-Hillsboro, OR-WA Riverside-San Bernardino-Ontario, CA Sacramento–Roseville–Arden-Arcade, CA San Antonio-New Braunfels, TX San Diego-Carlsbad, CA San Francisco-Oakland-Hayward, CA San Jose-Sunnyvale-Santa Clara, CA Seattle-Tacoma-Bellevue, WA Washington-Arlington-Alexandria, DC- VA-MD-WV Yuba City, CA All other Total, U.S. Source: Mann, Grady & Orris, 2018.

$ millions $183 $136 $365 $548 $421 $169 $136 $156 $214 $634 $132 $1,978 $124 $529 $136 $3,113 $232 $301 $137 $572 $198 $181 $387 $506 $365 $178 $256 $115 $4,365
$16,771

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69. The Manatt report estimated that hospital losses due to the proposed public charge rule in New York State could total $2.7 billion, in California $5.2 billion, in Connecticut $163 million and in Vermont $3 million. In the New York City-Newark metropolitan area the losses could be $3.1 billion and losses could reach $2.0 billion in the Los Angeles area.
70. Public health directors have commented on the major damage engendered by the public charge policies. In November 2018, Mitchell Katz, MD, MPH, who directs New York City’s Health and Hospitals system and previously led the health departments of Los Angeles County and San Francisco and is one of the nation’s foremost authorities on public health and health care systems stated: “If enacted as proposed, this public charge provision could decrease access to medical care and worsen the health of individuals, threaten public health, and undercut the viability of the health care system.”71
71. The results of the loss of Medicaid benefits would spill over into harm for hospitals, clinics and related facilities, both because of their underlying commitments to serve disadvantaged patients, but in many cases because of state laws that require them to provide care to the indigent who are otherwise uninsured. For example, under Section 2807-k(9-a) of the New York State Public Health Law, the state requires that hospitals must limit what they can charge low-income uninsured patients, effectively requiring them to accept losses to care for such patients.72 Section 17000 of the California Welfare and Institutions Code requires cities and counties to assume responsibilities for care: “Every county and every city and county shall relieve and support all incompetent, poor, indigent persons, and those incapacitated by age, disease, or accident, lawfully resident therein, when such persons are not supported and relieved
71 Katz M, Chokshi D. The “Public Charge” Proposal and Public Health: Implications for Patients and Clinicians. Journal of the American Medical Association. 2018;320(20):2075-2076. Nov. 27, 2018.
72 New York State Department of Health. Understanding Your Financial Aid Rights. https://profiles.health.ny.gov/hospital/pages/financial_aid_info. Accessed Aug. 22, 2019.
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by their relatives or friends, by their own means, or by state hospitals or other state or private institutions.” Similar laws at state and local levels across the country that require efforts to provide indigent care and the loss of Medicaid coverage by millions of members of immigrant families would shift costs and burdens onto states, local governments and health care providers, as well as reducing access to care by those who lose their insurance.
72. Other researchers have analyzed broader economic consequences of the public charge rule. For example, a report by researchers at the University of California73 estimated the impact of the proposed public charge rule on California. The researchers began by estimating the potential loss of Medicaid and SNAP (called Medi-Cal and CalFresh in California) benefits by members of immigrant families in California, then estimated the level of federal revenue (Medicaid matching funds and federal SNAP payments) would be lost, a combined loss of $1.7 billion in federal benefits received in California. Because these benefits pay for health care services and food, the lost federal revenue decreases money going to pay hospitals, doctors’ offices, grocery stores, and other businesses, and this in turn lower payments made to staff and to vendors, such as food producers, which have effects that multiply through the economy. The researchers then used economic models to estimate the number of jobs that would be lost due to the reduction in federal revenue. They estimated that this could cost California 17,700 jobs, about half of which are in health care, 10 percent in the food sector and the rest in other areas of the state’s economy.
73. The reports cited above are just a portion of the analyses, mostly conducted soon after the proposed public charge rule was released, that attempt to demonstrate the economic
73 Ponce N, Lucia L, Shimada T. Proposed Changes to Immigration Rules Could Cost California Jobs, Harm Public Health. UCLA Center for Health Policy Research. Dec. 2018. https://healthpolicy.ucla.edu/publications/Documents/PDF/2018/publiccharge-factsheet-dec2018.pdf.
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harm that would occur among community health centers, hospitals, states and local areas. Despite the diversity in data, methods and issues examined, they are consistent in indicating that the public charge rule would have broad and harmful effects on state and local governments, health care providers and the communities they serve.
H. Other Harmful Health Care Aspects of the Public Charge Rule 74. The public charge rule includes other provisions that relate to health insurance coverage or health status. Not only is the receipt of Medicaid a heavily weighted negative factor, so are: (a) having a serious medical condition that could result in hospitalization or extensive medical care or interfere with the ability to work or (b) being uninsured with no prospect of obtaining private insurance, nor having the ability to pay for care (§212.22(c)(1)(iii)). In contrast, heavily weighted positive factors include having an income greater than 250 percent of the federal poverty line or having private insurance, not including private coverage obtained through the Health Insurance Marketplace (also known as “Obamacare”) subsidized with premium tax credits (§212.22(c)(2)). 75. Table 5 presents data on the health insurance coverage of adults who are lowincome (with incomes below 200 percent of poverty) members of immigrant families and of lowincome and upper-income families without immigrants, based on further analyses of the 2017 National Health Interview Survey.74 Low-income members of immigrant families are much more likely to be uninsured (38 percent) than low-income adults not in immigrant families (19 percent) and higher-income adults not in immigrant families (7 percent). Moreover, members of
74 Author’s analysis of the 2017 National Health Interview Survey. https://www.cdc.gov/nchs/nhis/index.htm.
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low-income immigrant families are less likely to be covered by private insurance, Medicaid or other insurance than low-income adults who are not in immigrant families.

Table 5. Health Insurance Coverage of Adult (21-64) Members of Immigrant Families and Those
Who are Not Members of Immigrant Families, 2017

Low-income Low-income

Member of Not Member of

Immigrant

Immigrant

Family

Family

Private Insurance

28.5%

35.4%

Health Insurance Marketplace

1.5%

1.2%

Medicaid /CHIP

29.0%

35.7%

Other (e.g., Medicare, military)

3.0%

8.6%

Uninsured

38.0%

19.1%

Total

100.0%

100.0%

Source: Author's analysis of 2017 National Health Interview Survey

Not Low-income Not Member of
Immigrant Family 83.4% 1.3% 4.2% 3.8% 7.3% 100.0%

76. Medicaid eligibility for non-citizen immigrants was sharply restricted by PRWORA; analyses show that non-citizen immigrants are much less likely to get Medicaid than low-income citizens.75 But the largest reason that immigrants are less insured is that, although they have high labor participation rates, immigrants often work in jobs, such as construction, agriculture, hospitality or food processing jobs, that do not offer insurance to their employees.76 Immigrants are simply less likely to be offered insurance, whether by the government or by their employers. The public charge rule creates a further disadvantage to the uninsured, which

75 Ku L, Bruen B. Poor Immigrants Use Public Benefits at a Lower Rate than Poor Native-Born Citizens, Economic Development Bulletin No. 17, Washington, DC: Cato Institute. March 4, 2013 http://www.cato.org/sites/cato.org/files/pubs/pdf/edb17.pdf.
76 Buechmuller T, LoSasso T, Lurie I, Dolfin S. Immigrants and Employer-Sponsored Health Insurance. Health Services Research 2007; 42(1): 286-310.
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disproportionately harms low-income members of immigrant families, particularly Latinos, despite their participation in the workforce.
77. Having private insurance is a heavily weighted positive factor in public charge determinations, but immigrants have lower opportunities to get private insurance than those who are not in immigrant families. Data from the 2017 National Health Interview Survey indicate that 21 percent of immigrants who lack coverage report that it was because it was not offered in their jobs, because they were rejected by an insurance company, lost their job or changed companies, changed family status (e.g., divorced), or because the cost was too high, compared to 10 percent of low-income adults not in immigrant families and 4 percent of higher income adults not in immigrant families. In addition, since those who get insurance through the Health Insurance Marketplaces with federal tax subsidies cannot count that insurance as a heavily weighted positive factor, about 1.5 percent of the low-income members of immigrant families will not receive this positive factor either.
78. Under the public charge rule, members of immigrant families can be penalized if they use Medicaid or are uninsured. Any expectation that they may make up this gap by gaining private insurance is unrealistic. For example, in 2018, the average total cost of health insurance in an employer-sponsored plan was $6,715 for single person and was $19,565 for a family; these levels are out of reach for almost all low-income immigrants if they are not offered insurance by their employers or get federal tax premiums to help them buy coverage through Health Insurance Marketplaces. Less than a third of the adults in low-income immigrant families (28.5 percent) have the private insurance that could count as a highly weighted positive factor; most of the rest would face negative immigration consequences under the rule.
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I. Current or Past Status of Immigrants Does Not Predict Their Future Economic Success 79. According to DHS, the overarching goal of its revised public charge policies is to
“better ensure that applicants for admission to the United States and applicants for adjustment of status to lawful permanent residency…are self-sufficient.”77 To accomplish this DHS will use current or past characteristics of immigrant applicants, such as use of public benefits, being uninsured or having a low income, to effectively predict the future economic status of immigrants.
80. A fundamental question is whether receiving Medicaid interferes with a recipient’s economic status or employment. The strongest evidence comes from a rigorous study conducted in Oregon by Harvard University researchers that found that receiving Medicaid did not significantly discourage employment or lower earnings by low-income adults.78 Medicaid did not harm their chances of employment or earnings; it just gave them health insurance coverage to address their medical needs. This study used a randomized experiment, the strongest possible evaluation design, to compare those who received Medicaid and those who did not and found that those who gained Medicaid coverage had equivalent employment rates and earnings levels as those who did not. Receiving Medicaid does not make recipients less likely to work or able to meet their economic needs. Instead it provides health insurance coverage that helps them meet their health care needs that can help them maintain employment and well-being.
81. Research and experience also indicates the hazard of predicting future economic status based on past performance. Immigrants are often initially disadvantaged when they first arrive in the United States; they have limited American job experience and have not developed
78 Baicker K, Finkelstein A, Song J, Taubman A. The Impact of Medicaid on Labor Market Activity and Program Participation: Evidence from the Oregon Health Insurance Experiment. American Economic Review. 2014, 104(5): 322–328.
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the social and business networks that enable people to find better work, but their status improves rapidly. Research consistently shows that when immigrants first enter, they tend to have lower incomes than similar U.S.-born adults, but their earnings grow rapidly as they remain in the US and gain experience, skills and opportunities, enabling them to integrate into the economic mainstream.79 The prototypical immigrant success story is one of a person who comes to the U.S. with nothing in his or her pocket, but, through hard work and persistence, eventually becomes a success. For example, analyses of Census data reveal that immigrants without a high school education, such as those targeted by the public charge rule, initially have lower average incomes than similar U.S.-born citizens (with the same gender, age, and education), but the immigrants’ incomes catch up and then surpass their U.S.-born peers within six or seven years.80 Public charge policies make it harder for the immigrant to remain in the U.S. and thus jeopardize their ability to improve their economic status. There is even stronger evidence of the economic and educational success of “second generation” immigrants, the U.S.-born children of immigrants.81 Public charge policies that reduce the ability of immigrants or their children to remain in the United States could short-circuit their subsequent economic well-being.
79 See, e.g., Chiswick B. The effect of Americanization on the earnings of foreign-born men. Journal of Political Economy October 1978: 897–922; Duleep H, Dowhan D. Research on immigrant earnings. Social Security Bulletin. 2008; 68(1): 31-50; Kaushal N, et al. Immigrant employment and earnings growth in Canada and the USA: evidence from longitudinal data. Journal of Population Economics. 2016; 29(4): 1249–1277; Borjas G, Friedberg R. Recent trends in the earnings of new immigrants to the United States. National Bureau of Economic Research Working Paper 15406. Oct.2009.
80 Ku L, Pillai D. The Economic Mobility of Immigrants: Public Charge Rules Could Foreclose Future Opportunities. Nov. 15, 2018. Social Science Research Network. http://ssrn.com/abstract=3285546.
81 Pew Research Center. Second-Generation Americans: A Portrait of the Adult Children of Immigrants. Feb. 2013. https://www.pewresearch.org/wpcontent/uploads/sites/3/2013/02/FINAL_immigrant_generations_report_2-7-13.pdf; Doung M, et al. Generational Differences in Academic Achievement Among Immigrant Youths: A Meta-Analytic Review. Review of Education Research. 2016; 86(1): 3-41.
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Case 1:19-cv-07777-GBD Document 34-11 Filed 09/09/19 Page 56 of 97 I declare under penalty of perjury that the foregoing is true and correct. Executed on this 9th day of September, 2019.
____________________________________ Leighton Ku
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK, et al.,

Plaintiffs,

v.

19 Civ. 7777 (GBD)

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

I, Diane Whitmore Schanzenbach, declare pursuant to 28 U.S.C. § 1746 that the following is true and correct:
1. My name is Diane Whitmore Schanzenbach. I make this declaration in support of Plaintiffs’ Request for a preliminary injunction.
Background 2. I am the Director of the Institute for Policy Research at Northwestern University, where I am also the Margaret Walker Alexander Professor of Social Policy and Economics. For the past two decades, I have conducted and published numerous peer-reviewed research studies and book chapters on the Supplemental Nutrition Assistance Program, commonly known as SNAP. I recently served as a member of the Institute of Medicine’s Committee on Examination of the Adequacy of Food Resources and SNAP Allotments, and the Committee on National Statistics of the National Academy of Sciences Committee on Improving Consumer Data for Food and Nutrition Policy Research for the Economic Research Service, United States Department of Agriculture (USDA). I was previously the Director of the Hamilton Project, an economic policy initiative at the Brookings Institution. I hold a Ph.D. in economics from Princeton University. My declaration draws primarily from research that I have conducted or

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reviewed that use economic and econometric methods to consider the role of SNAP and other influences on food consumption, food insecurity, economic well-being, and other outcomes. My Curriculum Vitae is attached as Exhibit A to this declaration.
3. I have previously testified before the House Agriculture Committee and the U.S. Senate Committee on Agriculture, Nutrition and Forestry regarding SNAP. I have previously provided an expert declaration in Texas Taxpayer & Student Fairness Coalition, et al. v. Edgewood Independent School District, et al. v. Robert Scott, Cause No. D-1-GN-11-003130 (200th Judicial District, Texas). I have not provided testimony in any other litigation.
4. I have been engaged by counsel for Plaintiffs in this case to evaluate the effect of the new public charge rule (“the public charge rule” or “the Rule”)1 on the use of SNAP benefits and the resulting effects on individuals, communities, and the nation.
Summary 5. As described below, from my expert review, I conclude that because of the chilling effects of the public charge rule, enrollment among SNAP households with immigrant members will decline by nearly 20 percent and that 524,897 households will not participate in SNAP due to the Rule. These households include 1.78 million individuals, many of whom are citizens. The loss of SNAP benefits will cause substantial harm to households and their communities, and will especially cause harm to young children in those households; 35 percent of participating SNAP households with noncitizen members had a young child between ages 0 and 4 in the household. Research reviewed below suggests that the loss of these benefits will have lasting impacts on health and well-being in the short-, medium, and long-term. I also conclude that the annual economic loss from foregone SNAP benefits due to the Rule will be
1 Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (to be codified at 8 C.F.R. pts. 103, 212, 213, 214, 245, 248).
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$2.0 billion and that the economic multiplier impacts of these losses yields a likely annual economic loss of $3.2 billion.
6. My findings show that the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Service (USCIS) misunderstand the supplemental nature of SNAP. Participating SNAP households with immigrant members on average receive a minority of their total resources from SNAP payments. In data from 2017, over half of SNAP households with immigrant members that did not contain an elderly or disabled member had earnings in the month they received benefits.
7. I also found significant problems in DHS’s estimates. First, DHS substantially understates the number of immigrant households that may be impacted. I estimate that there are 2.6 million households on SNAP that include noncitizen members, and these households include 6.5 million people who receive SNAP, and 8.9 million individuals overall in the households, whereas DHS estimates that there are 1.5 million households on SNAP that include noncitizen members, and these households include 5.1 million individuals.
8. Second, DHS compounds this error by making an unreasonable estimate of a likely disenrollment effect based on chilling effects estimates that are substantially outside of the range of credible social science estimates. A justifiable estimate is that enrollment among SNAP households with immigrant members will decline by around 20 percent. I estimate that 524,897 households will not participate in SNAP due to the Rule. These households include 1.78 million individuals, whereas DHS estimates that there will be 65,612 households and 222,868 households that will not participate.
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9. I predict the annual total amount of foregone SNAP benefits due to the Rule will be $2.0 billion. This figure is about 10 times greater than DHS’s estimates,2 which are flawed both in terms of the number of SNAP households with immigrant members and in the likely rate of disenrollment or foregone enrollment. Including the economic multiplier impacts of these losses yields a likely annual economic loss of $3.2 billion. The estimated lost benefits to the state of New York will be $179 million annually, which will result in $287 million in lost economic activity. Connecticut is estimated to lose $22.7 million in benefits and $36.3 million in economic activity. Vermont is estimated to lose $1.0 million in benefits and $1.6 million in economic activity.
I. Background on SNAP A. Overview of SNAP
10. The Supplemental Nutrition Assistance Program (SNAP), previously known as the Food Stamp Program, is a cornerstone of the U.S. safety net. SNAP is the only social benefits program universally available to low-income Americans, and, in 2018, it assisted 40 million people in a typical month—about one out of every eight Americans. Overall, $60.6 billion was spent on benefits in 2018. SNAP benefits typically are paid once per month on an electronic benefits transfer card that can be used in a food retailer’s checkout line like a debit card, to purchase eligible goods which include most foods that are intended to be taken home and eaten.
11. SNAP is designed to prop up families’ purchasing power when their incomes are low, and helps to buffer households’ economic shocks due to job loss or other income declines. SNAP also has a stated goal of strengthening the agricultural economy, and every $1 increase in
2 See Regulatory Impact Analysis, Inadmissibility on Public Charge Grounds, Table 22.
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SNAP benefits has been shown to increase economic activity in the economy by $1.60.3 In addition, SNAP plays an important role as an automatic stabilizer, responding powerfully and quickly in times of economic downturns. During a recession, as unemployment rises, many families’ incomes fall, making more of them eligible for SNAP benefits (or making those already eligible for SNAP eligible for larger benefits). Benefits are quickly spent, generally in the local economy, providing an economic stimulus.4
12. SNAP benefits are designed to fill the gap between a family’s resources that are available to purchase food and the price of a low-cost food diet. Maximum benefits vary by household size. The maximum monthly benefit for a family of three in fiscal year 2019 is $505, or about $17 per day. Most families do not receive the maximum benefit because they have some resources (for example, earnings) that they can spend on groceries, and SNAP benefits are reduced accordingly. The average monthly SNAP benefit received for a family of three in 2019 is $378, or a little over $12 per family per day (approximately $4 per person per day).5
13. By design, SNAP can very quickly adapt to declining economic conditions. During a recession as more households become eligible for the program they can be quickly enrolled, with total program outlays automatically increasing along with need. SNAP payments and caseloads increased in the wake of the Great Recession, and, at their peak in 2012, 15 percent of the population participated in SNAP.6 As the economy has recovered and unemployment rates have declined, caseloads have fallen such that by 2018 the participation rate
3 Bivens, Josh. 2011. Method memo on estimating the jobs impact of various policy changes. Report, Economic Policy Institute.
4 Hoynes, Hilary and Diane Whitmore Schanzenbach. 2019. Strengthening SNAP as an Automatic Stabilizer. In Boushey, Heather, Ryan Nunn and Jay Shambaugh, eds., Recession Ready: Fiscal Policies to Stabilize the American Economy.
5 See CBPP, A Quick Guide to SNAP Eligibility and Benefits, https://www.cbpp.org/research/food-assistance/aquick-guide-to-snap-eligibility-and-benefits.
6 Schanzenbach, Diane Whitmore. 2017. The Future of SNAP: Continuing to Balance Protection and Incentives. In Reforming the Farm Bill, American Enterprise Institute.
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fell to 12.3 percent of the population, with the Congressional Budget Office predicting further declines in the coming years as long as the economy continues to thrive.7 This feature of SNAP means that a household’s likelihood of participating in SNAP varies due to macroeconomic conditions that are out of their control.
B. Eligibility for SNAP 14. Under federal rules, to be eligible for SNAP a household’s income and assets must meet three tests. First, their gross monthly income (before any deductions are applied) must be no higher than 130 percent of the poverty line, unless there is an elderly or disabled member in the household. Second, their net income must be no higher than 100 percent of the poverty line (after a series of deductions—including a standard deduction available to all households, some earned income, childcare expenses, legally obligated child support, housing costs that exceed half of the family’s net income, and medical expenses for elderly or disabled household members).8 Third, the household’s assets must fall below $2,250, or $3,500 (which generally include bank accounts, but not other significant assets such as retirement savings, most automobiles, or homes of residence) for households with an elderly or disabled member. States have the option to raise the gross income and asset limits; in 2019, 31 states have adopted higher income and asset limits, and another nine states have adopted higher asset limits only.9 As a result, many SNAP participants have income above the poverty line and many have significant assets.10,11 During normal economic times, unemployed, nondisabled childless adults (also
7 Greenstein, Robert, Brynne Keith-Jennings, and Dottie Rosenbaum. 2018. Factors Affecting SNAP Caseloads. Center on Budget and Policy Priorities.
8 All SNAP households are eligible for the standard deduction, 69 percent claim the shelter deduction, and 31 percent claim the earnings deduction. Childcare, child support, and medical expense deductions are claimed by four, two, and six percent, respectively (CBPP, A Quick Guide to SNAP Eligibility and Benefits).
9 Schanzenbach, Diane. 2019. Who Would Be Affected by Proposed Changes to SNAP? Econofact. 10 Schanzenbach, Diane. 2019. Who Would Be Affected by Proposed Changes to SNAP? Econofact. 11 Ratcliffe, Caroline, Signe-Mary McKernan, Laura Wheaton, Emma Kalish, Catherine Ruggles, Sara Armstrong,
and Christina Oberlin. 2016. Asset Limits, SNAP Participation and Financial Stability. Urban Institute Report.
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known as ABAWDs, or “able-bodied adults without dependents”) are subject to a 20-hour-perweek work requirement in order to receive benefits.
15. Some noncitizens are eligible for SNAP, and may be awarded benefits if they also satisfy the program’s other eligibility requirements such as income and resource limits. Noncitizens may be eligible if they are in a qualified aliens category and, in most cases, meet one additional condition. Qualified aliens include: lawfully admitted for permanent residence (LPRs, or green card holders) also including Amerasian immigrants; asylees; parolees; deportation (or removal) withheld; conditional entrants; Cuban or Haitian entrants; battered noncitizens; refugees; trafficking victims; Iraqi and Afghan Special Immigrants; certain American Indians born abroad; and certain Hmong or Highland Laotian tribal members. In addition, most qualified aliens must also meet one of the following conditions to be eligible for SNAP: five years of United States residence; 40 qualifying work quarters; under the age of 18; blind or disabled; elderly who lawfully resided in the U.S. on August 22, 1996; and active duty military (excluding National Guard) or honorably discharged veterans. Noncitizens that are tourists or students are generally not eligible. Undocumented noncitizens have never been eligible for SNAP, though such individuals may live in a household that receives SNAP benefits for other members.
16. In some cases, an intending immigrant undergoing adjustment would be eligible for SNAP before his or her green card application is approved. More commonly, the applicant undergoing the public charge determination only would be eligible for SNAP five years after he or she adjusts. But an adjusted LPR may be eligible for SNAP sooner if he or she is under age 18, in receipt of a disability-based benefit, can be credited with 40 qualifying quarters of work, or was lawfully residing in the United States and 65 or older when PRWORA was signed into law on August 22, 1996.
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C. Background on Characteristics of SNAP Users

17. USDA collects information on participating SNAP households in its “Quality

Control (QC) Data,” which are publicly available on the agency’s website.12 In this section, I use

these data to describe SNAP households in the 50 states plus the District of Columbia, broken

into two groups: (1) all households on SNAP, for comparison; and (2) households that receive

SNAP benefits and contain at least one member who is a noncitizen, whether or not the

noncitizen member(s) are eligible for or themselves participate in SNAP. DHS’s Regulatory

Impact Analysis issued with the Rule stated that it based its calculations on the total share of

foreign-born noncitizens as a percentage of the U.S. population,13 and my analysis mirrors that

approach. As shown in Table 1, 11.3 percent of SNAP households have a noncitizen household

member (column 2).

18. As shown in Table 1, 11.3 percent of SNAP households have a noncitizen

household member (column 2). Households with noncitizens are more likely than households on

SNAP in general to have any child or a young child (age 0 to 4) in the household and less likely

to have an elderly or disabled member as the overall caseload. Households with noncitizens have

larger household sizes than SNAP households overall, and all else equal, that implies that they

will receive larger SNAP benefits due to the larger household size.

Table 1: Demographic Characteristics of SNAP Households (2017)

All SNAP Households
(1)

SNAP Households
with Any Noncitizen

12 The SNAP QC data are generated from monthly reviews of SNAP cases conducted by state SNAP agencies, to assess the accuracy of eligibility determinations and benefit calculations. The public-use database contains detailed demographic, economic, and SNAP eligibility information for a nationally representative sample of approximately 45,500 SNAP units. The data are released annually, and are available at the following website: https://www.fns.usda.gov/resource/snap-quality-control-data.
13 See Regulatory Impact Analysis, Inadmissibility on Public Charge Grounds, Table 14.
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(2)

Share of HH’s on SNAP Share of HH’s with children aged 0–4 Share of HH’s with children < age 18 Share of HH’s w/elderly or disabled member
Average household size

100.0% 20.4% 41.7% 44.4% 2.18

11.3% 34.6% 67.4% 28.3% 3.33

19. SNAP households with noncitizens are substantially more likely to include

someone who is employed (measured as having earnings greater than zero) than the overall

SNAP caseload. Among SNAP households that do not contain an elderly or disabled member,

58.7 percent of households with noncitizen members have earnings in a given month, compared

with 31.4 percent of SNAP households overall. In my calculations, earnings are measured as a

snapshot — measuring those having positive earnings in the month that they participated in the

SNAP QC data collection. Studies that use different datasets that can follow SNAP participants

over time (including in months that they do not receive SNAP benefits) estimate even higher

shares of employment.14 SNAP participants tend to work in sectors that have variable hours and

higher rates of job turnover and unemployment.15 As a result, measuring employment in a single

month for this population understates the share that will be employed at some point in the

months surrounding SNAP receipt. Consistent with this increased likelihood of having earnings,

SNAP comprises a smaller share of the total household budget for households with noncitizen

14 These studies follow SNAP participants in general, and due to data limitations cannot reliably separate immigrant SNAP participants. Longitudinal studies find that 74 percent of adults on SNAP work in the year before or after they receive SNAP benefits. About two-thirds of SNAP recipients are not expected to work, primarily because they are children, elderly or disabled. See Center on Budget and Policy Priorities. 2019. Policy Basics: The Supplemental Nutrition Assistance Program (SNAP).
15 Butcher, Kristin F. and Diane Whitmore Schanzenbach. 2018. Most Workers in Low-Wage Labor Market Work Substantial Hours, in Volatile Jobs. Center on Budget and Policy Priorities. Policy Futures Report.
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members than it does for the overall caseload.16 Reflecting in part larger household sizes,

households with noncitizens receive more in monthly SNAP benefits than the overall caseload.

Table 2: Economic Characteristics of SNAP Households (2017)

Share with earnings (among households without elderly/disabled members)
SNAP as a share of total income
Average monthly SNAP benefits

All SNAP Households
(1)

SNAP Households
with Any Noncitizen
(2)

31.4% 36.9% $244.90

58.7% 35.0% $305.60

Because the data contains information on detailed citizenship status for each household member,

I can describe mixed-status households which include noncitizens as well as citizens. Among

SNAP households with a married couple head and at least one child in the household, I calculate

that 13.6 percent of spouses have different immigration statuses from one another. As shown in

Table 3 below, 5.7 percent of SNAP households overall have at least one noncitizen parent and

at least one citizen child (including 4.8 percent with only a citizen child or children, and 0.9

percent that have at least two children, at least one of whom is a citizen and at least one of whom

is not). The majority of mixed-status families have young children, ages 0 to 4, in the household.

Prior research (further described below) suggests that a substantial share of citizen children with

immigrant parents dropped off SNAP when many immigrants were temporarily barred from the

program in 1996, even though citizen children were still eligible for SNAP.17 Research also

shows that the impact of SNAP on later-life economic and health outcomes is important for

16 SNAP as a share of total income is calculated as SNAP benefits as a share of SNAP benefits plus earnings plus unearned income.
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children through age 18, and is particularly large for young children, underscoring the need to

protect young children from the loss of SNAP benefits.18

Table 3: Characteristics of Households Receiving SNAP, by Citizenship of Parents and

Children (2017)

Share of total caseload Household contains a young child (0–4) Average benefit

Citizen Parent, Citizen Child
(1)
33.5%
49.6%
$402.12

Noncitizen Parent,
Citizen Child (2)
4.8%
53.1%
$353.71

Noncitizen Parent, Mixedstatus Children (3)
0.9%
60.4%
$337.02

Noncitizen Parent,
Noncitizen Child (4)
0.6%
14.0%
$340.84

D. Positive Impacts to Individuals and Families Who Receive SNAP

20. Many studies have documented a range of positive impacts of SNAP benefits on

those who participate, both in the short-run and for children in the medium- and long-run. Loss

of access to SNAP benefits will cause substantial harm to households and their communities, and

will especially cause harm to young children in those households.19

21. Studies show that SNAP reduces poverty: SNAP kept 8.4 million people out of

poverty in 2015 (the most recent data available), including 3.8 million children. It also lifted 4.7

million people, including 2.0 million children out of deep poverty, defined as household income

17 East, Chloe N. Forthcoming. The Effect of Food Stamps on Children’s Health: Evidence from Immigrants’ Changing Eligibility. Journal of Human Resources.
18 Hoynes, Hilary, Diane Whitmore Schanzenbach, and Douglas Almond. 2016. Long-run impacts of childhood access to the safety net. American Economic Review 106 (4): 903–34.
19 Most of the SNAP studies described below measure the impact on participants generally—not just on immigrants, however, it is reasonable to assume that SNAP impacts on immigrants are similar to those on participants overall. This assumption can be tested in the case of pregnant women’s access to SNAP. Studies of the overall SNAP population and those limited to immigrants show that SNAP benefits have similar positive impacts on birth outcomes for both groups. See Almond, Douglas, Hilary W. Hoynes, and Diane Whitmore Schanzenbach. 2011. Inside the war on poverty: The impact of food stamps on birth outcomes. The Review of Economics and Statistics 93.2 (2011): 387–403. See also East, Chloe N. Forthcoming. The Effect of Food Stamps on Children’s Health: Evidence from Immigrants’ Changing Eligibility. Journal of Human Resources.
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below half of the poverty threshold.20 SNAP participation has been shown to reduce food insecurity and improve dietary quality,21 and also improves measures of economic distress such as falling behind on mortgage or utility payments or forgoing medical treatment due to lack of resources.22
22. SNAP has long-lasting positive effects: Recent research has documented important benefits of SNAP beyond the short-term “in the moment” reductions in poverty and food insecurity. SNAP is a very good investment that helps prevent lasting negative effects of inadequate childhood resources, demonstrably improving children’s health in the short, medium, and long run, and children’s economic outcomes in the long run.
23. Some of the best evidence comes from studies of birth cohorts that had differential access to SNAP—then called the food stamp program—when it was originally introduced in the 1960s as part of the War on Poverty. Congress phased in the program across different counties over the span of a decade, which provides researchers the opportunity to statistically isolate the program’s impact by comparing children born at different times—and living in different counties in the same states—during the rollout period.
24. One study using this design demonstrates that when a pregnant woman had access to the program during her third trimester, her baby weighed more at birth, and was also less likely to weigh below the clinical threshold of low birth weight.23 This outcome was significant
20 Wheaton, Laura and Victoria Tran. 2018. The Antipoverty Effects of the Supplemental Nutrition Assistance Program. The Urban Institute.
21 Bitler, Marianne P. 2016. The Health and Nutrition Effects of SNAP: Selection into the Program and a Review of the Literature on its Effects. In SNAP Matters: How Food Stamps Affect Health and Well-Being, J. Bartfeld, C. Gundersen, T. Smeeding, and J. Ziliak (eds.), Redwood City, CA: Stanford University Press, 134-160.
22 Shaefer, H. Luke and Italo. A. Gutierrez. 2013. The Supplemental Nutrition Assistance Program and material hardships among low-income households with children. Social Service Review 87 (4): 753–779.
23 Almond, Douglas, Hilary W. Hoynes, and Diane Whitmore Schanzenbach. 2011. Inside the war on poverty: The impact of food stamps on birth outcomes. The Review of Economics and Statistics 93.2 (2011): 387–403.
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because a child that has a weight below this clinical threshold is more likely to encounter health and development problems.24
25. Subsequent studies evaluate adult outcomes for those given access to SNAP
during childhood, and find that SNAP causes improvements in education, health, and economic
outcomes. In particular, access to SNAP from conception through age 5 increased a child’s likelihood of graduating from high school by 18 percentage points.25
26. Adult health—measured as an index comprising obesity, high blood pressure,
diabetes, heart disease and heart attack—was markedly improved if the individual had access to the program during early childhood.26 Looking at a broader range of economic and education
outcomes, among women SNAP access improved an index of adult economic outcomes
including educational attainment, employment, earnings, family income, and reduced the
likelihood that they would be poor or participate in SNAP or TANF (the cash welfare program)
during adulthood. There were positive impacts on economic and education outcomes for SNAP access from age 6 through 18 as well as from conception through age 5.27
27. More recent research extends this work and finds that early life access to SNAP
benefits leads to improvements in long-term earnings and education, and reductions in mortality and criminal activity.28 In other words, SNAP provides critical benefits to children, which
increases their health and human capital accumulation during childhood, which, in turn, helps
24 Figlio, D., Guryan, J., Karbownik, K. and Roth, J., 2014. The effects of poor neonatal health on children's cognitive development. American Economic Review, 104 (12), 3921–55.
25 Hoynes, Hilary, Diane Whitmore Schanzenbach, and Douglas Almond. 2016. Long-run impacts of childhood access to the safety net. American Economic Review 106 (4): 903–34.
26 Ibid. 27 Impacts of SNAP access in later childhood did not impact health outcomes, though. See Hoynes, Hilary, Diane
Whitmore Schanzenbach, and Douglas Almond. 2012. Long-run impacts of childhood access to the safety net. NBER Working Paper 18535. 28 Bailey, Martha, Hilary Hoynes, Maya Rossin-Slater, and Reed Walker. 2019. Is the Social Safety Net a LongTerm Investment? Large-Scale Evidence from the Food Stamps Program. Goldman School of Public Policy Working Paper.
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them to escape poverty when they grow up. A decline in the availability of benefits is likely to lead to worse outcomes for these children in adulthood.29
28. Other high-quality evidence on the impact of SNAP are based on a policy change which temporarily barred many legal immigrants from the program. In 1996 after the passage of the Personal Responsibility and Work Opportunity Act as part of welfare reform, many legal immigrants were barred from SNAP participation.30 In 1998 and 1999, a few states began restoring benefits using their own state funds. At the Federal level, benefits were restored in April 2003 for many immigrants. One study focuses on these SNAP immigrant eligibility changes to investigate the impact on U.S. citizen children born to immigrants.31 Even though the children’s eligibility for SNAP remained unchanged, a substantial share of them stopped participating in SNAP when their parent(s) lost access to the program. The study finds that SNAP participation rates among children of immigrants declined by eight percentage points when their parent(s) lost access, and that on average this policy change resulted in $185 in monthly SNAP benefits lost per household. The study then estimates the impact of this decline in SNAP participation during early childhood (conception through age 4) on subsequent health (measured at ages 6–16), and finds declines in parent-reported health and increases in school absences. Furthermore, loss of access to SNAP among pregnant women in their third trimester due to this policy change resulted in lower birth weights and an increased likelihood of a low birth weight birth.
29 Hoynes, Hilary W. and Diane Whitmore Schanzenbach. 2018. Safety Net Investments in Children. Brookings Papers on Economic Activity, Spring.
30 The rules were different for immigrants who were in the country before August 22, 1996 when welfare reform was enacted and for those who arrived after welfare reform. This study is limited to those who arrived prior to welfare reform.
31 East, Chloe N. Forthcoming. The Effect of Food Stamps on Children’s Health: Evidence from Immigrants’ Changing Eligibility. Journal of Human Resources.
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E. Positive Impacts to Society of SNAP for Immigrant Families. 29. There are a number of spillover impacts onto society at large from SNAP
participation among immigrant families. SNAP has an important direct stimulus impact on the
economy. Its recipients quickly spend the benefits, providing a relatively rapid fiscal stimulus to
the local economy including the retail, wholesale, and transportation systems that deliver the
food purchased. The USDA estimates that every $5 in new SNAP benefits generates as much as
$9 of economic activity.32 This translates into almost 10,000 jobs from $1 billion dollars in
additional SNAP spending. The Congressional Budget Office estimates that on average $1 in
changed SNAP spending yields $1.50 in economic benefits, while Mark Zandi of Moody’s
Analytics’ Economy.com estimates the benefits to be $1.70 for every dollar in changed SNAP
spending. In the simulations that follow, I adopt the midpoint between these estimates, $1.60 for
every $1 in changed SNAP spending.33
30. Many of the direct effects described in the section above also have spillover
impacts to the broader society. Increased food insecurity will likely increase demand at food
banks and other food charities.34 Decreases in SNAP participation result in worse health
outcomes,35,36 and are associated with increased health care expenditures.37 There are expected
education costs as well. Declines in SNAP participation increase school absence rates38 and
32 Hanson, Kenneth. 2010. The Food Assistance National Input-Output Multiplier (FANIOM) Model and Stimulus Effects of SNAP. USDA, Economic Research Service, Economic Research Report Number 103.
33 See Bivens, Josh. 2011. Method memo on estimating the jobs impact of various policy changes. Report, Economic Policy Institute.
34 Bazerghi, C., McKay, FH, and Dunn M. 2016. The Role of Food Banks in Addressing Food Insecurity: A Systematic Review. Journal of Community Health 41(4): 732–40.
35 East, Chloe N. Forthcoming. The Effect of Food Stamps on Children’s Health: Evidence from Immigrants’ Changing Eligibility. Journal of Human Resources.
36 Hoynes, Hilary, Diane Whitmore Schanzenbach, and Douglas Almond. 2016. Long-run impacts of childhood access to the safety net. American Economic Review 106 (4): 903–34.
37 Berkowitz, Seth, Hilary K. Seligman, and Sanjay Basu. 2017. Impact of Food Insecurity and SNAP Particpation on Healthcare Utilization and Expenditures. University of Kentucky Center for Poverty Research White Paper.
38 East, Chloe N. Forthcoming. The Effect of Food Stamps on Children’s Health: Evidence from Immigrants’ Changing Eligibility. Journal of Human Resources.
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reduce participation in school meals.39 Another study has shown that math and reading test scores in grades 3 through 8 are lower when SNAP benefits are inadequate.40 Fewer resources for children can drive up education costs in the short- and medium-run due to increased need for special education, more grade retentions, and higher absenteeism.41 Many of the long-run impacts on economic and health outcomes from children’s access to SNAP also have social aspects. For example, increased earnings result in decreased costs for future social benefits programs and increased tax revenues; removing children from SNAP would reverse these longterm gains.42
II. Likely Adverse Impacts of Public Charge Rule A. Impact on Noncitizen Households
31. To determine the likely impact of the Public Charge rule, one must estimate the number of people living in households that participate in SNAP that also have a noncitizen member of the household, in order to determine the population “at risk” of nonparticipation in SNAP. One must also estimate the share of this group who will drop off of SNAP or will forego applying for benefits due to the Rule. Multiplying the “at risk” population by the share who are likely to drop off gives the number of people expected to exit or forego SNAP due to the Rule. Estimating the average benefit per person in households with immigrants allows for calculation of the total dollar amount of benefits expected to be lost. Finally, to assess the overall economic impact of the lost SNAP payments one must multiply benefits by an accepted macroeconomic
39 Davis, Lisa. 2019. Protecting Children’s Access to School Meals by Maintaining Broad-Based Categorical Eligibility in SNAP. Testimony before the House Committee on Agriculture, Subcommittee on Nutrition, Oversight and Operations, U.S. House of Representatives.
40 Gassman-Pines, Anna and Laura Bellows. 2018. Food Instability and Academic Achievement: A QuasiExperiment Using SNAP Benefit Timing. American Educational Research Journal 55(5): 897-927.
41 Shepard, Donald S., Elizabeth Setren, and Donna Cooper. 2011. Hunger in America: The Suffering We All Pay For. Center for American Progress Report.
42 Hoynes, Hilary, Diane Whitmore Schanzenbach, and Douglas Almond. 2016. Long-run impacts of childhood access to the safety net. American Economic Review 106 (4): 903-34.
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“multiplier.” This is an underestimate of the true costs of the lost SNAP benefits, however, because it fails to quantify the long-term costs to children in these households and the attendant social costs described above.
32. It is important to base the analysis on all SNAP households that contain noncitizens, because research has shown that there are important spillover effects from SNAP rule changes that affect noncitizens, even onto groups that are not directly affected by the rule changes. For example, studies of the 1996 policy change which temporarily barred many legal immigrants from the program document that groups living in households with noncitizens who generally were not themselves barred from participation reduced their participation in SNAP, including refugees43 and citizen children of noncitizen parents.44 A recent study asked adults in immigrant families whether they or a family member did not participate in a government benefits program in 2018 for fear of risking future green card status, and found that adults in 20.7 percent of low-income immigrant families reported avoiding public benefits. Even though the Rule would only directly impact adults who do not hold a green card, nonetheless there were reports of benefit avoidance even among households with immigration and citizenship statuses that would never be subject to the Rule.45 These studies imply that analysis of the impact of the Rule should be based on all SNAP households with noncitizen members.
33. Table 4 below presents estimates of the number of SNAP households, and the number of individuals residing in those households, that contain noncitizen members. Columns 1
43 Fix, Michael E. and Jeffery S. Passel. 1999. Trends in Noncitizens’ and Citizens’ Use of Public Benefits Following Welfare Reform. Urban Institute Report.
44 East, Chloe N. Forthcoming. The Effect of Food Stamps on Children’s Health: Evidence from Immigrants’ Changing Eligibility. Journal of Human Resources.
45 Bernstein, Hamutal, Dulce Gonzalez, Michael Karpman, and Stephen Zuckerman. 2019. One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018. Urban Institute.
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and 2 list the average annual number of households and persons on SNAP from fiscal year 2013

to 2017, drawn from publicly available USDA sources.46

34. In column 3, I present the number of SNAP households containing a noncitizen

member, which I calculated from the 2013–2017 USDA SNAP Quality Control (QC) data, using

sampling weights provided in the dataset. The number of SNAP households containing a

noncitizen member I calculate is 2.6 million, which is 1.7 times the number reported by DHS.

The implied share of SNAP households with noncitizen members (dividing column 3 by column

2 in row A) is 11.83 percent. In column 4, I calculate from the SNAP QC data the number of

people residing in SNAP households that contain noncitizen members, and find that the

population is 8.9 million people.47 This number includes 4.5 million children under the age of 18,

and 1.6 million children aged 0 to 5.

Table 4: Estimates of Numbers of People in SNAP Households with Noncitizens

A. QC estimates: Any noncitizen in SNAP HH
B. DHS reported

People on SNAP(1)
45,291,847 45,294,831

Households on SNAP(2)

# HH’s on SNAP w/ Noncitizen Members(3)

# People in SNAP HH's
w/ Noncitizen Members(4)

% HH w/ Noncitizen Member(5)

22,193,029 22,195,369

2,624,483 1,547,017

8,896,997 5,182,502

0.1183 0.0697

35. Next, in Table 5, I estimate annual SNAP benefits received by households with

noncitizen members.48 I calculate annual SNAP benefits per recipient49 to be $1,556, and annual

SNAP benefits per participating household to be $3,794.

46 Data are available here: https://fns-prod.azureedge.net/sites/default/files/resource-files/SNAPsummary-8.pdf. 47 Note that not all of these individuals living in SNAP households are themselves receiving SNAP benefits; some
are ineligible or otherwise not participating, although other member(s) of their households participate in SNAP. The average household size among SNAP households with noncitizen members in the SNAP QC data is 3.39. 48 The SNAP QC data measure monthly SNAP benefits, and to translate this into an annual estimate I multiply the monthly benefit by 12.
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Table 5: Estimates of Annual SNAP Benefits in SNAP Households with Noncitizens

A. QC estimates: Any noncitizen in SNAP HH
B. DHS reported

Average SNAP/Recipient
Annual Benefits(1)

Average SNAP/Household
Annual Benefits(2)

$ 1,556.10 $ $ 1,527.59 $

3,793.68 3,117.41

36. Next, I calculate the number of individuals and households that would be

expected to disenroll from SNAP or avoid enrolling in SNAP due to the public charge rule. The

social science research indicates that many immigrants will avoid participating in SNAP even if

they are still eligible for the program. A number of research estimates, described below, imply

that participation will decline by around 20 percent.

37. Some of the best estimates from the research literature of the likely disenrollment

impact come from studies that investigated the barring of many immigrants from SNAP in 1996,

followed by the subsequent restoration of eligibility for many immigrants. These studies show

that disenrollment impacts will not only impact those who lose eligibility directly, but also

establish a chilling effect onto other populations that also reduce their participation in response to

policy changes. One study finds that U.S. citizen children, who did not experience any changes

in SNAP eligibility, were less likely to enroll in SNAP when their immigrant parent(s) lost

access.50 The magnitude of the enrollment decline implies a 19.3 percent decline in the levels of

SNAP participation among U.S. citizen children with immigrant parents.51 A different study

49 SNAP benefits per recipient are calculated as household SNAP benefits divided by the number of household members participating in SNAP. On average, there are 2.46 household members who receive SNAP benefits, and 3.42 household members in total, including those who do not receive SNAP benefits.
50 East, Chloe N. Forthcoming. The Effect of Food Stamps on Children’s Health: Evidence from Immigrants’ Changing Eligibility. Journal of Human Resources.
51 To arrive at an estimate of implied caseload decline, I estimated the likelihood that citizen children living with noncitizen adults participate in SNAP in 2016, and calculated the decline in number of participants if the likelihood were to decline by eight percentage points, as estimated by East. See East, Chloe N. Forthcoming.
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using a broader measure of participation in social benefits programs after many immigrants lost
access to SNAP estimated a 21 percent decline in immigrants’ use of social benefits programs
after welfare reform.52 This study also found similar sharp declines among refugees, even though
few refugees lost their eligibility to participate in the programs.
38. Studying the landscape today, a 2019 Urban Institute report finds that 20.7
percent of adults in low-income immigrant families did not participate in a social benefits
program because of the “chilling effects” of the proposed changes to the public charge rule.53
39. Together, these studies have two implications. First, the expected decline in
participation will impact more than the groups directly impacted by the Rule, but will also
impact other groups such as refugees and citizen members of households containing noncitizens.
Second, a reasonable assumption of the likely magnitude of the decline in SNAP participation
will be around 20 percent.54
40. In Table 6 below, I calculate the predicted declines in SNAP participation based
on the range of findings from the studies described above. Assuming a 20 percent
nonparticipation rate, I predict that 1.78 million people will be living in the 524,897 households
that are predicted not to participate in SNAP. I also provide predictions based on each study
described above, with nonparticipation rates estimated to be 19.3 percent, 20.7 percent, and 21.0
The Effect of Food Stamps on Children’s Health: Evidence from Immigrants’ Changing Eligibility. Journal of Human Resources. 52 Fix, Michael E. and Jeffery S. Passel. 1999. Trends in Noncitizens’ and Citizens’ Use of Public Benefits Following Welfare Reform. Urban Institute Report. 53 Bernstein, Hamutal, Dulce Gonzalez, Michael Karpman and Stephen Zuckerman. 2019. One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018. Urban Institute. 54 Although there have already been reports of disenrollment, there will be more. The prior studies (East; Fix and Passel) find that disenrollment continues for several years after a policy change until the total impact on enrollment is realized, and the same is expected in this case. In addition, the recent Urban Institute study (Bernstein et al.) finds that 31 percent of adults in immigrant families who had heard a lot about the Rule avoided benefits. The avoidance rates were smaller for those who had heard “some” about the proposed rule (fifteen percent avoided benefits) and those who had heard “nothing at all” about the proposed rule (six percent avoided benefits). As the Rule receives additional publicity while it is scheduled to go into effect, more families will know more about it, and they will become more likely to avoid benefits.
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percent, respectively. For completeness, I also present estimates based on the DHS preferred estimate for nonparticipation, which is 2.5 percent, well out of the range of the prior studies. DHS also considers a 54 percent nonparticipation effect, which is from an estimate of the impacts of welfare reform on SNAP participation among immigrants published by the USDA’s Food and Nutrition Service’s Office of Analysis, Nutrition and Education. The number of nonparticipating households are 65,612 at DHS’s 2.5 percent rate, and 1.42 million at the 54 percent rate. Table 6: SNAP Non-participation due to Public Charge Rule, Various Assumptions

A. 20% Assumption B. 19.3% Assumption (East 2018) C. 20.7% Assumption (Urban Institute 2019) D. 21% Assumption (Urban Institute 1999) E. DHS's 2.5% Assumption F. 54% Assumption (Genser, FNS, USDA)

Person-level Analysis(1)
1,782,947 1,720,544 1,845,350 1,872,094 222,868 4,813,957

Householdlevel
Analysis(2)
524,897 506,525 543,268 551,141 65,612 1,417,221

41. To calculate the economic impacts of SNAP non-participation due to the public

charge rule, I multiply annual SNAP benefits per SNAP household containing noncitizens (Table

5, row A, column 2) by the predicted number of households that will not participate (Table 6,

row A, column 2).

42. The estimated dollar value of annual foregone SNAP benefits is shown below in

Table 7 in row C, and is estimated to be $2.0 billion.55 As described above, since SNAP benefits

are quickly spent, generally in the recipient’s local community, this will have spillover effects to

other aspects of the economy such as food retailers. As discussed above, to account for these

55 Parallel calculations using person-level predictions instead of household-level predictions yield estimates that are 11 percent larger.
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spillover effects, macroeconomists multiply changes in SNAP payments by a fiscal multiplier to account for the total economic impact. The median SNAP fiscal multiplier described in a recent report on fiscal multipliers is 1.6.56 Accounting for this SNAP fiscal multiplier effect, the estimated annual direct economic cost of the public charge rule will be $3.2 billion. The USDA

estimates that the SNAP multiplier could be as high as 1.8. On the low side, Blinder and Zandi

estimate that during good economic times it could be 1.22. Using these fiscal multipliers, the range of total economic impact could be as high as $3.6 billion or as low as $2.4 billion.57 Note that these estimates do not include all costs. For example, they do not include the long-term harm that would be expected to occur for children in affected households, and they do not include

administrative costs to SNAP.

Table 7: Estimated Cost of SNAP Non-Participation due to Public Charge Rule

A. Annual benefits per HH B. Number of nonparticipating HH’s C. Estimated annual foregone SNAP benefits D. Row C times 1.6 fiscal multiplier E. Comparison: DHS estimate of foregone SNAP benefits F. Ratio: Economic cost/DHS calculations (Row D/Row E)

$

3,793.68

524,897

$ 1,991,289,733

$ 3,186,063,574

$ 197,919,143

16

43. The noncitizen population is not uniformly distributed across states, so some

states will incur larger costs than others. Table 8 below, presents estimates of the share of the

total noncitizen population by state, averaged over 2013–2017 and including the District of

56 As described above, I took the median SNAP multiplier of a range of estimates used by experts. See Bivens, Josh. 2011. Method memo on estimating the jobs impact of various policy changes. Economic Policy Institute Report. The United States Department of Agriculture has used a slightly higher multiplier of 1.79. See https://www.ers.usda.gov/publications/pub-details/?pubid=44749.
57 See Hanson, Kenneth. 2010. The Food Assistance National Input-Output Multiplier (FANIOM) Model and Stimulus Effects of SNAP. USDA, Economic Research Service, Economic Research Report Number 103. See also Schanzenbach, Diane Whitmore, Ryan Nunn, Lauren Bauer, David Boddy, and Greg Nantz. 2016. Nine Facts about the Great Recession and Tools for Fighting the Next Downturn. The Hamilton Project at the Brookings Institution Report.
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Columbia, for New York, Connecticut, and Vermont.58 I estimate the cost of foregone SNAP

benefits to each state, assuming the costs per state are in proportion to the share of the noncitizen

population that reside in each state. New York is predicted to lose $179 million in SNAP benefits

annually, which translates to a predicted decline in economic activity of $323 million. The

estimated annual total in the states of New York, Connecticut, and Vermont together is $203

million in SNAP benefits and $366 million in economic activity.

Table 8: Estimated Cost of SNAP Nonparticipation due to Public Charge Rule, Selected

States

New York Connecticut Vermont

State’s Share of Noncitizen Population(1)
0.0902
0.0114
0.0005

Estimated Annual Foregone SNAP
Benefits(2)
$ 179,634,190
$ 22,673,423
$ 990,145

Including Economic Multiplier Effect(3)
$ 287,414,704
$ 36,277,477
$ 1,584,233

NY + CT + VT

0.1021

$ 203,297,758 $ 325,276,413

B. Basis of My Conclusions and Flaws in DHS Analysis 44. My estimated cost of SNAP nonparticipation is 16 times the DHS estimate.59 My

estimate is based on sound social science principles using appropriate data. In contrast, DHS’s

analysis is not based on reasonable assumptions and does not use appropriate data.

45. The DHS deficiencies are revealed by examining three differences in calculations.

First, I estimate that the number of households on SNAP with noncitizen members is 1.7 times

58 Numbers drawn from Kaiser Family Foundation reports on state noncitizen populations, see https://www.kff.org/other/state-indicator/distribution-by-citizenship-status/
59 See Regulatory Impact Analysis, Inadmissibility on Public Charge Grounds, Table 17.
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the number estimated by DHS.60 Second, I assume a 20 percent nonparticipation impact, 8 times
larger than the DHS assumption of 2.5 percent. Third, I estimate the costs based on a direct
measure of benefits paid to SNAP households with noncitizens. I describe each difference in
more detail below.
46. First, DHS’s incorrect estimates of the number of SNAP households including
noncitizens are presented in row B of Table 4.61 I calculate this number from the SNAP QC data,
which are the appropriate source for this information and is the administrative data source that
USDA uses to measure characteristics of the SNAP caseload.62 DHS could have also done this
analysis. The data on actual SNAP participation is readily available. Instead, DHS chose a crude
method of calculating the number of these households—it simply assumed that the percentage of
households containing foreign-born noncitizens on SNAP was equal to the proportion of
households containing foreign-born noncitizens relative to the overall number of U.S.
households (i.e., 6.97%). DHS estimated the number of households containing foreign-born
noncitizens participating in SNAP by multiplying the number of households on SNAP by the
6.97 percent, which DHS reports to be the Census Bureau’s estimate of the share of the overall
U.S. population that are foreign-born noncitizens.63 DHS’s method results in a substantial
underestimate; calculated from the SNAP QC data, we see that the share of households on SNAP
with noncitizen members is actually 11.83 percent. Correcting the flawed DHS assumption
60 I also estimate SNAP benefits per household containing noncitizen members to be 94 percent of the DHS estimate. This difference would imply that in this step I would calculate a smaller total cost than DHS.
61 These are reproduced from Regulatory Impact Analysis, Inadmissibility on Public Charge Grounds, Table 14. 62 See Lauffer, Sarah, Alma Vigil, Chrystine Tadler, and Elaine Wilcox-Cook. 2018. Technical Documentation for
the Fiscal Year 2017 Supplemental Nutrition Assistance Program Quality Control Database and the QC Minimodel. Mathematica Policy Research Report. 63 The DHS estimate of the average number of people on SNAP and households on SNAP (2013–2017) differs slightly from my calculations; this is likely due to the release of revised data between the time when their analysis was conducted in 2018 and when mine was conducted in 2019. Note that DHS reports in the footnotes to Table 14 that they estimate the number of households by dividing the number of people by an average household size of 2.64. This appears to be incorrect, and they appear to have obtained the data on household participation directly from USDA.
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Case 1:19-cv-07777-GBD Document 34-16 Filed 09/09/19 Page 26 of 38
increases the number of SNAP households with noncitizens by 70 percent, to 2.6 million households.64
47. Second, DHS estimates the potential SNAP nonparticipation rate due to the public charge rule change to be 2.5 percent. They come to this by estimating that 2.5 percent of foreignborn noncitizens apply for an adjustment of status, and that the impact of the public charge rule will primarily impact this group. This ignores potential spillover impacts onto other groups, and assumes that the impacts are limited only to the group applying for an adjustment of status in one particular year. As described above, research suggests the DHS assumption is far too low. Research based on the impacts of welfare reform as well as current estimates on the share of immigrants avoiding participation in public benefits clearly show that the nonparticipation impacts will spill over to a larger group. For example, prior research found declines in participation among refugees and citizens residing in households with noncitizens, even though their eligibility for SNAP and other benefits programs was not substantially changed.65 This prior research estimates a nonparticipation response around 20 percent, which is eight times the DHS estimate.
48. Third, DHS underestimates the average SNAP benefit for households with noncitizens. In its calculations, DHS uses overall average SNAP benefits per recipient. This is an inaccurate estimate, because it does not account for different characteristics among households with noncitizens that affect benefit amounts, such as larger household sizes and a higher
64 As shown in Table 5, the DHS estimates of average SNAP benefits per person or household differ from the ones I calculate from the SNAP QC data. At the household level, I estimate SNAP benefits to be 22 percent higher than those estimated by DHS.
65 See East, Chloe N. Forthcoming. The Effect of Food Stamps on Children’s Health: Evidence from Immigrants’ Changing Eligibility. Journal of Human Resources. See also Fix, Michael E. and Jeffery S. Passel. 1999. Trends in Noncitizens’ and Citizens’ Use of Public Benefits Following Welfare Reform. Urban Institute Report.
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Case 1:19-cv-07777-GBD Document 34-16 Filed 09/09/19 Page 27 of 38 likelihood of having earnings.66 As above, DHS could have used SNAP QC administrative data to produce a more appropriate estimate for its calculations. Together, these differences imply that my estimate of the economic cost of the predicted decline in SNAP participation due to the public charge rule is 16 times the cost predicted by DHS (see Table 7, Row F).67
66 See Tables 1 and 2 in this Declaration. 67 Without the fiscal multiplier effect, my estimates of the value of foregone SNAP benefits is 10 times the DHS
estimate.
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Case 1:19-cv-07777-GBD Document 34-16 Filed 09/09/19 Page 28 of 38

°' f9 +, I declare under penalty of perjury that the foregoing is true and correct.

Executed on this day of ~,t

2019.

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Case 1:19-cv-07777-GBD Document 34-17 Filed 09/09/19 Page 2 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

STATE OF NEW YORK, CITY OF NEW YORK, STATE OF CONNECTICUT, and STATE OF VERMONT,
Plaintiffs,

CIVIL ACTION NO. 19-cv-07777

v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; KEVIN K. McALEENAN, in his official capacity as Acting Secretary of :he United States Department of Homeland Security, UNITED STATES CITIZENSHIP AND ,_ IMMIGRATION SERVICES; KENNETH T. CUCCINELLI II, in his official capacity as Acting Director of United Stales Citizenship and Immigration Services; and UNITED STATES OF AMERICA,

DECLARATION OF RUTHANNE VISNAUSKAS IN SUPPORT OF NEW YORK'S MOTION FOR A PRELIMINARY INJUNCTION

Defendants.

DECLARATION OF NEW YORK STATE HOMES AND COMMUNITY RENEWAL IN SUPPORT OF
PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION I, RuthAnne Visnauskas, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the following .is true and correct: I. I am the Commissioner and Chief Executive Officer of New York State Homes and Community Renewal (NYSHCR). I submit this declaration in support of Plaintiffs' motion for a Preliminary Injunction in the above-captioned action challenging the Inadmissibility on
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Case 1:19-cv-07777-GBD Document 34-17 Filed 09/09/19 Page 3 of 16
Public Charge Grounds Final Rule. I am familiar with the matters set forth herein based on a
career spanning more than l.-8 y~ in fi~cing, cJeveJoping. and rehabilitating affordable
housing in New York State, and revitalizing disinvested communities through housing-based initiatives. ~or to my role as Commissioner and Chief Executive Officer ofNYSHCR, I served as the Managing Director of the Housing Advisory Board for the Robin Hood Foundation, where we·funded initiatives to increase the quality and quantity of affordable housing for low-income New Yorkers. Before joining the Robin Hood Foundation, I worked at the New York City Department of Housing Preservation and Development (NYC HPD), where I also briefly served as Commissioner. At NYC HPD, I continued to promote the agency's mission ofdeveloping and preserving affordable housing in New York City and enforcing the City's Housing Maintenance Code. Overview of NYSCHR
2. NYSHCR is New York State's affordable housing umbrella agency,' with a mission to build, preserve, and protect affordable housing and increase home ownership across New York State.
3. As Commissioner and Chief Executive Officer, it is my role to advance this mission and to carry out initiatives that further these goals. NYSHCR offers numerous programs to develop, preserve, and protect affordable housing within the State ofNew York. NYSHCR finances new construction and rehabilitation of affordable multifamily rental properties through State and Federal Low-Income Housing Tax Credits, loan programs, U.S. Department of Housing and Urban Development (HUD) housing assistance, and tax-exempt or taxable bonds.
1 NYSCHR is comprised of five New York State agencies-the Division of Housing and Community Renewal, the Housing Trust Fund Corporation, the Housing Finance Agency, the State of New York Mortgage Agency, and the Affordable Housing Corporation.
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Case 1:19-cv-07777-GBD Document 34-17 Filed 09/09/19 Page 4 of 16
NYSHCR also invests in communities to increase affordable housing, develop small businesses, and repair infrastructure. In addition, NYSHCR is tasked with enforcing New York State Rent Regulation Laws and protecting the rights of tenants who are facing harassment or rental overcharge by their landlord.
4. Overall, NYSHCR provides financing and/or regulatory oversight to approximately 400,000 affordable housing units in almost 10,000 buildings throughout the State. In addition, NYSCHR administers Section 8 Housing Choice Vouchers for approximately 44,332 individuals and families and oversees approximately 900,000 rent-regulated housing units pursuant to New York state law.
5. NYSHCR is also a Public Housing Authority (PHA) that administers the HUD Section 8 program in 51 counties throughout New York State. Most counties and/or municipalities with large populations also administer their own Section 8 and Federal Public Housing programs through their local PHA directly with HUD. NYSHCR does not administer Federal Public Housing as none exists in its portfolio. There are over 130 PHAs in New York State in addition to the NYSHCR PHA. New York Housing Market is Highly Competitive
6. NYSHCR carries out its mission in-the midst of, and in response to, a housing market plagued by low vacancies and high rents. The vacancy rate in New York State for nonrural areas is 4.3% compared to 6.1% nationally.2 Nearly 80% ofNew Yorkers living in nonrural areas confront a rental housing market that has less than a 5% vacancy rate. Extremely low vacancy rates can be found throughout New York: Albany (4.8%), Buffalo (4.9%), New Rochelle (3.8%), Troy (4.3%) White Plains (2.3%) and New York City (3.4%).

2 Census data.

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Case 1:19-cv-07777-GBD Document 34-17 Filed 09/09/19 Page 5 of 16

7.

In addition, the median rent in New York State, $1,075, is hundreds of dollars

higher than the national median rent ($827).3 The disparity is wider for many other

municipalities including New Rochelle ($1,324), White Plains ($1,599), Hempstead ($1,237),

New York City ($1,213) and Manhattan in particular ($1,512).

The Receipt of Federal Public Housing Assistance by Non-Citizens

8.

Pursuant to Section 214 of the Housing and Community Development Act of

1980, federal housing assistance is only available to limited groups of non-citizens.

9. Additionally, Section 214 allows for the receipt of prorated housing benefits by

so-called "mixed-status families" in which some members are U.S. citizens or eligible

noncitizens and others are ineligible noncitizens. In these households, federal housing benefits

are only paid on behalf of the eligible family members. The ineligible members must pay their

portion of the rent. Additionally, ineligible members' income is calculated in the total household

income thereby reducing the housing subsidy the household receives as a whole. The

combination of proration and higher work income in mixed-status families means that generally,

mixed-status families receive less federal subsidy than fully eligible families.

10. In New York State, approximately 3,000 of these "mixed-status" families receive

public housing assistance.4 According to HUD, of the 25,000 mixed-status families nationwide

in federally-assisted housing, 71 percent are eligible members. Of those, 73 percent are children.

Of the 29 percent of the ineligible household members, 93 percent are adult, S percent are

children and 2 percent are elderly.

3 For purposes of this declaration, "median rent" includes both private and public housing rents and does not

differentiate between types of apartments (e.g. studios, I-bedroom, etc.). 4 On May 10, 2019, HUD posted a proposed rule that would severely curtail

access

to

these

prorated

benefits

among

mixed-status families. (Docket No. FR-6124-P-0 11 ). Through its Regulatory Impact Analysis for that proposed rule,

HUD estimated that there are approximately 3,000 of these mixed-status families are in New York.

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Case 1:19-cv-07777-GBD Document 34-17 Filed 09/09/19 Page 6 of 16
Primm Programs Implicated by the Public Charge Rule
11. The Public Charge Rule extends the public charge analysis to a broad anay of federal programs administered by NYSHCR and other New York PHAs. These include Section 8 Housing Choice Vouchers, Project-Based Vouchers, Veteran Affairs Supportive Housing (HUD VASH) vouchers, Project-Based Rental Assistance and Federal Public Housing.
12. The Section 8 Housing Choice Voucher (HCV) program (also called the tenantbased voucher program) is the federal government's major program for assisting very lowincome families, the elderly, veterans (through the HUD-VASH program), persons with disabilities and those in homeless shelters or at risk of becoming homeless, including survivors ofdomestic violence, to afford decent, safe and sanitary housing in the private market. The subsidy is paid on behalf of households directly to a private landlord. The family is then required to pay the difference between the actual rent charged by the landlord and the amount subsidized by the program, which is no more than 30 percent of the family's gross income (and 40 percent in limited instances). HCV vouchers are portable and can be used by the participating family in a unit of their choice including apartments, single-family homes and townhouses that pass an inspection proving that it meets the standards of health and safety set by HUD.
13. HUD-VASH vouchers are a collaborative effort between HUD and the United States Department of Veterans Affairs (VA) to move veterans and their families out of homelessness and into permanent housing. VASH combines HCV rental.assistance for homeless veterans with clinical and supportive services provided by the VA's health care system. NYSHCR administers 1,055 HUD-VASH vouchers.
14. Project-Based Vouchers (P~Vs) are a subset of the HCV program, and are housing subsidies that are attached to specific dwelling units through contracts between the PHA
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Case 1:19-cv-07777-GBD Document 34-17 Filed 09/09/19 Page 7 of 16
and rental property owners that have an initial term of20 years. Unlike HCVs, the subsidy does ·not travel with individual tenants as they move. NYSHCR utilius PBVs as a component in financing larger affordable housing developments.
15. NYSHCR is currently administering 44,332 vouchers (including HCVs, PBVs and HUD-VASH vouchers) on behalfofparticipating families throughout New York State. Of these families, 73% are female-headed, 39% have children under 18, 23% have a person with a disability, 31% are elderly and 43% are race or ethnic minorities of which 27% are African American and 14% are identified as Hispanic. Only 3% of households count welfare (TANF, General Assistance, or Public Assistance) as the household's major source of income. The average family expenditure for rent is $4S 1 a month and the average federal spending per unit is $864 a month.
16. Another program that NYSHCR administers is Project-Based Rental Assistance. This assistance is provided to private owners of multifamily housing to lower rental costs. In 2018, NYSHCR administered this assistance to over 92,000 apartments in 986 buildings for approximately 150,000 people statewide. Of this population. 58% are elderly, 23% are families with children, and 12% have a family member who is disabled. In addition. 25% identified as African-American/Black, 34% as Hispanic and 6% as Asian. The average family expenditure for rent is $399 per month.
17. Although not administered by NYSHCR. Federal Public Housing is operated by PHAs with HUD funding pursuant to the United States Housing Act of 1937 (42 U.S.C.A. § 1437). Unlike HCVs and Project-Based Rental Assistance, where the subsidy is unit by unit, all units in Federal Public Housing are subsidized. Public housing residents must have incomes below 80% of the Area Median Income (AMI).
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Case 1:19-cv-07777-GBD Document 34-17 Filed 09/09/19 Page 8 of 16
18. Under all of these pro~ an individual's benefit is tied to his or her income. Therefore, families can have work income and still be eligible for these housing benefits.
NYSCHR's Federal Housing Assistance Program3 are Vital to Promoting 8ousing Stability and
Reducing Homelgsness 19. The very purpose of federal housing programs such as the Section 8 Housing
Choice Voucher Program is to house those that are vulnerable to homelessness and unsafe living conditions. The United States Housing Act of 1937, which first established the federal public housing program, declared that it was the policy of the United States ''to remedy the unsafe and unsanitary housing conditions and the acute shortage ofdecent, safe, and sanitary dwellings for families oflow-income, in rural or urban communities, that are injurious to the health, safety, and morals of the citizens of the nation." 5
20. NYSHCR and other PHAs in New York use federal housing assistance to promote housing stability and reduce homelessness. They are used to house veterans with supportive services, the elderly and disabled who live with fixed incomes, economically disadvantaged parents with children who struggle to work and pay rent in a tight and expensive housing market, and the homeless, including survivors of domestic violence, who use vouchers as a pathway out of homelessness and abusive situations. In addition, project-based vouchers are used to build and rehabilitate thriving communities with deeper affordability and accessibility features for those with disabilities. The Public Charge Rule Dramatically Undermines NYCHR's Work by Creating a Chilling Effect on Uptake of Subsidized Housing
21. Because of the Final Rule, for the first time, a public charge determination will take into account housing benefits received on behalf of individuals residing in New York. This

$ P.L. 75-412.

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Case 1:19-cv-07777-GBD Document 34-17 Filed 09/09/19 Page 9 of 16
change creates a confounding scenario where families who are legally entitled to housing benefits will either have to make the choice to forgo housing benefits or have their receipt of these benefits be weighed against them in a public charge determination.
22. For example, a family with a member who is a parolee can receive a Section 8 voucher that is not prorated because parolees are eligible for federal housing assistance. However, if that member seeks to adjust their status to a Legal Permanent Resident through a family-based visa petition because he or she is marrying a U.S. citizen, that person will be subject to a public charge determination based on his or her lawful receipt of federal housing benefits. To avoid this, this person may seek to disenroll himself or his entire family, which may include U.S. citizen children. The effect ofdisenrolling himself or bis family would result in a steep increase in rent they must pay if they are participants in a Section 8 voucher program. If he disenrolls the family while in public housing, it means they would have to move out or be evicted from the unit.
23. The 3,000 mixed-status families that currently make use of pro-rated federal housing benefits may be concerned that continued receipt of public housing benefits on behalf of any members of the household will negatively reflect on a public charge determination. Accordingly, the Final Rule may result in mixed-status households, including U.S. citizen children and other citizen household members, disenrolling from federal housing benefits, increasing the risk of housing instability. OHS acknowledges as much in the preamble to the Final Rule, noting that "U.S. citizens who are members of mixed-status households" are among those who will opt to forgo benefits. 84 Fed. Reg. 41300.
24. In addition, the chilling effect from the Final Rule could extend well beyond New York's approximately 3,000 mixed-status families to non-citizens who are lawfully entitled to
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Case 1:19-cv-07777-GBD Document 34-17 Filed 09/09/19 Page 10 of 16
receive public housing benefits and are not subject to the public charge test, but, because of fear and confusion, may dis-enroll even from housing programs that are not covered by the Final Rule such as those financed with Low Income Housing Tax Credits.
Deterring Families from Accessing Housing Benefits Leads to Housing Instability and
Homelessness 25. If the Final Rule goes into effect, New York families whose members cease
participation in subsidized housing programs will have to move out of their homes or experience substantial rent increases with loss of subsidy.
26. In a search for other affordable housing options, they will face a highly competitive market with very low rates of affordability and/or vacancy. The burdens ofa move are well-known and include the search process and potentially thousands of dollars of necessary expenses such as deposits, brokers fees, up-front rent payments, storage and moving fees, as well as potential loss of hourly wages as they engage in the housing search process. Recipients of housing assistance often do not have these economic resources to move. The difficulty confronted by these families will be compounded by the fact that similarly situated families will be searching simultaneously. Families facing this process may be forced into temporary and unstable living situations, including moving in with other families, shelters and other transient arrangements, while they search for stable and affordable housing. The combined effect of these factors is that families, many with U.S. citizen and otherwise eligible children, may be left homeless, overcrowded or in otherwise substandard housing conditions that do not meet housing quality and safety standards that are a hallmark of Section 8 programs.
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Case 1:19-cv-07777-GBD Document 34-17 Filed 09/09/19 Page 11 of 16
Irreparable Hann to Health and Well-Being ofNew Yorkers
Limiting Availability ofAffordable Housing/or Families ls Detrimental 27. New York State and its residents will be banned if powerful affordable housing tools are removed from the State's arsenal to confront difficult housing market forces. Homelessness, experienced by tens of thousands ofNew Yorkers on any given day, is often the acute part ofa larger episode of housing stability that for many families can last months or years. A major contributing factor to a family's housing instability is a lack of affordable housing, which is felt by many throughout the State. Section 8 and other federal housing assistance provide the exact tools to help combat this instability, reduce resulting homelessness and minimize the personal and societal costs of such instability. 28. Research has shown the importance of access to affordable housing across numerous aspects of families' lives. Studies have found that increasing access to affordable housing for families leads to increased stability, including fewer moves and a lower likelihood of homelessness.6 This stability manifests in numerous positive outcomes. · 29. For example, families living in affordable housing who are not cost-burdened by high-cost rent are better able to invest in themselves and their futures. One study found that in 2011, families living in affordable housing were able to spend five times as much money on healthcare compared to families cost-burdened by rent, as well as more on nutrition and retirement savings. 7 Such stability also allows families to avoid the negative outcomes associated with overcrowding, substandard housing and frequent moves, such as lifelong
6 Enterprise Community Partners, "Impact of Affordable Housing on Families and Communities: A Review ofthe Evidence Base" (2014), available at https:/'www.enterprisecommunit,.org/rcsources/impact-atfordable-hom,ingfamilies-and-communitie>:-re, ieY.-evidence-base-13210. 7 Enterprise Community Partners, "Impact of Affordable Housing on Families and Communities: A Review of the Evidence Base" (2014), available at https:i www.enterprisesommunity.org resourcc!,!impact-affordable-housingfamilies-and-communities-rcv iew-evideoce-base-13210.
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Case 1:19-cv-07777-GBD Document 34-17 Filed 09/09/19 Page 12 of 16
physical and mental health banns, lack of access to nu1ritious and sufficient food. Specifically, one study found that individuals who are residentially stable and not cost-burdened are far less likely to complain of mental distress and difficulty sleeping, which can lead to negative mental and physical health outcomes.• Further, access to affordable housing has been identified as critical in avoiding the negative educational outcomes for children associated with housing instability and homelessness, such as poor academic performance, low school attendance, grade retention and dropping out.
Housing Instability and Homelessness Have Lifelong Negative Impacts on Children 30. As the Commissioner ofNYSHC~ I am aware ofa multitude of banns attending housing instability and homelessness. Housing instability and homelessness have drastic negative consequences for individuals, especially children, across a wide array of areas. There is clear evidence linking childhood homelessness with lifelong health problems. Homelessness and other forms of housing instability are associated with increased hospital visits and mental health problems, such as depression and anxiety. 9 Child poverty and housing instability also cause severe stress. This type of stress in children "disrupts normal brain and organ development and, consequently, damages brain architecture and neurocognitive systems." 10 These health consequences may be felt by these children for the rest of their lives.

• Enterprise Community Evidence Base" (2014),

Partners, available

"Impact at https:

of Affordable Housing on Families and Communities: A Review of the ww\\.enterprisecommunit\.orglresources impact-affordable-housing-

families-and-communities-review-evidencc-base-13210. 9 Meredith Horowki, Housing Instability and Health: Findings from the Michigan Recession and Recovery Study,

National Poverty Center Policy Brief#29 (March 2012),

hnp: "'ww .npc.umich.edu publications policv briefsfbriet29/NPC%20Policv%20Brie~o20-%2029 p<if. 10 Heather Sandstrom et al., The Negative Effects ofInstability on Child Development: A Research Synthesis, Urban Institute, 13 (September 2013), https;//ww\\ .urban.org sites/defaulVfilcs/publicat1on 3:?706,412899-The-Negative-

Eftects-of-lnstabilit1,-on-C'hild-Developmcnt-A-Research-Svnthesis.PDF.

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Case 1:19-cv-07777-GBD Document 34-17 Filed 09/09/19 Page 13 of 16
31. A lack of access to safe and affordable housing can also limit a child's educational opportunities and exacerbate child poverty. Statistically, homeless children have lower passing rates across a number of academic subjects, have higher rates ofabsenteeism, and are more likely to face disciplinary action than children who live in stable housing. 11 Additionally, children who lack safe and secure housing will suffer long-term negative economic consequences. 12 Housing instability can also lead directly to employment insecurity among adults. 13
The Final Rule Increases Costs for State and Local Governments
32. The Final Rule will place significant new costs and administrative burdens on New York State and local governments within the State as families with nonciti7.en members refrain from participating in affordable and sustainable housing options. Limiting families' access to affordable, long-term housing only exacerbates chronic and destabilizing housing conditions, resulting in greater costs to the State and a detrimental social impact.
33. The State and local governments will bear the financial brunt of increased homelessness and housing instability caused by the Final Rule, both in the short- and long-term. The lack of participation in affordable housing programs will increase emergency shelter use, which will place a substantial financial strain on states and municipalities.
34. Short-term costs include an increase in emergency shelter use as families tum away from available affordable housing programs to which they are legally entitled. This will
11 Anne Ray et al. Homelessness and Education in Florida: Impacts on Children and Yourh, Shimberg Center for Housing Studies, University of Florida, and Miami Homes for All {December 2017),
http:!/,~w" .shimberg.ufl.edu/publications/homeless education fla 17 I205RGB.pdf.
12 Will Fisher, Research Shows Housing Vouchers Reduce Hardship and Provide Plaiform for long-Term Gains Among Children, Center on Budget and Policy Priorities {October 7, 2015), https: ''www.cbpp.org sites ddault/fileslatoms/tilcs '3-1 O- I4hous.pdf. 13 Matthew Desmond and Carl Gersheson, Ho11sing and Employmenr Security Among the Working Poor, Soc. Problems 1 (2016), https: 1 academic.oupcom'socprotartkle/63/1 46 '1844I05.
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place a significant burden on the State and local governments, as it is many times more expensive to house a family in an emergency shelter than it is to provide long-term housing through Section 8 or public housing.
35. Long-tenn economic costs of homelessness and housing instability, including an increase in health, public assistance and educational costs, will further the regressive impact of the Final Rule on New York State and local governments. Research indicates that unstable housing among families with children will cost the U.S. health care system an estimated $111 billion in expenditures through 2027. 14 Increased housing instability caused by the Final Rule could substantially increase these numbers.
36. In addition, State and local governments will have to make up for the shortfall in funding as per-family housing subsidies increase due the replacement of higher-income pro-rated mixed-status families by fully eligible families with generally less income. With fewer families served with the same amount of federal funding, the State and 1~ governments will face the resulting increased need for affordable options and/or homeless services.
37. Finally, NYSHCR will be required to undertake a significant public information campaign in response to the Final Rule. In order to serve the residents of New York State, NYSHCR must take on the increased expenses and administrative burdens of educating affected communities of their rights and risks under this new legal framework, including costs associated with increased calls, staff training, ·and preparing guidance materials. This process is particularly costly in light of the confusion generated by the proximity between this Final Rule and HUD's recent Proposed Rule governing the receipt of prorated benefits by mixed-status families. In addition to direct outreach regarding the impact of the Rule, NYSHCR plans to work with
14 Ana Poblacion et al., Stable Homes Make Healthy Families, Children's HealthWatch (July 2017), hnps: 'lbit.ly/2hDjRE2.
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partners and community organizations to disseminate information because NYSHCR fears that many in vulnerable populations affected by the Rule will be reluctant to seek guidance from government agencies for assistance. This will create additional administrative and financial burdens. The Final Rule Imposes Significant Administrative Hanns On NYSCHR
38. There are significant programmatic and structural difficulties that would prevent individuals who terminate their housing benefits in reliance on this Final Rule from reenrolling in their benefits at a later date.
39. All federal housing programs in New York State have waiting lists. Therefore, vacancies in these programs are filled almost immediately. Any individual who terminates their housing benefits would not simply be able to recover their Housing Choice Voucher or return to their old apartment or neighborhood if, at some future date, this Rule was either enjoined or revoked. The voucher allotment would have been given to someone else and/or the relevant housing unit filled with a new family from the waitlist. It would be impossible to remove the successor family from reoccupied apartments as they now have a legal right to reside there.
40. In some contexts, the effects ofdisenrollment and re-enrollment will be particularly costly. For example, NYSHCR currently has no policies or procedures in place to assist individuals in reentering federal housing programs after termination because re-enrollment is rare. If the Final Rule were to go into effect, NYSHCR would need to devise policies and procedures to address how to assist families that may relinquish their housing because of fear, but then may subsequently seek housing because of a change in circumstances. If the Final Rule were to go into effect and not be immediately enjoined, NYSHCR would need to devise policies and procedures to address terminated families that reenroll at a later time when the Rule is finally
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Case 1:19-cv-07777-GBD Document 34-17 Filed 09/09/19 Page 16 of 16 enjoined or invalidated by the court. This would be a complex and time-consuming process, which would create substantial administrative costs for the agency.
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Case 1:19-cv-07777-GBD Document 34-19 Filed 09/09/19 Page 2 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al., Plaintiffs,

v.

CIVIL ACTION NO. 19-cv-7777

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

DECLARATION OF HOWARD A. ZUCKER, M.D., J.D.

I, HOWARD A. ZUCKER, M.D., J.D., pursuant to 28 U.S.C. Section 1746, declare under penalty of perjury as follows:
1. I am the Commissioner of Health of the State of New York. I make this declaration in my capacity as Commissioner after consultation with New York State Department of Health (“Department”) staff implementing the initiatives detailed below. I respectfully submit this Declaration in order to place before the Court certain testimony and documents relevant to the relief requested. I am familiar with the matters set forth herein, either from professional knowledge, conversations with Department staff, or on the basis of documents that have been provided to and reviewed by me.
2. I have extensive medical knowledge, particularly in the fields of pediatric medicine and care. I am board-certified in six specialties/subspecialties and trained in pediatrics at Johns Hopkins Hospital, anesthesiology at the Hospital of the University of Pennsylvania, pediatric critical care medicine/pediatric anesthesiology at The Children’s Hospital of

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Philadelphia, and pediatric cardiology at Children’s Hospital Boston/Harvard Medical School. I was a professor of clinical anesthesiology at Albert Einstein College of Medicine of Yeshiva University and pediatric cardiac anesthesiologist at Montefiore Medical Center in the Bronx. I also served as associate professor of clinical pediatrics and anesthesiology at Columbia University College of Physicians & Surgeons and pediatric director of the ICU at New York Presbyterian Hospital. I am a former Columbia University Pediatrics Teacher of the Year.
3. As Commissioner of Health, I must “take cognizance of the interests of health and life of the people of the state, and of all matters pertaining thereto and exercise the functions, powers and duties of the department prescribed by law.” Public Health Law (“PHL”) §206(1)(a).
4. The Department’s mission is to protect, improve, and promote the health, productivity and well-being of all New Yorkers, which includes refugees and other non-citizens. Consistent with this mission, the Department administers a wide range of public health programs. These programs address emergency preparedness and response, disease prevention and control, environmental health protection, and promotion of healthy lifestyles. In addition to administering these programs, the Department also manages the Medicaid program for the State; administers NY State of Health, New York State’s Insurance Marketplace (“NY State of Health Marketplace”); conducts healthcare surveillance in hospitals, home care agencies, and nursing homes throughout the state; conducts research and maintains diagnostic and reference laboratories at the Wadsworth Center, New York State’s premier public health lab; and owns and operates four veterans’ homes and Helen Hayes Hospital.
5. As Commissioner of Health, I am deeply troubled by the destructive and farreaching health, economic, and programmatic consequences of the Inadmissibility on Public
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Charge Grounds Final Rule, to be codified at 8 CFR Parts 103, 212, 213, 214, 245, and 248 (the
“Final Rule” or the “Rule”). The Fiscal Policy Institute estimates that 24 million individuals, 2.1
million of whom reside in New York, will be harmed by the Final Rule.1 This means that over 2
million New Yorkers could face hunger, forego care for treatable medical conditions, and
develop serious chronic health conditions if the Rule is implemented.
6. The Department administers several programs that will be directly or indirectly
implicated by the Final Rule, including Medicaid2, the Essential Plan3 (New York State’s Basic
Health Program), Child Health Plus4 (New York State’s version of the Children’s Health
Insurance Program), Qualified Health Plans5 (QHP), and the Special Supplemental Nutrition
Assistance Program for Women, Infants, and Children (WIC).
1 Fiscal Policy Institute, “Only Wealthy Immigrants Need Apply: How a Trump Rule’s Chilling Effect Will Harm New York,” (Oct. 2018), http://fiscalpolicy.org/wp-content/uploads/2018/10/US-Impact-of-Public-Charge.pdf. 2 The term “Medicaid,” as used throughout, means the New York State- and federally-funded healthcare program for low-income New Yorkers whose income and/or resources are below certain levels. It also includes state-funded Medicaid for individuals who are ineligible for federally funded Medicaid due to their immigration status. Eligible populations include children, pregnant women, single individuals, families, and individuals certified blind or disabled. In addition, certain persons with medical bills may be eligible for Medicaid if paying such bills allows them to spend down their income and resources to meet required Medicaid income levels. Medicaid enrollees do not pay premiums and have little to no out-of-pocket costs for many services. The term “Medicaid” does not include the Essential Plan, Child Health Plus, or Qualified Health Plans. 3 The Affordable Care Act provides states with the option of creating a Basic Health Program (BHP). 42 USC § 18051. New York established a BHP, called the Essential Plan. NY Social Services Law § 369-gg. The Essential Plan covers New Yorkers who are not eligible for Medicaid and have incomes up to 200 percent of the federal poverty level. The Essential Plan lowers monthly premiums to $20 or $0, depending on income, and provides comprehensive benefits with no annual deductibles, free preventive care, and low copayments. 4 Eligibility for Child Health Plus begins where Medicaid eligibility ends (223 percent of the federal poverty level for children under 1 year and 154 percent of the federal poverty level for children over 1 year). There is no Child Health Plus premium for children in households with incomes below 160 percent of the federal poverty level, and a sliding scale premium for those in households with incomes between 160 and 400 percent of the federal poverty level. Households with incomes above 400 percent of the federal poverty level have the option to purchase Child Health Plus or Qualified Health Plan coverage at full premium. 95 percent of children enrolled in Child Health Plus are enrolled with no premium or sliding scale premiums, and 5 percent are enrolled with full premiums. 5 Qualified Health Plans are health plans that have been certified by and are available through the Marketplace in accordance with the Affordable Care Act and federal regulations. 42 § USC 18021(a). Enrollment in a Qualified Health Plan with financial assistance is available for individuals who have a household income at or below 400 percent of the federal poverty level, and do not have access to other affordable health insurance that meets minimum essential coverage.
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7. Individuals whose immigration status is subject to the Final Rule could be disincentivized from applying for or continuing to receive benefits implicated by the Final Rule, such as Medicaid, and not seek medical care as a result. Many others will be indirectly impacted by the Final Rule, notwithstanding that they are not covered by it, and/or that the public benefit for which they are eligible is not a program implicated by the Final Rule, such as WIC, the Essential Plan, Child Health Plus, fully State-funded Medicaid, and Medicaid for children under 21, pregnant women, and women during the 60 days following childbirth. Policy experts agree that individuals will be frightened and confused about the potential consequences of applying for benefits and therefore will forego public assistance altogether.6 This consequence is the “chilling effect” of the Final Rule.
8. New York State’s economy will undoubtedly suffer because of the direct and indirect consequences of the Final Rule. Specifically, the Final Rule will cause a reduction in health insurance coverage, an increase in uncompensated healthcare costs faced by all healthcare providers, and a decrease in the stability and productivity of New York’s workforce.
9. The Final Rule will also have irreparable consequences on the health and wellbeing of New Yorkers. Programs like Medicaid, the Essential Plan, Child Health Plus, QHPs, and WIC help ensure that families, including families with U.S. citizen children living with an immigrant caretaker, have access to basic human needs such as food and medical care. By disincentivizing access to these vital benefits, the Final Rule will leave millions of individuals in New York State, including U.S. citizen children, without access to preventive healthcare or nutritious foods – benefits that have been shown to improve both short- and long-term health and advance public health interests such as curbing the spread of communicable diseases and
6 Id.
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reducing chronic health conditions. Because 94 percent of children under age six living in the U.S. with at least one non-citizen parent are U.S. citizens,7 there is a strong government interest in ensuring that these children have access to public benefits for which they are eligible to better their health and improve their economic security.
10. The Final Rule will also impose significant administrative burdens on New York State. The Final Rule will require NYSDOH to advise immigrant applicants to the NY State of Health Marketplace of the potential risk of applying for health insurance. Additionally, decreased participation in Medicaid among WIC families (primarily because of the indirect effects of the Final Rule) would have a significant and costly impact on WIC’s certification process. The additional time spent on income certification in clinics will increase administrative costs, strain WIC resources, and divert staff time from important public health initiatives – like offering breastfeeding support – to conducting managerial tasks.
11. For these reasons, as described in detail below, the Department strongly opposes the Final Rule. Irreparable Harm to New York State’s Economy Caused by Disincentivizing Medicaid Participation and Enrollment
12. Medicaid is an important source of primary health insurance coverage and supplementary coverage for low-income residents and the most vulnerable New Yorkers. During the 2019 fiscal year, Medicaid provided comprehensive health insurance coverage to 6,243,498 New Yorkers, including children, pregnant women, single individuals, families, and individuals certiﬁed blind or disabled. Medicaid enrollees do not pay premiums and have little to no out-of-pocket costs for many services.
7 Migration Policy Inst., "Children in U.S. Immigrant Families," https://www.migrationpolicy.org/programs/datahub/charts/children-immigrant-families (accessed June 28, 2019) (based on 1990 Decennial Census and 2016 American Community Survey data).
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13. By making health insurance more affordable, programs like Medicaid have helped reduce the number of uninsured New Yorkers. The NY State of Health Marketplace uses a single application that helps people check their eligibility for Medicaid, Child Health Plus, the Essential Plan, and QHPs and enroll in these programs if they are eligible. Financial assistance is available to applicants to help them afford health insurance purchased through the Marketplace. Family members who may be eligible for different programs are able to apply together in a streamlined manner. In 2013, at the inception of NY State of Health Marketplace, the uninsured rate in New York was 10 percent. This rate has been reduced to 4.7 percent due to the gains in coverage made through NY State of Health Marketplace, including Medicaid. As a result, New York hospitals have reported a dramatic decrease in self-pay hospital utilization because patients have gained insurance. According to NYSDOH administrative data, New York State Institutional Costs Reports show a 23 percent reduction in self-pay hospital emergency room visits, a 40 percent reduction in self-pay inpatient services, and a 17 percent reduction in self-pay outpatient visits from 2013 to 2015.
14. The Department estimates that the Final Rule could disincentivize up to 2 million New Yorkers from applying for or continuing to receive health insurance, given the number of non-citizens and their children currently enrolled in Medicaid, the Essential Plan, Child Health Plus, and QHPs.
15. The Department anticipates that these individuals will be affected by the Final Rule due to confusion about the potential consequences of applying for food, health, and housing supports for which they qualify.8 Others may not understand whether they receive the type of benefit directly implicated in the Final Rule. For example, New Yorkers receiving Medicaid

8 Fiscal Policy Institute, supra, note 1.

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may not know whether they are receiving state-only funded Medicaid or federally-funded Medicaid. Indeed, even before the Final Rule has gone into effect, consumers have been calling NY State of Health Marketplace’s customer service center, participating health plans, and certified Assistor agencies who help consumers apply for coverage, inquiring about canceling their Medicaid or other health insurance coverage because of the Final Rule.
16. By disincentivizing enrollment or continued participation in health insurance programs like Medicaid, the Final Rule will increase uncompensated care and reverse important progress in making healthcare more accessible. Individuals without coverage will still need and receive care. With no insurance to pay for the care received, those costs will be borne by the healthcare delivery system.9
17. Moreover, because individuals without health insurance tend to wait longer to seek care during a health crisis, the care they eventually receive, often from emergency departments, is more costly and not compensated to the healthcare provider.
18. By disincentivizing enrollment or continued participation in health insurance coverage for individuals who are eligible for such coverage under federal law, the Final Rule will drive up the State’s uninsured rate, resulting in increased uncompensated care costs to the healthcare delivery system. Federal and State Disproportionate Share Hospital (DSH) funding is a pre-determined amount of money intended to reimburse healthcare providers for the services they provide to patients who are unable to pay for the cost of their care.10 However, these funds are already insufficient and federal funding is scheduled to be reduced further.11 As such, already strained DSH funds will not cover the additional financial burden caused by the Final
9 Coughlin, Teresa A. "Uncompensated care for the uninsured in 2013: A detailed examination." (2014). https://www.kff.org/uninsured/report/uncompensated-care-for-the-uninsured-in-2013-a-detailed-examination/ 10 See N.Y. Public Health Law §§ 2807-c, 2807-k(5-a)(d); 42 USCS § 1396r-4(f)((7). 11 42 USCS § 1396r-4(f)((7)(A).
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Rule. Pending cuts by the Federal government to Medicaid DSH funds, in concert with the Rule, will exacerbate hospitals’ financial status.
19. Increasing the number of uninsured patients will also weaken hospitals’ financial footing. Medicaid expansion was associated with fewer hospital closures and stronger hospital financial performances.12 The contraction of coverage that is likely to result from implementation of this Rule could result in public hospital closures, all of which are heavily reliant on state funding and predominantly serve lower-income populations.
20. Medicaid also provides affordable health insurance to children and their families. More than one third, or 34 percent, of Medicaid enrollees statewide are children.
21. By indirectly discouraging parents from enrolling eligible children in Medicaid and other forms of health insurance coverage, the Final Rule will negatively impact long-term outcomes for these children, including their education and employment, both of which contribute to self-sufficiency and decrease the likelihood of needing public assistance in the future.
22. For example, reduced vaccination rates among children can have extensive consequences on a child’s education. PHL § 2164 requires those with a parental relationship to a child to vaccinate their children against serious diseases, including measles, chicken pox, whooping cough, and others. Unvaccinated children cannot be admitted to or attend any public, private, or parochial school (which includes a child caring center, day nursery, day care agency, nursery school, kindergarten, elementary, intermediate, or secondary school) in excess of 14 days unless certain limited exceptions are met. See PHL § 2164[7][a], [8]; Education Law § 914[1]; 10 NYCRR § 66-1.3.
12 Lindrooth, Richard C., et al. "Understanding the relationship between Medicaid expansions and hospital closures." Health Affairs 37.1 (2018): 111-120. https://www.healthaffairs.org/doi/abs/10.1377/hlthaff.2017.0976
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23. Parents who do not vaccinate their children, and whose children do not have a valid medical exemption, still must ensure that their children of compulsory school age are educated and, thus, would need to provide home instruction for those children. See Education Law § 3205. In order to provide such homeschooling, immigrant parents may be forced to reduce their work hours or leave the workforce entirely in order to homeschool their children.
24. Uninsured children are more likely to miss immunizations.13 Therefore, by discouraging non-citizens from participating or enrolling in affordable health insurance options, like Medicaid, the Final Rule jeopardizes the ability of children of non-citizen parents to attend public, private, or parochial school in New York State, and may reduce the self-sufficiency of immigrant families by forcing some parents to leave the workforce in order to homeschool their children.
25. The Final Rule will also have additional negative impacts on New York’s workforce. Having a reliable source of health insurance, such as Medicaid, improves individuals’ overall health and well-being. Working individuals who receive Medicaid report performing better in their jobs and feeling more prepared to seek a new or better job.14 Likewise, jobseekers report feeling better prepared to enter the workforce when they have affordable health insurance coverage.
26. Additionally, without stable, affordable health insurance, and the preventive care it provides, individuals that forego health insurance because of the Final Rule are likely to spend more time suffering from preventable illnesses and thus missing work. Working parents are at
13 Hill HA, Elam-Evans LD, Yankey D, Singleton JA, Kang Y. Vaccination Coverage Among Children Aged 19–35 Months — United States, 2017. MMWR Morb Mortal Wkly Rep 2018;67:1123–1128. DOI: http://dx.doi.org/10.15585/mmwr.mm6740a4external icon 14 Tipirneni, Renukha et al. 2017. “Medicaid Expansion Helped Enrollees Do Better at Work or in Job Searches.” Institute for Health Care Policy & Innovation, University of Michigan. https://ihpi.umich.edu/news/medicaid-expansion-helped-enrollees-do-better-work-or-job-searches
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increased risk of harm; not only is their own health at risk, but they may be forced to take time off from work to care for children who are sicker due to lack of preventive care. By disincentivizing health coverage for lower-income populations, the Final Rule will reduce economic productivity and create instability in New York State’s workforce.
27. Access to affordable health coverage like Medicaid helps improve self-sufficiency and therefore advances financial well-being. Most individuals who receive Medicaid are not offered employment-based health insurance, and it is cost prohibitive for the few who are. By providing an affordable alternative, Medicaid improves health and increases self-sufficiency by allowing individuals to work regularly. Numerous studies document the positive effects that the Affordable Care Act (ACA), and particularly Medicaid expansion, has played in improving financial well-being of previously uninsured individuals. Financial security and self-sufficiency are improved when a person can pay their medical bills, and Medicaid coverage puts full payment within reach for many.15 Other studies have shown that insurance coverage results in higher credit scores, lower medical debt, and reduces the probability of new bankruptcy filings.16
28. The Rule will harm financial well-being by removing an affordable health insurance option for many immigrants in New York State. Individuals without health insurance have a harder time paying their medical bills and overall have worse financial health than those with coverage. When saddled with medical debt and low credit scores, these immigrants will be less likely to contribute to New York State’s economic growth.
15 Hu, Luojia and Kaestner, Robert and Mazumder, Bhashkar and Miller, Sarah and Wong, Ashley, The Effect of the Patient Protection and Affordable Care Act Medicaid Expansions on Financial Wellbeing (2016-09-21). FRB of Chicago Working Paper No. WP-2016-10. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2857533. 16 Antonisse, L., et al. “The effects of Medicaid expansion under the ACA: updated findings from a literature review.” San Francisco (CA): Henry J. Kaiser Family Foundation; 2018 Mar. https://www.kff.org/medicaid/issue-brief/the-effects-of-medicaid-expansion-under-the-aca-updated-findings-from-aliterature-review-march-2018/
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29. By creating confusion about the consequences of receiving non-private, subsidized health insurance, the Final Rule makes it more difficult for immigrants to remain in the country if they access affordable health insurance. As such, the Rule will negatively impact the labor force of the healthcare industry, potentially causing the healthcare industry to face a labor shortage, particularly in New York State, where the share of foreign-born health industry workers is more than double the national level.17 Irreparable Harm to New York State’s Economy Caused by the Chilling Effect on WIC Participation
30. Each month, the WIC program serves approximately 380,000 prenatal and postpartum women, infants and children up to age five in New York. WIC promotes healthy pregnancies and births by reducing preterm births, low birthweight, and other complications. WIC also works to prevent infant mortality and ensure adequate nutrition in the critical first year through breastfeeding support and preventing iron deficiency.
31. By promoting positive birth outcomes and healthy babies, WIC reduces the firstyear medical cost burden on both individual families and the broader healthcare system, leading to significant healthcare cost savings overall. The average preterm birth costs $49,033 in firstyear medical expenses compared to a mere $4,551 for an uncomplicated birth.18 Meanwhile, an increase of just one pound at birth for a very low birthweight baby can save approximately $28,000 in first-year medical costs.19 WIC’s prenatal intervention has reduced the incidence of low birthweight by approximately one-third and reduced preterm births by 29 to 48 percent.20
17 Id. 18 Institute of Medicine, Preterm Birth: Causes, Consequences, and Prevention (2006). 19 March of Dimes, "The Cost of Prematurity and Complicated Deliveries to U.S. Employers" (2008). 20 Kathryn Fingar, et al., "Reassessing the Association between WIC and Birth Outcomes Using a Fetuses-atRisk Approach," 21 J Maternal and Child Health 825 (2017).
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32. Additionally, for every dollar spent on WIC, there are associated savings in Medicaid costs during the first 60 days after birth, from $1.77 to $3.13 for newborns and mothers and from $2.84 to $3.90 for newborns only.21 The associations are larger when costs from days 61 through one year are included.22
33. The Department expects WIC participation to decline due to the chilling effects caused by this Rule. Individuals who are not directly impacted by the Rule will forego public assistance, like WIC, due to the fear and confusion generated by this Rule.23 The widespread chilling effect of the Rule on WIC participation can already be seen. Since the Rule was proposed, WIC agencies in at least 18 states have seen drops in WIC enrollment of up to 20 percent. In New York State, Public Health Solutions, the largest WIC provider in the state, saw WIC caseloads fall after press coverage of the proposed public charge changes.24
34. Lower WIC enrollment will financially strain New York State’s economy due to higher healthcare costs associated with low birthweights and childbirth complications. From its inception, WIC has been recognized by Congress as a “program that, in the long run, will save this country money by heading off disease and the handicapping of children in the early formative months and years in such a way as to avoid much more costly results to our society later on.”25 Reduced WIC participation will frustrate these goals, and the costs will be borne by New York State.
21 U.S. Dep't of Agriculture, The Savings in Medicaid Costs for Newborns and their Mothers from Prenatal Participation in the WIC Program (1990) , https://www.fns.usda.gov/wic/savings-medicaid-costs-newborns-andtheir-mothers-resulting-prenatal-participation-wic-program. 22 U.S. Dep't of Agriculture, WIC Medicaid II Feasibility Study: Final Report (2018), https://www.fns.usda.gov/wic/special-supplemental-nutrition-program-women-infants-and-children-wic-medicaidii-feasibility-study 23 Fiscal Policy Institute, supra, note 1. 24 Helena Bottemiller Evich, “Immigrants, fearing Trump crackdown, drop out of nutrition programs,” Politico (online, Sept. 3, 2018), https://www.politico.com/story/2018/09/03/immigrants-nutrition-food-trump-crackdown806292. 25 124. Cong. Rec. S11466 (daily ed. July 21, 1978) (statement of Sen. McGovern).
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35. WIC also improves access to nutritious foods like whole grains and vegetables. Access to healthy foods improves early childhood eating habits while also reducing the prevalence of pediatric obesity. By reducing childhood obesity rates, WIC significantly reduces long-term healthcare expenditures. The Medicaid costs of a child being treated for obesity are estimated at $6,730 annually, while the average healthcare costs for children covered by Medicaid is $2,446.39. As WIC works to provide nutritious foods and educate families on healthy eating habits, WIC’s preventive role in reducing childhood obesity leads to additional healthcare savings.
36. In New York State, retailers authorized to accept WIC are required to stock fresh produce. Research indicates that the vast majority of WIC participants purchase their supplemental WIC foods at the same store where they do most of their other food shopping.26 In the 2016 fiscal year, $3.95 billion was spent on the redemption of WIC foods at over 45,000 unique vendor sites.27 In 2018, in New York State, WIC participants purchased approximately $370 million worth of WIC foods at nearly 3,000 retailers statewide. As a result, the WIC program has led to increased expenditures in retail grocery stores and improved access to healthy foods for all consumers. Changes to the WIC food package in 2009, including the addition of a cash-value voucher (CVV) for fruits and vegetables, further advanced access to healthy foods for all shoppers.28
26 U.S. Dep't of Agriculture, "Where Do WIC Participants Redeem Their Food Benefits? An Analysis of WIC Food Dollar Redemption Patterns by Store Type" (Apr. 2016), https://www.ers.usda.gov/webdocs/publications/44073/57246_eib152.pdf?v=0 27 U.S. Dep’t of Agriculture, “WIC Program: Food Cost,” https://fnsprod.azureedge.net/sites/default/files/pd/24wicfood$.pdf (data as of Oct. 5, 2018); U.S. Dep’t of Agriculture, “Where Do WIC Participants Redeem Their Food Benefits? An Analysis of WIC Food Dollar Redemption Patterns by Store Type” (Apr. 2016), https://www.ers.usda.gov/webdocs/publications/44073/57246_eib152.pdf?v=0. 28 Tatiana Andreyeva, et al., "Positive Influence of the Revised Special Supplemental Nutrition Program for Women, Infants, and Children Food Packages on Access to Healthy Foods," 112 J. of the Amer. Academy of Nutrition & Dietetics 850 (June 2012); June Tester, et al., "Healthy food availability and participation in WIC in food stores around lower- and higher-income elementary schools," 14 Public Health Nutr. 960 (Sept. 2015).
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37. WIC’s positive health outcomes are also associated with a long-term increase in economic productivity. Early brain development – which is linked to the attainment of adult economic productivity – is deeply impacted by access to adequate nutrition and healthcare in the prenatal and early childhood periods.29 Prenatal and early childhood access to nutrition support and health services ensures that children grow up to be healthier and achieve more in school.30 These children are more likely to be active participants in the workforce and become self-sufficient in adulthood.31 Indeed, WIC's role in reducing childhood obesity can help address the significant costs (estimated at $4.3 billion annually) associated with obesity-related absenteeism in the workplace.32
38. By decreasing WIC enrollment, the Rule will have long-term effects on not only individual health, but also New York’s workforce. Reduced WIC participation can threaten children’s academic success and contribute to the prevalence of obesity in New York and, ultimately, obesity-related absenteeism. Overall, these effects will lead to decreased economic output in New York State.
29 Institute of Medicine, From Neurons to Neighborhoods: The Science of Early Childhood Development (2000) ("[V]irtually every aspect of early human development, from the brain's evolving circuitry to the child's capacity for empathy, is affected by the environments and experiences that are encountered in a cumulative fashion, beginning in the prenatal period and extending throughout the early childhood years."). 30 Hilary Hoynes, et al., "Long-Run Impacts of Childhood Access to the Safety Net," 106 Amer. Economic Review 903 (Apr. 2016); Stavros Petrou, "Economic consequences of preterm birth and low birthweight," 110 BJOG: an Int'! J. of Obstetrics and Gynaecology 17 (Apr. 2003) (noting that babies with low birthweight are 50% more likely to be in special education programs). 31 See Hilary Hoynes, et al., "Long-Run Impacts of Childhood Access to the Safety Net," 106 Amer. Economic Review 903 (Apr. 2016) (finding increased economic outcomes for women who were raised on nutrition assistance programs, including increases in educational attainment, earnings, income, and decreases in welfare participation). 32 John Cawley, John Rizzo & Kara Haas, "Occupation-specific Absenteeism Costs Associated with Obesity and Morbid Obesity," 49 J. of Occupational and Environmental Med. 1317; see also Donna Gates, et al., "Obesity and Presenteeism: The Impact of Body Mass Index on Workplace Productivity," 50 J of Occupational and Environmental Med. 39 (2008).
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Irreparable Harm to the Health and Well-Being of New Yorkers Caused by Disincentivizing Medicaid Participation and Enrollment
39. Medicaid provides both primary health insurance coverage and supplementary coverage for low-income residents and vulnerable individuals. Health insurance increases the likelihood of people having both a usual source of care and access to care when they need it. Access to health insurance also improves the likelihood that patients receive recommended and potentially life-saving care.33 Studies have also shown expanded Medicaid is associated with positive outcomes including lower mortality rates, higher cancer detection rates, and lower infant mortality rates.34
40. The Rule will severely diminish immigrants’ access to health insurance. Many immigrant families have limited access to employer-sponsored insurance. If there is access to employer sponsored health coverage, it is often unaffordable for individuals with incomes below the Medicaid income level. For example, it would cost a household of three about 20 percent of household income to enroll in employer-sponsored health insurance. Medicaid is thus often the only affordable health insurance option.
41. By including Medicaid in the public charge test for some immigrant categories, the Department anticipates that many non-citizens will disenroll from or choose not to enroll in Medicaid due to a misunderstanding about the scope of Medicaid’s implication in the public charge test. Likewise, the Department expects that many immigrants may choose not to enroll in, or disenroll from, other low-cost health insurance programs, such as the Essential Plan, Child Health Plus, and QHPs, out of concern that receipt of any form of public assistance will harm their ability to adjust status. In so doing, the Final Rule will effectively leave many non-citizens
33 Baicker, Katherine, et al. 2013. "The Oregon Experiment-Medicaid's Effects on Clinical Outcomes." New England Journal of Medicine 368, no. 18: 1713-1722. https://www.nejm.org/doi/full/10.1056/nejmsa1212321 34 Antonisse, L., supra, note 16.
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without a viable insurance alternative. Without access to health insurance, these New Yorkers will go without preventive care, potentially leading to more acute and more difficult-to-treat conditions in the future.
42. By increasing uninsurance rates, the Final Rule will also worsen children’s health and well-being. A parent’s poor health and lack of access to health insurance can jeopardize a child’s health and performance in school.35 Additionally, studies suggest that expanding coverage eligibility to adults has, in some cases, caused significant reductions in children's uninsured rates.36 Therefore, a reduction in the number of insured parents could lead to a reduction in insurance coverage among their children, regardless of whether their children are directly impacted by the Rule.
43. Without coverage, children will likely suffer the consequences of inconsistent well-child visits and primary care, resulting in potentially serious health issues. Instead of early treatment for illness, children without health coverage will resort to emergency department visits for treatment of more serious conditions, at a greater cost than doctor's office visits.
44. Finally, New York State has made great strides towards ending the HIV/AIDS epidemic through programs linked to Medicaid. The Medicaid Redesign Team Housing Contracts offer affordable housing for high-need Medicaid recipients living with HIV; residents are charged only 30 percent of their monthly adjusted income as rent. Further, the New York State Medicaid Program for Persons with HIV assists approximately 67,000 New Yorkers living with HIV by allowing them to receive their healthcare and other support services through the
35 Institute of Medicine Committee on the Consequences of Uninsurance, "Family Well-Being and Health Insurance Coverage," Health Insurance Is a Family Matter, (Washington, DC: National Academics Press, 2002), available online at https://www.ncbi.nlm.nih.gov/books / NBK221008/. 36 "Medicaid Expansion: Good for Parents and Children." 2014. Center for Children and Families, Georgetown University Health Policy Institute. https://ccf.georgetown.edu/wp-content/uploads/2013/12/Expanding-Coveragefor-Parents-Helps-Children-2013.pdf
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Medicaid program. The care and treatment of persons living with HIV leads to viral suppression, which improves health and prevents transmission of HIV. Likewise, treatment of persons at risk for HIV with pre-exposure prophylaxis (PrEP) prevents acquisition of HIV.
45. If the Rule goes into effect, New York State’s progress in combating the HIV/AIDS epidemic will be stalled and the spread of life-threatening communicable diseases will likely rise. As more than half of persons living with HIV in New York State receive care through the Medicaid program, disincentivizing HIV-positive immigrants from enrolling in Medicaid due to the Rule’s chilling effects would effectively prevent them from receiving lifesaving healthcare and prescription drugs that maximize virus suppression and prevent further transmission. In addition, those at risk for HIV who would otherwise be eligible for Medicaid may forego treatment with PrEP due to their inability to pay for preventive care visits or medication, thus putting more New Yorkers at risk of HIV.
46. Additionally, most housing programs supported by the Medicaid Redesign Team Housing Contract are currently at capacity, and several have waiting lists. Due to the limited capacity of these facilities, paired with the lack of alternative affordable housing in many communities, HIV-positive persons may be at increased risk of homelessness if they choose to disenroll in Medicaid out of fear generated by the Final Rule. Irreparable Harm to the Health and Well-Being of New Yorkers Caused by the Chilling Effect on WIC Participation
47. WIC aims to reach eligible women as early as possible to maximize the program’s impact on the pregnancy and reduce the risk of adverse birth outcomes including infant mortality, premature birth, and low birth weight. Longer participation in WIC throughout the pregnancy is associated with lower risk of preterm birth and a greater chance
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of preventing low- or very low-birthweight.37 In addition to having serious health complications, low-birthweight babies are also more likely to die in the first year of life.38 Over 23,000 infants die each year in the United States.39 WIC’s intervention plays a significant role in reducing perinatal and infant mortality by ensuring adequate nutrition and healthy development in pregnancy and the first few weeks of life.40
48. The Department expects that the chilling effects of the Rule will cause fewer non-citizen mothers to participate in WIC, which puts their U.S. children at risk of birth complications, malnutrition, and even death.
49. WIC continues to offer health benefits after pregnancy has ended. WIC promotes and supports breastfeeding in several key ways, including providing educational materials, one-on-one consultations with peer and professional staff, group classes and support groups, and 24/7 hotlines for questions. The WIC program also works to establish community partnerships to ensure systematic community support for breastfeeding in all settings, and each local WIC provider must employ breastfeeding experts and peer counselors.
50. The highly successful breastfeeding peer counselor program, along with other initiatives, has helped improve the breastfeeding rates of WIC mothers nationally, from 42 percent in 1998 to 71 percent in 2016, and has contributed to a reduction in breastfeeding
37 Kathryn, Fingar, et al., "Reassessing the Association between WIC and Birth Outcomes Using a Fetuses-atRisk Approach," 21 J Maternal and Child Health 825 (2017); Ralitza Gueorguieva, et al., "Length of prenatal participation in WIC and risk of delivering a small-for-gestational-age infant: Florida, 1996-2004," 13 J of Maternal Child Health 479 (2009); Marianne Bitler & Janet Currie, "Does WIC Work? The Effects of WIC on Pregnancy and Birth Outcomes," 1 J of Policy Analysis & Mgmt. 73 (2005). 38 Lehman Black, et al., "Effects of birth weight and ethnicity on incidence of sudden infant death syndrome," 108 J of Pediatrics 209 (Feb. 1986). 39 Kenneth Kochanek, et al., "Mortality in the United States, 2016," CDC-National Center for Health Statistics Data Brie/No. 293 6 (December 2017). https://www.cdc.gov/nchs/products/databriefs/db293.htm 40 Kathryn Fingar, et al., "Reassessing the Association between WIC and Birth Outcomes Using a Fetuses-atRisk Approach," 21 J Maternal and Child Health 825 (2017).
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disparities.41 WIC mothers have also been choosing to breastfeed for longer, with one-month postpartum rates having risen 85 percent between 1998 and 2013 and the rate for 3- to 12month-old babies having doubled during the same time period.42
51. There is strong evidence of the strong positive health impacts of breastfeeding. Infants breastfed for 3 months are 30 percent less likely to have type 1 diabetes.43 Breastfeeding is associated with lower rates of pediatric overweight or obesity,44 and reduced risk of other chronic diseases such as cardiovascular disease, hypertension, and some forms of cancer.45 Breastfeeding is also positively correlated with cognitive development.46
52. Many immigrant mothers will likely disenroll from, or choose not to enroll in, WIC out of concern that participation will affect their immigration status. These mothers will be left without access to the breastfeeding support services offered through WIC. As a result, the Department expects fewer immigrant mothers to breastfeed, or to breastfeed for a shorter period. By hindering breastfeeding education and support, the Rule puts U.S. citizen children at greater risk of short- and long-term adverse health impacts correlated with reductions in breastfeeding, including diabetes, obesity, and chronic disease, as well as reduced cognitive development.
41 U.S. Dep’t of Agriculture, “WIC Participant and Program Characteristics 2016 Final Report,” 142 (Apr. 20, 2018), https://fns-prod.azureedge.net/sites/default/files/ops/WICPC2016.pdf. 42 U.S. Dep’t of Agriculture, “WIC Infant and Toddler Feeding Practices Study – 2: Infant Year Report,” https://fnsprod.azureedge.net/sites/default/files/ops/WIC-ITFPS2-Infant.pdf (Jan. 2017). 43 Bernardo Horta, et al., “Long-term consequences of breastfeeding on cholesterol, obesity, systolic blood pressure, and type 2 diabetes: a systematic review and meta-analysis,” 104 Acta Paediatrica 30 (2015). 44 Laurence Grummer-Strawn & Zuguo Mei, “Does Breastfeeding Protect Against Pediatric Overweight? Analysis of Longitudinal Data From the Centers for Disease Control and Prevention Pediatric Nutrition Surveillance System,” 113 Pediatrics 81 (2004). 45 Colin Binns, et al., “The Long-Term Public Health Benefits of Breastfeeding,” 28 Asia Pacific J. of Public Health 7 (Jan. 2016). 46 Id.
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53. WIC also offers preventative nutrition assistance through its nutritious food
package, which was overhauled in 2009 to offer greater access to whole-grain foods, fruits,
and vegetables for WIC participants. The 2009 food package changes resulted in a marked
increase in whole-grain and vegetable consumption among WIC participants, and a similarly significant reduction in whole milk consumption.47 These changes have contributed to a
modest decline in severe childhood obesity among young children of WIC families, highlighting how WIC's health benefits continue past the infancy period.48 Only 13.9% of children aged two to five are obese,49 and yet pediatric obesity is known to be a significant
cause of adult obesity and can lead to serious chronic health conditions, including heart disease, some types of cancers, type-2 diabetes, and hypertension.50
54. WIC’s food package also leads to higher iron intake, which is a critical supplement for those at risk of iron deficiency.51 Notably, there remain nearly 200,000
annual ambulatory care visits as a result of anemia, with most cases due to a nutritional
deficiency; approximately 5,200 individuals died as a result of iron-deficiency anemia in 2015.52
55. If allowed to go into effect, the Final Rule will discourage eligible families
from enrolling in WIC. Consequently, otherwise eligible families will not have access to
47 Shannon Whaley, et al., “Revised WIC Food Package Improves Diets of WIC Families,” 44 J. of Nutrition Educ. and Behavior 204 (2012); June Tester, et al., “Revised WIC Food Package and Children’s Diet Quality,” 137 Pediatrics (May 2016). 48 Liping Pan, et al., “Trends in Severe Obesity Among Children Aged 2 to 4 Enrolled in Special Supplemental Nutrition Program for Women, Infants, and Children From 2000 to 2014,” 172 Pediatrics 232 (2018). 49 Craig Hales, et al., “Prevalence of Obesity Among Adults and Youth: United States, 2015-2016,” NCHS Data Brief No. 288 (Oct. 2017), https://www.cdc.gov/nchs/data/databriefs/db288.pdf. 50 Nat’l Institutes of Health, “Clinical Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity in Adults,” NIH Pub. No. 98-4083, 100 (Sept. 1998), https://www.nhlbi.nih.gov/files/docs/guidelines/ob_gdlns.pdf. 51 See Steven Yen, “The effects of SNAP and WIC programs on nutrition intakes of children,” 35 Food Policy 576 (2010). 52 Ctrs. for Disease Control and Prevention, “National Center for Health Statistics: Anemia or Iron Deficiency,” (Mar. 2017), https://www.cdc.gov/nchs/fastats/anemia.htm.
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the nutritious food package offered by WIC. Impeded access to healthy foods will put many U.S.-citizen children at risk of anemia and pediatric obesity and open the door to the long-term health consequences of an unhealthy diet, including adult obesity and chronic disease. Increased Administrative Burdens and Costs on New York State
56. If implemented, the Final Rule will impose administrative burdens and costs on NYSDOH, including those imposed on the NY State of Health Marketplace.
57. Federal law requires the health insurance Marketplaces to use a single streamlined application process. 42 USC § 18083; 45 CFR § 155.405(a). Under this application process, Marketplaces must determine Medicaid eligibility for anyone applying for subsidized health insurance coverage. 42 USC § 18083(a); 45 CFR §§ 155.305(c), 155.310(b). Therefore, all applicants for Marketplace programs, including individuals seeking to apply for enrollment in Child Health Plus, the Essential Plan, or a QHP with an Advance Premium Tax Credit (APTC), must be found ineligible for Medicaid before their eligibility can be determined for other programs. As such, the State’s information technology system is currently set up so that a Medicaid application is a threshold requirement, before applications for other programs are permitted.
58. Marketplaces are also legally constrained from determining eligibility only for a particular insurance affordability program. 45 CFR §§ 155.305(c)-(g), 155.310(b). NY State of Health Marketplace thus must evaluate eligibility for all potential subsidized programs, including Medicaid.
59. Accordingly, even if non-citizens choose not to enroll in Medicaid out of fear that their participation will affect their ability to adjust their immigration status, the Department will be legally and administratively constrained from allowing them to apply for
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other forms of low-cost health insurance, such as Child Health Plus, the Essential Plan, or a QHP.
60. As a result, these individuals may forego health insurance altogether unless the Department is able to effectively communicate to non-citizens the narrow scope of Medicaid’s implication in the Final Rule.
61. In total, NY State of Health Marketplace’s increased Customer Service Center volume following the Final Rule’s implementation could cost the state millions of dollars.
62. In addition, NYSDOH will have to expend resources preparing for implementation of the Final Rule before the October 15, 2019 effective date. For example, NYSDOH has developed materials to communicate with consumers about these rule changes.
63. The Final Rule, if enacted, will also impose significant costs on the WIC program.
64. WIC works in tandem with Medicaid and SNAP to advance public health, as WIC’s targeted intervention for pregnant women, new mothers, and young children complements the broader purpose of Medicaid to provide health coverage and SNAP to ensure adequate nutrition for low-income families. In New York State, 86.2 percent of WIC participants are also enrolled in Medicaid.
65. Congress has recognized the connection between these programs by authorizing adjunctive eligibility.53 Adjunctive eligibility permits individuals to be automatically income-eligible for WIC if they or certain family members participate in Medicaid, SNAP, Temporary Assistance for Needy Families (TANF), or other benefit
53 Pub. L. No. 101-147 § 123 (Nov. 10, 1989) [codified in 42 USC §l 786(d)(2)(A)(ii), (iii)].
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programs at the discretion of the state. In 2016, 74.9 percent of WIC participants reported receiving at least one of the adjunctively-eligible programs, and it is possible that even more WIC participants are adjunctively eligible through family members.54
66. Determining income eligibility is one of the most burdensome elements of the WIC certification process. WIC routinely certifies participants to ensure continuing eligibility, and certification periods last for one year, at most.55 With few exceptions, a participant must be physically present in the WIC clinic each time that participant is certified, including infants and young children.56 Adjunctive eligibility therefore promotes efficiency by streamlining the certification process and reducing burdens on both clinics and participants.
67. Income certification through adjunctive eligibility also takes less time than income screening involving pay stubs or other financial documents.57 These efficiency gains have helped reduce barriers to WIC participation, maximize clinic time for WIC’s public health services, and free WIC funding for nutrition education and breastfeeding support.
68. Due to the benefits of adjunctive eligibility rules, New York State has streamlined documentation requirements to create a smoother process for applicants to join WIC. Families may now use their smart phones and tablets to prove eligibility in some cases. For example, families can use online accounts to show they are enrolled in adjunct programs
54 U.S. Dep't of Agriculture, "WIC Participant and Program Characteristics 2016 Final Report," 31-32 (Apr. 20, 2018), https://fns-prod.azureedge.net/sites/default/files/ops/WICPC2016.pdf. 55 7 C.F.R. § 246.7(g)(l). 56 Id. § 246.7(0). 57 See National WIC Association, “WIC State Directors Value Medicaid Adjunctive Eligibility” (2015), https://s3.amazonaws.com/aws.upl/nwica.org/medicaid-ae-study.pdf.
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like Medicaid. New York State has also invested in a long-term streamlining initiative to integrate eligibility systems across programs and state agencies.
69. The inclusion of Medicaid and SNAP in public charge review will decrease participation in Medicaid and SNAP among WIC families. Because New Yorkers are expected to be deterred from participating in SNAP and Medicaid due to the chilling effects of the Rule (in addition to decreased participation in other health insurance coverage options), the Department’s efforts to improve efficiency by streamlining the WIC certification process will be impeded by the Final Rule. By reducing the number of families that are eligible through an adjunct program, WIC staff will spend additional time conducting income certification. Estimates show that income screening using pay stubs or financial documents costs $12.50 per participant, whereas the administrative costs for income screening with adjunctive eligibility is only $3.75 per participant.58 The additional $8.75 per participant cost – if applied to the whole program – could add significant new pressures on WIC’s budget.
70. Additional administrative costs would be financed through WIC’s “Nutrition Services & Administrative” (NSA) grant. The NSA grant finances not only administrative costs, but also WIC’s wide-ranging public health and education efforts.59 About one-third of the total NSA grant (approximately 9.5 percent of total WIC funding) is used for program administration, as WIC seeks to maximize available funding for nutrition education, breastfeeding support, or other client services.60 Increased income screening in the clinics will require more of the NSA grant to be devoted to administrative costs, thereby reducing
58 Id. 59 42 U.S.C. § 1786(b)(4). 60 U.S. Dep't of Agriculture, "WIC Nutrition Services and Administration Cost Study" (Nov. 2017), https://fnsprod.azureedge.net/sites/default/files/ops/WICNSACostStudy.pdf.
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funding for WIC’s important nutrition education classes, breastfeeding support, and public health screenings and referrals for immunizations, tobacco cessation, postpartum depression, opioids, and more.
71. The Department anticipates that a substantial number of New Yorkers will forego enrollment in Medicaid and SNAP due to the chilling effects of the Final Rule, resulting in adjunctive eligibility in WIC being substantially impaired. Should that occur, WIC agencies will have to hire additional staff to conduct longer certification appointments,61 which would diminish the capacity of WIC agencies and clinics to attract specialized staff with expertise in nutrition education and breastfeeding support, such as Registered Dietitians (RDs) or International Board Certified Lactation Consultants (IBCLCs).
CONCLUSION 72. For these reasons, the Department opposes implementation of the Final Rule given its destructive, far-reaching, and irreversible consequences on the economy, health, and administration of New York State, and I respectfully request that this Court grant the relief Plaintiffs request. I declare under penalty that the foregoing is true and correct and of my own personal knowledge.
DATED this 6th day of September, 2019 at New York, New York.
HOWARD A. ZUCKER, M.D., J.D. Commissioner New York State Department of Health
61 National WIC Association, supra, note 57.
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 No. 19A785

IntheSupremeCourtoftheUnitedStates _______________________________________________

UnitedStatesDepartmentofHomelandSecurity,etal.,

Applicants,

v.

MaketheRoad NewYork,etal.,

Respondents. _________________________________________________

OPPOSITIONTOAPPLICATIONFORASTAYOFTHEINJUNCTIONSISSUEDBY THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEWYORK _________________________________________________

Ghita Schwarz Brittany Thomas Baher A. Azmy CENTER FOR CONSTITUTIONAL
RIGHTS 666 Broadway, 7th Floor New York, New York 10012 (212) 614-6445 SusanE. Welber Kathleen Kelleher Susan Cameron Hasan Shafiqullah THE LEGAL AID SOCIETY 199 WaterStreet,3rdFloor New York, New York 10038 (212) 577-3320

AndrewJ.Ehrlich Counsel of Record
Jonathan H. Hurwitz Elana R. Beale Robert J. O’Loughlin Daniel S. Sinnreich Amy K. Bowles PAUL, WEISS,RIFKIND, WHARTON &
GARRISON LLP 1285AvenueoftheAmericas New York, New York 10019-6064 (212) 373-3000

AttorneysforRespondents MaketheRoadNewYork, African Services Committee, Asian American Federation, Catholic Charities Community
Services(ArchdioceseofNewYork),andCatholic LegalImmigrationNetwork,Inc.

January 22, 2020

CORPORATEDISCLOSURESTATEMENT Respondent MaketheRoadNewYork(“MRNY”)hasnoparentcorporation,andno publiclyheldcorporationowns10percentormoreof MRNY. RespondentAfricanServicesCommittee(“ASC”)hasnoparentcorporation,andno publiclyheldcorporationowns10percentormoreofASC. RespondentAsianAmericanFederation(“AAF”)hasnoparentcorporation,andno publiclyheldcorporationowns10percentormoreofAAF. RespondentCatholicCharitiesCommunityServices(ArchdioceseofNewYork) (“CCCS-NY”)isawhollyownedsubsidiaryofCatholicCharities,ArchdioceseofNewYork. Nopubliclyheldcorporationowns10percentormoreofCCCS-NY. RespondentCatholicLegalImmigrationNetwork,Inc.(“CLINIC”)hasnoparent corporation,andnopubliclyheldcorporationowns10percentormoreofCLINIC.
i

TABLE OF CONTENTS
Page
INTRODUCTION...........................................................................................................................1 STATEMENTOFTHECASE........................................................................................................4 I. THEHISTORYOF“PUBLICCHARGE”.........................................................................4
A. TheOriginal Meaningof“PublicCharge”ReferredtoNarrowClassesof PersonsUnabletoCareforThemselves..................................................................5
B. AdministrativeDecisionsforNearlyaCenturyAffirmThat MereReceipt of Public Benefits Does Not Render the Recipient a Public Charge .......................6
C. CongressHasApprovedAdministrativeInterpretationsbyRepeatedly ReenactingthePublicChargeProvisionsoftheINA Without Material Change .....................................................................................................................9
D. AdministrativeFieldGuidancefrom1999ConfirmedtheSettled InterpretationofPublicCharge..............................................................................12
II. DHS’SPROPOSED“PUBLICCHARGE”RULE...........................................................13 III. PROCEDURALHISTORY...............................................................................................15 ARGUMENT.................................................................................................................................17 I. DEFENDANTS WILLSUFFERNOIRREPARABLEINJURY....................................18 II. THECOURTISUNLIKELYTOGRANTCERTIORARIANDREVERSE.................20
A. PlaintiffsHaveStandingandAre WithintheZoneofInterestsoftheINA..........21 B. TheRuleIsContrarytotheINA............................................................................22
TheRuleIsInconsistentwiththe Meaningof“PublicCharge”in theINA.......................................................................................................23 Defendants’ArgumentstotheContraryAreUnpersuasive......................26 C. TheRuleShouldBeSetAsideUndertheAPABecauseItIsContraryto theRehabilitationAct............................................................................................29 D. TheRuleShouldBeSetAsideUndertheAPABecauseItIsArbitraryand Capricious ..............................................................................................................31 E. The Rule Violates EqualProtection.......................................................................32 III. THEBALANCEOFTHEEQUITIESANDRELEVANTHARMS WEIGHIN FAVOROF MAINTAININGTHEPRELIMINARYINJUNCTIONAND STAYINGTHERULEPENDINGAPPEAL...................................................................33 IV. THEREISNOBASISTONARROWTHEINJUNCTION............................................35 CONCLUSION..............................................................................................................................38
ii

TABLE OF AUTHORITIES

CASES

Page(s)

MatterofA-, 19I.&N.Dec.867(B.I.A.1988).............................................................................................8

AlbemarlePaperCo.v.Moody, 422 U.S. 405 (1975) .................................................................................................................25

MatterofB-, 3I.&N.Dec.323(B.I.A.1948)...............................................................................................6

Michigan v.Bay MillsIndianCmty., 572 U.S. 782 (2014) .................................................................................................................25

United States v. Bd. of Comm’rs, 435 U.S. 110 (1978) .................................................................................................................25

Bd.ofGovernorsofFed.ReserveSys.v.DimensionFin.Corp., 474 U.S. 361 (1986) .................................................................................................................28

BobJonesUniv.v.UnitedStates, 461 U.S. 574 (1983) .................................................................................................................25

Bowshar v. Synar, 478 U.S. 714 (1986) .................................................................................................................21

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) .................................................................................................................26

Califano v. Yamasaki, 442 U.S. 682 (1979) .................................................................................................................38

ChevronU.S.A.Inc.v.Nat.Res.Def.Council,Inc., 467 U.S. 837 (1984) .................................................................................................................26

City&Cty.ofS.F.v.USCIS, 408F.Supp.3d1057(N.D.Cal.2019).....................................................................................2

City&Cty.ofS.F.v.USCIS, 944F.3d773(9thCir.2019)...................................................................................5,16,33,38

City of Arlington v. FCC, 569 U.S. 290 ............................................................................................................................37

iii

City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018) ...................................................................................................36
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) .................................................................................................................32
Clarke v. Sec. Indus. Ass’n, 479 U.S. 388 (1987) .................................................................................................................22
CliffordF. MacEvoyCo.v.U.S.forUseandBenefitofCalvinTomkinsCo., 322 U.S. 102 (1944) .................................................................................................................31
E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742 (9th Cir. 2018) ...................................................................................................22
EarthIslandInst.v.Ruthenbeck, 490F.3d687(9thCir.2007),rev’donothergroundssubnom.Summersv. EarthIslandInst.,555U.S.488(2009)...................................................................................37
Edwardsv.Hope Med.Grp.for Women, 512U.S.1301(1994)...........................................................................................................1,18
Texas v. EPA, 829 F.3d 405 (5th Cir. 2016) ...................................................................................................36
Fargo Women’sHealthOrg.v.Schafer, 507 U.S. 1013 (1993) ...............................................................................................................17
Food Mktg.Inst.v.ArgusLeader Media, 139 S. Ct. 2356 (2019) .............................................................................................................23
ForestGroveSch.Dist.v.T.A., 557 U.S. 230 (2009) .................................................................................................................24
Gegiow v. Uhl, 239 U.S. 3 (1915) .......................................................................................................................6
GoodSamaritanHosp.v.Shalala, 508 U.S. 402 (1993) .................................................................................................................24
Grupo MexicanodeDesarrollo,S.A.v.AllianceBondFund,Inc., 527 U.S. 308 (1999) .................................................................................................................37
MatterofHarutunian, 14 I. & N. Dec. 583 (1974) ........................................................................................................8
HavensRealtyCorp.v.Coleman, 455 U.S. 363 (1982) .................................................................................................................21
iv

Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003).....................................................................................................30
Hollingsworth v. Perry, 558 U.S. 183 (2010) .................................................................................................................17
United States v. Houser, 804 F.2d 565 (9th Cir. 1986) ...................................................................................................20
Howev.UnitedStatesexrel.Savitsky, 247 F. 292 (2d Cir. 1917)...........................................................................................................6
Judulangv.Holder, 565 U.S. 42 (2011) ...................................................................................................................31
Ex Parte Kichmiriantz, 283F.697(N.D.Cal.1922)......................................................................................................7
King v. Burwell, 135 S. Ct. 2480 (2015) .............................................................................................................26
Leary v. United States, 395 U.S. 6 (1969) .....................................................................................................................23
LexmarkInt’l,Inc.v.StaticControlComponents,Inc., 572 U.S. 118 (2014) .................................................................................................................21
Matterof Martinez-Lopez, 10I.&N.Dec.409(B.I.A.1962;A.G.1964)......................................................................6,7
Match-E-Be-Nash-She-WishBandofPottawatomiIndians v.Patchak, 567 U.S. 209 (2012) .................................................................................................................21
MCITelecomm.Corp. v.Am.Tel. &Tel.Co., 512 U.S. 218 (1994) .................................................................................................................26
MexichemSpecialtyResins,Inc.v.EPA, 787F.3d544(D.C.Cir.2015).................................................................................................36
Nat’l Min.Ass’nv.U.S.ArmyCorpsofEng’rs, 145F.3d1399(D.C.Cir.1998)...............................................................................................36
Nken v. Holder, 556 U.S. 418 (2009) .................................................................................................................33
Owner-OperatorIndep.DriversAss’nv.Fed. MotorCarrierSafetyAdmin., 656 F.3d 580 (7th Cir. 2011) ...................................................................................................36
v

Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319 (1994) ...............................................................................................................17
PasadenaCityBd.ofEd.v.Spangler, 423 U.S. 1335 (1975) ...............................................................................................................18
MatterofPerez, 15I.&N.Dec.136(B.I.A.1974).........................................................................................6,8
Pennsylvania v. President United States, 930 F.3d 543 (3d Cir. 2019).....................................................................................................36
Rodriguez v. United States, 480 U.S. 522 (1987) .................................................................................................................28
Ruckelshausv.MonsantoCo., 463U.S.1315(1983).........................................................................................................17,19
CFTC v. Schor, 478 U.S. 833 (1986) .................................................................................................................24
Solid WasteAgencyofN.CookCty.v.U.S.ArmyCorpsofEng’rs, 531 U.S. 159 (2001) .................................................................................................................24
Stormans,Inc.v.Selecky, 586 F.3d 1109 (9th Cir. 2009) .................................................................................................36
MatterofT-, 3I.&N.Dec.641(B.I.A.1949)...............................................................................................7
ThorPowerToolCo.v.Commissioner, 439 U.S. 522 (1979) .................................................................................................................26
Toyota Motor Mfg.,Ky.,Inc.v.Williams, 534 U.S. 184 (2002) .................................................................................................................24
Trump v. Hawaii, 138S.Ct.542(Nov.20,2017)................................................................................................19
Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) .......................................................................................................19, 37
Texas v. United States, 809F.3d134(5thCir.2015),aff’dbyanequallydividedCourt,136S.Ct. 2271(2016)........................................................................................................................36,38
UtilityAirRegulatoryGrp.v.EPA, 573 U.S. 302 (2014) .................................................................................................................27
vi

VillageofArlingtonHeightsv.MetropolitanHousingDevelopmentCorp., 429 U.S. 252 (1977) .................................................................................................................32
MatterofVindman, 16I.&N.Dec.131(BIA1977)................................................................................................8
Whalen v.Roe, 423U.S.1313(1975).........................................................................................................17,19
Whitman v.Am.TruckingAss’ns, 531 U.S. 457 (2001) .................................................................................................................28
Williams v.Zbaraz, 442 U.S. 1309 (1979) ...............................................................................................................17
STATUTES 5U.S.C.§702................................................................................................................................33 5U.S.C.§705..........................................................................................................................16,36 5U.S.C.§706............................................................................................................................4,36 8U.S.C.§1182..............................................................................................................1,10,11,29 8U.S.C.§1255................................................................................................................................5 8U.S.C.§1601..............................................................................................................................27 8U.S.C.§1612..............................................................................................................................10 8U.S.C.§1613..............................................................................................................................10 8U.S.C.§1641..............................................................................................................................29 AgriculturalResearch,EducationandExtensionActof1998,Pub.L.No.105-
185 (1998) ................................................................................................................................10 BatteredImmigrant WomenProtectionActof2000,Pub.L.No.106-386,114
Stat. 1464 .................................................................................................................................29 Children’sHealthInsuranceReauthorizationActof2009,Pub.L.No.111-3
(2009).......................................................................................................................................10 FarmSecurityandRuralInvestmentActof2002,Pub.L.No.107-171(2002)...........................10 IllegalImmigrationReformandImmigrantResponsibilityAct,Pub.L.No.104-
208, 110 Stat. 3009 (1996) .......................................................................................................10
vii

ImmigrationActof1882,47thCong.ch.376,22Stat.214........................................................4,5 ImmigrationActof1891,51stCong.ch.551,26Stat.1084..........................................................5 ImmigrationActof1990,Pub.L.No.101-649,104Stat.4978.....................................................9 ImmigrationandNationalityActof1952,66Stat.163..................................................................9 ImmigrationControl&FinancialResponsibilityActof1996,H.R.2202,104th
Cong. (1996) ............................................................................................................................11 ImmigrationReformandControlActof1986,Pub.L.No.99–603,100Stat.
3359..........................................................................................................................................38 PersonalResponsibilityand WorkOpportunityReconciliationAct,Pub.L.No.
104-193, 110 Stat. 2105 (1996) ...............................................................................................10 OTHER AUTHORITIES 6C.F.R.§15.30.............................................................................................................................30 8C.F.R.§212.21.....................................................................................................................13,14 8C.F.R.§212.22.....................................................................................................................14,30 13 Cong. Rec. 5109 (June 19, 1882) ................................................................................................5 142 Cong. Rec. S11872 (1996) ......................................................................................................11 142 Cong. Rec. S4401 (1996) ....................................................................................................7, 11 64Fed.Reg.28,676(May26,1999).............................................................................................12 64Fed.Reg.28,689(May26,1999).......................................................................................12,14 83Fed.Reg.51,114(Oct.10,2018)..........................................................................................3,13 84Fed.Reg.41,292(Aug.14,2019).....................................................................................passim 9th Cir. Rule 35-1 ..........................................................................................................................20 AliensUndertheImmigrationandNationalityAct:HistoricalBackgroundand
Analysis121(Comm.Print1988).............................................................................................9 Black’s Law Dictionary ...................................................................................................................7 AmandaFrost,InDefenseofNationwideInjunctions,93N.Y.U.L.Rev.1065,
1080–81 & n.77 (2018) ............................................................................................................37
viii

Fed. R. Civ. P. 52 ...........................................................................................................................35 MilaSohoni, TheLostHistoryofthe“Universal”Injunction,133Harv.L.Rev.
920, 924, 935–54 (2020) ..........................................................................................................37 StatementonSenateActiononthe“ImmigrationControlandFinancial
ResponsibilityActof1996,”32 WeeklyComp.Pres.Doc.783(May2,1996).....................11 S. Rep. No. 81-1515 (1950) .............................................................................................................9 S. Rep. No. 104-249 (1996) ...........................................................................................................12 S. Rep. No. 113-40 (2013) .............................................................................................................12
ix

INTRODUCTION Thiscasedoesnotpresenttheextraordinarycircumstanceswarrantingastaybythis CourtwhilethecaseisbeingconsideredbytheCourtofAppealsonanexpeditedbasis.The preliminaryinjunctiondefendantschallengemerelypreservesthestatusquo.Itdoessoby requiringdefendantstocontinueusingthesametesttodeterminewhethernoncitizensare inadmissibleas“likelyatanytimetobecomeapubliccharge”thathasbeeninplaceformore thantwentyyears—atestthatdefendantsconcedeisconsistentwiththegoverningstatute. Defendantspointtonourgentneedtochangethatstandardimmediatelyandidentifynoconcrete harmiftheyaredelayedinimplementingtheirpreferredpolicy.Ontheothersideofthescale,as thedistrictcourtfound,allowingdefendantstoimplementtheradicalchangestheypropose wouldcauseirreparableinjurytoplaintiffsandgrave,widespreadharmtoimmigrants,their families,andthepublichealth.Fourcourtsofappeals,includingtheSecondCircuit,arealready addressingtheissuespresentedbythisapplication,allonanexpeditedbasis.Thoseappealswill befullybriefedinamatterofweeks.ItisprematuretopresumethatthisCourtwillgrant certioraribeforeanyappellatecourthasruledonthemerits.Inthesecircumstances,defendants donotcarrytheir“especiallyheavyburden,”Edwardsv.Hope Med.Grp.for Women,512U.S. 1301,1302(1994)(Scalia,J.,inchambers)(quotationsmarksomitted),tojustifyastaybythis Court. PlaintiffschallengearulepromulgatedbytheDepartmentofHomelandSecurity (“DHS”),84Fed.Reg.41,292(Aug.14,2019)(the“Rule”),thatseekstoimposedrastic restrictionsontheabilityoflow-incomenoncitizens(primarilypersonsalreadylivinginthis countrywiththeirfamilies)toachievelawfulpermanentresidence.UnderSection212(a)(4)of theImmigrationandNationalityAct(“INA”),8U.S.C.§1182(a)(4),noncitizensaredeemed inadmissibleorineligibleforstatusadjustmentif,inthegovernment’sopinion,theyare“likely

atanytimetobecomeapubliccharge.”ForanoncitizenlivingintheUnitedStatesasa nonimmigrant,afindingofinadmissibilityprecludesadjustmentofstatustolawfulpermanent resident.Inmanycases,denialofstatusadjustmentcanalsosubjectnoncitizenstoremovaland separationfromtheirfamilies.
TheRulepurportstoredefinethestatutoryterm“publiccharge”toincludeany noncitizensthegovernmentdeemslikely,foranaggregateoftwelvemonthsoverthreeyearsat anytimeinthefuture,toreceivecashorcertainsupplementalnoncashpublicbenefits,including Medicaid,SupplementalNutritionAssistanceProgrambenefits(“SNAP,”formerlyfood stamps),orcertainformsofhousingassistanceeveninsmallamounts—irrespectiveoftheir abilitytoworkandcareforthemselves,andregardlessofwhethertheyhavereceivedpublic benefitsinthepast.Asonecourtnoted,“[t]otakeaplausibleexample,someonereceiving$182 over36months...inSNAPbenefitsisapublicchargeundertheRule.”City&Cty.ofS.F.v. USCIS,408F.Supp.3d1057,1099(N.D.Cal.2019).
Defendantscannotshowalikelihoodofsuccessonthemeritsofplaintiffs’challenge. TheRuleiscontrarytoCongressionalintent,andrepresentsafundamentalbreakfrommorethan 138yearsofjudicialandadministrativeunderstandingofthemeaningofthestatutoryterm “publiccharge.”Inthattime,administrativeagenciesandcourts,includingthisCourt,have consistentlyinterpretedittoapplyonlytononcitizenswhoareunabletocareforthemselves,and arethereforelikelytobeprimarilyorexclusivelyreliantonpublicsupportforsubsistence. Consistentwiththisnarrowunderstanding,sincetheturnofthetwentiethcentury,thepercentage ofimmigrantsdeniedadmissionorlawfulpermanentresidenceonpublicchargegroundhas consistently been a fraction of one percent. Congress has consistently approved this understandingbyrepeatedlyreenactingtheprovisionwithoutrelevantchangeandwithout
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redefiningtheterm“publiccharge,”mostrecentlyin1996.Congresshasalsorepeatedlyturned backlegislativeeffortstodefinethetermastheRulenowseekstodo.
TheRuledepartsfromthissettledandCongressionallyapprovedunderstanding. Plaintiffsarenotawareofasinglejudicialoradministrativecaseinthe138yearssincethe statutewasenactedinwhichnoncitizensweredeemedlikelytobeapublicchargesbasedsolely ontheirprojectedfutureeligibilityforpublicbenefits,withoutregardtotheirabilitytoworkor tosupportthemselves.Incontrasttothehistoricalexclusionrateoflessthanonepercent,“the proposed redefinition [of ‘public charge’] would mean that most native-born, working-class Americansareorhavebeenpubliccharges.”CenterforAmericanProgressComment,D.Ct. Dkt.50-29,at15.DefendantshaveofferednoevidencethatCongresseverintendedtopermit that extraordinary result.
Thedistrictcourtproperlyfound,basedonlargelyuncontradictedevidence,thattheRule willcauseenormousharmtoplaintiffs,immigrants,theirfamilies(includingcitizenchildren), andtheNation.Asthedistrictcourtconcluded,theRulewould“exposeindividualstoeconomic insecurity,healthinstability,denialoftheirpathtocitizenship,andpotentialdeportation.”App. 46a.ThisharmisnotlimitedtononcitizenswhoarecoveredbytheRule.ByDHS’sown estimates,theRulewillcausehundredsofthousandsofindividualsandhouseholds,inmany cases noncitizens not even subject to public charge scrutiny, to forego public benefits for which theyareeligible,outoffearandconfusionabouttheconsequencesfortheirimmigrationstatusof acceptingsuchbenefits.SeeNoticeofProposedRulemaking,83Fed.Reg.51,114,51,269& Table53(Oct.10,2018).Asaresult,DHSprojectedthattheRulewouldleadtoadversehealth outcomesincludingincreasedmalnutrition(especiallyforpregnantorbreastfeedingwomen, infants,orchildren)andincreasedprevalenceofcommunicablediseases,increasedpovertyand
3

housing instability, reduced productivity, and other “unanticipated consequences.” See id. at 51,270.Thestaythatdefendantsseekwouldexacerbatethisharmbycreatingevenmore confusion and uncertainty.
Finally,thedistrictcourtdidnotabuseitsdiscretioninenjoiningtheRulenationwide. TheinjunctionisconsistentwithCongress’sdirectiveintheAdministrativeProcedureAct (“APA”)thatthecourts“setaside”unlawfulagencyaction,5U.S.C.§706,anditsgrantof authoritytothecourtsto“postponetheeffectivedate”ofsuchaction,id.§705.Thedistrictcourt foundthatanationwideinjunctionwasnecessarytoprovidecompletepreliminaryreliefto plaintiffs,includingplaintiffCatholicLegalImmigrationNetwork,Inc.(“CLINIC”)which supportsaffiliatesin49statesandtheDistrictofColumbia.Thecourtsofappealsshouldbe allowed,afterfullbriefingandargumentandreviewoftheevidentiaryrecord,toaddressthe scopeofanyinjunctioninthefirstinstance.Thatthelowercourtshavecometodifferent conclusionsastowhethertostaypreliminaryinjunctionspendingthoseappealsdoesnotsubject defendantstoinconsistentdirectives,orotherwisecreateaneedforthisCourttointervenebefore the courts of appeals address the merits.
TheCourtshoulddeclinedefendants’invitationtointerveneatthisstage,andallowthe normalappellateprocesstoproceed.
STATEMENTOFTHECASE I. THEHISTORYOF“PUBLICCHARGE”
Sincetheterm“publiccharge”firstbecamepartofU.S.immigrationlawaspartofthe ImmigrationActof1882,ithasbeeninterpretedandappliednarrowlybycourtsandagenciesto referonlytoasmallnumberofnoncitizenswhoareunabletocareforthemselves,and accordinglyarelikelytobeinstitutionalizedorotherwiseprimarilydependentonthegovernment forsubsistence.Congresshasrepeatedlyapprovedthatinterpretation,mostrecentlyin1996.It
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hasneverauthorizedtheExecutivetoredefine“publiccharge”—astheRulenowseekstodo—to refertoanyoneexpectedtoreceivebenefitsusedbymillionsofworkingAmericans.Onthe contrary, it has expressly rejected legislative efforts to achieve that result.
A. TheOriginal Meaningof“PublicCharge”ReferredtoNarrowClassesof PersonsUnabletoCareforThemselves
Theterm“publiccharge”firstappearedinfederalimmigrationlawintheImmigration Actof1882,47thCong.ch.376,22Stat.214,§2,whichprovidedthat“anypersonunableto takecareofhimselforherselfwithoutbecomingapubliccharge”couldbedeniedadmissionto theUnitedStates.Laterenactmentsadoptedthecurrentphrasing:“likelytobecomeapublic charge.”E.g.,1891ImmigrationAct,51stCong.ch.551,26Stat.1084§1.Undercurrentlaw, thestatuteappliesbothtononcitizensseekingadmissionandtothosealreadyresidinginthe UnitedStatesandseekingtoadjusttheirstatustothatoflawfulpermanentresident.See8U.S.C. § 1255(a).
AstheNinthCircuitacknowledgedingrantingdefendants’motiontostaytheinjunctions issuedfromdistrictcourtswithinthatcircuit,“[t]he1882actdidnotconsideranaliena‘public charge’ifthealienreceivedmerelysomeformofpublicassistance.”City&Cty.ofS.F.v. USCIS,944F.3d773,793(9thCir.2019).Inenactingthe1882Act,Congressintended“public charge”torefertothoselikelytobecomelong-termresidentsof“poor-housesandalmshouses”—i.e.,personswhowereinstitutionalizedandwhollydependentonthegovernmentfor subsistence.13Cong.Rec.5109(June19,1882)(statementofRep.Davis).TheActexpressly recognizedthataneedforshort-termpublicassistancedidnotrenderapersonapubliccharge. Thus,theActestablishedan“immigrantfund”toprovideassistanceforimmigrantswho,while notexcludibleaslikelypubliccharges,mightrequiretemporary“care”and“relief”fornew
5

immigrants“untiltheycanproceedtootherplacesorobtainoccupationfortheirsupport.”22 Stat.214,§1;13Cong.5106(June19,1882)(statementofRep.Reagan).
ConsistentwithCongress’sintentthatatemporaryneedforpublicassistancewouldnot renderanimmigrantapubliccharge,thisCourt,initsonlydecisionconstruingthepubliccharge provision,heldthattheprovisionwasintendedonlytoexcludeimmigrants“onthegroundof permanentpersonalobjectionsaccompanyingthem,”ratherthanthoseneedingtemporary assistanceorwhomightbeunabletofindwork.Gegiowv.Uhl,239U.S.3,10(1915).Other decisionsfromthesameperiodlikewisefoundtheprovisiontoapplyonlyto“personswhowere likelytobecomeoccupantsofalmshousesforwantofmeanswithwhichtosupportthemselves inthefuture.”Howev.UnitedStatesexrel.Savitsky,247F.292,294(2dCir.1917).
B. AdministrativeDecisionsforNearlyaCenturyAffirmThat MereReceiptof Public Benefits Does Not Render the Recipient a Public Charge
Theoriginalscopeof“publiccharge”asreferringsolelytopersonsunabletocarefor themselvesremainedinplacethroughoutthetwentiethcentury.Intheleadingadministrative caseofMatterofB-,3I.&N.Dec.323,324(B.I.A.1948),theBoardofImmigrationAppeals (“BIA”)heldthat“acceptancebyanalienofservicesprovidedbyaState...toitsresidents... doesnotinandofitselfmakethealienapubliccharge[forremovalpurposes].”Theholdingin MatterofB-hasbeenthelawformorethan70years.See,e.g.,Matterof Martinez-Lopez,10I. &N.Dec.409,421(B.I.A.1962;A.G.1964)(explainingthat,toexcludeanoncitizenaslikely tobecomeapubliccharge,“the[INA]requiresmorethanashowingofapossibilitythatthe alienwillrequirepublicsupport”);MatterofPerez,15I.&N.Dec.136,137(B.I.A.1974) (“Thefactthatanalienhasbeenonwelfaredoesnot,byitself,establishthatheorsheislikelyto
6

becomeapubliccharge.”).1Defendantshaveacknowledgedthattheseandotheradministrative decisions“clarifiedthat...receiptofwelfarewouldnot,alone,leadtoafindingoflikelihoodof becomingapubliccharge.”83Fed.Reg.at51,125.2
Administrativedecisionsoverdecadeshaveuniformlyfocusedonthenoncitizen’sability tocareforherself,includingthroughemployabilityorassistancefromfamily,notonthemere receiptofpublicbenefits.Totakejustafewexamples:
• MatterofT-,3I.&N.Dec.641(B.I.A.1949):Petitionerandsonnotexcludedonpublic chargegroundsbecausepetitionerwas“quitecapableofearningherownlivelihood independent of her husband” and the son was trained in tailoring.
• MatterofMartinez-Lopez,10I.&N.Dec.409(B.I.A.1962;A.G.1964):Petitionernot likelytobecomeapubliccharge,despitehisfalsifyinganofferofemployment,complete
1 Defendants’assertionthatMatterofB-heldthatanoncitizencouldbedeemedapublic charge merely because she received benefits consisting of “clothing, transportation, and other incidentalbenefits”andthosebenefitswerenotrepaidondemand,App.25&n.4,is unsupportedbythedecision.Theopinionsaysnothingaboutwhetherreceiptofsuch temporarybenefitswouldbesufficienttotriggerapublicchargefinding.Norwasthatissue presented,becausetherespondentinthatcasewasalong-termresidentofastatemental institution.Defendantshavepointedtonoadministrativedecisionintheseventyyearssince MatterofB-wasdecidedinwhichreceiptofsuch“incidental”benefits,alone,washeld sufficient to render a person a public charge. On the contrary, as late as 1996, Senator Alan Simpsonunsuccessfullyproposedameasuretoredefine“publiccharge”bystatutesoasto “override”MatterofB-,whichhearguedhadrenderedthepublicchargeprovision“virtually unenforcedandunenforceable.”142 Cong. Rec. S4401, S4408–09(1996). Congress’s rejectionofthisproposalisdiscussedfurtherbelow.Seeinfrapp.11–12.
2 Defendantscitethe1933and1951editionsofBlack’sLawDictionary,App.24,anda1929 immigrationtreatise,App.25(quotingArthurCooketal.,ImmigrationLawsoftheUnited States§285(1929)),insupportoftheclaimthatreceiptof“any”amountofpublicbenefits historically rendered the recipient a public charge. But all three of these sources rely for this purposeonasinglecase,ExParteKichmiriantz,283F.697(N.D.Cal.1922),andthatcase doesnotsupportdefendants’position.ThecourtinKichmiriantzheldthattherespondentwas notapublicchargedespitehavingbeen“committedtotheStocktonStateHospitalforthe insane”withinfiveyearsofadmission,andwas(accordingtotestimonyfromanexamining physician)“unabletocareforhimselfinanyway.”Id.at697–98.Thecourtultimatelyfound himnottobeapublicchargebecausehisfamilycoveredthecostofhis“careand maintenance.”Id.at698.Farfromsupportingthenotionthatthereceiptof“any”amountof publicbenefitsrendersapersonapubliccharge,Kichmiriantzreflectstheconsistent historicalfocusofthetermonthosewhollyunabletocareforthemselves.Id.at697. 7

lack of English fluency, and only $50 in assets, when he was young, had work experience intheUnitedStates,andhadfamilyinUnitedStatesthatwaswillingtoassisthim. • MatterofHarutunian,14I.&N.Dec.583(1974):Petitionerlikelytobecomeapublic charge because she was 70, “incapable of earning a livelihood,” “had no one responsible for her support,” and expected to be dependent on old-age cash assistance. • MatterofPerez,15I.&N.Dec.136(B.I.A.1974):Petitionernotlikelytobecomea public charge despite past receipt of welfare because having been “on welfare does not, byitself,establishthatheorsheislikelytobecomeapubliccharge”andshewas28, healthy,capableoffindingemployment,andsupportedbyfamily. • MatterofVindman,16I.&N.Dec.131(BIA1977):Petitionerslikelytobecomepublic charges because they were 66 and 54 years old, had received public cash assistance for thepastthreeyears,andwereunemployedwithnofutureprospects. • MatterofA-,19I.&N.Dec.867(B.I.A.1988):Petitionernotlikelytobecomeapublic charge although neither she nor her spouse had worked during the past four years and her familyreceivedcashassistance,asshewas“young,”employed,andabletoearnaliving. Inkeepingwiththenarrowscopeof“publiccharge,”Federalimmigrationofficialshave consistentlyexcludedonlyaminusculepercentageofarrivingimmigrantsonpubliccharge grounds.Ofthe21.8millionimmigrantsadmittedtotheUnitedStatesaslawfulpermanent residentsbetween1892and1930,lessthanonepercentweredeemedinadmissibleonpublic chargegrounds,asshownbyDHS’sowndata.Thesamehasbeentrueinsubsequentyears. Between1931and1980(thelastyearforwhichDHSpublishessuchdata),only13,798 immigrantswereexcludedonpublicchargegroundsoutofmorethan11millionadmittedas lawfulpermanentresidents—anexclusionrateofaboutone-tenthofonepercent.3
3 SeeDep’tofHomelandSecurity,Table1.PersonsObtainingLawfulPermanentResident Status:FiscalYears1820to2016(Dec.18,2017),D.Ct.Dkt.50-11;Immigrationand NaturalizationService,2001StatisticalYearbookoftheImmigrationandNaturalization Service 258 (2003), D. Ct. Dkt. 50-12. 8

C. CongressHasApprovedAdministrativeInterpretationsbyRepeatedly ReenactingthePublicChargeProvisionsoftheINAWithout Material Change
Congresshasapprovedthesejudicialandadministrativeinterpretationsof“public charge”byrepeatedlyreenactingthepublicchargeprovisionsoftheINAwithoutmaterial change.In1952,fouryearsafterMatterofB-wasdecided,Congressreenactedthepubliccharge provisionintheImmigrationandNationalityActof1952withoutpurportingtochangeits interpretation.66Stat.163,183.Defendantsciteastatementina1950Senatereportstatingthat because“theelementsconstitutinglikelihoodofbecomingapublicchargearevaried,there shouldbenoattempttodefinetheterminthelaw.”S.Rep.No.81-1515,at349(1950)(quoted atApp.26).ButthatstatementonitsfacereflectsonlyCongress’srecognitionthatdetermining whetheranindividualnoncitizenislikelytobeapublicchargeisnecessarilyfact-specific. Nothing in the report suggests that Congress intended to authorize the Executive to redefine the statutoryterm“publiccharge”itself.
Almost40yearslater,intheImmigrationActof1990,Congressagainreenactedthe publicchargeprovisionwithoutmaterialchange.ImmigrationActof1990,Pub.L.No.101-649, §§601–03,104Stat.4978,5067–85.Thelegislativehistoryofthe1990Actnotedthatcourts hadassociatedlikelihoodofbecomingapublicchargenotbyreferencetomerereceiptof benefits,butbypeggingthestatusto“destitutioncoupledwithaninabilitytowork.”Staffofthe H.Comm.ontheJudiciary,100thCong.,GroundsforExclusionofAliensUnderthe ImmigrationandNationalityAct:HistoricalBackgroundandAnalysis121(Comm.Print1988). Again,Congressdeclinedtodepartfromthatdefinition.
Congressagainchosenottodisturbthesettledunderstandingof“publiccharge”intwo majorpiecesoflegislationenactedin1996thatotherwiseaddressednoncitizenuseofpublic benefitsandpublicchargedeterminations.First,inthePersonalResponsibilityand Work
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OpportunityReconciliationAct(“PRWORA”),Congressrestrictedcertainnoncitizens’ eligibility for certain federal benefits. See Pub. L. No. 104-193, § 403, 110 Stat. 2105, 2265–67 (1996)(codifiedat8U.S.C.§1613).But,followingthepassageofPRWORAandsubsequent legislation,manynoncitizensremainedeligibleforfederalbenefits,including Medicaidand SNAP,andstateswereauthorizedtoprovidebenefitstomanyothers.Seegenerally8U.S.C. §§1612–13.Asdefendantsnote,PRWORA’sstatementofpolicyprovidesthatnoncitizens should “not depend on public resources to meet their needs.” 84 Fed. Reg. at 41,294 (quoting 8 U.S.C.§1601(2)(A)).ButCongresshasplainlyconcludedthatallowingnoncitizenstoreceive certain benefits is consistent with that purpose. Indeed, since 1996, Congress has expanded noncitizenaccesstobenefits,includingSNAPand Medicaid.4
Thesecondrelevantstatuteenactedin1996,theIllegalImmigrationReformand ImmigrantResponsibilityAct(“IIRIRA”),likewisedidnotoverturnthesettledinterpretationof theINA’spublicchargeprovisions.SeePub.L.No.104-208,div.C,§531,110Stat.3009,3674 (1996)(amending8U.S.C.§1182(a)).Thestatute,enactedonemonthafterPRWORA, amendedthepublicchargeadmissibilityprovisiononlytocodifytheexistingstandardthata determinationwhetheranoncitizenwaslikelytobecomeapublicchargeshouldbebasedonthe “totalityofthecircumstances,”andshouldtakeaccountoftheapplicant’sage;health;family
4 SeeAgriculturalResearch,EducationandExtensionActof1998,Pub.L.No.105-185 (1998)(restoringeligibilityforcertainelderly,disabled,andchildimmigrantswhoresidedin theUnitedStateswhenPRWORAwasenacted);FarmSecurityandRuralInvestmentActof 2002,Pub.L.No.107-171(2002)(restoringeligibilityforfoodstamps(nowSNAP)to qualifiedimmigrantadultswhohavebeenintheUnitedStatesatleastfiveyears,and immigrantsreceivingcertaindisabilitypaymentsandforchildren,regardlessofhowlong they have been in the country); Children’s Health Insurance Reauthorization Act of 2009, Pub.L.No.111-3(2009)(providingstatesanoptiontocoverlawfullypresentimmigrant childrenandpregnantwomenunderthefederal MedicaidandChildren’sHealthInsurance Programprograms). 10

status;assets,resources,andfinancialstatus;andeducationandskills.See8U.S.C. §1182(a)(4)(B)(i).ButCongressotherwisereenactedtheexistingINApubliccharge admissibilityprovisionwithoutmaterialchange.
Congress’sdecisionnottoexpandthesettledmeaningof“publiccharge”ineitherofthe 1996statuteswasnotanoversight.InenactingIIRIRA,Congressexpresslyconsideredand rejectedaproposalthatwouldhavedefinedpublicchargeforpurposesofremovalasa noncitizenwhoreceivescertainbenefits—including Medicaid,foodstamps,andanyother needs-basedbenefits—formorethan12months.ImmigrationControl&Financial ResponsibilityActof1996,H.R.2202,104thCong.§202(1996).Aproponentoftheproposed amendmentexplainedthatitwasintendedtooverride“a1948decisionbyanadministrativelaw judge”(i.e.,MatterofB-),whichhearguedhadrenderedthepublicchargeprovision“virtually unenforcedandunenforceable.”142Cong.Rec.S4401,S4408–09(1996)(statementofSen. Simpson);seesupran.1.
Theproposedamendmenttoredefine“publiccharge”passedtheHousebutwas withdrawnintheSenateunderthreatofPresidentialveto.142Cong.Rec.S11872,S11881–82 (1996).Contrarytodefendants’unsupportedassertionthatoppositiontotheamendmentwas drivenonlybyconcernaboutundulyrestrictingtheExecutive’spowertodefine“publiccharge,” App.27,PresidentClintonthreatenedtovetoanyimmigrationbillthatwent“toofarindenying legalimmigrantsaccesstovitalsafetynetprogramswhichcouldjeopardizepublichealthand safety.”StatementonSenateActiononthe“ImmigrationControlandFinancialResponsibility Actof1996,”32 WeeklyComp.Pres.Doc.783(May2,1996).Likewise,aleadingopponentof theamendmentexpressedconcernthatitwas“tooquicktolabelpeopleaspublicchargesfor utilizingthesamepublicassistancethatmanyAmericansneedtogetontheirfeet,”andargued
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thattheproposed“definitionofpublicchargegoestoofarinincludingavastarrayofprograms noneofusthinkofaswelfare,”includingmedicalservicesandsupplementalnutritional programs.S.Rep.No.104-249,at63–64(1996)(statementofSen.Leahy).
In 2013, Congress again turned back efforts to redefine public charge to include anyone whoreceivedmeans-testedpublicbenefits.DuringdeliberationsontheproposedBorder Security,EconomicOpportunity,andImmigration ModernizationAct,abillthatsoughttocreate apathtocitizenshipfornoncitizenswhocouldshowtheywere“notlikelytobecomea‘public charge,’” Senator Jefferson B. Sessions, later Attorney General while the Rule was under developmentatDHS,soughttoamendthedefinitionofpublicchargetoincludereceiptof “noncashemploymentsupportssuchas Medicaid,theSNAPprogram,ortheChildren’sHealth InsuranceProgram.”S.Rep.No.113-40,at38,42,63(2013).SenatorSessions’sproposed amendmentwasrejectedbyvoicevote.Id.at42,63.
D. AdministrativeFieldGuidancefrom1999ConfirmedtheSettled Interpretation of Public Charge
In1999,threeyearsafterthepassageofPRWORAandIIRIRA,andunderthe administrationofthesamePresidentwhosignedthemintolaw,theImmigrationand NaturalizationService(“INS,”thepredecessoragencytodefendantU.S.Citizenshipand ImmigrationServices(“USCIS”))issueditsFieldGuidanceonDeportabilityandInadmissibility onPublicChargeGrounds(“FieldGuidance”),64Fed.Reg.28,689(May26,1999),anda parallelproposedregulation,64Fed.Reg.28,676(May26,1999).INSexplainedthattheField Guidance“summarize[d]longstandinglawwithrespecttopubliccharge,”andprovided“new guidanceonpublicchargedeterminations”inlightoftherecentlegislation.64Fed.Reg.at 28,689.DefendantshavecitednocontemporaneousevidencequestioningINS’sinterpretationof PRWORAorIIRIRA.TheFieldGuidanceremainsineffecttoday.
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TheFieldGuidancereaffirmedtheagency’slongstandingapproachtopublicchargeas onefocusedontheabilityofnoncitizenstosupportthemselves.Itdefined“publiccharge”asa noncitizen“whoislikelytobecome(foradmission/adjustmentpurposes)‘primarilydependent onthegovernmentforsubsistence,asdemonstratedbyeither(i)thereceiptofpubliccash assistanceforincomemaintenanceor(ii)institutionalizationforlong-termcareatgovernment expense.’”Id.Anditexcludedfromconsiderationinpublicchargedeterminationsreceiptof noncashbenefitssuchas Medicaid,SNAP,andhousingassistance,onthegroundthatthose benefits“arebytheirnaturesupplementalanddonot,aloneorincombination,providesufficient resourcestosupportanindividualorfamily.”Id.at28,692. II. DHS’SPROPOSED“PUBLICCHARGE”RULE
DHSissuedtheproposedRulefornoticeandcommentonOctober10,2018.83Fed. Reg.51,114. Morethan260,000commentsweresubmitted,the“vastmajority”ofthemin opposition.84Fed.Reg.at41,297.TheFinalRule,largelyrejectingthosecomments,was publishedintheFederalRegisteronAugust14,2019.Seeid.at41,292.
TheRuledefines“publiccharge”tomeananypersonwhoreceivesanyamountof specified“publicbenefits”formorethan12monthsinany36-monthperiod.Proposed8C.F.R. §212.21(a).TheRulespecifiesthatreceiptoftwobenefitsinonemonthcountsastwomonths, sothatapersoncouldbedeemedapublicchargeforparticipatinginfourseparatebenefit programsforthreemonthsinanythree-yearperiod.Id.Itdefines“publicbenefit”tomeancash benefitsorbenefitsfromspecifiednoncashprogramsthatoffershort-termorsupplemental supporttoeligiblerecipients,includingSNAP,federal Medicaid(withcertainexclusions5),
5 MedicaidbenefitsexceptedfromtheRule’spublicchargeanalysisincludebenefitspaidfor anemergencymedicalcondition,servicesorbenefitsprovidedundertheIndividualswith DisabilitiesEducationAct,school-basedbenefitsprovidedtochildrenatorbelowthe 13

Section8HousingAssistance,Section8Project-BasedRentalAssistance,andPublicHousing undersection9oftheU.S.HousingActof1937.Proposed8C.F.R.§212.21(b).
Theundisputedevidencebeforethedistrictcourtshowsthatreceivingthesenoncash benefitsdoesnotconnotedestitutionoralackofself-sufficiency.Onthecontrary,thesebenefits arewidelyusedbyworkingfamiliesandareavailabletomanyindividualsandfamilieswith incomeswellabovethepovertylevel.SchanzenbachDecl.,D.Ct.Dkt.40,¶¶6–19&Tables1– 3(discussingSNAPeligibilityanduse);AllenDecl.,D.Ct.Dkt.41,¶¶10–22(discussing federalhousingbenefiteligibilityanduse);KuDecl.,D.Ct.Dkt.42,¶¶16–22,79–81 (discussing Medicaideligibilityanduse).AstheFieldGuidanceexplainedinconcludingthat suchbenefitsshouldbeexcludedfrompublicchargeconsiderations,thosebenefits“are increasinglybeingmadeavailabletofamilieswithincomesfarabovethepovertylevel, reflecting broad public policy decisions about improving general public health and nutrition, promotingeducation,andassistingworking-poorfamiliesintheprocessofbecomingselfsufficient.” 64 Fed. Reg. at 28,692.
Apersoncanbedeemedlikelytobeapublicchargewithouthavingreceivedanypublic benefitsinthepast.Instead,theRulecreatesacomplexandconfusingschemeofpositiveand negative“factors,”including“heavilyweighted”factors,forUSCISpersonneltoconsiderin makingthatdetermination.Proposed8C.F.R.§212.22.Thesefactorsfocusoverwhelminglyon theapplicant’sincomeandfinancialresources.Thestrongcorrelationbetweenthesefactors (suchaslowincome(regardlessofemploymentstatus),alowcreditscore,oramedical conditionrequiringextensivemedicaltreatmentandlackofprivatehealthinsurance)leadstoa
eligible age for secondary education, and benefits received by children under 21 years of age orwomenduringpregnancyand60dayspost-partum.Proposed8C.F.R.§212.21(b)(5).
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snowballeffectinwhichasinglecharacteristic—lowincomeorlimitedmeans—triggers multiplenegativefactors,makingapublicchargefindingvirtuallyinevitable.
TheRulewoulddramaticallyincreasethenumberofpersonspotentiallydeemedapublic charge.AccordingtoaKaiserFamilyFoundationanalysis,94percentofnoncitizenswho originallyenteredtheUnitedStateswithoutlawfulpermanentresidentstatushaveatleastone characteristicthatcouldbeweighednegativelyinapublicchargedetermination,and42percent havecharacteristicsthatcouldbetreatedasheavilyweightednegativefactors.SamanthaArtiga etal.,KaiserFamilyFoundation,EstimatedImpactsoftheProposedPublicChargeRuleon Immigrantsand Medicaid,D.Ct.Dkt.50-28,at1(Oct.2018).AnotherstudysubmittedtoDHS duringthenotice-and-commentprocessshowedthatbetween40and50percentofU.S.-born individualscoveredbya2015surveyparticipatedinoneofthelistedbenefitprogramsbetween 1998and2014.CenteronBudgetandPolicyPriorities(“CBPP”)Comment,D.Ct.Dkt.50-20, at9–10.Defendantshavenotchallengedtheseestimates. III. PROCEDURAL HISTORY
OnAugust27,2019,plaintiffs—fivenonprofitorganizationsthatserveandadvocatefor low-incomenoncitizens—commencedthisactionbyfilingacomplaintintheUnitedStates DistrictCourtfortheSouthernDistrictofNewYork,assertingclaimsundertheAPAandthe EqualProtectionguaranteeoftheFifthAmendment.TheStatesofNewYork,Connecticut,and VermontandtheCityofNewYorkfiledarelatedactionthatwasassignedtothesamedistrict judge(the“NewYorkAction”).ThiscaseandtheNewYorkActionhaveproceededintandem. Otherstates,municipalities,andnonprofitorganizationsfiledsevensimilaractionsinfourother district courts.
OnSeptember9,2019,plaintiffsmovedtopreliminarilyenjointheRuleandpostponeits proposedeffectivedate.PlaintiffsintheNewYorkActionsubmittedasimilarmotion.The
15

partiescollectivelysubmittedhundredsofpagesofbriefsandsupportingmaterialsonthose motions,including26expertandfactdeclarations.Amici—includingtheAmerican Medical Association,theAmericanAcademyofNursing,andtheAmericanAcademyofPediatrics— submittedtenbriefs,allbutoneurgingthattheRulebeenjoined,andexplainingthedirepublic healthandotherconsequencestheyexpectedfromtheRule.
OnOctober11,2019,thedistrictcourtgrantedplaintiffs’motions,andissued preliminaryinjunctionsinbothcasesbarringenforcementoftheRuleandpostponingits effectivedateunder5U.S.C.§705.App.69a–71a.Eachofthefourotherdistrictcourtsinwhich theRulewaschallengedalsopreliminarilyenjoinedit,insomecasesnationwideandinother caseswithamorelimitedgeographicscope.
Defendants appealed these injunctions to the Second, Fourth, Seventh, and Ninth Circuits.Defendantsalsomovedineachdistrictandcircuitcourtforastaypendingappeal.The Second Circuit denied defendants’ motion, noting that the appeal was expedited and that the meritspanel“hasfullauthoritytoconsiderthescopeoftheexistinginjunction.”App.65a.The SeventhCircuit(withonedissent)likewisedeniedastay.DividedpanelsoftheFourthandNinth Circuitsstayedthepreliminaryinjunctionsenteredbydistrictcourtsinthosecircuits.CA2Dkt. 56,60,92(ordersfrompanelsofNinth,Fourth,andSeventhCircuits).OnlytheNinthCircuit panelissuedadetailedopinion.SeeSanFrancisco,944F.3d773.
Themeritsportionsoftheseappealsarepending,andbriefingandargumenthasbeen expedited.Allofthem,includingthiscase,willbefullybriefedonFebruary14,2020.Oral argumentintheNinthCircuithasnotbeenscheduled,whileargumentintheSecond,Fourth,and SeventhCircuitsisscheduledortentativelyscheduledforFebruaryor March.
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ARGUMENT Defendantsbeara“heavyburden”tojustifythe“extraordinary”relieftheyseek.Whalen v.Roe,423U.S.1313,1316(1975)(Marshall,J.,inchambers).Inseekingastaypendingappeal, defendantsmustestablish: (1)areasonableprobabilitythatfourJusticeswillconsidertheissuesufficiently meritorioustograntcertiorari;(2)afairprospectthatamajorityoftheCourtwill votetoreversethejudgmentbelow;and(3)alikelihoodthatirreparableharmwill resultfromthedenialofastay.InclosecasestheCircuitJusticeortheCourtwill balancetheequitiesandweightherelativeharmstotheapplicantandtothe respondent. Hollingsworthv.Perry,558U.S.183,190(2010).Ashowingofirreparableharmisnecessary forastaytobegranted.Ruckelshausv.MonsantoCo.,463U.S.1315,1317(1983)(Blackmun, J.,inchambers)(“Anapplicant’slikelihoodofsuccessonthemeritsneednotbeconsidered... iftheapplicantfailstoshowirreparableinjuryfromthedenialofthestay.”);Williams v.Zbaraz, 442U.S.1309,1312(1979)(Stevens,J.,inchambers)(“Thequestion,then,isonlywhetherthe DistrictCourt’sinjunctionshouldbeobservedintheinterim.Unlesstheapplicantswillsuffer irreparableinjury,itclearlyshouldbe.”).AsJusticeStevensnotedinWilliams, Inaddressingtheirreparable-injuryissue,thetaskofajudgeorJusticeisto examinethecompetingequities,ataskthatinvolvesbalancingtheinjurytoone sideagainstthelossesthatmightbesufferedbytheother.... Wherethereis doubt, it should inure to the benefit of those who oppose grant of the extraordinary relief which a stay represents. Id.at1312(internalquotationmarks,citations,andalterationsomitted). “BecausethismatterispendingbeforetheCourtofAppeals,andbecausetheCourtof Appealsdenied[their]motionforastay,[defendants]ha[ve]anespeciallyheavyburden.” Packwoodv.SenateSelectComm.onEthics,510U.S.1319,1320(1994)(Rehnquist,C.J.,in chambers).Suchstaysare“rareandexceptional,”andaregrantedonly“upontheweightiest considerations.”Fargo Women’sHealthOrg.v.Schafer,507U.S.1013,1014(1993)
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(O’Connor,J.,concurringindenialofstayapplication)(votingtodenystaydespiteviewthat lowercourtdecisionswere“inconsistent”withSupremeCourtprecedent);seealsoPasadena CityBd.ofEd.v.Spangler,423U.S.1335,1336(1975)(Rehnquist,J.,inchambers) (“OrdinarilyastayapplicationtoaCircuitJusticeonamattercurrentlybeforeaCourtof Appealsisrarelygranted.”);Edwards,512U.S.at1302(“[W]henadistrictcourtjudgmentis reviewablebyacourtofappealsthathasdeniedamotionforastay,theapplicantseekingan overridingstayfromthisCourtbears‘anespeciallyheavyburden.’”(quotingPackwood,510 U.S.at1320)). I. DEFENDANTS WILLSUFFERNOIRREPARABLEINJURY
DefendantscannotestablishirreparableharmfromadelayinimplementingtheRule while the courts of appeals (and, if necessary, this Court) consider the pending appeals.
Thedistrictcourt’sinjunctionmerelymaintainsthestatusquo.Itdoessobyrequiring DHStocontinueapplyingtheFieldGuidancethathasguidedpublicchargedeterminationsby DHSanditspredecessorsformorethantwentyyears(includingalmostthreeyearsbeforethe currentAdministrationsoughttoadopttheRule).DefendantshaveconcededthattheField Guidanceisalawfulimplementationofthepublicchargeprovision.SeeDefts. Memo.ofLawin Opp.to Mot.forPrelim.Inj.,D.Ct.Dkt.129,at21(“The1999InterimFieldGuidance... illustrate[s] an exercise of the authority Congress has delegated to the Executive Branch to define ‘publiccharge’withinthebroadlimitsofitsplainmeaning....”);seealsoAppellant’s Mot.for StayPendingAppeal,CA2Dkt.24,at13.DHSremainsabletodenyadmissionorstatus adjustmenttononcitizensitdeemslikelytobepublicchargesunderthestandardssetforthinthe FieldGuidance.Thatdefendantswishtoimplementadifferentpublicchargeruledoesnot rendertheFieldGuidanceunlawful,orimplythattheinjunctionrequiresittograntstatus adjustmentto“thosenotlegallyentitledtoit.”App.40(quotingSanFrancisco,944F.3dat
18

806).Incontrasttootherrecentcasesinwhichthegovernmenthassoughtastaypendingappeal, defendantshaveidentifiednoemergencyorotherpressingjustificationfordepartingfromthe normalappellateprocessinthiscase.Cf.,e.g.,Appl.foraStayPendingAppealat3–4,Barrv. E.BaySanctuaryCovenant,No.19A230(U.S.Aug.26,2019)(assertinginjunctionprevented governmentfromaddressinga“crisisatthesouthernborder”);Appl.foraStayPendingAppeal at25–26,Trumpv.Hawaii,138S.Ct.542(Nov.20,2017)(No.17A550)(assertinginjunction interferedwithgovernment’s“foreign-policy,national-security,andcounterterrorism objectives”).
Thepurportedharmthatdefendantscitedoesnotsupportastay.Defendantscontendthat thegovernmentwillbeirreparablyharmedifitis“precludedfromimplementingitschosen policy.”App.4.Andtheyassertthat,iftheRuleremainsenjoined,somenoncitizenswillbe grantedlawfulpermanentresidencestatuswhowouldnothavereceivedthatstatusunderthe Rule,andthatDHShas“nopracticalmeansofrevisiting”thosedeterminations.App.40.
Thesegenericassertionsprovetoomuch.InanyAPAchallengetoadministrativeaction, aninjunctioninfavoroftheplaintiffsimpedestheExecutivefromimplementingitspreferred policy, and in many such cases Executive action taken under injunction will not be reversible. Thus,defendants’argument,ifaccepted,wouldmeanthatthisfactoralwaysfavorsthe governmentineveryAPAcase.ButthisCourthasroutinelyrecognizedthatthegovernmentis notirreparablyinjuredbymeredelayinimplementingapolicy,e.g.,Whalen,423U.S.at1317, orhavingtousedisfavoredcriteriaindecisionmaking,e.g.,Trumpv.Int’lRefugeeAssistance Project,137S.Ct.2080,2088–89(2017)(percuriam)(requiringgovernmenttoprocessvisa applications for certain classes of individuals despite Executive Order suspending entry); Ruckelshaus,463U.S.at1317(noirreparableharmtoEPAfromhavingtoabidebya
19

preliminaryinjunctionrequiringtheagencytoprocessapplicationstoregisterpesticideswithout collectingmanufacturers’tradesecrets).Andanyinjurysufferedbydefendantsasaresultofan injunctionpalesincomparisontothedemonstrableharmtheRulewillinflictonplaintiffsand immigrantcommunitiesaroundthecountryifitisallowedtotakeeffect,asdiscussedfurther belowinSectionIII. II. THECOURTISUNLIKELYTOGRANTCERTIORARIANDREVERSE
Defendants’ speculation that the Court would grant certiorari “if the court of appeals ultimatelyupholdsthedistrictcourt’snationwidepreliminaryinjunctions,”App.15,highlights whythisapplicationispremature.Defendantshypothesizepotentialconflictsbetweenthecourts of appeals that may exist if they reach differing results on the merits, and suggest that they may seekcertiorarionthenationwidescopeoftheinjunctionifitsurvivesappellatereview.Seeid.at 15–16.Suchconjecturecannotsatisfydefendants’heavyburdenofestablishinganeedfor immediateinterventionbythisCourt.6Inanyevent,defendantsshouldnotprevailonthemerits.
6 Defendants’contentionthat,iftheSecondCircuitrulesinfavorofplaintiffsonthemerits,it willinevitablycreateasplitwiththeNinthCircuit(App.15–16)assumesthatthedecisionby theNinthCircuitmotionpanelwillbefollowedbythemeritspanel.ButseeUnitedStatesv. Houser,804F.2d565,568(9thCir.1986)(“[W]hileameritspaneldoesnotlightlyoverturn adecisionmadebyamotionspanelduringthecourseofthesameappeal,”it“do[es]not applythelawofthecasedoctrineasstrictly”aswhenconsideringapriormeritspanel’s determination.).ItignoresaswellthepossibilitythattheNinthCircuitwillgrantthe plaintiffs’pendingmotionsforenbancreviewofthemotionpaneldecision,seeCounties’ Mot.forReconsiderationEnBanc, City&Cty.ofS.F.v.USCIS,No.19-17213(9thCir.Dec. 19,2019),Dkt.30,orwouldgrantenbancreviewfollowingapaneldecisiononthemerits, in light of the dissent on the panel and contrary rulings denying stays in the Second and Seventh Circuits. See 9th Cir. Rule 35-1 (noting as “appropriate ground[s] for rehearing en banc that a panel opinion “conflicts with an existing opinion by another court of appeals and substantially affects a rule of national application in which there is an overriding need for nationaluniformity”).Thedefendants’needtospeculateabouthowthecourtsofappealswill addresstheseissuesonlyunderscorestheprematurenatureofthisapplication. 20

A. PlaintiffsHaveStandingandAre WithintheZoneofInterestsoftheINA Defendantsareunlikelytoprevailontheircontentionthatplaintiffslackstandingunder ArticleIII.App.17–18.Anorganizationestablishesaninjury-in-factsufficienttoconfer standingifthedefendants’actionshave“perceptiblyimpaired”itsactivitiesor“drain[edits]... resources.”HavensRealtyCorp.v.Coleman,455U.S.363,379(1982).Thepresenceofone partywithstandingissufficienttosatisfyArticleIII.SeeBowsharv.Synar,478U.S.714,721 (1986).Asthedistrictcourtfound,“theRuleforces[plaintiffs]todevotesubstantialresourcesto mitigateitspotentiallyharmfuleffects—resourcesthatPlaintiffscouldandwouldhaveusedfor otherpurposes.”App.33a.7Such“concreteanddemonstrableinjurytothe[plaintiff] organization[s’]activities—withtheconsequentdrainonthe[plaintiff]organization[s’] resources—constitutesfarmorethansimplyasetbacktothe[plaintiff]organization[s’]abstract socialinterests.”HavensRealty,455U.S.at379. PlaintiffsarealsowellwithinthezoneofinterestsoftheINA.SeeApp.17–18.Inan APAchallengetoadministrativeaction,thezoneofinterestsinquiry“isnotespecially demanding”andforeclosessuit“onlywhenaplaintiff’sinterestsaresomarginallyrelatedtoor inconsistentwiththepurposesimplicitinthestatutethatitcannotreasonablybeassumedthat Congressauthorizedthatplaintifftosue.”LexmarkInt’l,Inc.v.StaticControlComponents,Inc., 572U.S.118,130(2014)(quotationmarksomitted);seealsoMatch-E-Be-Nash-She-WishBand
7 Forexample,asitsnoncitizenclientsturnawayfrompublicbenefitsoutoffearofharming theirimmigrationstatus,plaintiffAfricanServicesCommittee(“ASC”)hasexperiencedan increaseddemandforitsfoodpantries,Englishclasses,andhousingassistance,depleting resourcesthatwouldotherwisebeavailabletomeetotherclientneeds.NicholsDecl.,D.Ct. Dkt.46,¶¶17–19.Similarly,plaintiffsthatprovidedirectlegalservicesmustdevote additionaltimeandresourcestostatusadjustmentapplications,withcorrespondinglyless timeavailabletorepresentclientsinremovalandotherimmigrationmatters,OshiroDecl.,D. Ct. Dkt. 43, ¶¶ 27, 35, 41; Russell Decl., D. Ct. Dkt. 44, ¶¶ 22–24; Nichols Decl., D. Ct. Dkt. 46,¶¶21–26; WheelerDecl.,D.Ct.Dkt.48,¶¶10–16,and,insomecases,thisleadsto decreases in revenue, Nichols Decl., D. Ct. Dkt. 46, ¶¶ 25–26. 21

ofPottawatomiIndiansv.Patchak,567U.S.209,225(2012)(discussing“Congress’evident intentwhenenactingtheAPAtomakeagencyactionpresumptivelyreviewable.”(quotation marksomitted)).InassessingCongress’sintent,theCourtmustconsidernotonlythespecific provisionatissue,butits“overallcontext”and“Congress’overallpurposein”enactingthe statute.,Clarkev.Sec.Indus.Ass’n,479U.S.388,401(1987).Inlightofthemultipleprovisions oftheINAgivingimmigrantassistanceorganizationslikeplaintiffsaroleinhelpingnoncitizens navigatetheimmigrationsystem,seeE.BaySanctuaryCovenantv.Trump,932F.3d742,768– 69(9thCir.2018)(collectingstatutoryprovisions),plaintiffseasilysatisfythatstandard.
Defendants’contentionthatplaintiffs’onlyinterestisto“maintain[]enrollmentin public-benefitsprograms,”andisthereforecontrarytowhatdefendantsclaimisthepurposeof thepublicchargeprovision,App.18,reflectsafundamentalmisunderstandingofplaintiffs’roles inadvising,assisting,andadvocatingforimmigrants.8Defendantsalsoignore“Congress’ overallpurpose[s]”oftheINA,seeClarke,479U.S.at401–02,which,astheRuleconcedes, includepromoting“familyunity,diversity,andhumanitarianassistance.”84FedReg.at41,306. Theseareallcorecomponentsofplaintiffs’missions.
B. TheRuleIsContrarytotheINA TheCourtislikelytoholdthattheRuleshouldbesetasideundertheAPAbecauseitis contrarytotheINA,asdemonstratedbytheplainlanguageandhistoryofthepubliccharge inadmissibilityprovision.Defendants’relianceonstatementsofCongressionalpolicyandother statutory provisions to justify radically expanding the provision do not withstand scrutiny.
8 See,e.g.,OshiroDecl.,D.Ct.Dkt.43,¶¶5,36(plaintiff MaketheRoadNewYork’smission isto“build[]thepowerofimmigrantandworking-classcommunitiestoachievedignityand justicethroughorganizing,policyinnovation,transformativeeducation,andsurvival services”); Russell Decl., D. Ct. Dkt. 44, ¶¶ 4, 42; Nichols Decl., D. Ct. Dkt. 46, ¶¶ 4, 7–8, 10,12,15,18,20,24,26; Wheeler Decl., D. Ct. Dkt.48,¶¶10,14,16,18; Yoo Decl., D. Ct. Dkt.47,¶¶21–25. 22

TheRuleIsInconsistentwiththeMeaningof “PublicCharge”inthe INA Defendants’profferedinterpretationofthestatutoryterm“publiccharge”isinconsistent withthemeaningof“publiccharge”asithasbeenunderstoodformorethanacentury,andwith Congress’sdemonstratedintenttoapprovethatunderstanding. First,theRuleisinconsistentwiththeplainlanguageoftheINA.Asdiscussedabove,at thetimeitwasintroducedinfederalimmigrationlaw,theterm“publiccharge”referredtoa narrowcategoryofpersonswhoareinstitutionalizedorotherwisecompletelydependenton publicassistance,andthisinterpretationhasbeenconfirmedincaselawfromtheearlytwentieth century.SeeFood Mktg.Inst.v.ArgusLeader Media,139S.Ct.2356,2363–64(2019)(courts lookto“commonusage,”suchas“dictionarydefinitions”and“earlycaselaw,”to“shedlighton [a]statute’sordinarymeaning”).Seesuprapp.5–6. Second,theconsistent,century-longjudicialandadministrativeinterpretationof“public charge”asbeingunabletocareforoneselfandthereforeprimarilydependentonthegovernment forsubsistenceispowerfulevidenceofthemeaningofthatterm.“[A]long-standing, contemporaneousconstructionofastatutebytheadministeringagenciesisentitledtogreat weight,andwillbeshowngreatdeference.”Learyv.UnitedStates,395U.S.6,25(1969) (quotationmarks,alteration,andcitationsomitted).Asdiscussedabove,courtsandimmigration agencieshaveuniformlyheldthatreceipt(orlikelyfuturereceipt)ofbenefitsdoesnotrendera personapublicchargeabsentadditionalcircumstancesshowingthatsheisunlikelytobeableto fendforherself.Seesuprapp.6–8. TheadoptionoftheFieldGuidanceonlythreeyearsafterenactmentofPRWORAand IIRIRAfurthersupportsthisconclusion.AsthisCourthasheld,animplementingagency’s interpretationofastatutesoonafteritsenactmentisbetterevidenceofthestatute’smeaningand
23

Congress’sintentthanalater,inconsistentinterpretation.SeeSolid WasteAgencyofN.Cook Cty.v.U.S.ArmyCorpsofEng’rs,531U.S.159,168(2001)(lookingtoagency’s“original interpretation”oftheClean WaterAct,“promulgatedtwoyearsafteritsenactment,”aswellas theabsenceofany“persuasiveevidencethatthe[agency]mistookCongress’intent,”to determinethatalater,inconsistentinterpretationwasagainstcongressionalintent(emphasisin original));GoodSamaritanHosp.v.Shalala,508U.S.402,414(1993).Here,thedefinitionof “public charge” in the Field Guidance in 1999 is the best reflection of Congress’s intent, particularlyabsentany“persuasiveevidencethat[INS]mistook”thatintent.Solid WasteAgency, 531 U.S. at 168.
Third,Congress’srepeatedreenactmentofthepublicchargeprovisionwithoutmaterial changeevidencesitsapprovaloftheagencyinterpretation.“Itiswellestablishedthatwhen Congressrevisitsastatutegivingrisetoalongstandingadministrativeinterpretationwithout pertinent change, the ‘congressional failure to revise or repeal the agency’s interpretation is persuasiveevidencethattheinterpretationistheoneintendedbyCongress.’”CFTCv.Schor, 478U.S.833,846(1986);seeForestGroveSch.Dist.v.T.A.,557U.S.230,239–40(2009) (“Congressispresumedtobeawareofanadministrativeorjudicialinterpretationofastatuteand toadoptthatinterpretationwhenitre-enactsastatutewithoutchange....”);Toyota Motor Mfg., Ky.,Inc.v.Williams,534U.S.184,193–94(2002)(“Congress’srepetitionofawell-established termgenerallyimpliesthatCongressintendedthetermtobeconstruedinaccordancewithpreexistingregulatoryinterpretations.”).
ThelegislativehistoryheredemonstratesthatCongresswasawareoftheadministrative andjudicialinterpretationsdescribedabove.Seesuprapp.9–12.Congress’srepeated
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reenactmentsofthepublicchargeprovisionsoftheINAwithoutmaterialchangereflectitsintent toretainthelongstandingjudicialandagencyinterpretationsoftheterm.
Fourth,Congressionalintenttopreserveanagency’sinterpretationofastatuteis especiallyclearwhere,ashere,Congresshasrejectedlegislationspecificallyintendedto overturnthatinterpretation.Seesuprapp.11–12.InBobJonesUniversityv.UnitedStates,the CourtconsideredtheIRS’sdecade-olddeterminationthatprivateschoolspracticingracial discriminationwerenotentitledtotax-exemptstatus.461U.S.574,579(1983).Inupholdingthe agency’s interpretation of the relevant provision of the tax code, the Court found that Congress’s repeatedconsiderationandrejectionofbillsintendedtooverturntheIRS’sinterpretationwas “significant”evidenceof“Congressionalapprovalofthe[IRS]policy.”Id.at600–01.Seealso Michigan v.Bay MillsIndianCmty.,572U.S.782,801–02(2014)(Congressionalintentto approvelongstandingjudicialinterpretationofscopeoftribalimmunityclearwhenCongress considered,butdidnotenact,twobillsthatexpresslysoughttoabrogatethatinterpretation); UnitedStatesv.Bd.ofComm’rs,435U.S.110,134–35(1978)(Congress’sintenttoendorsean agency’sinterpretationisparticularlyclearwhereCongressreenactsastatuteand“manifest[s]its view”onanexistinginterpretation).TheCourthasplacedparticularweightonCongress’s decision—asitdidin1996,seesuprapp.11–12—toenactabillwithoutspecificlanguage overturningexistinglawthatpassedonechamberofCongressbutwasremovedduring conference.SeeAlbemarlePaperCo.v.Moody,422U.S.405,408,414n.8(1975)(findingthat “Congressplainlyratified”priorjudicialinterpretationwhenconferencecommittee“specifically rejected”languageoverturningthatinterpretation,andthebillpassedbothchamberswithout suchlanguage).TheseconsiderationsstronglyweighagainsttheRule.
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Defendants’ArgumentstotheContraryAreUnpersuasive Defendants’argumentsthattheRuleisanappropriateadministrativeexerciseofDHS’s authoritytoconstruethestatutearenotpersuasive. First,defendantsarguethattheRuleisjustifiedbythe“broaddiscretion”theyallegethe statutegivestotheExecutiveBranchtodefine“publiccharge.”9 App.20,25–26.Butwhilethe statuteundoubtedlygivestheExecutiveauthoritytodeterminewhetheranoncitizenislikelyto beapublicchargebasedonthetotalityofthecircumstancesinanindividualcase,thestatute doesnotgiveitunfettereddiscretiontoredefinethestatutoryterm“publiccharge”inawaythat isinconsistentwithdecadesofadministrativeandjudicialinterpretationandCongressional intent.10 InFDAv.Brown&WilliamsonTobaccoCorp.,529U.S.120,143-56(2000),for example,theCourtheldthattheFDAlackedauthoritytoregulatenicotineintobaccoand
9 Despiteinvokingtheagency’spurporteddiscretiontointerpretthe“publiccharge”provision, defendantsdonotanalyzetheRuleunderthisCourt’straditionaltwo-stepChevron frameworkapplicabletoagencyrulemaking.SeeChevronU.S.A.Inc.v.Nat.Res.Def. Council,Inc.,467U.S.837(1984).Asathresholdmatter,becausetheRuleinvolves questions“ofdeepeconomicandpoliticalsignificance,”including“billionsofdollarsin spending”andthehealthof“millionsofpeople,”itisexemptfromChevrondeferenceunder the“majorquestion”doctrine.SeeKingv.Burwell,135S.Ct.2480,2489(2015).Inany event, the Rule fails at both Chevron steps. Congressional intent is readily ascertainable at Chevronstepone,giventhelegislativehistoryandhistoricalbackdrop:theRuleissimply “inconsistentwiththeadministrativestructurethatCongressenactedintolaw.”FDAv. Brown&WilliamsonTobaccoCorp.,529U.S.120,125(2000)(quotingETSIPipeline Projectv.Missouri,484U.S.497,517(1988)).And,underChevronsteptwo,allinterpretive tools indicate that the Rule’s interpretation of the public charge provision “goes beyond the meaningthestatutecanbear.”MCITelecomm.Corp.v.Am.Tel.&Tel.Co.,512U.S.218, 229 (1994).
10 Thestatutoryreferenceto“theopinionof”theExecutiveindeterminingwhetheran individualnoncitizenislikelytobecomeapublicchargedoesnotonitsfaceauthorizethe agencytoredefinethestatutoryterm.Thesolecasecitedbydefendantsonthispoint, construingsimilarlanguageintheInternalRevenueCode,likewiseheldonlythattheIRS Commissionerappropriatelyexercisedhisauthorityinrejectingindividualtaxpayer’s accountingpractices.ThorPowerToolCo.v.Commissioner,439U.S.522,540(1979)(cited inApp.20).ThordoesnotsuggestthatsuchlanguageempowerstoExecutivetoredefinea statutoryterminthefaceoflongstandingcontraryadministrativeinterpretationrepeatedly approved by Congress. 26

tobaccoproductsthemselves,despitebroadstatutorygrantofauthoritytoregulate“drugs,” defined broadly as any “articles (other than food) intended to affect the structure or any function ofthebody.”TheCourtbaseditsdecisionupon,amongotherthings,the“rangeofplausible meanings”thatthestatutorylanguagecouldhavehadwhenthestatutewasenacted;its legislativehistory,includingrejectedeffortstoamendthestatutetograntFDAsuchauthority; andCongressionalreenactmentofthestatuteaftertheFDAtookthepositionthatitlacked jurisdictiontoregulatetobacco.Id.AccordUtilityAirRegulatoryGrp.v.EPA,573U.S.302, 316–24 (2014) (rejecting agency reading of statute in light of prior inconsistent agency interpretation,aswellasstatute’sstructureanddesign).Thesameconsiderationsforeclose defendantsfromredefining“publiccharge”here.
Second,defendants’relianceonstatementsofpolicyinPRWORAthat“alienswithinthe Nation’s borders not depend on public resources to meet their needs,” and that “the availability ofpublicbenefitsnotconstituteanincentiveforimmigrationtotheUnitedStates,”8U.S.C. §1601(2),ismisplaced.App.23.NothinginPRWORAindicatesthatthestatementsofpolicy wereintendedtoalterthelongstandingdefinitionof“publiccharge.”Onthecontrary,by retainingimmigranteligibilityforcertainbenefitsinPRWORA—andexpandingthateligibility inlaterlegislation—Congresshasplainlyconcludedthatallowingnoncitizenstoaccessthose benefitsisnotinconsistentwiththestatementsofpurposeexpressedinPRWORA,includingthe desiretopromoteself-sufficiency.
PRWORA’sstatementsoflegislativepurposedonotjustifytheRule’sradicalexpansion of public charge. As this Court has repeatedly stressed, balancing multiple legislative purposes “istheveryessenceoflegislativechoice—anditfrustratesratherthaneffectuateslegislative intentsimplisticallytoassumethatwhateverfurthersthestatute’sprimaryobjectivemustbethe
27

law,”because“nolegislationpursuesitspurposesatallcosts.”Rodriguezv.UnitedStates,480 U.S.522,525–26(1987)(percuriam)(emphasisinoriginal).AsChiefJusticeBurgerexplained:
Congressmaybeunanimousinitsintenttostampoutsomevaguesocialor economicevil;however,becauseits Membersmaydiffersharplyonthemeans for effectuating that intent, the final language of the legislation may reflect hardfoughtcompromises.Invocationofthe‘plainpurpose’oflegislationatthe expense of the terms of the statute itself takes no account of the processes of compromiseand,intheend,preventstheeffectuationofcongressionalintent. Bd.ofGovernorsofFed.ReserveSys.v.DimensionFin.Corp.,474U.S.361,373–74(1986). Here,asnoted,theINAreflectsabalanceamongmanyCongressionalgoals,including“family unity,diversity,andhumanitarianassistance.”84FedReg.at41,306.Defendants’assertionthat Congress’sidentificationofasinglepolicyjustifiesoverturningthelongstandingmeaningofone statutory provision ignores the teaching of Rodriguez and Board of Governors. Third,defendantspointtoprovisionsintheINA,adoptedaspartofthe1996legislation, requiring certain noncitizens to provide enforceable affidavits of support by their sponsors as a conditionofadmissibilityunderthepublicchargeprovision.SeeApp.21–22.Asdiscussed above,however,Congress,inpassingPRWORA,chosenottoredefine“publiccharge”tomean anyreceiptofcashornoncashbenefits.Onthecontrary,itrejectedsuchaproposalamonthlater whenenactingIIRIRA.Seesuprapp.11–12.HadCongressintendedtoredefinepubliccharge,it wouldhavedonesodirectly.SeealsoWhitman v.Am.TruckingAss’ns,531U.S.457,468 (2001)(notingthatCongress“doesnotalterthefundamentaldetailsofaregulatoryschemein vaguetermsorancillaryprovisions—itdoesnot,onemightsay,hideelephantsinmouseholes”). Noristhereanyinconsistencybetweenrequiringnoncitizensseekingadmissionorstatus adjustmenttoprovideanenforceableaffidavitofsupportfromtheirsponsorsandretainingthe traditional,narrowinterpretationof“publiccharge.”Tothecontrary,therequirementofan affidavitofsupport—whichDHSacknowledgesisarequirementinrelevantcases“separate”
28

fromapublicchargeassessment,84Fed.Reg.at41,448—protectsthepublicfiscbyensuring thatasponsor’sagreementtorepaycertainbenefitsusedbythenoncitizencanbeenforced,and furtherstheCongressionalpolicyofdiscouragingimmigrantsfromrelyingonpublicbenefits. Anditdoessowithoutunderminingthecompellinggoalsoffamilyunityanddiversitythat wouldresultfromredefining“publiccharge”andrenderinglargenumbersofnoncitizens ineligibleforlawfulpermanentresidence.
Fourth,defendantserroneouslyrelyonaprovisionoftheINAthatdirectsimmigration officersadjudicatingpublicchargeinadmissibilitydeterminationsforimmigrantswhohavebeen “batteredorsubjectedtoextremecruelty”intheUnitedStatesnotto“consideranybenefitsthe alienmayhavereceived”undersection8U.S.C.§1641(c)(1)(A).App.22(citing8U.S.C. §§1182(s),1611–13)(emphasisadded).EnactedaspartoftheBatteredImmigrant Women ProtectionActof2000,thepurposeofthisprovisionistoprotectvulnerableimmigrantswho oftenlackmeansofsupportoutsideabusiverelationships.SeePub.L.No.106-386,§1502, 1505,114Stat.1464,1518,1525–27.Incategoricallyexemptingtheseso-called“battered qualifiedaliens”frompubliccharge,8U.S.C.§1182(a)(4)(E),Congressdidnotimplicitly “presuppose[],”App.22,thatanyothernoncitizenswhousepublicbenefitswouldbedeemed public charges. Indeed, Section 1182(s) was enacted in 2000, when the Field Guidance was alreadyinplace,anddefendantspointtonoevidencethatCongress,inenactingthatprovision, intendedtooverruletheFieldGuidancesubsilentioandradicallyreinterprettheINA’spublic charge provision.
C. TheRuleShouldBeSetAsideUndertheAPABecauseItIsContrarytothe Rehabilitation Act
TheRuleiscontrarytolawundertheAPAfortheadditionalreasonthatitexplicitly discriminatesagainstindividualswithdisabilitiesinviolationofSection504ofthe
29

RehabilitationActandDHS’sownregulationspromulgatedthereunder.UndertheRule, applicantswithdisabilitiesstartwithmultiplestrikesagainstthem.TheRuleexpresslyrequires immigrationofficialstoconsider“anapplicant’sdisabilitydiagnosis,”84Fed.Reg.at41,408, and treat it as a negative factor relating to a noncitizen’s “assets, resources, and financial status,” and, separately, as a “heavily weighted negative factor” if the noncitizen lacks private health insurance or sufficient assets to cover reasonably foreseeable medical costs related to the disability.Seeproposed8C.F.R.§§212.22(c)(1)(iii),212.22(b)(4)(H).
Defendants argue that the Rule does not violate the Rehabilitation Act because it does not denynoncitizensadjustmentofstatus“solelybyreasonofherorhisdisability,”asthestatute requires.App.30–31(quoting29U.S.C.§794(a)).UndertheRule’sscheme,multiple independent“negative”factorsflowfromanindividual’sdisability—includingheavily-weighted negativefactors.Thus,an“otherwisequalified”noncitizencouldbeexcludedaslikelyto becomeapubliccharge“solely”becauseofthemyriadnegativefactorsrelatedtotheirdisability. ThisispreciselythetypeofdiscriminationprohibitedbytheRehabilitationAct.SeeHenriettaD. v.Bloomberg,331F.3d261,276(2dCir.2003).TheRulealsorunsafoulofDHS’sregulations promulgatedundertheRehabilitationAct.See6C.F.R.§15.30(b)(4)(providingthatDHSmay not“utilizecriteriaormethodsofadministrationthepurposeoreffectofwhichwould:(i) Subjectqualifiedindividualswithadisabilitytodiscriminationonthebasisofdisability;or(ii) Defeatorsubstantiallyimpairaccomplishmentoftheobjectivesofaprogramoractivitywith respect to individuals with a disability.”).
Defendantsarguethatthestatute’sinclusionof“health”asapublicchargefactorrequires DHStotakeanimmigrant’sdisabilityintoaccount.App.at31.ButtheRehabilitationAct’s disabilitydiscriminationprovisioncontrolsbecauseitisfarmorespecific:theINAonlyrequires
30

ageneralconsiderationofanimmigrant’s“health,”whiletheRehabilitationActprohibits discriminationagainstoneparticular“health”concern,namely,aperson’sdisabilitystatus.See CliffordF. MacEvoyCo.v.U.S.forUseandBenefitofCalvinTomkinsCo.,322U.S.102,107 (1944)(“Specifictermsprevailoverthegeneralinthesameoranotherstatutewhichmight otherwisebecontrolling.”).
D. TheRuleShouldBeSetAsideUndertheAPABecauseItIsArbitraryand Capricious
Defendants’primaryargumentthattheradicalexpansionofpublicchargeundertheRule is not arbitrary and capricious again depends on its position that the “receipt of any public benefits,includingnoncashbenefits,[i]sindicativeofalackofself-sufficiency”intheviewof Congress.App.29.But,asexplainedabove,defendants’misplacedrelianceonbroadstatements ofpolicyregardingimmigrants’“self-sufficiency”inPRWORAmeanstheRuleisbasedupon an“irrelevantcomparisonbetweenstatutoryprovisions”ratherthan“germane”factors, renderingitarbitraryandcapricious.Judulangv.Holder,565U.S.42,55(2011).
Inanyevent,thedistrictcourtcorrectlyfoundthat“[r]eceiptofabenefit...doesnot necessarilyindicatethattheindividualisunabletosupportherself,”recognizingthataperson mayelecttouseabenefitsimply“becausesheisentitledtoit”despitebeing“fullycapableof supportingherselfwithoutgovernmentassistance.”App.40a–41a.Thedistrictcourtsimilarly pointedouttheinconsistencybetweenanindividualbeingmadeeligibleforbenefitsby Congress,andbeingpenalizedwithdenialofadjustmentofstatusforhavingusedthemorbeing likelytousethem.SeeApp.41a.Defendants’positionalsoignorestheundisputedevidencethat supplementalbenefitsactuallypromoteratherthanimpedeself-sufficiency,andthatthe programscoveredbytheRulearewidelyusedbyworkingfamilies—includingthosewith incomesabovethepovertylevel—merelytosupplementtheirincomes.SchanzenbachDecl.,D.
31

Ct.Dkt.40,¶¶6–19&Tables1–3;AllenDecl.,D.Ct.Dkt.41,¶¶10–22;KuDecl.,D.Ct. Dkt.42,¶¶16–22,79–81.Defendantsalsoignoretheuncontestedevidencethatnoncitizenswho wouldbeatriskofbeingdeniedstatusadjustmentonpublicchargegroundsareunlikelytouse governmentbenefits.VanHookDecl.,D.Ct.Dkt.45,¶¶11,26,39.Norhavedefendants “articulate[d] a rational basis for equating public charge with receipt of benefits for 12 months withina36-monthperiod,particularlywhenthishasneverbeentherule,”norexplained“what evaluationofthefactorsenumeratedintheRulewouldmaketheDHSofficerconfidentthatshe could make an appropriate prediction.” App. 41a.
E. The Rule ViolatesEqualProtection Evaluating the factors set forth in Village of Arlington Heights v. Metropolitan Housing DevelopmentCorp.,429U.S.252,267–68(1977),demonstratesthattheRuleistheproductof discriminatorypurposebykeydecisionmakers,andthereforeviolatestheConstitution’sEqual Protectionguarantees.First,direct“contemporarystatements”bydecisionmakers,aswellasthe “administrativehistory”andthe“specificsequenceofeventsleadinguptothechallenged decision,”ArlingtonHeights,429U.S.at267–68,whicharedescribedindetailintheComplaint andwerepresentedtothedistrictcourt,seeCompl.,Dist.Ct.Dkt.1,¶¶203–34,stronglysupport aninferenceofdiscriminatorypurpose.Second,astheDistrictCourtfound,App.44a–45a,itis undisputedthattheRulewilldisparatelyimpactnoncitizensofcolor.ArlingtonHeights,429 U.S.at266.SeealsoVanHookDecl.,D.Ct.Dkt.45,¶¶46-68,95,96;KuDecl.,D.Ct.Dkt.42, ¶¶9,28.TheRulealsodoesnotpassmusterevenifrationalbasisscrutinyapplies,asanimus againstaparticulargroupisneveralegitimategovernmentalobjective.See,e.g.,Cityof Cleburnev.CleburneLivingCtr.,473U.S.432,446–47(1985)(“[S]omeobjectives—suchasa
32

baredesiretoharmapoliticallyunpopulargroup—arenotlegitimatestateinterests[under rationalbasisreview].”(quotationmarks,alteration,andcitationomitted)).11 III. THEBALANCEOFTHEEQUITIESANDRELEVANTHARMS WEIGHIN
FAVOROF MAINTAININGTHEPRELIMINARYINJUNCTIONAND STAYING THE RULE PENDING APPEAL The balance of equities favors retaining the injunction. The purpose of a stay is to maintainthestatusquo,Nkenv.Holder,556U.S.418,429(2009),theoppositeofwhat defendantsseekhere.Asdiscussed,defendantshavenotshownthattheywillsufferanyharmby continuingtoapplythesamerulessetforthintheFieldGuidancethathavebeenineffectfor decades.Seesuprapp.18–20 Ontheothersideoftheledgeristheirreparableharmthatthedistrictcourtfound,based onunrebuttedevidenceintherecord,plaintiffswouldsufferinrespondingtotheimpactofthe Ruleontheirimmigrantclients.Defendantsdismissplaintiffs’injuriesas“speculative.”App.40. ButthedistrictcourtfoundthattheRulewouldirreparablyharmplaintiffs“byforcingthemto divertresourcesandbyshiftingtheburdenofprovidingservicestothosewhocannolonger obtainfederalbenefitswithoutjeopardizingtheirstatusintheUnitedStates.”App.45a–46a. This,thedistrictcourtexplained,was“adirectandinevitableconsequenceoftheimpending implementationoftheRule.”App.46a.Plaintiffsalsohavesufferedandwillcontinuetosuffer monetaryharmasaresultoftheRule.NicholsDecl.,D.Ct.Dkt.46,¶¶11,16,19,25,26; WheelerDecl.,D.Ct.Dkt.48,¶16.ThatharmisirreparablebecausetheAPAdoesnotpermit recoveryofmonetarydamages.See5U.S.C.§702(enablingclaimantstoobtain“reliefother thanmoneydamages”);SanFrancisco,944F.3dat806–07(findingthat“purelyeconomic
11 TheCourtneednotreachplaintiffs’constitutionalclaimsifitconcludesthatapreliminary injunction is warranted on statutory grounds. 33

harm”sufferedbyplaintiffswasirreparablebecausemoneydamagesarenotavailableunderthe APA).
TheRule’sdetrimentalimpactonpublichealth,homelessness,andfoodinsecurity, amongotherills,alsoweighsheavilyinfavorofaninjunction.Astherecordshows,theRuleis expectedtoresultinmillionsofnoncitizensandcitizens—manyofwhomarenotsubjecttothe Rule,butfearthattheyortheirfamilieswillsufferimmigrationpenaltiesiftheycontinuetouse benefits—foregoingbenefitsforwhichtheyareeligible.SeeKuDecl.,D.Ct.Dkt.42,¶¶26,46– 54(describingmillionsofU.S.citizenfamilymemberswhoareexpectedtodisenrollordecline toparticipateinbenefitsprogramsforwhichtheyareeligible,includingupto3.1million membersofimmigrantfamiliesfrom Medicaid,resultinginasmanyas4,000excesspremature deaths per year); Schanzenbach Decl., D. Ct. Dkt. 40, ¶¶ 5, 31–48 & Tables 4–8 (describing expectedsubstantialharmto524,897householdsconsistingof1.78millionindividuals,someof whomareU.S.citizens,whoareprojectednottoparticipateinSNAP,ofwhich35percentof households have children aged 4 or younger).
DHSdoesnotdisputethegraveharmstheRulewillinflict.ItconcedesthattheRulewill cause hundreds of thousands of noncitizens to forego benefits for which they are eligible, including benefits for healthcare, nutrition, and housing, although it greatly understates the severityofthoseeffects.DHSestimatesthat,asaresult,theseindividualswilllosenearly$1.5 billioninfederalbenefitspayments,andmorethan$1billioninstatebenefitspayments,every year.12DHShasalsoprojectedthattheRulewillleadto“[w]orsehealthoutcomes”;“[i]ncreased useofemergencyroomsandemergentcareasamethodofprimaryhealthcareduetodelayed
12 SeeDHS,EconomicAnalysisSupplementalInformationforAnalysisofPublicBenefits Programs,D.Ct.Dkt.50-43,at7&Table5;RegulatoryImpactAnalysis,Inadmissibilityon Public Charge Grounds, D. Ct. Dkt. 50-44, at 10–11 & Table 1. 34

treatment”;“[i]ncreasedprevalenceofcommunicablediseases,includingamongmembersofthe U.S.citizenpopulationwhoarenotvaccinated”;“[i]ncreasesinuncompensatedcareinwhicha treatmentorserviceisnotpaidforbyaninsurerorpatient”;“[i]ncreasedratesofpovertyand housinginstability”;“[r]educedproductivityandeducationalattainment”;andother “unanticipatedconsequencesandindirectcosts.”83Fed.Reg.at51,270.Unrebuttedexpert declarationsintherecordbeforethedistrictcourtprovideestimatesoflikelypublicharmsthat aremanytimesgreaterthanDHS’sestimates.SchanzenbachDecl.,D.Ct.Dkt.40,¶¶31–48& Tables4–8;KuDecl.,D.Ct.Dkt.42,¶¶63–73&Tables2–4.TheRulewillalsoleadto increasesindenialsofadjustment,resultinginpossibleremovalfromtheU.S.andconsequent familyseparation.Theseharmsareespeciallylikelytobefalltheworkingpoor,peoplewith disabilities, and the elderly. See Ku Decl., D. Ct. Dkt. 42, ¶ 29; Van Hook Decl., D. Ct. Dkt. 45, ¶¶ 69–73, Table 9, Figure 9a.
Accordingly,thebalanceoftheequitiesandthepublicinterestweighheavilyinfavorof apreliminaryinjunction. IV. THEREISNOBASISTONARROWTHEINJUNCTION
Thedistrictcourtfoundthatanationwideinjunctionisnecessary“toaccordPlaintiffsand otherinterestedpartieswithcompleteredress”becausetheindividualswhomplaintiffsservelive in,andmaymovebetween,differentstates.App.50a.SeealsoWheelerDecl.,D.Ct.Dkt. 48,¶2(showingthatplaintiffCLINICsupportsaffiliateprogramsthatdeliverdirectservicesto immigrantsin49statesandtheDistrictofColumbia).Thedistrictcourtreasonedaswellthata patchworksystemofinjunctionswould“result[]indifferentpublicchargeframeworksspread acrossthecountry,”whichwould“wreakhavocontheimmigrationsystem.”App.49a.The districtcourt’sfindingsoffactareamplysupportedintherecord,andmustnotbesetaside unless clearly erroneous. Fed. R. Civ. P. 52(a)(6).
35

Defendants’ contention that the district court’s injunction is overbroad should be addressedinthefirstinstancebythecourtsofappeals,particularlyinlightofthefact-specific natureofthedistrictcourt’sruling.Inanyevent,defendants’argumentsdonotestablishthatthe district court abused its discretion. See City of Chicago v. Sessions, 888 F.3d 272, 293 (7th Cir. 2018);Stormans,Inc.v.Selecky,586F.3d1109,1140(9thCir.2009).
First,theAPAexpresslypermitstherelieforderedbythedistrictcourt.Section705of theAPAempowersthecourtsto“postponetheeffectivedateofanagencyaction”pending reviewsoasto“preventirreparableinjury.”5U.S.C.§705;seeApp.50an.4(grantingrelief under§705).Thisstatutehasbeenreadtoprovideauthoritytopreliminarilyenjoinagency actioninitsentirety,withnationwideapplicabilitytobothpartiesandnonparties.E.g.,Texasv. EPA,829F.3d405,435(5thCir.2016)(grantingstayunderSection705offinalEPArule pendingjudicialreview).Seealso MexichemSpecialtyResins,Inc.v.EPA,787F.3d544,562 (D.C.Cir.2015)(Kavanaugh,J.,dissenting)(notingthatSection705“authoriz[es]courtstostay agencyrulespendingjudicialreview”(emphasisinoriginal)).
Second,thedistrictcourtinjunctionisconsistentwiththeAPA’sdirectivethatthecourts “setaside”unlawfulagencyaction.5U.S.C.§706(2).“[T]heordinaryresult[ofsucha determination]isthattherulesarevacated—notthattheirapplicationtoindividualpetitionersis proscribed.”Nat’l Min.Ass’nv.U.S.ArmyCorpsofEng’rs,145F.3d1399,1409–10(D.C.Cir. 1998).AccordPennsylvaniav.PresidentUnitedStates,930F.3d543,575–76(3dCir.2019) (districtcourtdidnotabuseitsdiscretioningrantinganationwideinjunctiondue,inpart,tothe “impactofthe[]interstateactivities”oftheplaintiffStates’residents).SeealsoTexasv.United States,809F.3d134,187–88(5thCir.2015)(approvingnationwideinjunction),aff’dbyan equallydividedCourt,136S.Ct.2271(2016);Owner-OperatorIndep.DriversAss’nv.Fed.
36

MotorCarrier SafetyAdmin.,656F.3d580,589(7thCir.2011)(same);EarthIslandInst.v. Ruthenbeck,490F.3d687,699(9thCir.2007)(same),rev’donothergroundssubnom. Summersv.EarthIslandInst.,555U.S.488(2009).Suchreliefensuresthattheentiretyof “today’svastandvariedfederalbureaucracy”stayswithintheboundsofthelawsasCongress haswrittenthem.CityofArlingtonv.FCC,569U.S.290,313(Roberts,C.J.,dissenting) (internalquotationmarksomitted).
Third,defendantsassertthatnationwideinjunctionsrunafoulofArticleIIIwheresuch relief goes beyond what is needed to redress the injuries of the plaintiff before the Court. App. 32–34.Thatcontentionignoresthedistrictcourt’sspecificfactualfindingsthatthispreliminary injunctionisnecessarytoprotecttheinterestsofparticularizedinterestsofplaintiffs. Moreover, there is a long history of issuing an injunction against a defendant properly before the court that alsoprotectstheinterestsofnonparties.SeeAmandaFrost,InDefenseofNationwide Injunctions,93N.Y.U.L.Rev.1065,1080–81&n.77(2018).Becausethisreliefwasavailable atthetimetheJudiciaryActof1789waspassed,id.,federalcourtsmaycontinuetoexerciseit today.SeeGrupo MexicanodeDesarrollo,S.A.v.AllianceBondFund,Inc.,527U.S.308,318– 19 (1999).
Contrarytodefendants’claimsthatnationwideinjunctionsarearecentinvention,App. 38, Article III courts, including this Court, “have issued injunctions that extend beyond just the plaintiffforwelloveracentury.” MilaSohoni,TheLostHistoryofthe“Universal”Injunction, 133Harv.L.Rev.920,924,935–54(2020). Mostrecently,inTrumpv.Int’lRefugeeAssistance Project(“IRAP”),involvingPresidentTrump’ssecondExecutiveOrdersuspendingtheentryof foreignnationalsfromcertainspecifiedcountries,theCourtnarrowedanationwideinjunctionby limitingittoforeignnationalswithabonafiderelationshipwiththeUnitedStates,butleftin
37

placenationwideinjunctionswithrespecttotheplaintiff“andthosesimilarlysituated.”137S.at 2087.Defendants’contentionthatnationwideinjunctionsprotectingpartiesotherthanthe plaintiffsviolateArticleIIIcannotbesquaredwithIRAP.
Fourth,defendants’assertionthatanationwideinjunctionwillpreventthepercolationof issuesandthedevelopmentofthelawinthelowercourtshasnobearinghere.App.32,38–39. WhiletheCourthascautionedlowercourtsto“takecare”inusingtheirbroadpowerssoasto “notimproperlyinterferewiththelitigationofsimilarissuesinotherjudicialdistricts,”Califano v.Yamasaki,442U.S.682,702–03(1979),defendantsdonotsuggestthatthecourtsheredidnot considerthatcaution.Andthemultiplependingappealsshowthatthedistrictcourtinjunction hereisnotimpedingthelowercourtsfromconsideringtheissuespresented.SeeSanFrancisco, 944F.3dat788(holdingthatappealfrompreliminaryinjunctionwasnotmootedbynationwide injunctionsenteredbythedistrictcourtinthiscase).
Fifth,thedistrictcourt’semphasisontheimportanceofavoiding“differentpubliccharge frameworksspreadacrossthecountry,”App.49a,isfurthersupportedbyCongress’sintentthat theimmigrationlaws“shouldbeenforced...uniformly.”ImmigrationReformandControlAct of 1986, Pub. L. No. 99–603, § 115(1), 100 Stat. 3359, 3384. See also Texas v. United States, 809F.3d134,187–88(5thCir.2015)(affirmingnationwideinjunctioninimmigrationaction, basedinpartonneedforuniformityinimmigrationenforcement).
CONCLUSION Defendantsrespectfullysubmitthatdefendants’applicationforastayshouldbedenied.
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Respectfullysubmitted.

CENTER FOR CONSTITUTIONAL RIGHTS Ghita Schwarz Brittany Thomas Baher A. Azmy 666 Broadway 7th Floor New York, New York 10012 (212) 614-6445 gschwarz@ccrjustice.org bthomas@ccrjustice.org bazmy@ccrjustice.org THE LEGAL AID SOCIETY SusanE. Welber Kathleen Kelleher Susan Cameron Hasan Shafiqullah

/s/AndrewJ.Ehrlich PAUL, WEISS,RIFKIND, WHARTON & GARRISON LLP AndrewJ.Ehrlich
Counsel of Record Jonathan H. Hurwitz Elana R. Beale Robert J. O’Loughlin Daniel S. Sinnreich Amy K. Bowles 1285AvenueoftheAmericas New York, New York 10019-6064 (212) 373-3000 aehrlich@paulweiss.com jhurwitz@paulweiss.com ebeale@paulweiss.com roloughlin@paulweiss.com dsinnreich@paulweiss.com abowles@paulweiss.com

199 WaterStreet,3rdFloor New York, New York 10038 (212) 577-3320 sewelber@legal-aid.org kkelleher@legal-aid.org scameron@legal-aid.org hhshafiqullah@legal-aid.org

AttorneysforRespondents MaketheRoadNewYork, African Services Committee, Asian American Federation, CatholicCharitiesCommunityServices(Archdioceseof NewYork),andCatholicLegalImmigrationNetwork,Inc.

January 22, 2020

39

 
 No. 19A785 ________________________________________________________________ ________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES _______________
DEPARTMENT OF HOMELAND SECURITY, ET AL., APPLICANTS v.
STATE OF NEW YORK, ET AL. _______________
DEPARTMENT OF HOMELAND SECURITY, ET AL., APPLICANTS v.
MAKE THE ROAD NEW YORK, ET AL. _______________
REPLY IN SUPPORT OF APPLICATION FOR A STAY
_______________
NOEL J. FRANCISCO Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217
________________________________________________________________ ________________________________________________________________

Congress has declared that under the United States’ “national policy with respect to welfare and immigration,” there is a “compelling governmental interest” in “assur[ing] that aliens be self-reliant” and in “remov[ing] the incentive for illegal immigration provided by the availability of public benefits.” 8 U.S.C. 1601. Consistent with that objective, Congress has long empowered specified Executive Branch officials, including the Secretary of the Department of Homeland Security (DHS), to declare “inadmissible” “[a]ny alien who, in the opinion of [the relevant Executive Branch official], is likely at any time to become a public charge,” 8 U.S.C. 1182(a)(4)(A). See Appl. 5-6.
That statutory policy refutes respondents’ arguments. First, on the merits, it undermines respondents’ claim that “public charge” has a uniformly accepted meaning that applies only to narrowly drawn types of public support. Nothing in the statute’s text, context, or history requires that narrow reading, or precludes DHS’s natural and reasonable conclusion that aliens who rely on public support to feed or house themselves over a protracted or intense period are public charges. Second, on the equities, it forecloses respondents’ argument that because aliens subject to the Rule may disenroll from public benefit programs, allowing the Rule to go into effect would harm the public interest.
Indeed, two courts of appeals faced with substantively identical nationwide preliminary injunctions already have

2 concluded that stays are warranted to allow the Rule to go into effect pending appeal. The nationwide injunctions of a single district judge should not be allowed to supersede those appellate determinations or dictate national immigration policy. Instead, historical limitations on the proper role of a district court, given force through Article III and principles of equity, require that any relief be appropriately tailored to the parties.
I. THERE IS A REASONABLE PROBABILITY THIS COURT WOULD GRANT CERTIORARI Respondents do not seriously dispute that if the Second
Circuit were to affirm the nationwide preliminary injunctions, that decision would warrant this Court’s review. Indeed, the nationwide aspect of those injunctions by itself would warrant review. See Trump v. Pennsylvania, cert. granted, Jan. 17, 2020 (No. 19-454). Instead, respondents contend that “until the[] courts [of appeals] issue their decisions, there is no reasonable basis” to predict whether this Court would grant certiorari. NY Opp. 21; see Make the Road (MTR) Opp. 20. But this Court routinely makes such predictive judgments when it considers whether to grant a stay pending appeal of a preliminary injunction. See, e.g., Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019); Trump v. Sierra Club, 140 S. Ct. 1 (2019). And contrary to respondents’ suggestion (MTR Opp. 17), making that prediction is especially easy here, where two courts of appeals already have entered stays of substantively identical nationwide injunctions -- one of them

3 in a published and precedential opinion holding that the Rule “easily” survives challenge. City & County of San Francisco v. USCIS, 944 F.3d 773, 799 (9th Cir. 2019). II. THERE IS A FAIR PROSPECT THAT THIS COURT WOULD VACATE THE
INJUNCTIONS IN WHOLE OR IN PART A. Respondents Are Unlikely To Prevail On The Merits 1. Respondents have failed to identify a cognizable Article III injury that is within the zone of interests of the publiccharge inadmissibility provision. Even if respondents could show that the prospect of aliens’ disenrollment from public-benefits programs poses a “certainly impending” threat to their coffers fairly traceable to the Rule, Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013), their interest in preventing such disenrollment is “inconsistent” with the public-charge provision’s goal of ensuring that aliens be self-sufficient, Match-E-Be-NashShe-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012). Respondents’ contrary assertion (NY Opp. 35-36; MTR Opp. 22) that the public-charge provision was somehow intended to facilitate continued dependence on public benefits in service of other goals finds no support in the statutory text. 2. a. Respondents’ challenges to the Rule also lack merit. As the Ninth Circuit recognized, Congress has over the course of more than a century intentionally preserved the Executive Branch’s flexibility to interpret public-charge inadmissibility provisions in a way that takes account of changes in public welfare programs.

4 City & County of San Francisco, 944 F.3d at 791-798. The Rule exemplifies that adaptive approach, and fits well within the “considerable discretion” Congress has granted to DHS “to determine if an alien is likely to become a public charge.” Id. at 799.
Despite that history, respondents repeatedly insist that when Congress adopted the current provision in 1996, “public charge” had a narrow, “well-established meaning” that Congress must have meant to incorporate. NY Opp. 6; see, e.g., id. at 7, 12, 22, 24, 27. In respondents’ view, the settled meaning of “public charge” is “an individual who does not work and is consequently primarily dependent on the government for long-term subsistence.” Id. at 4; see MTR Opp. 2. There is no such well-established or settled meaning. See Appl. 20-27. Even the 1999 agency discussions -which respondents otherwise embrace -- acknowledged that “public charge” is “ambiguous” and had “never been defined in statute or regulation.” 64 Fed. Reg. 28,676, 28,676-28,677 (May 26, 1999); see City & County of San Francisco, 944 F.3d at 796 (“[W]e are unable to discern one fixed understanding of ‘public charge’ that has endured since 1882. * * * [D]ifferent factors have been weighted more or less heavily at different times, reflecting changes in the way in which we provide assistance to the needy.”). Three examples illustrate the point.
First, respondents’ position is impossible to square with the affidavit-of-support provisions of the Immigration and Nationality

5

Act (INA). See 8 U.S.C. 1182(a)(4)(C) and (D). Respondents do

not dispute that an alien subject to those provisions who fails to

obtain a required affidavit of support is, as a matter of law,

inadmissible on public-charge grounds, regardless of the amount or

type of benefits the alien receives.

See Appl. 20-22.

Respondents’ arguments (NY Opp. 29) that some public benefits are

currently exempted by regulation from that treatment, and that the

affidavit-of-support remains in effect for only a limited time,

miss the point: in classifying aliens who fail to obtain a

required affidavit-of-support as being inadmissible on public-

charge grounds, Congress necessarily rejected respondents’ narrow

understanding of “public charge” as limited to aliens who are

institutionalized or primarily dependent on cash payments.

Second, respondents’ position is inconsistent with an

immigration treatise and the Black’s Law Dictionary definition of

“public charge” from the time of the INA’s passage. See Appl. 24-

25. Respondents essentially argue (NY Opp. 25; MTR Opp. 7 n.2.)

those definitions were incorrect, and that the correct definition

is in a case that the dictionaries and treatise cited. But that

case, Ex Parte Kichmiriantz, 283 F. 697 (N.D. Cal. 1922), does not

support respondents either: it recognized that “the words ‘public

charge,’ as used in the Immigration Act [of 1917], mean just what

they mean ordinarily”: “a money charge upon, or an expense to,

the public for support and care.” Id. at 698. To be sure, the

6 court found that definition inapplicable because the alien’s relatives had paid the State for the alien’s care, see ibid., but the court (like the dictionary and treatise) nevertheless understood that “public charge” naturally refers to aliens who impose a charge on the public, without qualifications about cash assistance, primary dependence, or the like.
Third, respondents’ position is inconsistent with longstanding administrative interpretations, such as the one adopted in In re B-, 3 I. & N. Dec. 323 (B.I.A. 1948; A.G. 1948), that did not require a showing of cash support or primary dependence. See id. at 326. Respondents observe (NY Opp. 25-26; cf. MTR Opp. 7 n.1) that unlike the Rule, In re B- required a showing of actual failure to repay funds upon demand. But that difference simply underscores the Executive’s longstanding flexibility in making public-charge determinations. Critically, In re B- adopted an understanding of “public charge” decidedly different from respondents’ narrow definition, see Appl. 25 & n.4, thereby disproving their central claim that “public charge” has a single, well-established meaning that DHS is required to maintain in perpetuity.
b. Respondents misread Gegiow v. Uhl, 239 U.S. 3 (1915), as establishing that “the scope of ‘public charge’ remained limited to individuals likely to rely almost entirely on government support to survive.” NY Opp. 6. Gegiow actually addressed only the “single question” of “whether an alien can be declared likely to

7 become a public charge on the ground that the labor market in the city of his immediate destination is overstocked.” 239 U.S. at 910. The Court said no, requiring such determinations to be based on the characteristics of the alien, not his place of destination. Ibid. Although the Court suggested in dicta that “public charge” might be interpreted narrowly to accord with nearby terms (like “paupers” and “professional beggars,” id. at 10), Congress subsequently revised the relevant language specifically to disapprove that inference, see Immigration Act of 1917, 64th Cong. ch. 29 § 3, 39 Stat. 875-876; S. Rep. No. 352, 64th Cong., 1st Sess. 5 (1916) (“The purpose of this change is to overcome recent decisions of the courts limiting the meaning of the description of the excluded class. * * * (See especially Gegiow v. Uhl, 239 U. S., 3.).”); see also United States ex rel. Iorio v. Day, 34 F.2d 920, 922 (2d Cir. 1929) (L. Hand, J.) (the public-charge statute “is certainly now intended to cover cases like Gegiow”).
Nor do any of the lower-court decisions and administrative adjudications respondents cite (NY Opp. 4-6, 23-25; MTR Opp. 5-8) establish a uniform, settled understanding of “public charge.” At most, those decisions -- when contrasted with the materials discussed above -- confirm the Senate Judiciary Committee’s observation in 1950 that “[d]ecisions of the courts have given varied definitions of the phrase ‘likely to become a public charge.’” S. Rep. No. 1515, 81st Cong., 2d Sess. 347, 349 (1950).

8 Congress’s reaction to that variation was to preserve Executive Branch flexibility to adapt the public-charge inadmissibility provision as circumstances require -- not to incorporate a fixed definition of the term. See Appl. 25-26.
As the Ninth Circuit correctly recognized, it “easily” follows that the Rule’s interpretation is “‘rational and consistent with the statute.’” City & County of San Francisco, 944 F.3d at 799 (citation omitted). DHS adopted a reasonable interpretation of “public charge” that -- like the mid-twentieth century treatise and dictionaries -- asks whether an alien is likely to charge expenses to the public for support and care; the agency then moderated that interpretation by establishing an administrable threshold level of benefits below which an alien would not be considered a public charge. Especially given Congress’s identification of the “compelling governmental interest” in “assur[ing] that aliens be self-reliant,” 8 U.S.C. 1601(4), that is an eminently reasonable interpretation of the statute, promulgated after notice-and-comment rulemaking; it is certainly not, as respondents contend, “far ‘beyond the meaning that the statute can bear.’” NY Opp. 26 (citation omitted).
c. Contrary to respondents’ suggestion (NY Opp. 31-32; MTR Opp. 31), the Rule is not arbitrary and capricious in treating the receipt of public benefits as indicative of a lack of selfsufficiency. An alien who receives public “assistance to provide

9 for * * * basic necessities is,” by definition, “not selfsufficient,” 83 Fed. Reg. 51,154, 51,159 (Oct. 10, 2018), whether or not he could have been self-sufficient had he chosen not to accept public benefits. Nor is the Rule’s “aggregate-counting system” arbitrary and capricious. NY Opp. 32; cf. MTR Op. 32. That system reflects DHS’s sensible approach to considering both the intensity and duration of an alien’s receipt of benefits in an administrable way, with periods of more intense usage weighed more heavily. DHS also acted reasonably in including, as part of its totality-of-the-circumstances assessment, factors such as low credit scores, lack of English proficiency, and family size. See NY Opp. 32. Such considerations bear on an alien’s financial stability, earning power, and material needs, and DHS cited evidence showing that they thus affect the likelihood that a given alien will receive public benefits in the future. See 83 Fed. Reg. at 51,184-51,185 (family size and English proficiency); 84 Fed. Reg. 41,292, 41,425-41,426 (Aug. 14, 2019) (discussing causes and effects of credit scores).
d. The Rule also does not violate the Rehabilitation Act. See NY Opp. 34-35; MTR Opp. 29-31. Congress has directed that DHS “shall” consider “health” in determining whether an alien is likely to become a public charge. 8 U.S.C. 1182(a)(4)(B). On respondents’ view, instead of treating health-related conditions as one consideration among many in the totality-of-the-circumstances

10 analysis, DHS would be required to treat minor ailments as a negative factor -- but disregard entirely more serious conditions that rise to the level of a disability. The Rehabilitation Act does not require such absurdities. See Appl. 30-31.
e. Finally, the Rule does not violate equal protection principles. See MTR Opp. 32-33. It pursues in a facially neutral manner the reasonable, congressionally declared “national immigration policy” of ensuring “that aliens be self-reliant,” 8 U.S.C. 1601(5). Respondents offer no colorable basis for subjecting it to heightened scrutiny.
B. The Nationwide Injunctions Are Overbroad 1. As the government explained (Appl. 32-39), nationwide preliminary injunctions can be in serious tension with both Article III and traditional principles of equity. As to Article III, respondents assert that the nationwide injunctions here “protect[] against precisely the harm [respondents] ultimately seek to prevent -- implementation of an unlawful regulation.” NY Opp. 38; see MTR Opp. 37. But “a plaintiff ’s remedy must be ‘limited to the inadequacy that produced his injury in fact.’” Gill v. Whitford, 138 S. Ct. 1916, 1930 (2018) (emphasis added; brackets and citation omitted). An injunction limited to aliens receiving services from respondents in the jurisdictions where respondents

11 operate fully remediates respondents’ alleged injuries.1
As to principles of equity, respondents contend that “[t]he ‘scope of injunctive relief is dictated by the extent of the violation established, not by the geographical’ location of plaintiffs.” NY Opp. 38 (citation omitted). But respondents overlook that the case they quote for that proposition, Califano v. Yamasaki, 442 U.S. 682 (1979), involved a class action “brought in conformity with” Civil Rule 23. Id. at 702. A certified nationwide class may of course pursue nationwide relief; indeed, a principal problem with nationwide injunctions is that they elide the requirements and protections of class-action litigation. See Appl. 32. Yamasaki itself cautioned that before certifying a nationwide class, courts should “ensure that nationwide relief is indeed appropriate” and “would not improperly interfere with the litigation of similar issues in other judicial districts.” 442 U.S. at 702. Respondents’ position would turn Yamasaki on its head.
Respondents assert (MTR Opp. 37) that a court in equity historically could issue an injunction “that also protects the

1

Respondents’ assertion (MTR Opp. 35) that one of them

“supports affiliate programs that deliver direct services to

immigrants in 49 states and the District of Columbia” is

insufficient to create a nationwide injury. Respondents’ claim to

injury as mere service providers to the individuals actually

affected by the Rule already is tenuous, see Appl. 17-18;

voluntarily providing “support[]” to other service providers

stretches the concept of Article III injury beyond all reasonable

limits. See Clapper, 568 U.S. at 418.

12 interests of nonparties.” But in support, respondents cite an article discussing a “bill of peace,” which was more analogous to a class action (with similar requirements and protections), see Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065, 1081 n.77 (2018), as best illustrated by the fact that such bills bound the absent parties win or lose, cf. Smith v. Swormstedt, 57 U.S. (16 How.) 288, 302-303 (1853); Supreme Tribe of Ben Hur v. Cauble, 255 U.S. 356, 366-367 (1921). Respondents cite another article identifying a small handful of nationwide injunctions issued in the early 20th century, one as early as 1913. See Sohoni, The Lost History of the “Universal” Injunction, 133 Harv. L. Rev. 920, 924-925 (2020). But federal courts’ equity jurisdiction is limited to the “system of judicial remedies” applied by “the High Court of Chancery in England” in 1789 -- not 1913. Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318 (1999) (citations omitted).2
2. Respondents’ alternative reliance (NY Opp. 36-38; MTR Opp. 36-37) on 5 U.S.C. 705 is misplaced. That provision states that a court may “postpone the effective date of an agency action”

2

The date of the earliest known nationwide injunction is

contested. See Bray, A Response to The Lost History of the

“Universal” Injunction, Yale J. Reg. Notice & Comment (Oct. 18,

2019); Sohoni, A Reply to Bray’s Response, Yale J. Reg. Notice &

Comment (Oct. 18, 2019). Regardless, that scholars debate whether

the first nationwide injunction was in 1913 or 1939 or 1963 simply

underscores that it was not a traditional part of equity in 1789.

13 only “to the extent necessary to prevent irreparable injury.” Postponing agency action solely as to the plaintiffs properly before the court is all that is “necessary” to prevent their asserted injuries. Ibid. Respondents’ reliance (NY Opp. 36; MTR Opp. 36) on the observation that Section 705 “authorizes courts to stay agency rules pending judicial review,” Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 562 (D.C. Cir. 2015) (Kavanaugh, J., dissenting in part) (emphasis omitted), likewise is inapposite because it does not address the scope of such a stay. And that agencies “routinely” “postpone the effective dates of their own rules * * * on a nationwide basis” (NY Opp. 37) says nothing about whether courts may order them to do so under Section 705.
Moreover, as even the district court correctly recognized (Appl. 24a n.5; id. at 50a n.4), the “standard for a stay” under Section 705 “is the same as the standard for a preliminary injunction.” Indeed, as this Court reaffirmed shortly before the APA was enacted, statutory remedies should be construed consistent with “traditions of equity practice.” Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). The Court has even suggested that the All Writs Act, 28 U.S.C. 1651, confers remedial authority no broader than would exist under traditional “principles of equity applicable” in a case. Grupo Mexicano, 527 U.S. at 326 n.8 (citation omitted). Nothing in Section 705 suggests it is any broader than the capacious All Writs Act. At a minimum, because

14 traditional principles of equity place fundamental limits on the judicial power, id. at 318, respondents’ expansive reading of Section 705 would raise serious constitutional doubts and so should be rejected on that basis too. See Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018).3
3. Finally, respondents assert (NY Opp. 38; MTR Opp. 38) that the interest in the uniformity of the immigration laws and the public interest support a nationwide injunction here. But Congress’s desire that the immigration laws be “enforced vigorously and uniformly,” Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 115, 100 Stat. 3384, is a policy directive to the Executive Branch -- not a license for courts to issue nationwide injunctions that impede development of the law.
And it is respondents’ position that would undermine the public interest. Principles of efficient and effective governance support the vigorous enforcement of the immigration laws, including regulations (such as the Rule here) duly promulgated through notice-and-comment rulemaking. Two courts of appeals

3

Respondents’ reliance (NY Opp. 36; MTR Opp. 36) on

National Mining Association v. U.S. Army Corps of Engineers, 145

F.3d 1399 (D.C. Cir. 1998), also is misplaced. The D.C. Circuit

did not grapple with any of the historical limitations on equitable

remedies, and instead relied on a unique practical point

inapplicable here: that because venue for suits against federal

agencies always lies in D.C., even a narrower injunction would as

a practical matter apply nationwide because successive plaintiffs

would benefit from the binding precedent. See id. at 1409-1410.

15 already have determined that the Rule likely is lawful; at a minimum, therefore, it is in the public interest to enforce the Rule in those jurisdictions. A nationwide injunction prevents that by precluding operation of a Rule everywhere if it is successfully challenged anywhere -- regardless of how many unsuccessful challenges there may be. III. THE REMAINING STAY FACTORS WEIGH IN FAVOR OF A STAY
Respondents do not dispute that because of the nationwide preliminary injunctions, the government is presently awarding -on an effectively irrevocable basis -- grants of lawful permanent resident status to aliens who, under the Rule, should instead be declared inadmissible. See MTR Opp. 8, 34-35; Appl. 39-40. Instead, they claim (NY Opp. 16) these effects do not qualify as irreparable harm because any inadmissibility determinations made under the Rule would be “of dubious legality.” That argument thus collapses into respondents’ arguments on the merits.
Respondents’ arguments about the “public interest” also are inextricably tied to their arguments on the merits. Respondents contend that the nationwide injunctions should be allowed to remain in place, notwithstanding the decisions of the Ninth and Fourth Circuits, because otherwise large numbers of aliens will disenroll from public benefit programs, forgoing billions of dollars’ worth of “benefits for which they are eligible.” MTR Opp. 33-34; ibid. (describing these effects as “grave harms”). But Congress has

16 expressly specified that it is the official “immigration policy of the United States that * * * aliens within the Nation’s borders not depend on public resources to meet their needs.” 8 U.S.C. 1601 (emphasis added). To the extent that the Rule may “discourag[e] aliens from receiving public benefits” because pursuing such benefits would be inconsistent “with the immigration status they are seeking,” that is not a valid objection because “self-sufficiency is the rule’s ultimate aim,” consistent with statutory purposes. 84 Fed. Reg. at 41,312-41,313. See United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 (2001) (“[A] court siting in equity cannot ‘ignore the judgment of Congress, deliberately expressed in legislation.’”) (citation omitted). And to the extent that the Rule might cause disenrollment by aliens who are not subject to the Rule, such disenrollment is “unwarranted,” 84 Fed. Reg. at 41,313, easily corrected, and temporary. It does not outweigh the long-term harms the government will experience while the Rule is enjoined.
Respectfully submitted. NOEL J. FRANCISCO Solicitor General
JANUARY 2020

 
 No. 19A785 In the
Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al.,
Applicants, v. NEW YORK, et al.,
Respondents.
MOTION BY GOVERNMENT PLAINTIFFS TO TEMPORARILY LIFT OR MODIFY THE COURT’S STAY OF THE ORDERS ISSUED BY THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

MATTHEW COLANGELO Chief Counsel for Federal Initiatives ELENA GOLDSTEIN Deputy Bureau Chief Civil Rights Bureau MING-QI CHU Section Chief, Labor Bureau

LETITIA JAMES Attorney General State of New York BARBARA D. UNDERWOOD* Solicitor General
STEVEN C. WU Deputy Solicitor General
JUDITH N. VALE Senior Assistant Solicitor General 28 Liberty Street New York, New York 10005 (212) 416-8016 barbara.underwood@ag.ny.gov
*Counsel of Record for Government Plaintiffs

Dated: April 13, 2020
(Additional counsel appear on signature page.)

TABLE OF CONTENTS
Page
INTRODUCTION ...........................................................................................................................1
STATEMENT ..................................................................................................................................3
Prior Litigation ...........................................................................................................3
The Nationwide COVID-19 Crisis.............................................................................4
The Importance of Public Benefits in Responding to the COVID-19 Crisis .............8
The Harms Imposed by the Public Charge Rule and the COVID-19-Related Guidance Issued by the Department of Homeland Security ....................................11
ARGUMENT .................................................................................................................................14
THE COURT SHOULD TEMPORARILY LIFT OR MODIFY ITS STAY DURING THE NATIONAL PUBLIC-HEALTH EMERGENCY CREATED BY THE COVID-19 PANDEMIC..................................14
Plaintiffs Seek Temporary Relief from the Stay Tailored to the National COVID-19 Crisis......................................................................................................15
The COVID-19 Pandemic Has Drastically Changed the Balance of the Equities Against Enforcing the Public Charge Rule During the Current National Emergency. ................................................................................................17
The Public Charge Rule is impeding efforts to mitigate the spread of the virus. .........................................................................................................18
The Public Charge Rule deters access to public benefits that are necessary to respond to the severe economic crisis caused by COVID19. ...................................................................................................................22
The alert issued by defendants fails to address the new harms imposed by the Rule during the COVID-19 crisis. .......................................................24
CONCLUSION ..............................................................................................................................27

INTRODUCTION In January 2020, this Court stayed two orders of preliminary relief issued by the United States District Court for the Southern District of New York (Daniels, J.) pending the Second Circuit’s disposition of defendants’ appeal and this Court’s disposition of any subsequent petition for certiorari, if such a petition is timely filed. (App. 1.) In reliance on the stay order, the United States Department of Homeland Security (DHS) implemented the Public Charge Rule, altering its prior interpretation of “public charge” as well as the test for evaluating whether an immigrant is likely to become a public charge under 8 U.S.C. § 1182(a)(4)(A), and thus be ineligible for a green card. The Rule took effect on February 24, 2020. Since that time, the novel coronavirus SARS-CoV-2 has triggered a devastating global pandemic, afflicting at least half a million people in the United States with a potentially lethal illness, coronavirus disease 2019 (COVID-19). The rapid and ongoing spread of COVID-19 is causing a nationwide public-health crisis and wreaking havoc on the economy. The President has declared a state of national emergency. And state and local authorities—including plaintiffs here, the States of New York, Connecticut, and Vermont, and the City of New York—have also declared states of emergency and are undertaking extraordinary efforts to stop the spread of COVID-19 and protect the health and well-being of our residents. But the Public Charge Rule is hindering those efforts by deterring immigrants from accessing healthcare and public benefits that are essential tools for protecting the public at large by limiting the spread and severity of COVID-19 and promoting our nation’s recovery from the economic crisis that the disease has caused. Accordingly, plaintiffs respectfully request that the Court temporarily lift or modify its stay to halt implementation of the Public Charge Rule during the national emergency concerning COVID-19 declared by the President. In the alternative, plaintiffs request that the Court clarify

that its stay does not preclude the district court here from considering whether the new circumstances caused by the novel coronavirus warrant temporarily halting implementation of the Rule.1
Such narrow and temporary relief from the stay is warranted because the Rule is now causing additional irreparable harms to the public—citizens and noncitizens alike—that were not present when the Court initially considered defendants’ motion for a stay. By deterring immigrants from accessing publicly funded healthcare, including programs that would enable immigrants to obtain testing and treatment for COVID-19, the Rule makes it more likely that immigrants will suffer serious illness if infected and spread the virus inadvertently to others—risks that are heightened because immigrants make up a large proportion of the essential workers who continue to interact with the public. The Rule also deters access to public benefits, including nutrition benefits, that are critical for both immigrants and the country as a whole to weather the economic crisis triggered by COVID-19. These irreparable harms have tipped the balance of the equities decidedly against maintaining the stay during the national emergency concerning COVID-19.
1 Plaintiffs here are authorized to state that the plaintiffs in the companion case, Make the Road New York v. Cuccinelli, support this motion, including the alternative relief sought. The Make the Road New York plaintiffs were parties to the stay proceedings in this Court and are subject to the Court’s stay order. Because the two cases are consolidated for pre-trial purposes in the district court, see Order, New York v. Dep’t of Homeland Sec., No. 19-cv-7777 (S.D.N.Y. Feb. 14, 2020), ECF 142, any relief afforded to plaintiffs here should also apply in that case.
2

STATEMENT
A. Prior Litigation
In August 2019, DHS issued its Public Charge Rule, which modified its criteria for determining inadmissibility on public charge grounds. 84 Fed. Reg. 41,292 (Aug. 14, 2019). Under the Rule, DHS officials must now deem an immigrant to be a “public charge” if the immigrant is likely to receive any amount of certain “public benefits,” including supplemental benefits such as Medicaid, Supplemental Nutrition Assistance Program (SNAP) benefits, and Section 8 housing assistance, during “more than 12 months in the aggregate within any 36-month period” during the immigrant’s life. Id. at 41,501. In an earlier notice of proposed rulemaking, DHS had acknowledged that this regulatory change could lead immigrants who are otherwise eligible for certain public benefits to disenroll or forgo enrollment in those programs, and that such withdrawal or avoidance “could lead to . . . [i]ncreased prevalence of communicable diseases, including among members of the U.S. citizen population who are not vaccinated.” 83 Fed. Reg. 51,114, 51,270 (Oct. 10, 2018).
On October 11, 2019, the district court issued two orders that preliminarily enjoined the enforcement of the Public Charge Rule on a nationwide basis, and postponed the Rule’s effective date pursuant to 5 U.S.C. § 705. On January 27, 2020, this Court issued a stay of the district court’s orders, thereby allowing the Public Charge Rule to take effect. The stay applies pending disposition of defendants’ expedited appeal from the district court’s orders in the Second Circuit and disposition of defendants’ petition for a writ of certiorari, if such a writ is timely sought.2 (App.
2 On March 2, 2020, the Second Circuit heard oral argument on defendants’ expedited appeal. That appeal remains pending.
3

1.) Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the application for a stay. (App. 1.)
On February 21, 2020, this Court issued a similar stay of a preliminary injunction issued by the United States District Court for the Northern District of Illinois that had prevented enforcement of the Public Charge Rule in Illinois alone.3 Wolf v. Cook Cty., Ill., 140 S. Ct. 681, 681 (2019). Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the application for a stay. Id.
In reliance on this Court’s stay orders, defendants began enforcing the Public Charge Rule nationwide on February 24, 2020.
The Nationwide COVID-19 Crisis After the Court issued its stays, coronavirus disease 2019 (COVID-19) began sweeping across the United States. The spread of COVID-19 and the novel coronavirus SARS-CoV-2 that triggers this illness has become a global pandemic that has thrown the country into an unprecedented crisis with devastating consequences for public health and the economy. The novel coronavirus can cause severe and life-threatening respiratory illness marked by fever, coughing, and difficulty breathing. See Center for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19): Frequently Asked Questions (internet) (last updated Apr. 11, 2020) (see What are the symptoms and complications that COVID-19 can cause?).4 COVID-19 is already spreading quickly in communities throughout the country, with cases reported in all fifty States. See Center
3 On February 26, 2020, the Seventh Circuit heard oral argument on defendants’ appeal in that court. The Seventh Circuit appeal remains pending.
4 At https://www.cdc.gov/coronavirus/2019-ncov/faq.html.
4

for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19): Situation Summary (Mar. 26, 2020) (internet) (last updated Apr. 7, 2020).5
COVID-19 has already exacted a tremendous toll on the nation, and the pace of its spread continues to increase rapidly. In the United States, 525,704 individuals have confirmed cases of COVID-19, and at least 20,486 people have died from the disease. Center for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19): Cases in U.S. (internet) (last updated Apr. 12, 2020).6 Plaintiffs and their residents have been particularly hard hit. In New York, which has become the current epicenter of the pandemic in the United States, 188,694 people have confirmed cases of COVID-19, and at least 9,384 people have died from the disease. See New York Dep’t of Health, NYSDOH COVID-19 Tracker (internet) (last updated Apr. 12, 2020);7 New York Dep’t Health, Fatalities by County (internet) (last updated April 12, 2020).8 In New York City alone, there are currently more than 104,410 confirmed positive cases and more than 6,182 confirmed deaths. See New York City Dep’t of Health & Mental Hygiene, COVID-19: Data: Cases, Hospitalizations and Deaths (internet) (last updated Apr. 12, 2020).9 Connecticut and Vermont have also been experiencing rapidly increasing rates of infection, with 12,035 confirmed COVID19 cases in Connecticut and 727 confirmed cases in Vermont to date. See COVID-19 Update April
5 At https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html. 6 At https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. 7 At https://coronavirus.health.ny.gov/county-county-breakdown-positive-cases. 8 At https://covid19tracker.health.ny.gov/views/NYS-COVID19-Tracker/ NYSDOHCOVID-19Tracker-Fatalities?%3Aembed=yes&%3Atoolbar=no&%3Atabs=n. 9 At https://www1.nyc.gov/site/doh/covid/covid-19-data.page.
5

12, 2020, at 1 (internet) (April 12, 2020);10 Novel Coronavirus (COVID-19): Vermont Dep’t of Health, Coronavirus (COVID-19): Current Activity in Vermont (internet) (last updated Apr. 12, 2020).11 And other jurisdictions across the country have likewise seen rising numbers of infections and fatalities. See, e.g., Corona Virus: Michigan Data (internet) (last updated Apr. 12, 2020) (24,638 confirmed infections and 1,487 confirmed deaths in Michigan);12 Florida Dep’t of Health, Division of Disease Control and Health Protection, Florida’s COVID-19 Data and Surveillance Dashboard (internet) (last updated Apr. 12, 2020) (19,347 confirmed infections and 452 confirmed deaths in Florida).13 These figures likely vastly underrepresent the number of actual infections and related deaths for a number of reasons, including that many people who likely have the virus have not been tested for it. See Jacqueline Howard, US coronavirus death count likely an underestimate. Here’s why, CNN (Apr. 6, 2020) (internet).14
On March 13, 2020, the President declared a state of national emergency concerning the COVID-19 outbreak, invoking his authority under the National Emergencies Act. Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 13, 2020); see generally 50 U.S.C. § 1601 et seq. The President declared that “[t]he spread of COVID-19 within our Nation’s communities threatens to strain our Nation’s healthcare systems.” 85 Fed. Reg. at 15,337. He directed “hospitals and medical facilities throughout the country,” many of which are operated by plaintiffs or located within
10 At https://portal.ct.gov/-/media/Coronavirus/CTDPHCOVID19summary 4122020.pdf?la=en.
11 At https://www.healthvermont.gov/response/coronavirus-covid-19/current-activityvermont.
12 At https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html. 13 At https://experience.arcgis.com/experience/96dd742462124fa0b38ddedb9b25e429. 14 At https://www.cnn.com/2020/04/06/health/us-coronavirus-death-count-cdc-explainer/ index.html.
6

plaintiffs’ jurisdictions, “to assess their preparedness posture and be prepared to surge capacity and capability” to address COVID-19. Id. He also declared that because additional measures “are needed to successfully contain and combat the virus in the United States,” he was authorizing the Department of Health and Human Services and the Social Security Administration to temporarily waive or modify certain requirements of various public-health and medical-insurance related statutes “throughout the duration of the public health emergency declared in response to the COVID-19 outbreak.” Id.
The governors of each of the plaintiff States, as well as the mayor of plaintiff New York City, have each declared public-health emergencies in their respective jurisdictions based on the COVID-19 pandemic.15 See New York Exec. Order No. 202, 9 N.Y.C.R.R. § 8.202 (2020); Connecticut Office of the Governor, Declaration of Public Health and Civil Preparedness Emergencies (Mar. 10, 2020);16 Vermont Exec. Order No. 01-20 (2020).17 In each of plaintiffs’ jurisdictions, state officials and agencies have also been taking increasingly drastic measures to slow the spread of the novel coronavirus and provide testing and treatment for residents who are already infected. For example, state officials have required all nonessential employees to work from home, closed schools, and issued orders to increase hospital capacity to care for COVID-19 patients.18
15 New York declared a state of emergency on March 7, 2020; Connecticut, on March 10, 2020; Vermont, on March 13, 2020.
16 At https://portal.ct.gov/-/media/Office-of-the-Governor/News/20200310-declaration-ofcivil-preparedness-and-public-health-emergency.pdf?la=en.
17 At https://governor.vermont.gov/sites/scott/files/documents/EO%2001-20%20 Declaration%20of%20State%20of%20Emergency%20in%20Response%20to%20COVID19%20and%20National%20Guard%20Call-Out.pdf.
18 See, e.g., New York Exec. Order No. 202.4, 9 N.Y.C.R.R. § 8.202.4 (2020) (closing schools in New York); New York Exec. Order No. 202.8, 9 N.Y.C.R.R. § 8.202.8 (2020) (ordering
7

The Importance of Public Benefits in Responding to the COVID-19 Crisis Experts in infectious disease control and public health have warned that everyone should be minimizing the spread of the virus to the greatest extent possible. See Center for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19): How to Protect Yourself and Others (internet) (last updated Apr. 8, 2020).19 Testing for the novel coronavirus and medical treatment for COVID-19 are critically important to slowing infection rates, preserving hospital capacity and medical equipment, and saving lives. (App. 37, 54-63.) If individuals are deterred from testing and thus do not know that they are infected, they are more likely to inadvertently spread the virus to other people—who will then spread the virus to still more people. (App. 55-56, 61, 63, 114.) See Washington State Dep’t of Health, Testing for COVID-19 (internet) (last visited Apr. 12, 2020) (testing allows public-health officials to “keep people with COVID-19 and their contacts away from others to prevent spread of the virus”).20 And if individuals suffering from COVID-19 delay obtaining proper medical care, they are more likely to spread the virus, experience serious illness and need intensive care in a hospital, and potentially die from the disease. (App. 56, 61, 63, 160161, 225.) Individuals who lack health insurance are much less likely to obtain necessary treatment for COVID-19 because of the prohibitive costs of medical care and hospital stays. (App. 54-55, 58-61, 175.) A recent report from a nonprofit organization that analyzes healthcare costs estimated
all nonessential workers in New York to work from home); New York Exec. Order No. 202.10, 9 N.Y.C.R.R. § 8.202.10 (2020) (ordering various measures to increase hospital capacity); Connecticut Exec. Order No. 7H (2020) (ordering all nonessential workers in Connecticut to work from home); Vermont Exec. Order No. 01-20, add. 6 (2020) (ordering all nonessential businesses in Vermont to cease in-person business operations).
19 At https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html. 20 At https://www.doh.wa.gov/Emergencies/NovelCoronavirusOutbreak2020COVID19/ TestingforCOVID19.
8

that a six-day hospital stay for COVID-19 treatment will cost approximately $73,300. FAIR Health, COVID-19: The Projected Economic Impact of the COVID-19 Pandemic on the US Healthcare System 2, 8, 13, 16 (Mar. 25, 2020). And the cost of treatment will be higher for patients who suffer more severe symptoms or require longer hospital stays. See Center for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) (internet) (last updated Apr. 6, 2020) (median time in intensive care unit for severely ill COVID-19 patient ranges from ten to twelve days, and median length of hospitalization among survivors ranges from ten to thirteen days).21
Many immigrants residing in plaintiffs’ jurisdictions and in other jurisdictions are highly vulnerable to COVID-19 because they work in industries that have been deemed “essential” and thus continue to operate during the crisis. For example, executive orders in New York, Connecticut, and Vermont that direct residents to work from home do not apply to workers in essential sectors such as healthcare, grocery stores, food and retail delivery, building maintenance, farms and agriculture, and sanitation. See New York Exec. Order No. 202.8, supra; Connecticut Exec. Order No. 7H § 1 (2020) (internet);22 Vermont Exec. Order No. 01-20, add. 6 (2020) (internet).23 Because immigrants compose a significant proportion of the workers in these frontline industries, they must often interact with others or spend time in high-risk environments—such as providing healthcare in hospitals, caring for the aging in nursing homes, cleaning and
21 At https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-managementpatients.html.
22 At https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/LamontExecutive-Orders/Executive-Order-No-7H.pdf?la=en.
23 At https://governor.vermont.gov/sites/scott/files/documents/ADDENDUM%206%20 TO%20EXECUTIVE%20ORDER%2001-20.pdf.
9

disinfecting public spaces, and preparing or delivering food and supplies to other residents who are required to stay at home. (See App. 126-127, 225.) These workers are as a result more likely to be exposed to the virus, and, without adequate testing and treatment, these workers, if infected, are more likely to suffer worse health outcomes and to spread the virus to others inadvertently. (See App. 55-56, 61, 63, 114; see also App. 225 (immigrant workers in Colorado meatpacking plants and dairies are essential workers at high risk of contracting and spreading COVID-19).)
In addition to the urgent public-health crisis, the COVID-19 pandemic has also triggered a severe economic crisis, with millions of workers losing significant income or their employment, and thereby needing to turn to supplemental benefit programs like Medicaid and SNAP in order to weather this economic crisis. (See App. 63-65.) Approximately sixteen million individuals applied for unemployment benefits in the three-week period from March 19 to April 4. Patricia Cohen & Tiffany Hsu, ‘Sudden Black Hole’ for the Economy With Millions More Unemployed, N.Y Times (Apr. 10, 2020) (internet).24 And the number of individuals seeking unemployment benefits in plaintiffs’ jurisdictions has steeply increased due to the pandemic. In New York, for example, the number of new unemployment claims rose from 14,272 in the week ending March 21, 2020, to 79,999 in the week ending March 28, 2020—an increase of 460%. News Release, United States Dep’t of Labor, Unemployment Insurance Weekly Claims 7 (Apr. 2, 2020) (internet).25 In that same week, the rate of unemployment-insurance claims in Connecticut rose by approximately 620% compared to the prior week, and in Vermont the rate increased by approximately 450%. Id. Immigrant workers, particularly in the hospitality and service industries, have been
24 At https://www.nytimes.com/2020/04/09/business/economy/unemployment-claimnumbers-coronavirus.html.
25 At https://oui.doleta.gov/press/2020/040220.pdf.
10

disproportionately impacted by layoffs and furloughs. (App. 119 (immigrants in New York have lost jobs in restaurants and as domestic workers); App. 202-203 (immigrants in Illinois have lost jobs as domestic workers, personal care aides, and nannies).)
Workers who lose their jobs because of the pandemic are likely to turn temporarily to supplemental benefit programs, including Medicaid and SNAP, until they can get back on their feet. (See App. 63-65.) For example, many workers who lose their jobs and their employersponsored health insurance because of the pandemic are likely to need Medicaid coverage until they can find another job. (See App. 64-65.) And SNAP benefits respond rapidly to changing economic conditions by allowing newly eligible individuals to obtain benefits and allowing existing participants to receive higher amounts of benefits if their incomes decrease. U.S. Dep’t of Agriculture, Building a Healthy America: A Profile of the Supplemental Nutrition Assistance Program, at 1, 3 (Apr. 2012). Programs like SNAP will also be particularly important to immigrants and their family members, many of whom are ineligible for unemployment insurance benefits or certain COVID-19 related benefits recently enacted by Congress. See Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, § 6428(d), 134 Stat. 281, 335 (2020).
The Harms Imposed by the Public Charge Rule and the COVID-19-Related Guidance Issued by the Department of Homeland Security As DHS has acknowledged, e.g., 83 Fed. Reg. at 51,270, and the record evidence here confirms, the Public Charge Rule’s expansion of the grounds for deeming immigrants inadmissible as a public charge has already deterred many immigrants from using supplemental public benefits, including Medicaid and SNAP benefits, or led them to disenroll from programs that provide such benefits. Since the Public Charge Rule came into effect following this Court’s stay orders, increasing numbers of immigrants have begun forbearing from Medicaid coverage and other
11

publicly funded healthcare benefits based on concerns that using such benefits will render them a “public charge” and thus jeopardize their ability to obtain legal permanent resident (LPR) status and, eventually, citizenship. (App. 194-195, 220-222.) Immigrants have also increasingly been declining to use SNAP benefits, as well as other nutrition programs, such as the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), that are not implicated in the public-charge analysis.26 (App. 139-140, 178-179, 194-196.) And the Public Charge Rule’s deterrent effects have not been limited to the LPR applicants or public-benefit programs that are directly subject to the Rule, since substantial fear and confusion, along with the complicated nature of many benefits programs, have led immigrants and their family members to avoid state-funded health insurance programs, reduce their use of medical services, and forbear from using other public benefits not covered by the Rule. (App. 145-146, 194-195, 220-222.)
The Rule’s impacts have become particularly acute as the COVID-19 crisis has escalated. See infra, at 18-24. As a result, on March 6, the Attorneys General of the plaintiff States, fifteen other state Attorneys General, and over fifty other elected officials sent a letter to DHS requesting that the agency temporarily halt implementation of the Public Charge Rule given the harms to public health from implementing the Rule during the COVID-19 crisis. (App. 40-43; see also App. 226-229 (letter from New York City agencies to DHS).) DHS did not respond.
On March 13, DHS posted an alert on the website of the U.S. Citizenship and Immigration Services (USCIS). The alert stated that DHS officials conducting public-charge determinations
26 Agencies and nonprofit organizations that work with immigrants experienced a substantial increase in inquiries about the Public Charge Rule after the Rule took effect in February 2020. (App. 116 (during February 2020, calls to New York City’s immigration-related telephone hotline “increased to 2,973, a 57% increase from the monthly average in 2019,” and the “number of those calls that related to the Rule also increased”); App. 171 (health educator received “more questions about public charge” during February and March than she had ever previously received).)
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would not “consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination . . . even if such treatment is provided or paid for by one or more public benefits” targeted by the Rule, such as federally funded Medicaid. (App. 44.) However, the alert also stated that the Rule will still require DHS officials to treat as a negative factor an applicant’s receipt of public benefits, including federally funded Medicaid, even when such benefits “may be used to obtain testing or treatment for COVID-19.” (App. 44.) Thus, under the alert, an LPR applicant who obtains or maintains Medicaid coverage that helps him access COVID-19 testing or treatment will still receive an automatic negative factor in the public-charge analysis based on his Medicaid coverage, even if his COVID-19 test or treatment will not itself be considered. See 84 Fed. Reg. at 41,422 (DHS will consider “any application, approval, or certification for, or receipt of, public benefits as a negative factor”).
DHS’s alert appears to leave in place other aspects of the Rule during the COVID-19 crisis, even though these aspects of the Rule deter immigrants from using supplemental benefits that will help plaintiffs’ residents and the country recover from the current economic crisis. Thus, an applicant who applies for SNAP benefits because a COVID-19 public-health order forced him out of his job will continue to receive a negative factor in the public-charge inquiry. See 84 Fed. Reg. at 41,422. At most, the alert states that an applicant may inform DHS if “disease prevention methods” such as social distancing prevent him from working or attending school during the outbreak, and DHS officials will consider such information to the extent it is “relevant and credible.”27 (App. 44.)
27 After DHS posted the alert on its website, the Attorneys General of the plaintiff States and fifteen other state Attorneys General sent DHS another letter explaining that the alert did not
13

ARGUMENT THE COURT SHOULD TEMPORARILY LIFT OR MODIFY ITS STAY DURING THE NATIONAL PUBLIC-HEALTH EMERGENCY CREATED BY THE COVID-19 PANDEMIC Pursuant to Rules 21 and 23 of the Rules of this Court; the All Writs Act, 28 U.S.C. § 1651; and § 705 of the Administrative Procedure Act, 5 U.S.C. § 705, plaintiffs request that the Court temporarily lift or modify its stay to halt implementation of the Rule until the end of the national emergency declared by the President on March 13 concerning the COVID-19 pandemic. See Proclamation No. 9994, supra. Such targeted relief is warranted despite this Court’s prior ruling on petitioners’ stay application because the unprecedented public-health and economic crisis facing the country has dramatically shifted the balance of equities in allowing defendants to enforce the Public Charge Rule while the Second Circuit considers defendants’ appeal. As explained further below, the Rule’s deterrent effect on immigrants’ access to healthcare and other public benefits for which they are indisputably eligible is impeding efforts to stop the spread of the coronavirus, preserve scarce hospital capacity and medical supplies, and protect the lives of everyone in our communities—citizens and noncitizens alike. In particular, the Rule is deterring many immigrants and their family members, including those who are U.S. citizens, from seeking testing or treatment for COVID-19, obtaining publicly funded health insurance, and using other supplemental benefits such as SNAP. Without proper testing and medical care, immigrants are more likely to suffer serious illness or death from COVID-19, and more likely to spread the novel coronavirus to others inadvertently. And immigrants who delay needed medical care, whether for COVID-19 or other serious conditions, are more likely to use hospitals, emergency
address the harms imposed by the Public Charge Rule during the pandemic. (App. 48-51.) DHS did not respond to this letter.
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rooms, and publicly funded clinics when they fall ill, thereby taxing public-health systems that are already under intense strain.
The record that this Court considered in issuing a stay in these proceedings did not and could not include these newly apparent harms. In light of these new circumstances, the Court should temporarily lift or modify its stay to halt implementation of the Public Charge Rule during the national emergency concerning COVID-19. Alternatively, this Court should clarify that its stay does not preclude the lower court from considering whether the new circumstances presented by the COVID-19 crisis warrant a narrow and time-limited delay of the Public Charge Rule.
Plaintiffs Seek Temporary Relief from the Stay Tailored to the National COVID-19 Crisis. Plaintiffs are not seeking wholesale reconsideration of this Court’s previous decision to stay the district court’s preliminary injunction and § 705 orders. Rather, the drastically changed circumstances presented by the COVID-19 crisis provide new grounds for this Court to consider whether the balance of the equities continues to support a stay of the lower court’s orders. To respond to these circumstances, this Court can either temporarily lift its stay during the national emergency, thereby allowing the district court’s orders of preliminary relief to take effect; or temporarily postpone the effective date of the Rule under 5 U.S.C. § 705 until the national emergency ends.28 Pursuant to the National Emergencies Act, the COVID-19 national emergency will end when the President issues a proclamation terminating the emergency, Congress enacts
28 Section 705 provides that “[o]n such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.” 5 U.S.C. § 705.
15

into law a joint resolution terminating the emergency, or the President declines to renew the emergency at any annual expiration of the declaration, whichever is earlier. See 50 U.S.C. § 1622.
In the alternative, plaintiffs request that the Court clarify that its stay order does not preclude the lower court from considering whether the new circumstances arising out of the COVID-19 pandemic warrant temporary relief halting implementation of the Public Charge Rule. Cf. Cities Serv. Gas Co. v. Mobil Oil Corp., 487 U.S. 1245 (1988) (modifying stay and remanding to district court to consider whether to approve parties’ proposed settlement). In making such a determination, the lower court could consider evidence and issue factual findings about, inter alia, the proper duration and scope of any temporary relief. And the district court’s findings and determinations would then be subject to appellate review.
Plaintiffs are seeking temporary relief directly from this Court rather than from the district court or Second Circuit as an initial matter because of the urgency of the COVID-19 pandemic and substantial doubt as to whether the lower courts could provide any meaningful relief given the Court’s stay. See Heckler v. Turner, 468 U.S. 1305 (1984) (Rehnquist, J, in chambers) (issuing stay where grant of certiorari made it doubtful that lower courts “had the authority to modify the injunction”). The Court’s stay applies until both the Second Circuit resolves defendants’ appeal and this Court resolves a petition for certiorari, if any such petition is timely filed. Accordingly, the district court’s orders will remain stayed, and the Rule will remain in effect, even if the Second Circuit affirms the district court’s decision to postpone the effective date of the Rule during this litigation. This Court is thus the appropriate forum to either modify the stay or clarify that the stay does not preclude the district court from considering whether the current COVID-19 crisis warrants temporary, tailored relief from the Public Charge Rule.
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The COVID-19 Pandemic Has Drastically Changed the Balance of the Equities Against Enforcing the Public Charge Rule During the Current National Emergency. The appropriateness of a stay pending appeal is “an exercise of discretion and judgment” that depends primarily on the “equities of a given case.” Trump v. International Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017). In the course of exercising such discretion, a court “‘may mold its decree to meet the exigencies of the particular case.’” Id. (quoting 11A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2947 (3d ed. Aug. 2019 update) (Westlaw)). And a court may lift or modify a previously granted stay when new circumstances arise that significantly alter the balance of the harms to the public or the parties. See, e.g., King v. Smith, 88 S. Ct. 842, 843 (1968) (Black, J., in chambers) (vacating previously issued stay where subsequent events meant that stay would further harm public welfare and the plaintiffs); Orloff v. Willoughby, 72 S. Ct. 998, 998-99 (1952) (Douglas, J., in chambers) (modifying previously issued stay). Indeed, the Court always retains authority to alter an ongoing equitable order “if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.” United States v. Swift & Co., 286 U.S. 106, 114-15 (1932); see Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 437 (1976) (“[S]ound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen.” (quotation marks omitted)). The Court should exercise its discretion to temporarily lift or modify the stay here. The catastrophic COVID-19 pandemic has drastically altered the nature and magnitude of the irreparable harms faced by plaintiffs, their residents, and the nation due to the Public Charge Rule
17

and tipped the balance of the equities decisively against maintaining the stay while the national COVID-19 emergency continues.
The Public Charge Rule is impeding efforts to mitigate the spread of the virus. The Public Charge Rule is irreparably harming public health in plaintiffs’ jurisdictions and throughout the country during the unprecedented public-health disaster caused by the COVID-19 pandemic. By deterring immigrants and their family members from obtaining publicly funded health insurance and medical care, the Rule is undermining efforts to slow the spread of the virus— putting everyone at higher risk of infection. A temporary lifting or modification of the stay is thus warranted to prevent these dangerous public-health harms. As DHS itself has acknowledged, the Public Charge Rule’s expanded criteria for finding inadmissibility will deter immigrants from enrolling (or maintaining enrollment for) themselves and their family members in Medicaid, due to the understandable fear that even just applying for Medicaid will be deemed a negative factor in any future public-charge analysis. See 84 Fed. Reg. at 41,422. Widespread fear and confusion about the Rule are also driving many immigrants to forgo any publicly funded health coverage for fear that using such supplemental public benefits will jeopardize their ability to obtain LPR status and, eventually, citizenship. (App. 60, 171-173, 217, 220-222.) Indeed, since the Rule took effect, medical personnel, state and local officials, and staff at nonprofit organizations have encountered many immigrants who have refused to enroll in Medicaid or other publicly funded healthcare coverage based on concerns that receiving such coverage will increase the risk of being deemed a “public charge” under the Rule. (See, e.g., App. 187 (patients at health clinics in Virginia refusing to participate in financial screening needed for care because screening involves Medicaid application); App. 220-221.)
18

Such avoidance of Medicaid and other publicly funded healthcare programs will prevent
immigrants from receiving testing for the novel coronavirus or treatment for COVID-19,
materially impeding public-health officials’ efforts to stem the current crisis. Without Medicaid or
other health insurance, the costs of COVID-19 treatment are prohibitively high for most patients—
particularly if they develop severe symptoms necessitating hospitalization. For example, recent
analyses of healthcare costs estimate that a six-day hospital stay for COVID-19 treatment will cost
approximately $73,300 (see supra, at 8-9)—far more than the annual income of many low- and
moderate-income Americans. (See App. 55 (cost of treatment for one early COVID-19 patient for
less than a week of treatment was $34,927.43).) And since the pandemic began, doctors and others
working on the front lines of the crisis have seen many immigrants avoid COVID-19 testing and
treatment altogether, even if they might be able to obtain publicly funded care, due to the
substantial fear generated by the Public Charge Rule. (App. 113, 120, 160-161, 167-168, 187,
224.)
These effects of the Public Charge Rule on COVID-19 testing and treatment are not
hypothetical or speculative. For example:
 A physician in Connecticut has spoken with patients who had symptoms consistent with COVID-19, but were afraid to obtain COVID-19 testing or seek treatment due to concerns about the Public Charge Rule and fears that they could not afford to pay for treatment. (App. 113.)
 The New York Legal Assistance Group has already observed immigrants and their family members declining or delaying medical treatment they needed because of COVID-19, due to concerns about the Public Charge Rule. (App. 145-146.)
 Telephone hotlines operated by Catholic Charities Community Services, Archdiocese of New York, in partnership with state or city agencies in New York, have been receiving public-charge-related inquiries from callers who are fearful of seeking medical treatment for COVID-19. (App. 150-151.)
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 Staff at Bronx Legal Services in New York have spoken with noncitizen clients who are afraid to obtain COVID-19 testing or treatment because they fear that doing so will require them to obtain Medicaid coverage. (App. 140.)
 Multiple other community organizations in New York City have reported that immigrant clients are afraid to obtain testing or treatment for COVID19, even if they are feeling ill, based on concerns that doing so will jeopardize their immigration status. (App. 120-121.)
 Physicians in Monterey County, California, are working with an increasing number of immigrant patients who have symptoms of COVID-19, but are refusing to seek medical care for these symptoms based on concerns about the Public Charge Rule and the costs of treatment. (App. 160-161, 167-168.)
 Nonprofit organizations in Chicago, Illinois, have received calls from immigrants who are afraid to seek virus-related testing and treatment because of the Public Charge Rule. Many of these immigrants are seniors or individuals with underlying health conditions, who are at greater risk of suffering severe illness or death from COVID-19. (App. 202-203.)
 In February and March 2020, even as the COVID-19 crisis became increasingly severe, health clinics in Virginia have continued to see an increasing number of immigrant families declining to seek Medicaid coverage (or withdrawing from existing coverage) because of the Public Charge Rule. (App. 186-187.)
 During the past two months, a health educator in Los Angeles, California, has worked with multiple clients who have forgone publicly funded health insurance benefits for themselves or their citizen children based on fears about the Public Charge Rule. (App. 172-173.)
Immigrants’ inability or unwillingness to obtain testing and treatment for COVID-19 due
to their concerns about the Public Charge Rule jeopardizes the health and safety of not only
immigrants and their families but also the public at large. Without proper testing and treatment,
immigrants and their family members who become infected are more likely to suffer severe illness
or death from the virus. (App. 55-56, 114.) Immigrants who lack testing and treatment are also
more likely to spread the virus to other people inadvertently, contributing to the current exponential
growth of infection rates and fatalities. (App. 55-56, 61-63, 114, 160-161, 225.)
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This risk of virus spread is further increased by the high number of immigrants who work in essential industries and who thus must continue to work outside of their homes and interact with others by, for example, providing healthcare, preparing and delivering food to residences, cleaning hospitals and public spaces, and caring for the sick or aging. See supra, at 9-10. Indeed, in New York City, the current epicenter of the COVID-19 crisis, noncitizens make up approximately 42.4% of home health aides, 42.3% of cooks, 37.1% of food preparation workers, and 26.9% of janitors and building cleaners. (App. 126-127.) And in other areas of the country, large numbers of noncitizens continue to work in essential industries such as agriculture or food packing and distribution. (App. 163-164, 203, 225.) By deterring these essential workers from obtaining health insurance and medical care for COVID-19, the Public Charge Rule is increasing the risk of infection for the public at large.
The Public Charge Rule further impedes current attempts to stem the COVID-19 crisis by deterring immigrants and their family members from obtaining needed medical treatment for preexisting conditions that either make individuals more vulnerable to the virus or make their COVID-19 symptoms worse. Immigrants who decline Medicaid or other health insurance coverage because of the Rule often stop seeking primary care for conditions like diabetes, asthma, and heart disease. (App. 141.) But these conditions put patients at higher risk of suffering severe symptoms or death from COVID-19. (App. 66, 141.) For example, staff at Bronx Legal Services have already seen noncitizen clients who declined Medicaid coverage rather than risk their immigration status, did not treat their serious medical conditions as a result, and have now fallen extremely ill with COVID-19 symptoms such as shortness of breath, high fevers, headaches, body aches, and chills. (App. 141; see also App. 145-146 (staff at New York Legal Assistance Group have seen clients declining or delaying medical treatment based on concerns about the Public
21

Charge Rule).) Such uninsured individuals will wait to seek medical care until their condition gets serious (see App. 56, 66, 186), thus further straining hospitals and clinics that are already reaching capacity and facing challenges obtaining ventilators and other critical medical supplies. And without insurance, these patients will likely be forced to make in-person visits to hospitals and clinics rather than use telehealth services, placing themselves and medical staff at higher risk of infection. (App. 63.) These substantial harms to public health warrant lifting or modifying the stay temporarily during the COVID-19 pandemic.
The Public Charge Rule deters access to public benefits that are necessary to respond to the severe economic crisis caused by COVID-19. The Public Charge Rule is further injuring plaintiffs and the public interest by undermining efforts to mitigate the vast economic consequences of the COVID-19 pandemic. The unemployment rates in plaintiffs’ jurisdictions and across the country are already reaching unprecedented levels due to the virus outbreak. See supra, at 10-11. And the economic downturn is likely to grow worse as the virus continues to spread. (App. 63-65.) Supplemental benefits like Medicaid and SNAP are crucial to helping employable individuals through a sudden emergency like losing a job or incurring substantial medical bills for COVID-19 treatment. (See App. 64-65, 121, 142, 202-203.) And by providing short-term help to individuals until they can get back on their feet, supplemental benefits promote economic stability and recovery for all of plaintiffs’ residents and the nation. Many hard-working immigrants, who are not “public charges” under any reasonable interpretation of that term, have begun to face sudden financial strains as their employers cut jobs due to the current economic crisis and government mandates ordering “nonessential” businesses to limit their services or have their employees work from home. (See App. 63-65, 121.) Indeed,
22

the U.S. Bureau of Labor Statistics recently estimated that between February and March 2020, the number of immigrant adults who are unemployed rose by 26%. (App. 64-65.) But the Public Charge Rule is deterring immigrants and their family members from using such benefits to maintain health and nutrition during the crisis. (See App. 113, 138-139, 161.) These irreparable harms further warrant lifting or modifying the stay temporarily during the current national emergency.
For example, since the Rule went into effect, immigrants have increasingly been declining to participate in SNAP or other publicly funded nutrition programs due to fear that doing so will jeopardize their immigration status. (App. 26-27, 138, 161, 217.) The Rule’s deterrent effect on SNAP usage has become particularly inequitable during the COVID-19 pandemic, when many hard-working immigrants have suddenly lost substantial amounts of income or their employment. Indeed, under the Rule, using SNAP for just a few months during the current economic crisis places an LPR applicant at risk of being deemed a public charge. See 84 Fed. Reg. at 41,422 (mere application for SNAP is negative factor); id. at 41,506 (using SNAP and another public benefit during a single month counts as two months of benefits use for calculating heavily weighted negative factor of 12 out of 36 months of benefits use).
Immigrants’ avoidance of the public benefits covered by the Rule has already resulted in worse harms to both immigrants and plaintiffs during this difficult economic period. For example, immigrants who decline SNAP for fear of being deemed a “public charge” are increasingly turning to emergency food assistance programs, such as food pantries. (App. 142, 203; see also App. 156157 (Make the Road New York has been receiving many calls from immigrants seeking food assistance, including from food pantries).) But many food pantries have closed or sharply reduced their hours due to COVID-19. And many of the emergency food programs that are still operating
23

“are running out of food at alarming rates.” (App. 142; see App. 179 (food banks and pantries are facing increased food costs and “new challenges for accepting donated food”); App. 203 (many food pantries in Chicago, Illinois have “either closed or are seeing a marked increase in requests for food assistance”).) The Court should lift or modify its stay temporarily to avoid such irreparable public-health and economic harms.
The alert issued by defendants fails to address the new harms imposed by the Rule during the COVID-19 crisis. By revising its application of the Public Charge Rule during the current COVID-19 crisis, USCIS has effectively acknowledged the Rule’s deterrent effect on immigrants’ willingness to obtain necessary medical care. On March 13, USCIS issued an alert that purports to limit this deterrent effect by providing that “USCIS will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination . . . even if such treatment is provided or paid for by one or more public benefits, as defined in the rule (e.g. federally funded Medicaid).” (App. 44.) But this alert does not fully address the grave harms that the Rule is causing during the ongoing pandemic and is thus no substitute for the relief requested here. First, although the alert excludes “testing, treatment, [and] preventative care . . . related to COVID-19” from future public-charge determinations (App. 44), it simultaneously continues to treat as an automatic negative factor an LPR applicant’s application for or receipt of public benefits “that may be used to obtain testing or treatment for COVID-19,” including federally funded Medicaid (App. 44). In other words, an LPR applicant who applies for federally funded Medicaid will have that application count against him in the public-charge inquiry, even if subsequently obtained COVID-19 treatment paid for by federally funded Medicaid does not itself count in the
24

public-charge inquiry. See supra, at 13. But deterring immigrants from accessing the public benefits that they need to get healthcare effectively prevents them from getting necessary testing and treatment for COVID-19. This aspect of the alert thus preserves the very problem USCIS has purported to address.
Second, the alert does not provide sufficiently clear direction to assure immigrants that they will not be penalized in a future public-charge determination for accessing critical healthcare now. For example, it is unclear how the alert would apply to an individual who receives medical treatment for COVID-19-like symptoms but is never tested, perhaps because of a shortage of testing kits. Furthermore, although the alert clarifies that the Public Charge Rule will not apply to state or local benefits, it is unclear how an immigrant is supposed to discern or control whether federal, state, or local benefits apply—especially if she may require urgent or emergency care. And under the alert, an LPR applicant will continue to be penalized for having Medicaid coverage to obtain treatment for medical conditions such as asthma, diabetes, or heart disease, even though these conditions place patients at high risk of suffering more severe symptoms or death if they contract COVID-19.
Tellingly, even after DHS posted the alert on its website, the Rule has continued to deter immigrants from accessing needed medical care during the pandemic. For example, in the weeks following DHS’s issuance of the alert, physicians and others working on the front lines of the current emergency have continued to see many immigrants and their family members expressing fear about and declining to obtain COVID-19 testing and treatment based on their persistent concerns about the Public Charge Rule. (See, e.g., App. 167, 187-188, 208, 224.) Given the alert’s statement that the Public Charge Rule will continue to penalize immigrants who access federally funded Medicaid during the pandemic, the alert has likely increased fear and confusion about the
25

Rule and thus increased the Rule’s dangerous deterrent effects, rather than alleviating such harms to public health. (See App. 140, 157-158, 202.)
Third, the alert is limited to testing and treatment for COVID-19, but the Public Charge Rule will also deter immigrants from accessing public benefits that are especially critical for their well-being in light of the dire public-health and economic crisis that COVID-19 has triggered. In just the last three weeks, this country has lost approximately sixteen million jobs, with worse losses likely to follow. See supra, at 10. Placing immigrants in a situation where they must choose between forgoing essential aid for healthcare, food, or housing or risking their future chances of obtaining LPR status is particularly inequitable during this unprecedented moment in our history, and will inhibit the country’s ability to recover from the current economic crisis.
* * * The nature and magnitude of the harms currently being imposed by the Rule warrant temporary relief from the stay, particularly when these harms were not known to the parties or the Court when the Court considered defendants’ stay application. See King, 88 S. Ct. at 842. Although this case has always concerned issues of public health and welfare, the COVID-19 outbreak and its ramifications on public health and the economy present sudden and stark new circumstances not previously considered by the Court and have vastly changed and amplified the irreparable harms caused by the Rule. And the likelihood of these harms occurring is no longer a prediction. The Rule’s devastating effects are happening now. Given these new circumstances, the Court should modify or lift its stay temporarily to meet the exigencies and equities of the current publichealth and economic crisis.
26

CONCLUSION

The Court should temporarily lift or modify its stay to halt implementation of the Public

Charge Rule during the national emergency declared on March 13, 2020. In the alternative, the

Court should clarify that its stay does not preclude the district court from considering whether

changed circumstances from the COVID-19 outbreak warrant temporary relief from

implementation of the Public Charge Rule.

Dated: New York, New York April 13, 2020

Respectfully submitted,

MATTHEW COLANGELO
ChiefCounselfor Federal Initiatives
ELENA GOLDSTEIN
Deputy Bureau Chief, Civil Rights Bureau
MING-QI CHU
Section Chief, Labor Bureau

LETITIA JAMES
Attorney General State ofNew York
lb!xu~ ~ I~ Solicitor General STEVEN C. Wu
Deputy Solicitor General JUDITH N. VALE
Senior Assistant Solicitor General
(212) 416-8016 barbara. underwood@ag.ny.gov
* Counsel of Record

WILLIAM TONG
Attorney General State ofConnecticut 55 Elm St. P.O. Box 120 Hartford, CT 06106

THOMAS J. DONOVAN, JR. Attorney General State of Vermont 109 State St. Montpelier, VT 05609

JAMES E. JOHNSON
Corporation Counsel City ofNew York 100 Church St. New York, NY 10007

27

APPENDIX

APPENDIX Table of Contents
Page
Order Granting Stay, dated Jan. 27, 2020 ........................................................................................1
District Court Memorandum Decision & Order, dated Oct. 11, 2019.............................................6
District Court Order Granting Plaintiffs’ Motion for a Preliminary Injunction, dated Oct. 11, 2019 ..................................................................................................................30
Declaration of Oxiris Barbot, MD, Commissioner, New York City Department of Health and Mental Hygiene .................................................................................................................33
Letter from State Attorneys General to Chad Wolf, Acting Secretary, U.S. Department of Homeland Security et al., dated Mar. 6, 2020 .........................................................................40
Printout of USCIS Public Charge Alert, dated Mar. 13, 2020.......................................................44
Letter from State Attorneys General to Chad Wolf, Acting Secretary, U.S. Department of Homeland Security et al...........................................................................................................48
Declaration of Leighton Ku, Professor of Health Policy and Management and Director of the Center for Health Policy Research at the Milken Institute School of Public Health, George Washington University in Washington, DC................................................................52
Declaration of Eden Almasude, Psychiatrist, Yale School of Medicine .....................................112
Declaration of Bitta Mostofi, Commissioner, New York City Mayor’s Office of Immigrant Affairs ..................................................................................................................115
Declaration of Sabrina Fong, Deputy Director of Research and Policy Advisor, New York City Mayor’s Office of Immigrant Affairs ...................................................................123
Declaration of John Paul Newton, Director of the Public Benefits Unit, Bronx Legal Services, New York, NY .......................................................................................................136
Declaration of Sarah Nolan, Supervising Attorney, Legal Health Division, New York Legal Assistance Group, New York, NY...............................................................................144
Declaration of Mario Russell, Director, Division of Immigrant and Refugee Services, Catholic Charities Community Services, Archdiocese of New York....................................148
Declaration of Theo Oshiro, Deputy Director, Make the Road New York, New York, NY .......................................................................................................................153
i

Page Declaration of Pedro Moreno, Assistant Professor of Family Medicine, University of
California San Francisco........................................................................................................160 Declaration of Aaron Coskey Voit, Managing Attorney, Monterey County Medical-Legal
Partnership at California Rural Legal Assistance, Inc., Salinas, CA .....................................162 Declaration of Alejandra Aguilar, Lead Health Educator, HIV Navigation Services Unit,
East Los Angeles Women’s Center, Los Angeles, CA..........................................................169 Declaration of Janel Heinrich, Director of Public Health, Madison and Dane County,
Madison, WI ..........................................................................................................................177 Declaration of Rachel Pryor, Deputy Director for Administration, Virginia Department of
Medical Assistance Services, Richmond, VA .......................................................................183 Declaration of Lisa M. Newstrom, Managing Attorney, Santa Clara County Regional
Office of Bay Area Legal Aid, San Jose, CA ........................................................................189 Declaration of Lawrence L. Benito, Executive Director, Illinois Coalition for Immigrant
and Refugee Rights, Chicago, IL ...........................................................................................199 Declaration of Maria Lucia Chavez, Deputy Director, Northwest Immigrant Rights
Project, Seattle, WA...............................................................................................................205 Declaration of Camille Kritzman, Case Manager, Integrated Refugee & Immigrant
Services, New Haven, COURT .............................................................................................216 Declaration of Dana Kennedy, Director of Community Partnerships, Center for Health
Progress, Denver, CO ............................................................................................................218 Letter from Oxiris Barbot, MD, Commissioner, Commissioner, New York City
Department of Health and Mental Hygiene et al., to Chad Wolf, Acting Secretary, U.S. Department of Homeland Security et al. .......................................................................226
ii

Cite as: 589 U. S. ____ (2020)

1

GORSUCH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 19A785
_________________
DEPARTMENT OF HOMELAND SECURITY, ET AL. v. NEW YORK, ET AL.
ON APPLICATION FOR STAY
[January 27, 2020]
The application for stay presented to JUSTICE GINSBURG and by her referred to the Court is granted, and the District Court’s October 11, 2019 orders granting a preliminary injunction are stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Second Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
JUSTICE GINSBURG, JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN would deny the application.
JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, concurring in the grant of stay.
On October 10, 2018, the Department of Homeland Security began a rulemaking process to define the term “public charge,” as it is used in the Nation’s immigration laws. Approximately 10 months and 266,000 comments later, the agency issued a final rule. Litigation swiftly followed, with a number of States, organizations, and individual plaintiffs variously alleging that the new definition violates the Constitution, the Administrative Procedure Act, and the immigration laws themselves. These plaintiffs have urged courts to enjoin the rule’s enforcement not only as it applies

App. 1

2 DEPARTMENT OF HOMELAND SECURITY v. NEW YORK
GORSUCH, J., concurring
to them, or even to some definable group having something to do with their claimed injury, but as it applies to anyone.
These efforts have met with mixed results. The Northern District of California ordered the government not to enforce the new rule within a hodge-podge of jurisdictions—California, Oregon, Maine, Pennsylvania, and the District of Columbia. The Eastern District of Washington entered a similar order, but went much farther geographically, enjoining the government from enforcing its rule globally. But both of those orders were soon stayed by the Ninth Circuit which, in a 59-page opinion, determined the government was likely to succeed on the merits. Meanwhile, across the country, the District of Maryland entered its own universal injunction, only to have that one stayed by the Fourth Circuit. And while all these developments were unfolding on the coasts, the Northern District of Illinois was busy fashioning its own injunction, this one limited to enforcement within the State of Illinois.
If all of this is confusing, don’t worry, because none of it matters much at this point. Despite the fluid state of things—some interim wins for the government over here, some preliminary relief for plaintiffs over there—we now have an injunction to rule them all: the one before us, in which a single judge in New York enjoined the government from applying the new definition to anyone, without regard to geography or participation in this or any other lawsuit. The Second Circuit declined to stay this particular universal injunction, and so now, after so many trips up and down and around the judicial map, the government brings its well-rehearsed arguments here.
Today the Court (rightly) grants a stay, allowing the government to pursue (for now) its policy everywhere save Illinois. But, in light of all that’s come before, it would be delusional to think that one stay today suffices to remedy the problem. The real problem here is the increasingly common practice of trial courts ordering relief that transcends the
App. 2

Cite as: 589 U. S. ____ (2020)

3

GORSUCH, J., concurring
cases before them. Whether framed as injunctions of “nationwide,” “universal,” or “cosmic” scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.
Equitable remedies, like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit. When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place. But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III. See Trump v. Hawaii, 585 U. S. ___, ___ (2018) (THOMAS, J., concurring); Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 471–472 (2017) (Bray); Morley, De Facto Class Actions? Plaintiff- and Defendant-Oriented Injunctions in Voting Rights, Election Law, and Other Constitutional Cases, 39 Harv. J. L. & Pub. Pol’y 487, 523–527 (2016).
It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice. As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions. Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little

App. 3

4 DEPARTMENT OF HOMELAND SECURITY v. NEW YORK
GORSUCH, J., concurring
opportunity for the adversarial testing of evidence. This is not normal. Universal injunctions have little ba-
sis in traditional equitable practice. Bray 425–427. Their use has proliferated only in very recent years. See Trump, 585 U. S., at ___–___ (THOMAS, J., concurring) (slip op., at 8–9). And they hardly seem an innovation we should rush to embrace. By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions. Bray 461–462. The traditional system of lower courts issuing interlocutory relief limited to the parties at hand may require litigants and courts to tolerate interim uncertainty about a rule’s final fate and proceed more slowly until this Court speaks in a case of its own. But that system encourages multiple judges and multiple circuits to weigh in only after careful deliberation, a process that permits the airing of competing views that aids this Court’s own decisionmaking process. Ibid. The rise of nationwide injunctions may just be a sign of our impatient times. But good judicial decisions are usually tempered by older virtues.
Nor do the costs of nationwide injunctions end there. There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal. Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide. Id., at 457–461. The risk of winning conflicting nationwide injunctions is real too. Id., at 462–464. And the stakes are asymmetric. If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94to-0 win in the district courts into a 12-to-0 victory in the courts of appeal. A single loss and the policy goes on ice— possibly for good, or just as possibly for some indeterminate
App. 4

Cite as: 589 U. S. ____ (2020)

5

GORSUCH, J., concurring
period of time until another court jumps in to grant a stay. And all that can repeat, ad infinitum, until either one side gives up or this Court grants certiorari. What in this gamesmanship and chaos can we be proud of?
I concur in the Court’s decision to issue a stay. But I hope, too, that we might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.

App. 5

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea3geof17o3f 24

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------x
STATE OF NEW YORK, CITY OF NEW YORK, STATE OF CONNECTICUT, and STATE OF VERMONT,

Plaintiffs,

-against-
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; SECRETARY KEVIN K. MCALEENAN, in his official capacity as Acting Secretary ofthe United States Department ofHomeland Security, agent ofActing : Secretary ofthe United States Department ofHomeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; DIRECTOR KENNETH T. CUCCINELLI II, in his official capacity as Acting Director ofUnited States Citizenship and Immigration Service; and UNITED STATES OF AMERICA,

MEMO NDUM DECISION 1NDORDER

Defendants.
----------------------------------------x
GEORGE B. DANIELS, United States District Judge:

Plaintiffs the State of New York, the City of New York, the State of onnecticut, and the

State of Vermont bring this action against Defendants the United States Dep rtment of Homeland

Security ("DHS"); the United States Citizenship and Immigration Services 'USCIS"); Secretary

Kevin K. McAleenan, in his official capacity as Acting Secretary of DHS; Director Kenneth T.

Cuccinelli II, in his official capacity as Acting Director of USCIS; and e United States of

America. (Compl. for Declaratory and Injunctive Relief ("Compl."), EC No. 17.) Plaintiffs

challenge Defendants' promulgation, implementation, and enforcement of rule, Inadmissibility

on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (to be co ified at 8 C.F.R. pts.

103, 212, 213, 214, 245, 248) (the "Rule"), which redefines the term "public charge" and

establishes new criteria for determining whether a noncitizen applying £ r admission into the

App. 6
SA 1

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea4geof27o3f 24

United States or for adjustment of status is ineligible because he or1sh~ is likely to become a "public

!

'

charge." (See id. ,r 2.) Plaintiffs seek, inter alia, (1) a judgment1declaring at the Rule exceeds

I

,

Defendants' statutory authority, violates the law, and is arbitrar~ and caprici us and an abuse of

I

,

discretion; (2) a vacatur of the Rule; and (3) an injunction enjoining DHS'.fro implementing the

' I

I

Rule. (Id. at 83-84.)

'
Plaintiffs now move pursuant to Federal Rule of Civil Procedure 5 for a preliminary

injunction enjoining Defendants from implementing or enforcing;' the Rule, ich is scheduled to

take effect on October 15, 2019. (Pls.' Notice of Mot., ECF No.'. 33.) They lso move under the
I
Administrative Procedure Act, 5 U.S.C. § 705, for a stay postponing the effec ive date of the Rule
'
pending adjudication of this action on the merits. (Id.) Plail}' .tiffs' moI tio for a preliminary

injunction and stay of its effective date is GRANTED. 1
I
I. FACTUAL BACKGROUND I I
A. Current Framework for Public Charge Determinatiolf.
I
The Immigration and Nationality Act (the "INA") proviIdes that the federal government

may deny admission or adjustment of status to any noncitizen wp.o it det~rm nes is "likely at any

,

I

!

time to become a public charge." 8 U.S.C. § 1182(a)(4)(A). In 1996, Congre s enacted two pieces

I

of legislation focusing on noncitizens' eligibility for public lbenefits• an on public charge

Act,

Pub.

L.

No.

104-193,

§ 403,

110

Stat.

2105,

2265---67

,
(199I6)

(the

,.I:,w

lfare

Reform

Act"),

I

'

which established a detailed-and restrictive-scheme go~erning lno!itizens' access to

benefits. It also passed the Illegal Immigration Reform and Immi~rant Respo sibility Act of 1996,

Pub. L. No. 104-208, § 531, 110 Stat. 3009, 3674-75 (1996) ("IIRIRA"), ~hi h amended the INA

i
I
1 This Court also grants, under separate order, the same preliminary injunction and tay in a related action,

Make the Road New York v. Cuccinelli, 19 Civ. 7993 (GBD).

I

I

2

I

App. 7

SA 2

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea5geof37o3f 24

i I
by codifying five factors relevant to a public charge determination. Specifical y, IIRIRJ\ provides

'
that in assessing whether an applicant is likely to fall within the definitiori of ublic charge, DHS

'

.

'

should, "at a minimum," take into account the applicant's ag~; health; f. ily status; assets,

'

resources, and financial status; and education and skills. 8 U.S.C. § ·1182(a)( )(B)(i).

'
In 1999, DHS's predecessor, the Immigration and Naturalization Se ice ("INS"), issued

28,689 (May 26, 1999) (the "Field Guidance"), as well as a parallel proposcll rule, 64 Fed. Reg.
28,676, which "summarize[d] longstanding law with respect to public charg and provide[d] new
guidance on public charge determinations" in light ofIIRIRA, the Welfare R form Act, and other
recent legislation. 64 Fed. Reg. at 28,689. Both the Field Guidance and p oposed rule defined
"public charge" as a noncitizen who has become or is likely to become ':'pri arily dependent on
I
the government for subsistence, as demonstrated by either (i) the receipt of p blic cash assistance
;
for income maintenance or (ii) institutionalization for long-term care at gove ent expense." Id. '
(internal quotation marks omitted). Consistent with the INA, INS regulati ns, and several INS,
Board of Immigration Appeals, and Attorney General decisions, they inst cted INS officials to
'
evaluate a noncitizen's likelihood of becoming a public charge by examini g the totality of the
noncitizen's circumstances at the time of his or her application. Id at 28,690 The Field Guidance
noted that "[t]he existence or absence of a particular factor should never be the sole criterion for
determining if an alien is likely to become a public charge." Id (emphasis o itted). Although the
parallel proposed rule was never finalized, the Field Guidance s~ts forth the urrent framework for
public charge determinations.

3 App. 8
SA 3

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea6geof47o3f 24

B. The 2018 Proposed Rulemaking and Rule.
' l
On October 10, 2018, DHS published a notice of propose~ rulema~in , Inadmissibility on

Public Charge Grounds, 83 Fed. Reg. 51,114 (Oct. 10, 2018), which with~e the 1999 proposed

'

' i

rule that INS had issued with the Field Guidance. Id. at 51,114. ~his newfy p oposed rule sought,

I

I

among other things, to redefine "public charge," and to amend the totality- f-the-circumstances

standard that is currently used in public charge determinations. See id. T~e otice provided a 60-

day period for public comments on the proposed rule. Id. DHS collected 266 077 comments, "the

vast majority of which opposed the rule." 84 Fed. Reg. at 41,297; see' al o id. at 41,304-484

(describing and responding to public comments).

Subsequently, on August 14, 2019, DHS issued the Rule. It was fi alized, with several

changes, as the proposed rule described in the October 2018 notice. Id. at 4 ,292; see also id. at

41,297-303 (summarizing changes in Rule).
I
Under the Rule, "public charge" is to be defined as any noncitizen 'who receives one or

more public benefits . .. for more than 12 months in the aggregate I'thin any 36-month

period." Id. at 41,501. The Rule defines "public benefit," in tum, bo cash benefits and

noncash benefits such as Supplemental Nutrition Assistance Program, edicaid, and public

housing and Section 8 housing assistance. Id. Each benefit is to be c unted separately in
I
calculating the duration of use, such that, for example, receipt of two benefit in one month would

count as two months. Id.

The Rule also provides a new framework for assessing whether a hon itizen is likely at any

time to become a public charge. Specifically, the Rule enumerates an expan ed non-exclusive list

of factors relevant to analyzing whether a person is likely to receive 12 mo ths of public benefits

'

i

within 36 months. See id. at 41,502-04. It includes, for example, family s:ze, English-language

4
App. 9
SA 4

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea7geof57o3f 24

I
proficiency, credit score, and any application for the enumerated public bene ts, regardless of the

actual receipt or use ofsuch benefits. Id. The Rule designates the ~actors as "p sitive," "negative,"

'

i

"heavily weighted positive," or "heavily weighted negative," and instructs the DHS officer to

"weigh" all such factors "individually and cumulatively." Id. at 41,397;1 se also id. at 41,502-

1

,

I

04. Under this framework, if the negative factors outweigh the positive £ ctors, the applicant

,, I

'

'

would be found likely to receive 12 months of public benefits in th~ future. e applicant would

then be found inadmissible as likely to become a public charge. Converse1y, 'fthe positive factors

outweigh the negative factors, the applicant would not be found inadmissibl as likely to receive

12 months of public benefits and thereby become a public charge. Id. at 41, 97.
l
DHS published various corrections to the Rule a~ redent y as October 2, l
2019. Inadmissibility on Public Charge Grounds; Correction, 84 Fe~.

2019). None of these corrections materially alter the new public charge ~ete ination framework

as outlined above. The Rule, as corrected, is set to go into effect on Oct~ber 15, 2019.

II. LEGAL STANDARD

"[A] preliminary injunction is 'an extraordinary remedy :ne er awarded as of

right."' Benisek v. Lamone, 138 S. Ct. 1942, 1943 (2018) (per cµriam) ( itation omitted). To

obtain a preliminary injunction, the moving party must establish "that he i likely to succeed on

the merits, that he is likely to suffer irreparable harm in the abs~nce of preli inary relief, that the

balance of equities tips in his favor, and that an injunction is in tµe public int rest.'' Winter v. Nat.

Res. Def Council, Inc., 555 U.S. 7, 20 (2008).

!

'

i

III. PLAINTIFFS HAVE DEMONSTRATED A LIKEL HOOD

OF SUCCESS ON THE MERITS OF THEIR ~L IMS

I
The Administrative Procedure Act ("APA") authorizes' jud' icialI re iew of agency rules.

'

I

'

'

Under the APA, a reviewing court must "hold unlawful and s~t aside ~ge cy action" that is "in

5 App. 10
SA 5

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea8geof67o3f 24

excess of statutory jurisdiction, authority, or limitations"; is "not in accord ce .with law"; or is

'

"arbitrary, capricious, [or] an abuse of discretion." 5 U.S.C § 706(2)(A), (C). Here, Plaintiffs are

I

I

'

likely to succeed on the merits of their claim that the Rule conflicts:with:the APA in all of these

respects.

A. Plaintiffs Satisfy the Threshold Justiciability Requirements.

'

I

As a preliminary matter, Defendants raise several argumehts that P.lai tiffs' claims are not

justiciable. Specifically, they assert that Plaintiffs lack standing, tµe c;laims ar no\ ripe for judicial

review, and Plaintiffs fall outside the zone of interests regulated by the Rule.

1. Plaintiffs Have Standing.

Article III of the U.S. Constitution limits the judicial power of federal ourts to "Cases" or

"Controversies." U.S. Const. art. III, § 2, cl. 1. To invoke ttiis power, a plaintiff must have

standing to sue. Clapper v. Amnesty Int'/ USA, 568 U.S. 398,408 (2013)·(ci tion omitted). The

plaintiff bears the burden of establishing standing, Rajamin v. Deutsche Ban Nat'/ Tr. Co., 757

F.3d 79, 84 (2dCir. 2014) (citingLzganv. Defs. ofWildlife, 504 U.S. 555,560 1 (1992);Premium

Mortg. Corp. v. Equifax, Inc., 583 F.3d 103, 108 (2d Cir. 2009)),'and such b den applies to each

claim and form of relief sought, DaimlerChrysler Corp. v. Cund, 547 U.S. 32, 352 (2006). To

demonstrate Article III standing, the plaintiff must show that (1) "it has suf ered a concrete and

is particularized injury that is either actual or imminent," (2) "the' injury fa rly traceable to the

'

I

'
defendant," and (3) "it is likely that a favorable decision will redtess that inj ry." Massachusetts

v. EPA, 549 U.S. 497, 517 (2007) (citing Lzgan, 504 U.S. at 560-6, 1). "[T]he resence of one party

with standing is sufficient to satisfy Article Ill's case-or-controversy require ent." Rumsfeld v.

Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 52 n.2.(2006) (cita ion omitted).

6 App. 11
SA 6

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea9geof77o3f 24

, I
Defendants, focusing on the first element, argue that Plaintiffs have n t alleged any injury

sufficient to confer standing. They principally argue that Plaintiffs' claims f iqeparable injury

"consist of potential future harms that, if they ever came to pass, )VOuld be sp rred by decisions of

'

I

third parties not before the Court," and that these injuries are therefore too'' attenuated and

speculative. (Mem. of Law in Opp'n to Pls.' Mot. for a Prelim.)nj. ("Defs. Opp'n"), ECF No.

I
99, at 7). In Defendants' view, the Rule governs only DHS persopnel and ce ain noncitizens, but

I

I

,

does not directly affect Plaintiffs, either by requiring or forbidding any acti non Plaintiffs' part

or by expressly interfering with any of Plaintiffs' programs. (Id.) Defend ts argue that in the i
context of challenges to federal immigration policies, courts have found state tan'ding only where

"the States' claims arise out of their proprietary interests as ~mployers o operators of state
I
universities." (Id) They further insist that certain of Plaintiffs' alleged injuri s, such as the health

effects arising from noncitizens forgoing health care, "would be born by [the] affected

'

,.

'

individuals, not [Plaintiffs]." (Id at 9.) Finally, Defendants dismiss the alleg d p~ogrammatic and

,.
administrative harm as "[b]ureaucratic inconvenience" and "vo*ntary expe ditures" that do not ,.

give rise to standing. (Id. at 10.)
l
I
Plaintiffs sufficiently allege "concrete and particulariz,ed" injuries They adequately

demonstrate, for example, that the Rule will have a chilling effect and de rease enrollment in

benefits programs, which will harm Plaintiffs' proprietary inter~sts as opera ors of hospitals and

healthcare systems. (Pls.' Reply in Supp. of Their Mot. for Prelif11. Inj. ~d tay Pending Judicial

'

,.

Review ("Pls.' Reply"), ECF No. 102, at 1.) Namely, Plaintiffs allege that this drop in participation

will reduce Plaintiffs' consumers and revenue, including thro~gh Medicai participants, while

simultaneously shifting costs of providing emergency healthc~re and shelt r benefits from the
'
federal government to Plaintiffs, who offer subsidized healthcare services. (Id.) Other injuries

7 App. 12
SA 7

CasCeas1e:1199-c-3v-509717,7D7o-GcuBmDenDt 1o3c0u,m1e2n/1t 31/12001F9,ile2d721905/1818/,1P9agPea1g0eo8f 7o3f 24

I I
include increased healthcare costs as noncitizen patients avoid pre~entative care; programmatic

costs

since

Plaintiffs

are

the

administrators

of the

public

benefits
' '

impli.cat

d

by

the

Rule;2

and

economic harm, including $3.6 billion in "economic ripple effects:" 26,00 lost jobs, and $175

. I

1: '

million in lost tax revenue. (Mem. of Law in Supp. of Pls.' Mot. for Prelim. I j. and Stay Pending

I

I'

Judicial Review ("Pls.' Mem."), ECF No. 35, at 10-13.) Such.actual and i inent injuries are

I
"fairly traceable" to Defendants' promulgation of the Rule. Acc9' rdingly, Pl ·nti~' s. have standing

to assert their claims. 2. Plaintiffs' Claims Are Ripe for Judicial Review'.

To be justiciable, Plaintiffs' claims must also be ripe-that is, th~y" u~t present 'a real, substantial controversy, not a mere hypothetical question."' N' at 'l Org'. fir Jv(.arriage, Inc. v.

Walsh, 714 F.3d 682, 687 (2d Cir. 2013) (quoting AMSAT Cab!~ Ltd v. Ca levision ofConn., 6

F.3d 867, 872 (2d Cir.1993)). "Ripeness 'is peculiarly a question oftimin ,"' and "(a] claim is

not ripe if it depends upon 'contingent future events that may n6t occur as ticipated, or indeed
I
may not occur at all."' Id. (quoting Thomas v. Union Carbide ,{1.gric. Pr.od. Co., 473 U.S. 568,

580-81 (1985)).

"Ripeness encompasses two overlapping doctrines concerning the ex cise of federal court

jurisdiction." Entergy Nuclear Vt. Yankee, LLC v. Shum/in, 733 F.3d 393 429 (2d Cir. 2013) I

(citing Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 0993)) (inte nal'quotation marks

I I

,

omitted). The first, constitution~! ripeness, "overlaps with the strding dbct .ne, 'most notably in

the shared requirement that the plaintiffs injury be immiyent ratlier than conjectural or

hypothetical.'" In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Lill ., 725 F.3d 65, 110

I

I
2 Plaintiffs allege that such programmatic costs include those associated .wit updating Plaintiffs'

"enrollment, processing, and recordkeeping systems; retraining staff fd preparing pdated materials; and

responding to public concerns." (Id. at 3.)

j

,

8 App. 13
SA 8

CasCeas1e:1199-c-3v-509717,7D7o-GcuBmDenDt 1o3c0u,m1e2n/1t 31/12001F9,ile2d721905/1818/,1P9agPea1g1eo9f 7o3f 24

I

1",,:

(2d Cir. 2013) (quoting Ross v. Bank ofAm., NA., 524 F.3d 217, ~26 (2nd Ci . 2608)). Prudential

ripeness, meanwhile, is "'an important exception to the usual ru~e that wher jurisdiction exists a

federal court must exercise it,' and allows a court to determine 'that the case ill be better decided

later."' Id. (quoting Simmonds v. Immigration Naturalization s;erv., 326 F. d 3:51, 357 (2d Cir.

,.

2003)). In determining whether a case is prudentially ripe, courts examine "( ) whether [the case]

I

,.

'
. is fit for judicial decision and (2) whether and to what extent t4e parties wi l er.idure hardship if

I
decision is withheld." Simmonds, 326 F.3d at 359 (citing Abbott Labs. v. Ga dner, 387 U.S. 136,

I•

148-49 (1967)).

One can conceive of no issue of greater ripeness than that presente here. The Rule is

scheduled to go into effect in a matter of days, at which point hundreds of tho sands of individuals

who were previously eligible for admission and permanent residence in the nited States will no

longer be eligible because of this change of law. Adverse cons~quences an determinations will

soon begin to have their effect. The Rule is intended to mimediately ause the immigrant
I
population to avoid public benefits. Plaintiffs must be prepared td immediate! adjust to the results

of this change in policy.

No further factual predicate is necessary for purposes of qetermining ipeness, where there
I
is clearly a legal question about whether the Rule exceeds Qefendants' delegated authority,

violates the law, and is arbitrary and capricious. Moreover, fo~ the same r asons that Plaintiffs

I

,.

sufficiently allege an injury under the standing inquiry, they have shown t at they will endure
I
significant hardship with any delay. Accordingly, Plaintiffs' b1aims ate r pe f,, or review, both

constitutionally and prudentially.

9
App. 14
SA 9

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea1g2eo1f07o3f 24
3. Plaintiffs Are Within the Zone of Interests Regulated By t The final threshold question raised by Defendants is whether Plainti have concerns that "fall within the zone of interests protected by the law invoked." Lexmar Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129 (2014) (citatiop and inte al quotation marks omitted). The zone-of-interests test is "not 'especially demanding,"' particu arly with respect to the APA and its "generous review provisions." Id at 130 (citation and inte al '~uotation marks omitted). Indeed, in the APA context, the Supreme Court has "often 'conspi uo~sly included the
'
word "arguably" in the test to indicate that the benefit of any doubt goes t the plaintiff."' Id (citation omitted). "The test forecloses suit only when a plaintiffs 'interes s ru,:e so marginally related to or inconsistent with the purposes implicit in the statute that it c ~t reasonably be assumed that Congress intended to permit the suit."' Match-E-Be-Nas She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209,225 (2012) (citation omitted).
Plaintiffs plainly fall within the INA's zone of interests. The interes ofi:immigrants and state and local governments are inextricably intertwined. Among a state ovemment's many obligations are representing and protecting the rights and welfare o its residents. As administrators of the public benefits programs targeted by the Rule, (see Pls.' Reply at 4 (noting INA's direct reference to states' roles as benefit admini tra\ors)), Plaintiffs' interests are all the more implicated. Furthermore, the zone-of-interests test' does not require the plaintiff to be an intended beneficiary of the law in question," but instead a lo~s parties simply "who are injured" to seek redress. Citizens for Responsibility & Ethics in Wa h. v; Trump, No. 18474, 2019 WL 4383205, at *16 (2d Cir. Sept. 13, 2019). The Supreme C urt ,has consistently found that economic injuries like those alleged here satisfy the test. See, e.g., B;ink ofAm. Corp. v. City ofMiami, 137 S.Ct. 1296, 1304-05 (2017) (finding city's discrimin tory lending claims
10 App. 15
SA 10

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea1g3eo1f17o3f 24
within zone of interests of Fair Housing Act, despite economic nature ofharm '.alleged and absence
: t
of any indication that Act was intended to protect municipal budgets). B. Plaintiffs Sufficiently Allege That the Rule Exceeds Statuto . Authority and Is Contrary to Law.
l
Turning to the merits of Plaintiffs' claims, Plaintiffs argue that the R '.le violates the APA I
because it exceeds DHS's delegated authority under the INA and is contrary o law. See 5 U.S.C § 706(2)(A), (C). In analyzing an agency's interpretation of a statute and hether the agency's
. action exceeds statutory authority, courts often apply the two-step fram {vork articulated in I
Chevron US.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). "[T]he question ... is always whether the agency has gone beyond what Congres 'has permitted it to do[.]" City of Arlington v. FCC, 569 U.S. 290, 298 (2013). Under Chev bn, courts first ask
I
whether the statute is clear. Chevron, 467 U.S. at 842. If so, "that is the en '.of the matter[,] for the court, as well as the agency, must give effect to the unambiguously ~xpressed intent of Congress." Id at 842-43. Where there is ambiguity, however, courts th n ask whether the agency's interpretation of the statute is reasonable. Id at 843-44. Such de rence "is premised
1
on the theory that a statute's ambiguity constitutes an implicit delegation fr m Congress to the agency to fill in the statutory gaps." FDA v. Brown & Williamson Tobacco prp., 529 U.S. 120, 159 (2000). Notwithstanding this implicit delegation, "agencies must operat ;'within the bounds
I [,
of reasonable interpretation,"' and "reasonable statutory interpretation must count for both 'the specific context in which ... language is used' and 'the broader context ~f the statute as a whole."' Util. Air Regulatory Grp. v. EPA, 573 U.S. 302,321 (2014) (citatio 's o~itted).
1. Long-Standing Definition of "Public Charge." Plaintiffs argue that the new Rule's definition of "public charge" is a dr tic deviation from the unambiguous and well-established meaning of the term that has ex sted for over 130
11
App. 16
SA 11

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea1g4eo1f27o3f 24
years. (Pls.' Mem. at 2, 19-24.) They assert that the term has consiste ~ly been interpreted narrowly to mean "an individual who is or is likely to become prima · y and permanently dependent on the government for -subsistence." (Id. at 3.) Going as far :ack as 1882, when Congress passed the first federal immigration statute, Plaintiffs note that e statute rendered excludable "convicts, lunatics, idiots, and any person unable to take care :of ·himself without becoming a public charge," (id. at 20 (quoting Immigration Act of 1882, c ·. 376, 22 Stat. 214, 47th Cong. (1882))), and that it sought to "prevent long-term residence in he :United States of those 'who ultimately become life-long dependents on our public charitie ~'" '(id. (quoting 13
'
Cong. Rec. 5108-10 (June 19, 1882) (statement of Rep. Van Voorhis)).) As laintiffs note, "[f]ar from excluding as public charges immigrants who received temporary assi nee, the same law authorized immigration officials to provide 'support and relief to immigr ts who may 'need public aid' after their arrival." (Id. (quoting Immigration Act of 1882 at§§ 1 2).)
'
Plaintiffs point to court decisions in the years that followed, confirm· g this definition of "public charge," as well as the INA itself, which adopted this interpretation upon its passage in 1952. (Id. at 21-22.) According to Plaintiffs, federal agencies have also onsistently viewed "public charge" to mean someone who is "primarily dependent on the g .vernment for cash
I
assistance or on long-term institutionalization," as evidenced by (1) INS's 1 .99 Field Guidance,
I
which formally codified this definition; (2) INS' s "extensive[]" consultatio with other agencies prior to issuing the guidance; and (3) the Department of Justice's use of the" rimarily dependent" standard in the deportation context. (Id at 22-23.)
In opposition, Defendants assert that the definition of ''public cha ge" in the Rule "is consistent with the plain meaning of the statutory text, which 'is to be dete ined at the time that it became law."' (Defs.' Opp'n at 13 (quoting One West Bank v. Melina, 8 F.3d 214, 220 (2d
12 App. 17
SA 12

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea1g5eo1f37o3f 24
Cir. 2016)).) They direct this Court to dictionaries used in the 1880s, when he Immigration Act of 1882 was passed, which allegedly "make clear" that a noncitizen becom s a "public charge"
.
"when his inability to achieve self-sufficiency imposes an 'obligation' or 'li 'bility' on 'the body of the citizens' to provide for his basic necessities." (Id. at 13-14.)
Upon review of the plain language of the INA, the history and com on-law meaning of "public charge," agency interpretation, and Congress's repeated reenactmen oqhe INA's public charge provision without material change, one thing is abundantly clear 1public charge" has never been understood to mean receipt of 12 months of benefits ithin a 36-month period. Defendants admit that this is a "new definition" under the Rule. (L : at 5.) And at oral
'
argument, they did not dispute that this definition has never been referenced i the history of U.S. immigration law or that there is zero precedent supporting this particular defi tion. (See, e.g., Tr. of Oral Arg. dated Oct. 7, 2019 at 51:8-11, 52:1-3.) No ordinary or legal die ·onary definition of
'
"public charge" references Defendants' proposed meaning of that term. As uch, Plaintiffs raise a compelling argument that Defendants lack the authority to redefine "public g' e" as they have.
2. Congress's Intent. Nor is there any evidence that Congress intended for a redefinition of' public charge," and
I
certainly not in the manner set forth in the Rule. No legislative intent or ·istorical precedent alludes to this new definition. Defendants have made no showing that Congr ss ~as anything but content with the current definition set forth in the Field Guidance, which defi es public charge as someone who has become or is likely to become primarily dependent on the overnment for cash assistance. Indeed, Congress has repeatedly endorsed this definition and rejec ed efforts to expand it. For example, during the 1996 debate over IIRIRA, several members o Congress tried and failed to extend the meaning of public charge to include the use of non-cas 'benefits. See 142
13 App. 18
SA 13

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea1g6eo1f47o3f 24

Cong. Rec. S 11612, at S 11712 (daily ed. Sept. 16, 1996). Congress rejected s milar efforts in 2013

because of its "strict benefit restrictions and requirements." S. Rep. 113-40, t 42 (2013).

In addition, if Congress wanted to deny immigrants any of the public ·enefits enumerated

in the Rule, it could have done so, as it similarly has in the past. The Wel e Reform Act, for

example, restricted certain noncitizens' eligibility for certain benefits. Spe ifically, it provided

that only "qualified" noncitizens-which, in most cases, meant those who ·ad remained in the

United States for five years-could have access to most federal means-teste public benefits. 8

U.S.C §§ 1612, 1613. Therefore, the absence of any Congressional inten to redefine public

charge also counsels in favor of a preliminary injunction.

C. Plaintiffs Sufficiently Demonstrate That the Rule Is Arbitrary an

Plaintiffs additionally argue that the Rule is arbitrary and capricio s. See 5 U.S.C. §

706(2)(A). "The scope ofreview under the 'arbitrary and capricious' standard s narrow[.]" Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 ,.S. 29' , 43 (1983).

Nevertheless, the APA requires an agency to "engage in 'reasoned decisionm ing,"' Michigan v.

EPA, 135 S. Ct. 2699, 2706 (2015) (citation omitted), and to "articulate a sati factory explanation

for its action," State Farm, 463 U.S. at 43 (citation omitted). An agency .le is.arbitrary and

capricious if the agency:

relied on factors which Congress has not intended it to consider, entir ly failed to consider an important aspect of the problem, offered an explanation fo 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 expert se.
Id. Where an agency action changes prior policy, the agency need not de onstrate "that the

reasons for the new policy are better than the reasons for the old one." FC v. Fox Television

Stations, Inc., 556 U.S. 502,515 (2008). It must, however, "show that there e good reasons for

the new policy."

Id.

This requirement is heightened where the "new polic

I
rests upon factual

>

14 App. 19
SA 14

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea1g7eo1f57o3f 24
findings that contradict those which underlay its prior policy," id (citation om tted), Jis "a reasoned explanation is needed for disregarding facts and circumstances that underlay ~r were engendered by the prior policy," id at 516.
1. Defendants' Justification of Rule. Here, Defendants fail to provide any reasonable explanation for chan ing the definition of "public charge" or the framework for evaluating whether a noncitizen is likel .to become a public charge. As noted above, "public charge" has never been interpreted as so one "who receives one or more public benefits ... for more than 12 months in the aggregate ithin any 36-month period." 84 Fed. Reg. at 41,501. This new definition essentially change . the public charge assessment into a benefits issue, rather than an inquiry about self-subsist nee, such that any individual who is deemed likely to accept a benefit is considered a public c arge. Receipt of a benefit, however, does not necessarily indicate that the individual is unable to pport herself. One could envision, for example, a scenario where an individual is fully capable supporting herself without government assistance but elects to accept a benefit, such as pub ic housing, simply because she is entitled to it. Under the Rule, although this individual is legal y entitled to public housing, if she takes advantage of this right, she may be penalized with den al of adjustment of status. There is no logic to this framework. Moreover, considering that e federal welfare program was not established in the United States until the 1930s, whereas e concept of public
charge existed at least as early as 1882, there must be some definition of pu lie charge separate
and apart from mere receipt of benefits. At oral argument, Defendants were afforded numerous opportunities to articulate a rational
basis for equating public charge with receipt of benefits for 12 months within a 36-month period, particularly when this has never been the rule. Defendants failed each and every time. When
15 App. 20
SA 15

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea1g8eo1f67o3f 24
asked, for example, why the standard was 12 months and 36 months as o posed to any other
number of months, Defendants merely responded that they do not need to "s ?W a case from 100
years ago that also adopted this precise 12[/]36 standard." (Tr. of Oral Arg. ~ted Oct. 7, 2019 at 53:14-20.) Defendants were asked to explain how the new framework w uld operate and to provide an example of the "typical person" that Defendants could predict is going to receive 12 months of benefits in a 36-month period. (Id. 68:11-80:123.) Defendants a run stumbled along and were unable to adequately explain what the determinative factor is ~er the Rule, what individual would fall across the line and be considered a public charge, and w at evaluation of the factors enumerated in the Rule would make the DHS officer confident that she could make an appropriate prediction. (Id.) And yet, according to Defendants, the Rule is in ended to "provide[] a number of concrete guidelines to assist in making [the public charge] de ermination" and is "designed ... to make it more predictable for people on both sides of the ad'udi<;atory process." (Id. at 80:20-23.) Quite the opposite appears to be the case.
Defendants suggest that the totality-of-circumstances test remains nd that receipt of benefits for 12 months out of a 36-month period is only one of several facto s to be considered. (Id. at 52:17-22.) This characterization of the Rule is plainly incorrect. Un er the Rule, receipt of such benefits is not one of the factors considered; it is the factor. That ·s, if a DHS officer believes that an individual is likely to have benefits for 12 months out of a 3 -month period, the inquiry ends there, and the individual is automatically considered a publi :charg~. As such, Defendants are not simply expanding or elaborating on the list of factors to co sider in the totality of the circumstances. Rather, they are entirely reworking the framework, a d with no rational basis.
16 App. 21
SA 16

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea1g9eo1f77o3f 24

Defendants also fail to demonstrate rational relationships between rn y 6f the additional \ '
factors enumerated in the Rule and a finding of benefits use. One illustr ive example is the I !
addition of English-language proficiency as a factor. Defendants do not di 'pute that there has
i
never been an English-language requirement in the public charge analysis. T ey prgue, however,

that it was "entirely reasonable" to add English proficiency as a factor, give the requirement in

,

I

the INA to consider an applicant's "education and skills," and the "correlatio be'tween a lack of I

English language skills and public benefit usage, lower incomes, and lower ra es ~f employment."

(Defs.' Opp'n at 27.) Defendants' suggestion that an individual is likely to bee rn~ a.public charge
I
simply by virtue of her limited English proficiency is baseless, as one can cert ·nly be a productive

and self-sufficient citizen without knowing any English. The United States of ~erica has no

official language. Many, ifnot most, immigrants who arrived at these shores di not speak English. I
It is simply offensive to contend that English proficiency is a valid predictor f seif-·sufficiency.3
:
In short, Defendants do not articulate why they are changing the pubr · c~arge definition,
I
why this new definition is needed now, or why the definition set forth in t Rule-which has
absolutely no support in the history of U.S. immigration law-is reasonable. J'he' Rule is simply '
I
a new agency policy of exclusion in search of a justification. It is repugn t tb the American

Dream of the opportunity for prosperity and success through hard work an upward mobility.
' I
Immigrants have always come to this country seeking a better life for th rn~elves and their
I
'
posterity. With or without help, most succeed.

I
I
3 Similarly, it is unclear how the credit score of a new immigrant-who, for exa pie'~ may have only recently opened her first credit account and therefore has a short credit history, wh ch would negatively impact her credit score-is indicative ofher likelihood to receive 12 months of public ben,::fits. Defendants blithely argue that a low credit score "is an indication that someone has made finan ial dec!sions that are not necessarily entirely responsible" and that "those irresponsible financial decision . m4y be the product of someone who doesn't have very much money to work with." (Tr. of Oral Arg. atei:l Oct 7, 20 l9 at 86:16-20).
17 App. 22
SA 17

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea2g0eo1f87o3f 24
2. Rehabilitation Act. Plaintiffs further argue that the Rule discriminates against individuals with disabilities, in contravention of Section 504 of the Rehabilitation Act, Pub. L. No. 93-112, 7 Stat. 394 (1973) (codified at 29 U.S.C. § 794). Section 504 provides that no individual wit a disability "shall, solely by reason of her or his disability, be excluded from the participatio in, be denied the benefits of, or be subjected to discrimination ... under any program or activit conducted by any Executive agency." 29 U.S.C. § 794(a). DHS, in particular, is prohibited fro denying access to benefits and services on the basis of disability, 6 C.F.R. § 15.30(b)(l , and from using discriminatory criteria or methods of administration, id. § 15.30(b)(4). Se, als~ ,id. § 15.49. "Exclusion or discrimination [under Section 504] may take the form of isparate treatment, disparate impact, or failure to make reasonable accommodation." B. C. v. Mou t Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016). The Rule clearly considers disability as a negative factor in the public charge assessment. Defendants acknowledge that disability is "one factor ... that may be consi ered" and that it is "relevant ... to the extent that an alien's particular disability tends to show th the is 'more likely than not to become a public charge' at any time." (Defs.' Opp'n at 30 (quot ng 84 Fed. Reg. at 41,368).) Defendants do not explain how disability alone is itself a negative actor indicative of
being more likely to become a public charge. In fact, it is inconsistent with t e reality that many
individuals with disabilities live independent and productive lives. As such, P aintiffs have raised at least a colorable argument that the Rule as to be applied may violate the Re bilitation Act, and further discovery and development of the record is warranted prior to its impl mentation.
18 App. 23
SA 18

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea2g1eo1f97o3f 24
IV. PLAINTIFFS HAVE DEMONSTRATED THAT THEY LL SUFFER IRREPARABLE HARM ABSENT A PRELIMINARY IN UNCTION
"A showing of irreparable harm is 'the single most important prerequi ite for the issuance of a preliminary injunction."' Faiveley Transp. Malmo AB v. Wabtec Corp. 559 F.3d 110, 118 (2d Cir. 2009) (citation omitted). "To satisfy the irreparable harm require ~mt, Plaintiffs must demonstrate that absent a preliminary injunction they will suffer 'an injury t at is neither remote nor speculative, but actual and imminent,' and one that cannot be remedied 'i a court waits until the end of trial to resolve the harm."' Grand River Enter. Six Nations, Ltd v. ryor, 481 F.3d 60, 66 (2d Cir. 2007) (citation omitted). However, Plaintiffs need only show "a reat of irreparable harm, not that irreparable harm already ha[s] occurred." Mullins v. City ofM York, 626 F.3d 47, 55 (2d Cir. 2010).
The irreparable injury to Plaintiffs by shifting the burden of provid' g services to those who can no longer obtain federal benefits without jeopardizing their status i the ~nited States, and the immediate response that is necessary by this shift of burden to Plain iffs, is a direct and inevitable consequence of the impending implementation of the Rule. A discussed above, Plaintiffs allege that their injuries will include proprietary and economic harm, swell as increased healthcare and programmatic costs, and that they will suffer substantial ardshi'p without a preliminary injunction. See supra Parts III.A.1-2. Plaintiffs provide decl ations extensively describing and calculating such injuries. (See Deel. of Elena Goldstein, EC No. ~4 (attaching additional declarations and comment letters on proposed rule).)
No less important is the immediate and significant impact that the im lemeµtation of the Rule will have on law-abiding residents who have come to this country to se a better life. The consequences that Plaintiffs must address, and America must endure, will be ersonal and public disruption, much of which cannot be undone. Overnight, the Rule will ex ose individuals to
19 App. 24
SA 19

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea2g2eo2f07o3f 24
economic insecurity, health instability, denial of their path to citizen Ihip, and potential deportation-none of which is the result of any conduct by those such injuri s will affect. It is a rule that will punish individuals for their receipt of benefits provided by o '.r government, and discourages them from lawfully receiving available assistance intended to ai : them in becoming contributing members of our society. It is impossible to argue that there is no rreparable harm for these individuals, Plaintiffs, and the public at large.
V. THE BALANCE OF HARDSHIPS AND PUBLIC INT RESl' TIP IN PLAINTIFFS' FAVOR
Finally, Plaintiffs must demonstrate that "the balance of equities tips· [their] favor" and that "an injunction is in the public interest." Winter, 555 U.S. at 20. "These actors,merge when the Government is the opposing party." Nken v. Holder, 556 U.S. 418, 435 ( 009). 'In assessing these factors, the court must "balance the competing claims of injury and mus consider the effect on each party of the granting or withholding of the requested relief," as ell as "the public consequences in employing the extraordinary remedy of injunction." Win r, 555 U.S. at 24 (citations omitted).
Here, preventing the alleged economic and public health harms pr vides a significant public benefit. As discussed above, these harms are not speculative or insu ciently immediate. In fact, the notice of proposed rulemaking itself acknowledged that the Rule c uld cause"[w]orse health outcomes"; "[i]ncreased use of emergency rooms and emergent care as metho,d ofprimary health care due to delayed treatment"; "[i]ncreased prevalence of com including among members of the U.S. citizen population who are not vaccinat d"; "[1]ncreases in uncompensated care in which a treatment or service is not paid for by an nsurer or patient"; "[i]ncreased rates of poverty and housing instability"; "[r]educed productiv y an~' educational attainment"; and other "unanticipated consequences and indirect costs." 83 F d. Reg. at 51,270.
20 App. 25
SA 20

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea2g3eo2f17o3f 24
Moreover, there is no public interest in allowing Defendants to proce d wit~ an unlawful,
arbitrary, and capricious rule that exceeds their statutory authority. See Pia ned farenthood of ' I
NY.C., Inc. v. US. Dep't ofHealth & Human Servs., 337 F. Supp. 3d 308, 3 3 (s.y.N.Y. 2018)
("It is evident that '[t]here is generally no public interest in the perpetuation of uni~wful agency action.' ... The inverse is also true: 'there is a substantial public interest in 'h ving &' overnmental
'
agencies abide by the federal laws that govern their existence and operations "' (qtlpting League
'
ofWomen Voters ofUS. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016)).)
To be sure, Defendants have a legitimate interest in administering then tional: immigration
f
!
system. However, that interest is not paramount in this instance, particular! wher¢ Defendants
'
fail to demonstrate why or how the current public charge framework is inad quateJ Defendants !
have applied their current rules for decades, and the current concept of "publ c charge" has been
I
-t
accepted for over a century. Aside from conclusory allegations that they wi "be harmed by an
' I
impediment" to administering the immigration system, (Defs.' Opp'n at 38), efendants do not-
and cannot-articulate what actual hardship they will suffer by maintaining e statu~ quo.
Accordingly, because Plaintiffs are likely to succeed on the merits and o suffJr irreparable
I
f
harm absent preliminary relief, and the balance of hardships and public inter t tip ip their favor,
'
Plaintiffs are entitled to a preliminary injunction.
VI. THE INJUNCTION SHOULD APPLY NATIONWI
I
As to the scope ofthe relief, a nationwide injunction is necessary. The ope ofpreliminary
injunctive relief generally should be "no broader than necessary to cure the ffects. of the harm
caused by the violation" and "not impose unnecessary burdens on lawful a tivity." Church &
Dwight Co. v. SPD Swiss Precision Diagnostics, GmBH, 843 F.3d 48, 72 (2d ir. 2oi6) (citations f
omitted). However, there is no requirement that an injunction affect only th partids in the suit.
21 App. 26
SA 21

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea2g4eo2f27o3f 24
See Califano v. Yamasaki, 442 U.S. 682, 702 (1979) ("[T]he scope of injunc ive reiiefis dictated
by the extent of the violation established, not by the geographical extent of e plairttiff class.")
,,
Here, a nationwide injunction is appropriate. First, national immigra ·on policies, such as
I
t
the Rule, require uniformity. Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 017), ~ev'd on other
I
grounds, 138 S. Ct. 2392 (2018); see also Batalla Vidal v. Nielsen, 279 F Supp.! 3d 401, 438
(E.D.N.Y. 2018) (granting nationwide injunction preventing rescission of efe~ Action for
i
Childhood Arrivals program in part because "there is a strong federal interest in the ~iforrnity of
I
federal immigration law"); U.S. Const. art. I, § 8, cl. 4 ("The Congress shall have Power ... To
establish a[] uniform Rule of Naturalization.'). A geographically limited i "uncti+ that would
result in inconsistent applications of the Rule, and different public charge d termi~ations based
!
upon similar factors, is inimical to this need for uniformity in immigration en orcemrnt.
Indeed, at least nine lawsuits have already been filed challenging the ule, including State
t
ofCaliforniav. US. Department ofHomeland Security, 19 Civ. 4975 (PJH) .D. Cal.) and State I t
of Washington v. United States Department of Homeland Security, 19 Civ. 5210 (RMP) (E.D. I '
Wash.).4 In just these two actions alone, Plaintiffs include the State of C iforni~, District of
t
Columbia, State ofMaine, Commonwealth ofPennsylvania, State of Oregon, S ate oflwashington,
' t
Commonwealth of Virginia, State of Colorado, State of Delaware, State f Illinbis, State of
I
I Maryland, Commonwealth of Massachusetts, Attorney General Dana Ness l on bIehalf of the
People of Michigan, State of Minnesota, State of Nevada, State of New Je sey, ~tate of New
I
Mexico, and State of Rhode Island. Combined with the instant action, that m ans th~1.t nearly two ' '
4 In addition to the instant action and the related action both before this Court, these ther actions include Mayor and City Council of Baltimore v. United States Department of Homeland S curity, !19 Civ. 2851 (PJM) (D. Md.); Casa De Maryland, Inc. v. Trump, 19 Civ. 2715 (PWG) (D. Md.); C tyand 9ounty ofSan Francisco v. US. Citizenship and Immigration Services, 19 Civ. 4717 (PJH) (N.D. C L); La <;linica De La Raza v. Trump, 19 Civ. 4980 (PJH) (N.D. Cal.); and Cook County, lllinois v. McA enan, l19 Civ. 6334
(GF) (N.D. Ill.). 22
App. 27
SA 22

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea2g5eo2f37o3f 24

I dozen jurisdictions have already brought suit. It would clearly wreak havo on the' immigration

system if limited injunctions were issued, resulting in different public charg frameworks spread
t
across the country, based solely on geography. Batalla, 279 F. Supp. at 438 ( rantiqg nationwide
I
injunction where more limited injunction "would likely create administrati e probI lems for the

Defendants").
t
There is no reasonable basis to apply one public charge framework to o e set ~f individuals
I '
and a different public charge framework to a second set of individuals merely ecause they live in
l
I
different states. It would be illogical, for example, if a New York resid nt wai eligible for

adjustment ofstatus but a resident of a sister state with the same exact backgro d wa~ not eligible,

' t
only because the second resident had the misfortune of living somewhere not overeq by a limited

I

injunction.

!

I

Relatedly, a nationwide injunction is necessary to accord Plaintiffs d other interested

i
!

parties with complete redress. In particular, an individual should not have o fear[that moving

t
from one state to another could result in a denial of adjustment of status. or exrple, if the

injunction were limited to New York, Connecticut, and Vermont, and a New ork resident moved
t
i to New Jersey where the injunction would not apply, this individual could th re be ~onsidered a
l ' public charge and face serious repercussions simply for crossing state bord rs. "[F]reedom to
! . travel throughout the United States has long been recognized as a bas c rig~t under the
Constitution." United States v. Guest, 383 U.S. 745, 758 (1966) (citations o itted)J It has been
'
considered a "right so elementary [that it] was conceived from the beginnin to b~ a necessary I
l
concomitant ofthe stronger Union the Constitution created." Id; see also Gri zn v. Breckenridge,

' 403 U.S. 88, 105 (1971) ("Our cases have firmly established that the right o inters}ate travel is
I constitutionally protected, does not necessarily rest on the Fourteenth end°fent, and is

r
I

I

23

I
t

App. 28

SA 23

CasCea1s:e191-9c-v3-509717,7D7-oGcBumD enDto1c3u0m, 1e2n/t1131/2001F9il,e2d71209/51818/1, 9PagPea2g6eo2f47o3f 24

assertable against private as well as governmental interference.") T

I
Supreme Court's
·1

recognition of the preeminence of this right lends further support for a natio wide ip.junction that

would not interfere with individuals' ability to move from one place to anoth r. See} e.g., Batalla,

279 F. Supp. 3d at 438 (finding nationwide injunction appropriate "partly i light!of the simple

i

fact that people move from state to state and job to job").

I I

Accordingly, this Court grants a nationwide injunction, as well as a stay p~stponing the

effective date of the Rule pending a final ruling on the merits, or further orde of th1 Court.5

VII. CONCLUSION

Plaintiffs' motion for issuance of a preliminary injunction, (ECF No. 3), is PRANTED.
I

Dated: New York, New York October 11, 2019

SO ORDERED.
E,'D~
EB. DANIE s I
United States District udge 1

5 The standard for a stay under 5 U.S.C. § 705 is the same as the standard for a preli inary if1junction. Nat. Res. Def Council v. US. Dep't ofEnergy, 362 F. Supp. 3d 126, 149 (S.D.N.Y. 20 9). Aycordingly, this Court grants the stay for the same reasons it grants the injunction.
24 App. 29
SA 24

rusnc ·1 Case 1:19-cv-07777-GBD Document 109 Filed 10/1110/019cuMPaSEgDeIN\41-TYof 3 --- •

1

IELE~<ONICALLY FILED.

UNITED STATES DISTRICT COURT
l r~~~1:,~LED:.- SOUTHERN DISTRICT OF NEW YORK

l0c;T 1 t2DJ:

----------------------------------------x
I

STATE OF NEW YORK, CITY OF NEW YORK,

I

STATE OF CONNECTICUT, and STATE OF

I

VERMONT,

Plaintiffs,

-against-

UNITED STATES DEPARTMENT OF HOMELAND SECURITY; SECRETARY KEVIN K. MCALEENAN, in his official capacity as Acting Secretary ofthe United : States Department ofHomeland Security, agent ofActing : Secretary ofthe United States Department ofHomeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; DIRECTOR KENNETH T. CUCCINELLI II, in his official capacity as Acting Director ofUnited States Citizenship and Immigration Service; and UNITED STATES OF AMERICA,

i

bRDER GRANTING PLAINTIFFS'

!MOTION FOR A PRELIMINARY

'

INJUNCTION

19 Civ. 7777 (GBD)

Defendants.
----------------------------------------x
GEORGE B. DANIELS, United States District Judge:

WHEREAS on September 9, 2019, the State of New York,,the City of New York, the State

of Connecticut, and the State of Vermont (the "State Plaintiffs") filed a Motion for Preliminary

Injunction in Case No. 19 Civ. 7777 (GBD) (S.D.N.Y.) (the "Stat~ Action") to enjoin defendants

from implementing or enforcing the Final Rule of the Department of Homeland Security titled
I
"Inadmissibility on Public Charge Grounds," 84 Fed. Reg. 41,292 (the "Rule") pursuant to Federal

Rule of Civil Procedure 65, or to postpone the effective date of the Rule pursuant to 5 U.S.C. §

705;

WHEREAS also on September 9, 2019, Make the Road New York, African Services !
Committee, Asian American Federation, Catholic Charities CoIDfllunity Services, and Catholic

Legal Immigration Network, Inc. (the "Organizational Plaintiffst and, together with the State

App. 30

Case 1:19-cv-07777-GBD Document 109 Filed 10/11/19 Page 2 of 3

Plaintiffs, "Plaintiffs") similarly filed a Motion for Preliminary Injunction in Case No. 19 Civ.

7993 (GBD) (S.D.N.Y.) (the "Organizational Action," and, tog~ther with the State Action, the

"Actions") to enjoin defendants from implementing or enforcing the ~ule pursuant to Federal Rule

of Civil Procedure 65, or to postpone the effective date of the Rule, pursuant to 5 U.S.C. § 705

(together with the State Plaintiffs' motion, the "Motions");

I

n.' WHEREAS on September 27, 2019, Kenneth T. Cuccinelli United States Citizenship & I

Immigration Services, Kevin K. McAleenan, Department of Ho~eliiud Security, and the United

States of America (as to the State Action only) ("Defendants") stb~itted briefs in opposition to

the Motions;

l :

WHEREAS on October 4, 2019, Plaintiffs filed replies in ~~er sup;ort of the Motions;
I .
WHEREAS amici have filed briefs in support of or opposition to the Motions;
I

WHEREAS on October 7, 2019, this Court held a hearing Jn the Motions at which counsel

I

for all parties presented oral argument;

I

I. .

WHEREAS this Court, having considered the Motion and the documents filed therewith,

I

as well as all other papers filed in the Actions, and having heard qral arguments from the parties,

finds good cause to grant the Motions because:

I 1

1. Plaintiffs are likely to succeed on the meritr of their claims under the

Administrative Procedure Act, and, with respect to the Organizational Plaintiffs,

under the United States Constitution;

2. Plaintiffs will suffer irreparable harm if the Rule b comes effective; and

3. The balance of equities and the interests of justice avor issuance of a preliminary

injunction;

2
App. 31

Case 1:19-cv-07777-GBD Document 109 Filed 10/11/19 Page 3 of 3

It is hereby ORDERED that, pursuant to Federal Rule of jivil Procedure 65(a), Defendants

1

:

are RESTRAINED AND ENJOINED from:

l I

I .

,

1. Enforcing, applying or treating as effective, or all~wing persons under their control

1

I

,

to enforce, apply, or treat as effective, the Rule; a~d ,

2. Implementing, considering in connection with an1 application, or requiring the use

of any new or updated forms whose submission w[tld be req'fed under the Rule,

including the new Form I-944, titled "Declaration of Self SJ, ficiency," and the

updated Form I-485, titled "Application to Registe P~rmanent esidence ofAdjust

Status"; and,

It is hereby FURTHER ORDERED that, pursuant to 5 U.I .C,. § 705, he effective date of
I .
the Rule is STAYED and POSTPONED sine die pending furthej Order of th Court such that, if

this Order is later terminated and the Rule goes into effect, thlRule's stat d effective date of

October 15, 2019, as well as any references in the Rule to Octal er: 15, 201 , including but not

limited those contained in proposed 8 CFR §§ 212.20, 212.22(b)f4)(i)(E), 21 .22(b)(4)(ii)(E)(l),

212.22(b)(4)(ii)(E)(2), 212.22(b)(4)(ii)(F), 212.22(c)(l)(ii), 21b.22(d), 21 .1, 248.l(a), and

248.1 (c)(4), shall be replaced with a date after this Order is termi ated.

Dated: New York, New York October 11, 2019

3 App. 32

IN THE UNITED STATES DISTRICT COURT No. 19A785 In the
Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al., Applicants,
v. NEW YORK, et al.,
Respondents.
I, OXIRIS BARBOT, M.D., pursuant to 28 U.S.C. Section 1746, declare under penalty of perjury as follows:
1. I am the Commissioner of the New York City Department of Health and Mental Hygiene (“DOHMH”). I am familiar with the matters set forth herein, either from professional knowledge, personal knowledge, conversations with DOHMH staff, or on the basis of documents provided to and reviewed by me. I respectfully submit this Declaration in support of the Respondents’ applications in the above-captioned matter.
2. I have over 25 years of experience as a health care provider and public health practitioner. I received a bachelor’s degree from Yale University, earned a medical degree from the University of Medicine and Dentistry of New Jersey, and completed my pediatric residency at George Washington University’s Children’s National Medical Center. From 2014 to 2018, I was First Deputy Commissioner of DOHMH and I oversaw the development and implementation of Take Care New York 2020, New York City’s data-driven health agenda focused on
App1. 33

addressing the social determinants of health and engaging communities on issues of health equity. I served as Commissioner of Health for Baltimore City from 2010 to 2014 where I led the development of Healthy Baltimore 2015, a health policy agenda focused on improving health outcomes by focusing on areas where the largest impact could be made to raise quality of life. From 2003 to 2010, I served as medical director of the Office of School Health at the New York City Department of Health and Mental Hygiene and the New York City Department of Education. I practiced primary care pediatrics at Unity Health Care, Inc., a federally qualified health center in Washington, DC, from 1994 to 2003.
3. DOHMH is one of the largest public health agencies in the world. It is responsible for protecting and promoting the health of everyone who lives in, works in or visits New York City.
4. Currently, DOHMH is on the frontlines of the fight against COVID-19 in the City of New York. DOHMH is performing enhanced surveillance to track disease spread; providing guidance to doctors, hospitals, nursing homes, and other healthcare and congregate facilities regarding pandemic planning, testing, infection control, personal protective equipment (PPE), and other matters; testing for COVID-19 in its Public Health Laboratory; distributing PPE, ventilators, and other medical equipment to hospitals, nursing homes, and other high priority healthcare sites; and assisting in creating increased healthcare capacity, including by assisting in transforming external sites such as the Jacob Javits Center. In addition, DOHMH is educating New Yorkers about how to protect themselves from the virus by publicizing accurate information about COVID-19 through a variety of means including posters, flyers, letters, and other written communications available in over 20 languages; a detailed website; advertising,
App2. 34

videos, and social media campaigns; virtual town halls; webinars and other presentation; and targeted outreach to communities.
5. I submitted a declaration in support of Respondents’ motion for preliminary relief in the Southern District of New York, expressing my deep concerns about the chilling effect the new public charge rule—the “Final Rule”—would have on residents of the City of New York and in turn, the impact it would have on health in the City of New York as a whole. Since then, my concerns have only intensified.
6. The Final Rule went into effect on February 24, 2020, just days before New York City’s first COVID-19 case was confirmed. The Final Rule is especially destructive at a time like this, when all New Yorkers, including those in immigrant communities, urgently need access to health care and health insurance, and when trust between public health authorities and the community is especially crucial.
7. Studies show that low income, minority, and immigrant populations have greater rates of uninsurance and generally have disproportionately adverse impacts during public health crises. Available data suggest that an increased risk of adverse health outcomes is likely among uninsured and minority populations during a pandemic. These populations experience disproportionately poor health outcomes and greater barriers to care during pandemics and during increases in pneumonia and influenza-like illnesses. These poorer health outcomes include increased mortality, more complications, limited access to health care, lower vaccination rates, and greater socioeconomic, cultural, educational, and linguistic obstacles to adoption of pandemic interventions.1
1 See e.g. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4809795/pdf/nihms721441.pdf; https://www.sciencedirect.com/science/article/pii/S2352827316300532; https://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.2009.161125; https://ajph.aphapublications.org/doi/pdfplus/10.2105/AJPH.2009.161505.
App3. 35

8. Improving the public health infrastructure and community health safety-net, including improving access to health care and health insurance, is important to ensure that people in immigrant communities participate in the healthful behaviors needed during a public health crisis. DOHMH is doing this by promoting understanding of COVID-19, sharing critical information with New Yorkers about minimizing the likelihood of transmission by staying home and practicing physical distancing and good hand hygiene. DOHMH is also providing information to all New Yorkers about how and when they should seek health care services. And DOHMH continues to perform outreach to immigrant communities to encourage enrollment in appropriate insurance coverage, including Medicaid, the Essential Plan, or commercial plans. New York State has created a special enrollment period for the New York State of Health (NYSOH) exchange, created through the Affordable Care Act (ACA), to allow the uninsured to access coverage during the COVID-19 state of emergency. DOHMH has worked to support the state’s efforts by having certified application counselors assist New Yorkers with the enrollment process over the phone. The Final Rule is antithetical to all of these efforts because it disincentives participation in health insurance programs like Medicaid and encourages noncitizens and their families to avoid contact with health providers and government benefit programs.2
9. In the early stages of the pandemic, in February and early March, when there was still the possibility that COVID-19 could be contained and broader community transmission averted, DOHMH conducted extensive community outreach to encourage people with possible
2 Concerns in immigrant communities over seeking health care related to COVID-19 have been documented by many media outlets, including the Wall Street Journal and NBC News. See e.g. https://www.wsj.com/articles/rule-barring-immigrants-from-social-programs-risks-worseningcoronavirus-spread-11585137602?mod=searchresults&page=1&pos=1; https://www.nbcnews.com/news/latino/amid-coronavirus-spread-health-advocates-worry-trumps-immigration-policies-n1150241.
App4. 36

symptoms of COVID-19 to promptly seek medical care so that they could be tested, isolated if positive, and so that DOHMH could conduct contact investigations to help stop the chain of transmission. In outreach meetings with community-based organizations serving immigrant communities conducted between February 27 and March 11, 2020, DOHMH fielded questions and heard confusion about how seeking care related to COVID-19 would impact a public charge determination under the Final Rule. Although the United States Customs and Immigration Services has announced that treatment and preventive services “will not negatively affect any [person] as part of a future Public Charge analysis,” media reports suggest that these concerns and confusion may persist, and this concerns me greatly.3
10. If people in immigrant communities forego testing or care due to fears about how receipt of such services may affect their immigration status, this could have devastating effects for the individuals themselves and for the larger community. All of New York City benefits when people who are severely ill with COVID-19 disease access the health care services they need. Conversely, if communities avoid testing and care due to fear or confusion, New York City’s efforts to mitigate the virus may be negatively impacted. Several vaccines and treatments are under development, with some treatments are already being piloted. If a vaccine or treatment becomes available, unhindered access to care will be all the more critical to ending this pandemic.
11. Concern and anxiety about having contact with health care providers and governmental authorities may also lead non-citizens and their families to avoid participating in public health initiatives and investigations related to COVID-19 disease. It is extremely important that all New York City residents cooperate with DOHMH when it issues advisories
3 See e.g. https://www.nytimes.com/2020/03/18/us/coronavirus-immigrants.html. App5. 37

and investigates outbreaks of communicable disease. Contact investigations will likely become an important part of reducing the spread of COVID-19 in New York City once there is no longer widespread community transmission and contact investigations can be used to identify and contain cases of illness. Contact investigations require the community to trust DOHMH so that people are willing to speak to DOHMH staff and provide the names and contact information of their family members and friends. If non-citizens and their families are deterred from participating in these investigations due to fear of the Final Rule, this could greatly reduce the effectiveness of DOHMH COVID-19 contact investigations.
12. For the reasons described above, and in my prior declaration, DOHMH opposes implementation of the Final Rule, particularly while New York City and the United States as a whole, addresses the threat of COVID-19.
App6. 38

I declare under penalty that the foregoing is true and correct and of my own personal knowledge. DATED this 9th day of April 2020 at Queens, New York.
OXIRIS BARBOT, M.D. Commissioner New York City Department of Health and Mental Hygiene
App7. 39

Bob Ferguson
ATTORNEY GENERAL OF WASHINGTON
PO Box 40100  Olympia WA 98504-0100  (360) 753-6200
March 6, 2020
Chad Wolf Acting Secretary U.S. Department of Homeland Security 2707 Martin Luther King Jr. Ave. SE Washington, DC 20528
Kenneth T. Cuccinelli Senior Official Performing the Duties of the Director U.S. Citizenship and Immigration Services 20 Massachusetts Ave. NW Washington, DC 20001
Dear Acting Secretary Wolf and Senior Official Cuccinelli:
We urge the Department of Homeland Security (DHS) to immediately stop implementation of the Inadmissibility on Public Charge Grounds Rule (“Public Charge Rule”), see 84 Fed. Reg. 41,292 (Aug. 14, 2019), in the wake of the COVID-19 coronavirus. During the notice-andcomment period for the Rule, DHS received warnings of the potentially devastating effects of the Rule if its implementation were to coincide with the outbreak of a highly communicable disease – a scenario exactly like the one confronting our communities with the COVID-19 public health emergency. Your agency failed to consider such legitimate concerns.
Communities across America are undertaking extensive efforts to limit the spread of COVID-19. Your agency’s Public Charge Rule undermines those efforts by deterring individuals from accessing critical health benefits to which they are legally entitled. Failure to immediately stay implementation of the Rule so that we can take the steps necessary to contain and mitigate the outbreak of the disease puts the public health and safety of our communities at increased risk.
The overwhelming evidence – including from the World Health Organization (WHO), Department of Health and Human Services (HHS), and the Centers for Disease Control (CDC) – shows COVID-19 is highly communicable and likely to spread in increasing numbers. On February 26, Dr. Nancy Messonnier, the Director of the CDC’s National Center for Immunization and Respiratory Diseases, explained “it’s not so much a question of if [community spread] will happen anymore but rather more a question of exactly when this will happen and how many people in this country will have severe illness.”1 Analysis by Trevor Bedford, an investigator and expert in vaccines and infectious diseases at the Fred Hutchinson Cancer Research Center in Seattle, suggests that new coronavirus cases in Western Washington are
1 See https://www.cdc.gov/media/releases/20A20p/pt0.22450-cdc-telebriefing-covid-19.html

March 6, 2020 Page 2

Attorney General of Washington

likely doubling every six days.2 Dr. Messonnier also warned the necessary public health responses may result in “disruption to everyday life [that] may be severe,” including interruptions to work and school closures.3 Despite these warnings, there is still hope the disease may be contained, provided governments at all levels take appropriate and comprehensive steps to limit its transmission. As the Director General of the WHO recently explained, “[w]ith early, aggressive measures, countries can stop transmission and save lives.”4
CDC’s data and public statements underscore the urgent importance of such measures. As of February 26 – just two days after DHS began implementation of the Public Charge Rule – CDC had already documented multiple cases of COVID-19 spreading person-to-person within the United States.5 CDC further acknowledges “person-to-person spread will [likely] continue to occur, including in the United States.”6 If an individual gets sick with suspected COVID-19 symptoms, CDC urges that they consult with their medical and healthcare professionals, including by “seek[ing] prompt medical attention if [their] illness is worsening.”7 CDC’s emphasis on coordination with healthcare professionals closely aligns with similar guidance from WHO, which warns that a successful response will require “all countries to educate their populations, to expand surveillance, to find, isolate, and care for every case, to trace every contact, and to take an all-of-government and all-of-society approach.”8 Inexplicably, DHS contravenes this guidance by implementing a public charge rule punishing certain lawful immigrants for seeking effective medical treatment that might mitigate COVID-19’s harmful scope and effect.
DHS’s implementation of the Public Charge Rule during this public health crisis is irresponsible and reckless. As noted by Plaintiff States in ongoing litigation challenging the Rule,9 DHS openly concedes the Rule could lead to “increased prevalence of communicable diseases,” 10 disenrollment from public programs,11 and increased use of emergency rooms as a primary method of health care.12 Washington State has already had eleven deaths attributable to COVID19. The State is doing everything in its power to limit the spread of the disease and prevent

2 See https://bedford.io/blog/ncov-cryptic-transmission/

3 See https://www.cdc.gov/media/releases/2020/t0225-cdc-telebriefing-covid-19.html

4 https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-

on-covid-19---2-march-2020

5 https://www.cdc.gov/coronavirus/2019-ncov/cases-in-us.html

6 https://www.cdc.gov/coronavirus/2019-ncov/summary.html

7 https://www.cdc.gov/coronavirus/2019-ncov/about/steps-when-sick.html.

8 https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-

on-covid-19---28-february-2020

9 See Washington v. DHS, Case No. 4:19-cv-05210-RMP, Dkt. No. 158 (E.D. Wa., Sept. 27, 2019);

California v. DHS, Case No. 4:19-cv-04975-PJH, Dkt. No. 17 (N.D. Cal., Aug. 26, 2019); New York, et al. v. U.S.

Dep’t of Homeland Sec., Case No. 1:19-cv-07777-GBD, Dkt. No. 35 (S.D.N.Y. Sept. 9, 2019) (explaining that the

Final Rule jeopardizes Plaintiffs’ ability to reduce the spread of communicable diseases, will cause individuals to

disenroll from public programs, and will increase use of emergency departments).

10 83 Fed. Reg. at 51,270.

11 84 Fed. Reg. at 41,463.

12 83 Fed. Reg. at 51,270.

App. 41

March 6, 2020 Page 3

Attorney General of Washington

additional fatalities. States, cities, and counties are undertaking similarly dramatic efforts to limit the spread of the disease and mitigate its harmful effects. With this threat looming, however, DHS’s policy of deterring immigrants from using the medical benefits to which they are legally entitled directly undermines and frustrates our public health professionals’ efforts, putting our communities and residents at unnecessary risk.
You have authority to swiftly correct your agency’s failure to consider the Public Charge Rule’s risks to public health and safety. We urge that you immediately stay implementation of the Public Charge Rule pending successful containment of COVID-19 to assist our public health professionals and protect our communities.
Sincerely,

Bob Ferguson Washington State Attorney General

Xavier Becerra California Attorney General

William Tong Connecticut Attorney General

Kathleen Jennings Delaware Attorney General

Karl A. Racine District of Columbia Attorney General

Clare E. Connors Hawaii Attorney General

Tom Miller Iowa Attorney General

Maura Healey Massachusetts Attorney General
App. 42

March 6, 2020 Page 4

Attorney General of Washington

PC4,4 N~
Dana Nessel Michigan Attorney General
C, U
Aaron D. Ford Nevada Attorney General
Gurb_ir S...G. rew-al---~liillllll. •
New Jersey Attorney General

...
~.r-~
Keith Ellison Minnesota Attorney General
Hector Balderas New Mexico Attorney General
q_+~,g ~S,
Letitia James New York Attorney General

Ellen F. Rosenblum Oregon Attorney General

Josh Shapiro Pennsylvania Attorney General

Thomas J. Donovan, Jr. Vermont Attorney General

Mark R. Herring Virginia Attorney General

CC: Vice President Mike Pence Secretary Alex Azar, U.S. Department of Health and Human Services
App. 43

Public Charge | USCIS

https://www.uscis.gov/greencard/public-charge

Public Charge

U.S. Citizenshlp andl Im,roi,gration Services

Alert: USCIS encourages all those, including aliens, with symptoms that resemble Coronavirus Disease 2019 (COVID-19)
(fever, cough, shortness of breath) to seek necessary medical treatment or preventive services. Such treatment or preventive services will not negatively affect any alien as part of a future Public Charge analysis.
The Inadmissibility on Public Charge Grounds final rule is critical to defending and protecting Americans' health and its health care resources. The Public Charge rule does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19. In addition, the rule does not restrict access to vaccines for children or adults to prevent vaccine-preventable diseases. Importantly, for purposes of a public charge inadmissibility determination, USCIS considers the receipt of public benefits as only one consideration among a number of factors and considerations in the totality of the alien's circumstances over a period of time with no single factor being outcome determinative. To address the possibility that some aliens impacted by COVID-19 may be hesitant to seek necessary medical treatment or preventive services, USCIS will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination, nor as related to the public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status, even if such treatment is provided or paid for by one or more public benefits, as defined in the rule (e.g. federally funded Medicaid).
The rule requires USCIS to consider the receipt of certain cash and non-cash public benefits, including those that may be used to obtain testing or treatment for COVID-19 in a public charge inadmissibility determination, and for purposes of a public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status. The list of public benefits considered for this purpose includes most forms of federally funded Medicaid (for those over 21), but does not include CHIP, or State, local, or tribal public health care services/assistance that are not funded by federal Medicaid. In addition, if an alien subject to the public charge ground of inadmissibility lives and works in a jurisdiction where disease prevention methods such as social distancing or quarantine are in place, or where the alien's employer, school, or university voluntarily shuts down operations to prevent the spread of COVID-19, the alien may submit a statement with his or her application for adjustment of status to explain how such methods or policies have affected the alien as relevant to the factors USCIS must consider in a public charge inadmissibility determination. For example, if the alien is prevented from working or attending school, and must rely on public benefits for the duration of the COVID-19 outbreak and recovery phase, the alien can provide an explanation and relevant supporting documentation. To the extent relevant and credible, USCIS will take all such evidence into consideration in the totality of the alien's circumstances.

Inadmissibility on Public Charge Grounds Final Rule
On Feb. 24, 2020, USCIS implemented the Inadmissibility on Public Charge Grounds final rule nationwide, including in Illinois. USCIS will apply the final rule to all applications and petitions postmarked (or, if applicable, submitted electronically) on or after that date. For applications and petitions sent by commercial courier (for example, UPS, FedEx, or DHL), the postmark date is the date reflected on the courier receipt. USCIS will reject any affected application or petition that does not adhere to the final rule, including those submitted by or on behalf of aliens living in Illinois, if postmarked on or after Feb. 24, 2020.

Background

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Public Charge | USCIS

https://www.uscis.gov/greencard/public-charge

Self-sufficiency has long been a basic principle of U.S. immigration law since our nation's earliest immigration statutes. Since the 1800s, Congress has put into statute that aliens are inadmissible to the United States if they are unable to care for themselves without becoming public charges. Since 1996, federal laws have stated that aliens generally must be selfsufficient. On Aug. 14, 2019, DHS published a final rule regarding how DHS determines if someone applying for admission or adjustment of status is likely at any time to become a public charge. 
This final rule also requires aliens seeking to extend their nonimmigrant stay or change their nonimmigrant status to show that, since obtaining the nonimmigrant status they seek to extend to change, they have not received public benefits (as defined in the rule) over the designated threshold.

The Statutory Basis of the Inadmissibility on Public Charge Grounds Final Rule 
The primary immigration law today is the Immigration and Nationality Act of 1952 (the INA, or the Act), as amended. 
Section 212(a)(4) of the INA (8 U.S.C. § 1182(a)(4)): "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[...] In determining whether an alien is excludable under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien's-(1) age;  (II) health; (Ill) family status; (IV) assets, resources, and financial status; and (V) education and skills ...." 
Section 213 of the INA (8 U.S.C. § 1183): "An alien inadmissible under [section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4)] may, if otherwise admissible, be admitted in the discretion of the Attorney General (subject to the affidavit of support requirement and attribution of sponsor's income and resources under section 1183a of this title) upon the giving of a suitable and proper bond . . . ."
Section 214(a)(l) of the INA (8 U.S.C. § 1184(a)(l)): "The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe, including when he deems necessary the giving of a bond with sufficient surety in such sum and containing such conditions as the Attorney General shall prescribe, to insure that at the expiration of such time or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under section 1258 of this title, such alien will depart from the United States."
Section 248(a) of the INA (8 U.S.C. § 1258(a)): "The Secretary of Homeland Security may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is continuing to maintain that status and who is not inadmissible under section 1182(a)(9)(B)(i) of th is title (or whose inadmissibility under such section is wa ived under section 1182(a)(9)(B)(v) of this title) .. . ."
8 U.S.C. § 1601 (PDF){l) : "Self-sufficiency has been a basic principle of United States immigration law since this country's earliest immigration statutes." 
8 U.S.C. § 1601 (PDFH2)(A): "It 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." 
8 U.S.C. § 1601 (PDF) (2)(B): It is also the immigration policy of the United States that "the availability of public benefits not constitute an incentive for immigration to the United States."  

The DHS Inadmissibility on Public Charge Grounds Final Rule  
Timeline of the Rule's Implementation
On Aug. 14, 2019, the U.S. Department of Homeland Security (DHS) published the Inadmissibility on Public Charge Grounds final rule that codifies regulations governing the application of the public charge inadmissibility grounds. See section 212(a)(4) of the INA, 8 U.S.C.1182(a)(4) . 
On Oct. 2, 2019, DHS issued a corresponding correction document, which contains provisions that are effective as if they had been included in the final rule published on Aug. 14, 2019.
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Public Charge | USCIS

https://www.uscis.gov/greencard/public-charge

On Oct. 10, 2018, DHS issued a Notice of Proposed Rulemaking. which was published in the Federal Register for a 60-day comment period. DHS received and considered over 266,000 public comments before issuing the final rule. The final rule provides summaries and responses to all significant public comments.
The Purpose of the Rule
The final rule enables the federal government to better carry out provisions of U.S. immigration law related to the public charge ground of inadmissibility. 
The final rule clarifies the factors considered when determining whether someone is likely at any time in the future to become a public charge,  is inadmissible (under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4)) and, therefore, ineligible for admission or adjustment of status. 
The final rule also requires aliens in the United States who have a nonimmigrant visa and seek to extend their stay in the
same nonimmigrant classification or to change their status to a different nonimmigrant classification to demonstrate, as a condition of approval, that they have not received, since obtaining the status they seek to extend or change, public benefits for more than 12 months, in total, within any 36-month period.
The final rule does not create any penalty or disincentive for past, current or future receipt of public benefits by U.S. citizens
or aliens whom Congress has exempted from the public charge ground of inadmissibility.
Applicability and Exemptions
The final rule applies to applicants for admission and aliens seeking to adjust their status to that of lawful permanent
residents from within the United States. The final rule also applies to applicants for extension of stay and change of status.
The final rule does not apply to:
• U.S. citizens, even if the U.S. citizen is related to a noncitizen who is subject to the public charge ground of inadmissibility; or
• Aliens whom Congress exempted from the public charge ground of inadmissibility, such as:
• Refugees;
• Asylees;
• Afghans and Iraqis with special immigrant visas;
• Certain  nonimmigrant trafficking and crime victims;
• Individuals applying under the Violence Against Women Act;
• Special immigrant juveniles; and
• Those to whom DHS has granted a waiver of public charge inadmissibility.
Public Benefits that DHS Will Not Consider
Benefits received by U.S. service members. Under the final rule, DHS will not consider the receipt of public benefits (as defined in the final rule) by an alien who (at the time of receipt, or at the time of filing or adjudication of the application for
admission, adjustment of status, extension of stay, or change of status) is enlisted in the U.S. armed forces, or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces
Benefits received by spouse and children of U.S. service members. DHS also will not consider the receipt of public benefits
by the spouse and children of such service members (described above). 
Benefits received by children born to, or adopted by, U.S. citizens living outside the United States. The rule further provides that DHS will not consider public benefits received by children, including adopted children, who will acquire U.S. citizenship
under  section 320 of the INA, 8 U.S.C. 1431, or children, residing outside the United States, of U.S. citizens who are entering the United States for the purpose of attending an interview under section 322 of the INA, 8 U.S.C. 1433. 
Certain Medicaid benefits. DHS will not consider the Medicaid benefits received:
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Public Charge | USCIS

https://www.uscis.gov/greencard/public-charge

• For the treatment of an "emergency medical condition;" • As services or benefits provided in connection with the Individuals with Disabilities Education Act; • As school-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary
education as determined under State or local law; • By aliens under the age of 21; and • By pregnant women and by women within the 60-day period beginning on the last day of the pregnancy.  Benefits received on behalf of a legal guardian. DHS will only consider public benefits received directly by the applicant for the applicant's own benefit, or where the applicant is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for such a person. DHS will also not attribute receipt of a public benefit by one or more members of the applicant's household to the applicant unless the applicant is also a listed beneficiary of the public benefit.
Q. When does the final rule go into effect?  
Q. What does the final rule change? 
Q. Who is subject to the public charge inadmissibility ground? 
Q. Who is exempt from this rule? 
Q. Which benefits are considered for the purposes of this rule? 
Q. What amount/duration of public benefits matters?
Q. Whose receipt of benefits is considered under this rule? 
Q. Which benefits are not considered?   
Q. How will DHS determine whether someone is likely at any time to become a public charge for admission or adjustment purposes? 
Q. What factors weigh heavily in favor of a determination that someone is likely at any time to become a public charge?
Q. What factors weigh heavily against a determination that someone is likely at any time to become a public charge?  
Q. How can I learn more about public charge?

Last Reviewed/Updated: 03/13/2020

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Bob Ferguson
ATTORNEY GENERAL OF WASHINGTON
PO Box 40100  Olympia WA 98504-0100  (360) 753-6200
March 19, 2020
Chad Wolf Acting Secretary U.S. Department of Homeland Security 2707 Martin Luther King Jr. Ave., SE Washington, DC 20528
Kenneth T. Cuccinelli Senior Official Performing the Duties of the Director U.S. Citizenship and Immigration Services 20 Massachusetts Ave., NW Washington, DC 20001
Dear Acting Secretary Wolf and Senior Official Cuccinelli:
On March 6, 2020, a coalition of 18 State Attorneys General and over 50 elected officials from the State of Washington, wrote to you urging the Department of Homeland Security (DHS) to immediately halt implementation of the Inadmissibility on Public Charge Grounds Rule (“Public Charge Rule”) in the wake of the COVID-19 coronavirus. We have not received a response, but on March 13 you posted an “Alert” on the U.S. Customs and Immigration Service (USCIS) website that confirmed DHS would not consider any form of testing or care related to COVID-19 in immigrants’ public charge assessment, “even if such treatment is provided or paid for by one or more public benefits, as defined in the rule (e.g. federally funded Medicaid).”1 Nevertheless, the Alert fails to mitigate the overall harm of the Public Charge Rule, as it emphasizes that DHS will still consider receipt of Medicaid benefits “including those that may be used to obtain testing or treatment for COVID-19” in the public charge determination.
If DHS is attempting to ensure noncitizens in our communities remain enrolled in Medicaid so they can use Medicaid services should they have symptoms of COVID-19, the Alert fails to achieve this. And likewise, if DHS is attempting to ensure that noncitizens seek testing and treatment for COVID-19 without fear of public charge consequences, the Alert also utterly fails to achieve this.
It is not enough to exempt the use of certain Medicaid-paid services from the public charge analysis if enrollment in Medicaid still is considered. While professing to encourage everyone to seek the testing and treatment they need, the Alert provides that Medicaid coverage used to access those services may be counted against noncitizens in the public charge analysis. The Alert fails to recognize that in order to receive adequate health services, our residents need adequate
1 https://www.uscis.gov/greencard/public-chAarpgep. . 48

Attorney General of Washington
Chad Wolf, Kenneth T. Cuccinelli March 19, 2020 Page 2
health insurance benefits. To achieve DHS’s stated goal of encouraging noncitizens to seek testing and treatment for COVID-19, noncitizens must be encouraged to enroll or remain enrolled in health insurance programs, including Medicaid, and they must be assured that such enrollment during this dire national health emergency will not be considered in any future public charge determination.
Since we wrote you 13 days ago, the number of deaths from COVID-19 in Washington has increased dramatically—from 11 to 66. Likewise, the number of reported cases has increased nearly twelvefold—from approximately 100 to 1187.2 In Massachusetts, the number of confirmed cases has increased from 1 to 328.3 Testing in the United States still lags far behind other countries, however, and the total number of cases likely far eclipses the current numbers of confirmed positives. For example, scientists currently estimate there are likely 5 to 10 undetected cases for every confirmed one.4 The World Health Organization has declared a global pandemic, and the President has declared a national emergency. Every day, tighter restrictions are placed on travel, schools, restaurants, and bars, with the CDC now formally advising against gatherings of 10 or more people.
Given the grave danger facing our nation’s health and economy, it is imperative that DHS not chill immigrants from enrolling in Medicaid or using Medicaid benefits for any purpose until the COVID-19 crisis is over. Under the Alert, however, noncitizens who remain enrolled in Medicaid continue to risk their green cards and visas. As DHS previously conceded, this will prompt immigrants to disenroll from Medicaid and lead to an “increased prevalence of communicable diseases,”5 as the nation is now experiencing at a horrifying rate.
To protect the residents of our states and the rest of the country, we ask that DHS immediately announce that the Rule is stayed pending successful containment of COVID-19. Short of that, however, it is imperative that DHS at least make clear that enrollment in Medicaid and the use of Medicaid benefits for any reason will not be considered in the public charge assessment. Given that these benefits were not considered in the public charge assessment for many years prior to DHS’s recent change of policy, it is inexplicably harmful for the agency to begin counting them now, during the outbreak of a lethal global pandemic.
Sincerely,

Bob Ferguson Washington State Attorney General

Xavier Becerra California Attorney General

2 https://www.doh.wa.gov/Emergencies/Coronavirus.

3 https://www.mass.gov/info-details/covid-19-cases-quarantine-and-monitoring

4 https://www.nytimes.com/2020/03/16/world/live-coronavirus-news-updates.html#link-71630faa (citing

https://science.sciencemag.org/content/early/2020/03/13/science.abb3221).

5 83 Fed. Reg. at 51,270.

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Attorney General of Washington
Chad Wolf, Kenneth T. Cuccinelli March 19, 2020 Page 3

William Tong Connecticut Attorney General

Kathleen Jennings Delaware Attorney General

Karl A. Racine District of Columbia Attorney General

Clare E. Connors Hawaii Attorney General

Tom Miller Iowa Attorney General

Maura Healey Massachusetts Attorney General

Dana Nessel Michigan Attorney General
Aaron D. Ford Nevada Attorney General

Keith Ellison Minnesota Attorney General
Hector Balderas New Mexico Attorney General
App. 50

Attorney General of Washington
Chad Wolf, Kenneth T. Cuccinelli March 19, 2020 Page 4

Gurbir S. Grewal New Jersey Attorney General
Ellen F. Rosenblum Oregon Attorney General

Letitia James New York Attorney General
Josh Shapiro Pennsylvania Attorney General

Thomas J. Donovan, Jr. Vermont Attorney General

Mark R. Herring Virginia Attorney General

CC: Vice President Mike Pence Secretary Alex Azar, U.S. Department of Health and Human Services

App. 51

No. 19A785 In the
Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al., Applicants,
v. NEW YORK, et al.,
Respondents.
I, Leighton Ku, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. My name is Leighton Ku. I have personal knowledge of and could testify in Court concerning the following statements of fact. 2. I am a Professor of Health Policy and Management and Director of the Center for Health Policy Research at the Milken Institute School of Public Health, George Washington University in Washington, DC. I have attached my Curriculum Vitae as Exhibit A to this Declaration. 3. I am a health policy researcher with over 25 years of experience. I have conducted substantial research about immigrant health, and health care and costs. I have authored or co-authored more than a dozen articles and reports about immigrant health issues, including articles in peer-reviewed journals such as Health Affairs and American Journal of Public Health, as well as scholarly reports published by diverse non-profit organizations including the Social Science Research Network, the Migration Policy Institute, the Cato Institute,
1 App. 52

and the Commonwealth Fund, as well as many more articles and reports on other subjects. I have testified before the U.S. Senate Finance Committee about immigrant health issues and provided analyses and advice to state governments and non-governmental organizations in many states about immigrant health.
4. I have expertise in quantitative data analysis and have conducted quantitative analyses for most of my career, including analyses for a federal agency and two think tanks and now at a university. I have taught statistical analysis and research methods at the graduate school level for over 25 years, training hundreds of graduate students, as well as dozens of federal and state budget and policy analysts. I have authored or co-authored more than 90 papers in peer-reviewed journals and hundreds of other reports, most of which were quantitative analyses. As a quantitative health data analyst, I have consulted with the Congressional Budget Office and numerous federal and state agencies.
5. I provided expert declarations about the potential effects of the public charge rule in September 20191 and January 2020,2 the President’s healthcare proclamation in October 2019 and January 2020,3 and the effects of terminating DACA on health insurance coverage and states

1

Declaration of Leighton Ku in Support of Plaintiffs’ Motion for a Preliminary Injunction (regarding public

charge regulation), Make the Road New York, et al v Ken Cuccinelli, et al. in United States District Court, Southern

District of New York, Sept. 9, 2019; State of New York, et al. v. U.S. Department of Homeland Security, et al. in

United States District Court, Southern District of New York, Sept. 9, 2019; La Clinica de la Raza, et al. v. Donald

Trump, et al. in United States District Court, Northern District of California, September 1, 2019.

2

Declaration of Leighton Ku in Make the Road New York, et al. v. Pompeo et al. (“MRNY v. Pompeo”) in

the United States District Court, Southern District of New York, Dec. 22, 2019. In MRNY v. Pompeo, plaintiffs seek

not only an injunction of the Department of State public charge rule, but the President’s November 4, 2019

Healthcare Proclamation. My declaration was filed in support of the plaintiffs’ motion to enjoin both policies.

3

In addition to submitting a declaration in the MRNY v. Pompeo case on the healthcare proclamation, my

declaration regarding the healthcare proclamation was filed in the Doe v. Trump case filed in the District of Oregon.

2 App. 53

in November 20174 and in June 2018.5 I have not provided testimony in any other court cases in the past four years.
6. I also have knowledge of health insurance and employment through my role as a voluntary (unpaid, appointed) Executive Board member for the District of Columbia’s Health Benefits Exchange Authority, which governs the District’s health insurance marketplace, formed under the federal Affordable Care Act. This includes oversight of health insurance for small businesses as well as individual health insurance in the District of Columbia.
7. I have a Ph.D. in Health Policy from Boston University (1990) and Master of Public Health and Master of Science degrees from the University of California at Berkeley (1979). Prior to becoming a faculty member at George Washington University, I was on the staff of the Urban Institute and the Center on Budget and Policy Priorities.
8. I have been engaged by counsel for the Plaintiffs in this case to analyze the effect of the new public charge rule on Medicaid enrollment, public health, and health systems, and the implications regarding the current coronavirus (COVID-19) pandemic.
Public Charge and Public Health Risks Related to COVID-19 9. The alarming onset of the global pandemic of the novel coronavirus, COVID-19, has created serious public health risks for the United States and other nations. As a contagious virus, COVID-19 is spreading broadly and threatens citizens and immigrants alike. Along with public health measures, such as social distancing and self-quarantines to reduce the risk of infection, medical measures such as testing for COVID-19 and prompt treatment are critical. But

4

Declaration of Leighton Ku in State of New York, et al. v Donald Trump, et al. in the United States District

Court for the Eastern District of New York, Nov. 22, 2017.

5

Declaration of Leighton Ku in State of Texas v. United States of America, et al. and Karla Perez, et al.,

Defendant-Intervenor in the United States District Court for the Southern District of Texas, Brownsville Division,

June 14, 2018.

3 App. 54

those who are uninsured will face serious barriers if they are unable to pay for COVID-19
testing, prevention, and treatment, or if they are otherwise deterred from accessing care.6 Data
about the cost of COVID-19 treatment are unclear, but the cost of treatment for one early patient
for less than a week of treatment was $34,927.43, an amount greater than the annual income of
many low and moderate-income Americans.7
10. The Department of Homeland Security’s 2019 “public charge” rule makes it
extremely difficult for lawful immigrants to gain permanent residency or to adjust their status if
they have received federal Medicaid, thereby creating additional risks that they will be uninsured
or avoid medical care.8 (Receipt of federal Medicaid is a highly weighted negative factor in a
determination of inadmissibility.) As documented in my declaration dated September 9, 2019,
there is strong evidence that the public charge rule creates fear and a “chilling effect” that would
lead many members of immigrant families—even family members who are citizens—to avoid
federal Medicaid coverage and similar forms of state insurance9 and to reduce their use of health
care services.10
11. The threat of COVID-19 and the urgency of the treatment it requires makes the
6 Tolbert J. What Issues Will Uninsured People Face with Testing and Treatment for COVID-19? Kaiser Family Foundation. March 18, 2020. https://www.kff.org/uninsured/fact-sheet/what-issues-will-uninsured-people-facewith-testing-and-treatment-for-covid-19/. There is not yet a vaccine to prevent COVID-19 infection, although there are efforts to develop a vaccine. If and when a vaccine becomes available, then lack of insurance could pose a financial barrier to vaccination as well, or otherwise deter noncitizens from accessing a vaccine. 7 Abrams A. Total Cost of Her COVID-19 Treatment: $34,927.43. Time. Mar. 19, 2020. https://time.com/5806312/coronavirus-treatment-cost/. 8 Department of Homeland Security. Final Regulations: Inadmissibility on Public Charge Grounds. Federal Register. Federal Register. Vol. 84, No. 157, pg.: 41290-508. Aug. 14, 2019. 9 A number of states, such as New York, California the District of Columbia, Illinois and Oregon, offer state-funded Medicaid without federal matching funds (or health insurance akin to Medicaid) to certain low-income immigrants who are not eligible for federally-funded Medicaid, such as children, pregnant women and other adults. The public charge determinations apply only to federally funded Medicaid, but immigrants are likely deterred from these state funded benefits too, since they may not be able to distinguish them from federally funded Medicaid. See L Ku 2019, footnote 1 for more detail about these non-federally funded insurance programs. 10 Op cit, L Ku 2019, footnote 1.
4 App. 55

consequences of the chilling effect on accessing health care caused by public charge that I observed in September 2019 even more significant. It has been reported that immigrants are “petrified” about seeking testing and treatment because they worry that the public charge rule could penalize them if they seek care.11 For example, Rebecca Sanin, president and CEO of the Health and Welfare Council of Long Island, reported recently that nonprofits under her organization’s umbrella were “seeing people choosing not to recertify or get services because of the climate of fear and change in policies targeting immigrants.”12 Similarly David Nemiroff, who directs the Long Island Federally Qualified Health Center, said that “[o]ur biggest fear is that people will choose their immigration status over their health care, and where does that leave us regarding COVID-19?”13 Even if these fears result only in delays in accessing care, not complete avoidance, the public health consequences could be grim if infected persons go undetected and are at increased risk of spreading the disease, or if untreated infections become even more severe.
12. These concerns are consistent with earlier evidence about the adverse consequences of the public charge rule. It is important to remember that immigrant families may include both citizen and non-citizen members; U.S. born children of immigrants are native-born citizens, and many members of immigrant families may also be naturalized citizens or those who have already attained permanent residency. Thus, restrictions under the public charge rule may have serious repercussions for other family members and may affect their behaviors as well. If one member of the family (whether an immigrant or not) goes undetected because of fears about
11 Jordan M. ‘We’re Petrified’: Immigrants Afraid to Seek Medical Care for Coronavirus. New York Times. March 18, 2020. https://www.nytimes.com/2020/03/18/us/coronavirus-immigrants.html 12 Polsky C. New health care rule draws scrutiny during coronavirus scare. Newsday. Mar. 2, 2020. https://www.newsday.com/news/health/coronavirus-immigration-1.42333063 13 Ibid.
5 App. 56

the public charge rule, the risk of infection to other members of the family (or household or other
community members) rises.
13. Evidence from the late 1990s, when harsh public charge rules and related
immigrant restrictions were applied, showed that Medicaid participation fell sharply and U.S.-
born citizen children who lived in immigrant families lost benefits, even though these children
were eligible and ought not have been affected by these policies; they were harmed by the
“chilling effect” that spread through immigrant communities.14 These fears have arisen again in
light of the renewal of harsh public charge policies under the new public charge rules. More
recently, even before the current public charge rule went into effect, one in seven members of
immigrant families reported avoiding public benefits like Medicaid because they were worried
that the public charge rule could lead to adverse immigration consequences against themselves or
members of their families.15 Large numbers of adults in immigrant families reported that they
avoided seeking medical care from a doctor, or even talking with teachers or school officials,
because of worries that they might be asked about immigration status.16 Now that the final rule
has gone into effect, the repercussions are likely to worsen. In my September 2019 declaration, I
drew on evidence from prior research and estimated the public charge rule could cause between
14 Zimmerman W, Fix M. Declining Immigrant Applications for Medi-Cal and Welfare Benefits in Los Angeles County. Urban Institute. July 1998. https://aspe.hhs.gov/basic-report/declining-immigrant-applications-medi-caland-welfare-benefits-los-angeles-county. Fix M, Passel J. Trends in Noncitizens' and Citizens' Use of Public Benefits Following Welfare Reform: 1994-97. Urban Institute. March 1999. https://www.urban.org/research/publication/trends-noncitizens-and-citizens-use-public-benefits-following-welfarereform. 15 Bernstein H, Gonzalez D, Karpman M, Zuckerman S. One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018. Urban Institute. May 2019. https://www.urban.org/sites/default/files/publication/100270/one_in_seven_adults_in_immigrant_families_reported _avoiding_publi_2.pdf 16 Bernstein H, Gonzalez D, Karpman M, Zuckerman S. Adults in Immigrant Families Report Avoiding Routine Activities Because of Immigration Concerns. Urban Institute. July 2019. https://www.urban.org/sites/default/files/publication/100626/2019.07.22_immigrants_avoiding_activities_final_v2_ 0.pdf.
6 App. 57

1 and 3.2 fewer million members of immigrant families to receive Medicaid. Because of evidence that being uninsured leads to a higher risk of death, the public charge rule could cause about 1,300 to 4,000 additional deaths per year. Given the new evidence about COVID-19, updated estimates of the effects could be even higher.17
14. Concerns about immigrants being deterred from accessing appropriate medical care due to the public charge rule have been heightened by the COVID-19 pandemic. Wendy Parmet, Professor of Law at Northeastern University, has written that the public charge rule exacerbates the coronavirus pandemic because it discourages members of immigrant families from seeking medical care. She concluded “the Department of Homeland Security should stay implementation of the public charge rule as a whole—or at least suspend the adverse consequences attached to using Medicaid until after the outbreak passes. There simply is no justification for rushing to implement a rule that may worsen a pandemic. . . . With a pandemic upon us, it doesn’t require compassion to ensure that our immigration policies don’t threaten public health. It just requires common sense.”18
15. Because COVID-19 is so recent, we lack authoritative data about the extent to which members of immigrant families and those who are uninsured are deterred from obtaining testing or treatment for COVID-19. But we can draw conclusions about the avoidance of care based on research that immigration status and the lack of insurance coverage are related to health risks during pandemics, using research about the 2009-10 H1N1 influenza (swine flu) pandemic.
16. It has long been recognized that immigrant communities are at elevated risk
17 Ku L. New Evidence Demonstrating That the Public Charge Rule Will Harm Immigrant Families and Others. Health Affairs Blog. October 9, 2019. https://www.healthaffairs.org/do/10.1377/hblog20191008.70483/full/. 18 Parmet W. “First Opinion: Trump’s Immigration Policies Will Make the Coronavirus Pandemic Worse.” Stat News. Mar. 4, 2020. https://www.statnews.com/2020/03/04/immigration-policies-weaken-ability-to-fightcoronavirus/.
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during pandemics. About a decade ago, the nation experienced the H1N1 influenza pandemic. The Centers for Disease Control and Prevention (CDC) reported that there were about 60.8 million cases in the United States, 274,000 hospitalizations and 12,500 deaths due to H1N1 flu between April 2009 and April 2010.19 Shortly before the onset of the H1N1 pandemic, CDC convened an expert panel in May 2008 to consider the special challenges of pandemic preparedness of and response for immigrants, who were recognized as a group with special health risks. The panel found that many immigrants are at elevated risk during pandemics because of factors like their limited health insurance coverage, lower vaccination rates, lowincomes, and linguistic and cultural barriers.20 The panel recommended adopting additional efforts to reduce barriers for immigrants to the receipt of medical care, including efforts to reach out to and communicate with immigrant communities during pandemics.
17. While we lack data about the extent to which immigrants were or have been tested for or treated for H1N1 flu, or for COVID-19, there is evidence that examines the extent to which immigrants obtained medical care through vaccinations. (H1N1 vaccinations became available in late 2009 and early 2010.) Vaccine utilization helps measure the extent to which adults receive medical care to address pandemic infections. A study by researchers at Utah State University highlighted the significance of health insurance coverage for immigrants as a protective factor during pandemics.21 The study analyzed rates of vaccination for H1N1 influenza in 2010. It found that non-Hispanic white adults were more likely to be vaccinated
19 Centers for Disease Control and Prevention. 2009 H1N1 Pandemic. No date. https://www.cdc.gov/flu/pandemic-resources/2009-h1n1-pandemic.html. 20 Truman B, Tinker T, Vaughan E, et a. Pandemic Influenza Preparedness and Response Among Immigrants and Refugees. American Journal of Public Health. 99: S276-S278. 21 Burger A. Reither E, Hofmann E, Mamelund SE. The Influence of Hispanic Ethnicity and Nativity Status on 2009 H1N1 Pandemic Vaccination Uptake in the United States. Journal of Immigrant and Minority Health. 2018; 20:561-68.
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than US-born Hispanics, and foreign-born Hispanics were the least likely to be vaccinated. That is, immigrants were less likely to get care than non-immigrants. The study also showed the protective effect of health insurance coverage: those with insurance were twice as likely to be vaccinated as those without insurance. A challenge for immigrants was that immigrant Hispanics were over four times more likely to be uninsured than non-Hispanic whites, creating barriers to getting vaccinated. When the researchers statistically controlled for insurance coverage, Hispanic immigrants were actually slightly more likely to be vaccinated than nonHispanic white adults. When immigrants have insurance, they are better able to protect themselves through vaccinations; the problem was that so many immigrants are uninsured. This study is consistent with other research that showed how low socioeconomic status was associated with lower H1N1 vaccination rates, while insurance coverage improved vaccination levels.22
18. In some cases, uninsured people may be able to receive medical care free through safety net facilities, such as community health centers or government clinics; evidence suggests that the chilling effect leads to reductions in use of services like these, even though the public charge determinations do not apply to such programs. For example, although the public charge rule does not apply to benefits from the Women, Infants and Children (WIC) nutrition assistance program, many immigrants have avoided enrolling in WIC because of public charge fears.23
19. The evidence about immigrants’ reduced ability to get vaccines, and the improvements that occur when they are able to get insurance, demonstrates (a) that immigrants face greater barriers in getting medical care to protect themselves during pandemics, and (b)
22 Maurer J. Inspecting the Mechanism: A Longitudinal Analysis of Socioeconomic Status Differences in Perceived Influenza Risks, Vaccination Intentions and Vaccination Behaviors during the 2009-2010 Influenza Pandemic. Medical Decision Making. 2016 October ; 36(7): 887–899. 23 West M. Fewer Immigrants Sign Up for Food-Subsidy Program. Wall Street Journal. Feb. 24, 2020. https://www.wsj.com/articles/fewer-immigrants-sign-up-for-food-subsidy-program-11582584810.
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insurance coverage increases immigrants’ use of appropriate medical therapies. By discouraging immigrants and other members of their families from using federal Medicaid, the public charge rule creates unnecessary barriers to getting care, such as testing, treatment, or eventually vaccinations that could protect against COVID-19.
20. There could be broader public health repercussions. Since COVID-19 is a communicable disease, higher risk for members of immigrant families creates higher risks of contagion for other members of their communities. Low- and moderate-income immigrants are a large share of the workforce that is essential during pandemics. For example, data from the U.S. Census indicates that immigrants form more than one-third of home health aides and one-quarter of personal care aides, who provide home health care to frail seniors, and constitute one-sixth to one-fifth of the grocery store and food delivery workforce.24 During the current public health crisis, we are more reliant than ever on workers like these. But if low-wage workers in essential jobs like these—which frequently lack private health insurance coverage—cannot get appropriate medical care and become infected, they could inadvertently increase risks of contagion to their patients and customers, elevating the pandemic risk to others in their communities. That is, protecting immigrants is also in the best interests of non-immigrant members of our communities.
21. Immigrants who are uninsured, due to their concerns about the consequences of
the public charge rule and use of Medicaid, place further pressure on the already strained safety net of public and nonprofit hospitals, clinics and emergency rooms, which provide a
24 New American Economy Research Fund. Immigration & COVID-19. Mar. 26, 2020. https://research.newamericaneconomy.org/report/immigration-and-covid-19/?emci=0ebd83c0-746f-ea11-a94c00155d03b1e8&emdi=942b7cab-986f-ea11-a94c-00155d03b1e8&ceid=418670; Gelatt J. Immigrant Workers Vital to the U.S. COVID-19 Response, Disproportionately Vulnerable. Migration Policy Institute. March 2020. https://www.migrationpolicy.org/research/immigrant-workers-us-covid-19-response
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disproportionate share of care for uninsured and low-income patients. These effects are evenly more strongly felt in areas with larger immigrant populations such as parts of New York, California, Texas, Florida, Illinois, or New Jersey. This was a problem even before COVID-19. In November 2018, prior to final issuance of the public charge regulation, Mitchell Katz, MD, MPH, the executive director of New York City’s Health and Hospitals system, who previously led the health departments in Los Angeles County and San Francisco and is one of the nation’s foremost authorities on public health care systems stated: “If enacted as proposed, this public charge provision could decrease access to medical care and worsen the health of individuals, threaten public health, and undercut the viability of the health care system.”25 The pressures upon the safety net health care system due to the public charge rule are magnified when the enormous challenges of the COVID-19 pandemic are added. I can illustrate this point using the example of Elmhurst Hospital in the Bronx. Dr. Mitchell Katz recently commented that Elmhurst is most stressed hospital in the New York Health and Hospitals system during the COVID-19 pandemic26, with a high burden of COVID-19 patients and the related pressure this places on staff, facilities and protective equipment. Elmhurst is a lower-income neighborhood in New York City with a high immigrant population: about 36% of residents are non-citizen immigrants and 32% are naturalized citizens,27 so public charge rule compounds the problems faced by its public hospital.
22. In the midst of the COVID-19 pandemic, the public charge rule makes it harder for members of immigrant families to seek care because they are more uninsured, which forces
25 Katz M, Chokshi D. The “Public Charge” Proposal and Public Health: Implications for Patients and Clinicians. Journal of the American Medical Association. 2018;320(20):2075-2076. Nov. 27, 2018. 26 Hicks N, et al. NYC’s public hospitals ‘holding on’ in face of coronavirus, chief says. New York Post. Mar. 26,2020. https://nypost.com/2020/03/26/nycs-public-hospitals-holding-on-in-face-of-coronavirus-chief-says/ 27 National Origin in Elmhurst New York. https://statisticalatlas.com/neighborhood/New-York/NewYork/Elmhurst/National-Origin
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them to turn to safety net facilities like Elmhurst not only in New York, but in other safety net public hospitals, government clinics and nonprofit community health centers28 across the United States. Problems related to the pubic charge rule not only increases stress and crowding in these facilities, it also increases the risk of COVID-19 transmission between patients and health care staff. While there has been increase in the use of telehealth services, i.e., digital health care visits in lieu of in-person visits, in recent weeks as a social distancing precaution to reduce the risk of contagion, low-income and immigrant populations have less access to the internet, whether through broadband connections or smartphones.29 Moreover, while there have been efforts to upgrade the extent to which health insurance can pay for telehealth visits30, no such mechanism exists for those who are uninsured. As a result, uninsured immigrant patients are likely to be more reliant on in-person care seeking, exacerbating the pressure on safety net health care providers and increasing the risk of patient-health care staff disease transmission.
23. In addition to the health risks of COVID-19 infection, the pandemic is causing unprecedented economic losses that are also placing immigrants at risk as businesses close or scale down during the pandemic. The latest data indicate that more than 10 million Americans filed for unemployment benefits in March, and it seems likely that these numbers will continue to grow.31 (Because only some are eligible for unemployment benefits, the actual number who
28 Stone W. Under Financial Strain, Community Health Centers Ramp Up for Coronavirus Response. National Public Radio. Mar. 24, 2020. https://www.npr.org/sections/health-shots/2020/03/24/821027067/under-financialstrain-community-health-centers-ramp-up-for-coronavirus-response 29 Anderson M, Kumar M. Digital divide persists even as lower-income Americans make gains in tech adoption. Pew Research Center. May 7, 2019. 30 Moss K, et al. The Families First Coronavirus Response Act: Summary of Key Provisions. Kaiser Family Foundation. Mar. 20, 2020. https://www.kff.org/global-health-policy/issue-brief/the-families-first-coronavirusresponse-act-summary-of-key-provisions/ 31 Heather Long. Over 10 million Americans applied for unemployment benefits in March as economy collapsed. Washington Post. April 2, 2020. https://www.washingtonpost.com/business/2020/04/02/jobless-march-coronavirus/
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have lost jobs is higher, and the number who have experienced serious income losses is even greater.) As an Executive Board member of the District of Columbia’s Health Benefits Exchange Authority, I have been informed that Medicaid applications surged in March; national data are not yet reported. Immigrant workers are disproportionately vulnerable to job and income loss during this economic downturn because they are often employed in industries like hotels, restaurants, construction, and service industries.32 Millions of Americans, including both immigrants and non-immigrants, who have worked hard are now finding themselves desperately in need of economic and health assistance. While Medicaid serves as a health insurance safety net for most Americans in times of need, those who are non-citizen immigrants are at risk of being determined to be public charges if they enroll in Medicaid because of the policy of U.S. Citizenship and Immigration Service (USCIS). The newly unemployed immigrants—who could number in the millions—may have been employed for years, but they will be placed in jeopardy if they use Medicaid when they lose their jobs and private insurance because of the economic disaster. (Many of those whose incomes fall may be eligible for subsidized insurance using advance premium tax credits under the Affordable Care Act’s health insurance marketplaces, but those with incomes below the poverty line are not eligible for the tax-subsidized insurance and could only get coverage from Medicaid or similar state-funded programs.)
24. New data confirm that job loss has been more severe among immigrants and that the demand for Medicaid coverage will rise greatly, although immigrants face barriers accessing Medicaid benefits because of the public charge rule. New data from the federal Bureau of Labor Statistics shows that immigrants are losing employment faster than the native-born. Between February 2020 and March 2020, the government estimates that the number of immigrant adults

32 Gelatt J., op cit.

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who are unemployed rose by 26% in one month alone, while the number of native-born adults unemployed grew by 19%.33 Unemployment is rising rapidly and immigrants are disproportionately at risk. Preliminary analyses by Health Management Associates project how health insurance coverage will change because of rising unemployment; they estimate that, depending on how high U.S. unemployment levels rise, the number of Americans with employer-sponsored coverage could fall from 163 million (pre-COVID) to between 129 and 151 million, the number on Medicaid could rise from 71 million (pre-COVID) to 82 to 94 million, and the number of uninsured could rise from 29 million (pre-COVID) to as high as 30 to 40 million.34 In the face of rising unemployment and poverty, Medicaid will prevent millions from becoming uninsured and help maintain their access to medical care. Unfortunately, the public charge rule sharply reduces the ability of immigrants (and their family members) to get Medicaid coverage, lest its use threatens their immigration status, and thereby lowers their access to medical care.
25. In late March 2020, the USCIS posted new guidance about public charge and COVID-19 on its website.35 The new guidance states: “USCIS encourages all those, including aliens, with symptoms that resemble Coronavirus Disease 2019 (COVID-19) (fever, cough, shortness of breath) to seek necessary medical treatment or preventive services. Such treatment or preventive services will not negatively affect any alien as part of a future Public Charge analysis.” However, the guidance then continues to state that the receipt of Medicaid benefits
33 U.S. Bureau of Labor Statistics. The Employment Situation: March 2020. Table A7. Apr. 3, 2020. https://www.bls.gov/news.release/pdf/empsit.pdf. 34 Health Management Associates. COVID-19 Impact on Medicaid, Marketplace, and the Uninsured, by State. Apr. 3, 2020. https://www.healthmanagement.com/wp-content/uploads/HMA-Estimates-of-COVID-Impact-onCoverage-public-version-for-April-3-830-CT.pdf 35 U.S. Citizenship and Immigration Services. Public Charge. New undated Alert https://www.uscis.gov/greencard/public-charge. Accessed on March 25, 2020.
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can be used as grounds for a determination of inadmissibility, which is core tenet of the public charge rule.
26. A key deficiency in the USCIS policy is that health insurance is the primary method used to pay for medical care, such as testing and treatment. Access to Medicaid creates access to medical care, including testing, treatment, and prevention services. Studies have consistently shown, for example, how the recent expansion of Medicaid eligibility under the Affordable Care Act led to greater use of medical care, including vaccinations and HIV testing.36 When people are uninsured, they are less able to use medical care because they have financial barriers that deter them from care; they may avoid or delay care, or health care providers might refuse to provide care if they cannot pay. Thus, even though USCIS says that COVID-19 testing and treatment will not count in public charge determinations, it has created a Catch-22, since the Medicaid coverage that would make such services affordable could trigger a public charge determination of inadmissibility which jeopardizes immigrants’ ability to remain in the United States. Thus, immigrants are still going to encounter barriers getting COVID-19 care because of the core public charge rule, despite the new statement. Moreover, since much of the medical harm of COVID-19 is related to other medical problems, such as heart disease, asthma, or diabetes, effective treatment may involve care for other medical problems for which insurance is necessary.
27. A second deficiency is that the major response to the public charge rule has been fear and confusion in immigrant communities; it is hard to believe that this new administrative
36 Tummalapalli S.L., Keyhani S. Changes in Preventative Health Care After Medicaid Expansion. Medical Care. 2020 Feb 5. Online ahead of print. Mahmoudi E, Cohen A, Buxbaum J, Richardson CR, Tarraf W. Gaining Medicaid Coverage During ACA Implementation: Effects on Access to Care and Preventive Services. Journal of Health Care for the Poor and Underserved. 2018;29(4):1472-1487.
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clarification (on a somewhat obscure federal website) will undo the greater confusion and chilling effect that the public charge regulation has already engendered. As described above, fears about public charge have deterred many from enrolling in programs like WIC, even though public charge does not apply to that benefit, and have also caused members of immigrant families who are citizens to withdraw from benefits even though they are also not supposed to be affected. Even if some COVID-19 services are free, the shadow of the public charge rule will keep many from using the services.
28. As noted earlier, a number of states, including New York, California, Illinois, Oregon and the District of Columbia, offer state-funded Medicaid or similar insurance benefits to certain immigrants without federal matching funds. The public charge rule does not apply to these non-federally funded benefits, but the chilling effect of the public charge rules can deter eligible immigrants from using these benefits as well and continue to reduce access to medical care. USCIS has failed to ensure that immigrants and members of their families are aware that these non-federally funded benefits remain safe.
29. Cancelling or suspending the public charge rule is the more effective way to ensure access to appropriate medical services in order reduce the risks of the COVID-19 pandemic for immigrants, members of their families, and the communities in which they live, and to ensure that everyone has access to appropriate medical care. Such an approach is more consistent with sound public health policy.
30. This is a public health emergency of national scope, which merits prompt national policy responses. Cases of COVID-19 infection, which exceeded 427,000 as of April 9, 2020, have been identified in every state in the Union. The number of reported cases has been the highest in New York State (over 149,000), but as of April 9, the majority of states have reported
16 App. 67

more than 1,000 cases, including New Jersey, California, Washington state, Florida, Massachusetts, Texas, Illinois, Louisiana, Michigan, Mississippi, North Carolina, South Carolina Ohio, Pennsylvania, Tennessee, Colorado, Arizona, Indiana, Iowa, Missouri, Nevada, Connecticut, Virginia, the District of Columbia, Idaho, Utah, Kansas, Arkansas, Minnesota, Wisconsin and Kentucky.37 These numbers are expected to grow and spread across the nation in the coming weeks. DATED this 10th day of April, 2020 at Washington, D.C.
Leighton Ku
37 Centers for Disease Control and Prevention. COVID-19 Cases in the United States. Updated as of April 9, 2020. https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.
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EXHIBIT A
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CURRICULUM VITAE

LEIGHTON KU

Professor of Health Policy and Management Director, Center for Health Policy Research Department of Health Policy and Management Milken Institute School of Public Health The George Washington University 950 New Hampshire Ave, NW, 6th Floor Washington, DC 20052

Telephone: (202) 994-4143 E-mail: lku@gwu.edu

Summary

Leighton Ku, PhD, MPH, is a professor of health policy and management at the George Washington University (GW). He is a nationally known health policy and health services scholar with more than 25 years of experience. He has examined topics such as national and state health reforms, access to care for low-income populations, Medicaid, preventive services, the health care safety net, cost and benefits of health services, and immigrant health. He has authored or co-authored more than 90 peer-reviewed articles and 200 policy briefs and other translational reports. He directs the Center for Health Policy Research, a multidisciplinary research center, which includes physicians, attorneys, economists, health management and policy experts and others, with more than 20 faculty and dozens of staff; it has a research portfolio in excess of $25 million. He has been principal investigator for a large number of studies with support from the National Institutes of Health, Centers for Disease Control and Prevention, Centers for Medicare and Medicaid Services, the Commonwealth Fund and Robert Wood Johnson Foundation, and other sources. In the course of his career at GW, the Center on Budget and Policy Priorities and the Urban Institute, he has worked with federal and state executive and legislative agencies, health care organizations, advocates and others in research, technical assistance, strategic advice and advocacy. As a faculty, he has taught research methods and policy analysis at the graduate level for more than 25 years and guided numerous students through dissertations and other research. As a member of his community, he helped establish and guide the District of Columbia’s Health Benefits Exchange Authority as a founding member of its Executive Board.

Education

1990
1979 1979 1975

Ph.D., Health Policy, Boston University (Pew Health Policy Fellow in a joint program of Boston University and Brandeis University) M.P.H., Public Health, University of California, Berkeley M.S., Nutritional Sciences, University of California, Berkeley A.B. (honors), Biochemistry, Harvard College

Professional Background

2015 – present

Co-Director, PhD Health Policy Program. First at GW Trachtenberg School of Public Policy and Administration, now at Milken Institute School of Public Health.

2012 - present

Executive Board, District of Columbia Health Benefit Exchange Authority (voluntary position).

2008 - present

Director, Center for Health Policy Research, The George Washington University

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2008 - present
2015- 2016 2000 - 2008 1992 - present
1990 - 2000 1989 - 1990 1987 - 1989 1980 - 1987
1975 - 1976

Professor of Health Policy and Management (with tenure), Department of Health Policy and Management, Milken Institute School of Public Health, The George Washington University.
Interim Chair, Department of Health Policy and Management
Senior Fellow, Center on Budget and Policy Priorities, Washington, DC
Professor in Public Policy and Public Administration, Trachtenberg School of Public Policy and Administration, The George Washington University. Secondary appointment. Began as Associate Professorial Lecturer.
Principal Research Associate. The Urban Institute, Washington, DC. Began as Research Associate I.
Research Manager, SysteMetrics/McGraw-Hill, Cambridge, MA.
Pew Health Policy Fellow, Health Policy Institute, Boston University and the Heller School, Brandeis University
Program Analyst, Office of Analysis and Evaluation and Supplemental Food Programs Division, Food and Nutrition Service, U.S. Dept. of Agriculture, Alexandria, VA and Washington, DC.
Registered Emergency Medical Technician, Dept. of Health and Hospitals, Boston, MA

Publications Authored or Co-authored in Peer-Reviewed Journals
[Aggregate measures of scholarly productivity: H-index = 44, I10-index = 119 (according to Google Scholar as of June 26, 2019.]
Ku L, Brantley E. Conducting Evaluation Research for Policy and Legal Analysis in a Turbulent Policy Environment: The Example of Medicaid and SNAP Work Requirements. Submitted for publication.
Ku L, Brantley E. The Association of Health Insurance and Ownership of Primary Medical Practices. Submitted for publication. Nov. 2019
Ku L, Han X, Chen C, Vujicic M. Dental Education and Other Factors Associated with Medicaid Pediatric Dental Participation. Submitted for publication, Sept. 2019.
Han X, Ku L. Enhancing Staffing in Rural Community Health Centers Can Improve Behavioral Health Care. Health Affairs. 2019 Dec.; 38(12): 2061-68.
Brantley E, Pillai D, Ku L. Associations of Work Requirements and Supplemental Nutrition Assistance Program Participation by Race/Ethnicity and Disability Status, 2013-2017. Forthcoming, JAMA Open Network, 2020.
Wang X, Babb S, Xu X, Ku L, Glover-Kudon R, Armour B. Use of Cessation Treatments is Low among Medicaid Smokers Who Try to Quit. Submitted for publication.

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Ku L, Brantley E, Pillai D. The Effect of Work Requirements on SNAP Enrollment and Benefits from 2013 to 2017. American Journal of Public Health. 2019 Oct.; 109(10): 1446-1451. https://ajph.aphapublications.org/doi/pdf/10.2105/AJPH.2019.305232
Behn M, Pace L, Ku L. The Trump Administration’s Final Regulations Limit Insurance Coverage of Contraception. Women’s Health Issues. 2019 Jan 7. p: S1049-3867. https://doi.org/10.1016/j.whi.2018.12.003
Han X, Pittman P, Erickson C, Mullan F, Ku L. Effect of the National Health Service Corps on Clinician Staffing and Patient Visits in Federally Qualified Health Centers. Medical Care. 2019 Dec, 57(12): 10027. 2019. DOI: 10.1097/MLR.0000000000001209.
Bruen BK, Ku L. The Effects of Community Health Center Care on Medical Expenditures for Children and Adults: Propensity Score Analyses. Journal of Ambulatory Care Management, 2019; 42(2): 128-37. https://journals.lww.com/ambulatorycaremanagement/Fulltext/2019/04000/The_Effects_of_Community_ Health_Center_Care_on.8.aspx
Lantz P, Miller G, Ryhan C, Rosenbaum S, Ku L, Iovan S. “Pay for Success” Financing and HomeBased Multicomponent Childhood Asthma Interventions: Modeling Results from the Detroit Medicaid Population. Milbank Quarterly. 2018; 96(2): 272-99.
Brantley E, Greene J, Bruen B, Steinmetz E, Ku L. Policies Affecting Medicaid Beneficiaries’ Smoking Cessation Behaviors. Nicotine & Tobacco Research, 2018. 21(4): 197-204.
Holla N, Brantley E, Ku L. Physicians’ Recommendations to Medicaid Patients about Tobacco Cessation. American Journal of Preventive Medicine, Dec. 2018. 55(6): 762–769.
Ku L, Steinmetz E, Bysshe T, Bruen B. Crossing Boundaries: Medicaid and Public Health Collaborations to Help Smokers Quit, Public Health Reports, 2017 Feb, Vol. 132(2) 164-170.
Han X, Luo Q, Ku L. Medicaid Expansions and Increases in Grant Funding Increased the Capacity of Community Health Centers, Health Affairs, 2017 Jan.; 36 (1):49-56.
Lantz P, Rosenbaum S, Ku L, Iovan S. Pay for Success Initiatives in the U.S.: Potential and Challenges as a Strategy for Population Health Improvement, Health Affairs, 2016 Nov; 35:2053-2061
Pittman P, Masselink L, Bade L, Frogner B, Ku L. Determining Medical Staff Configurations in Community Health Centers: CEO Perspectives. Journal of Healthcare Management, 61(5): 364-77, Sept./Oct 2016.
Frogner B, Pittman P, Masselink L, Ku L. Do Years of Experience with EHRs Matter for Productivity in Community Health Centers? Journal of Ambulatory Care Management. 2017 Jan/Mar; 40(1): 36-47.
Ku L, Brantley E, Bysshe T, Steinmetz E, Bruen B. How Medicaid and Other Public Policies Affect Utilization of Tobacco Cessation. Preventing Chronic Diseases, 2016 Oct;13:160234. DOI: http://dx.doi.org/10.5888/pcd13.160234.2016.
Labarthe D. Goldstein L, Antman E, Arnett D, Fonarow G, Alberts M, Hayman L, Khera A, Sallis J, Daniels S, Sacco R, Li S, Ku L, Lantz P, Robinson J, Creager M, Van Horn L, Kris-Etherton P, Bhatnagar A, Whitsel L. Evidence-Based Policy Making: Assessment of the American Heart Association's Strategic Policy Portfolio. Circulation, 2016 May 3; 133(18):e615-53.
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Ku L. Letter: Treating Unhealthy Behaviors: The Author Replies. Health Affairs, 35(3):551, March 2016.
Bruen B, Steinmetz E, Bysshe T, Glassman P, Ku L. Care for Potentially Preventable Dental Conditions in Operating Rooms by Medicaid Children, Journal of the American Dental Association, 2016 Sept. :147(9):702-708 (cover story)
Ku L, Bysshe T, Steinmetz E, Bruen B. Health Reform, Medicaid Expansions and Women’s Cancer Screening, Women’s Health Issues, Feb. 2016. http://dx.doi.org/10.1016/j.whi.2016.01.0
August E, Steinmetz E, Gavin L, Rivera M, Pazol K, Moskosky S, Weik T, Ku L. Projecting the Unmet Need and Costs for Contraception Services after Health Care Reform, American Journal of Public Health. 106(2): 334–341, Feb. 2016. doi:10.2105/AJPH.2015.302928
Ku L Bruen B, Steinmetz E, Bysshe T. Medicaid Tobacco Cessation: Big Gaps Remain In Efforts To Get Smokers To Quit, Health Affairs, 35:62-70, Jan. 2016; doi:10.1377/hlthaff.2015.0756
Ku L. Capsule Commentary: Unauthorized Immigrants: Contributing to Medicare, But Left Out, Journal of General Internal Medicine, 31(1):100, Jan. 2016.
Ku L. Immigrants Face Barriers Both as Health Care Patients and Providers, Harvard Health Policy Review, 15(1):22-24, Fall 2015.
Jones E, Ku L. Sharing a Playbook: Integrated Care in Community Health Centers, American Journal of Public Health. 105(1). 2028-2034, October 2015, doi: 10.2105/AJPH.2015.302710
Jones E, Zur J, Rosenbaum S, Ku L. Opting Out of Medicaid Expansion: Impact on Encounters With Behavioral Health Specialty Staff in Community Health Centers. Psychiatr Serv. 2015 Dec 1;66(12):1277-82.
Zur J, Ku L. Factors Associated with Geographic Variation in Psychiatric Prescription Drug Expenditures among Medicaid Beneficiaries, Journal of Behavioral Health Services & Research, epub ahead of print July 24, 2015, doi: 10.1007/s11414-015-9471-x.
Ku L, Frogner B, Steinmetz E, Pittman P. Community Health Centers Use Diverse Staffing and Can Provide Lessons for Other Medical Practices, Health Affairs 34(1):95-103, Jan. 2015.
Jones E, Ku L, Smith S, Lardiere M. County Workforce, Reimbursement, and Organizational Factors Associated with Behavioral Health Capacity in Health Centers, Journal of Behavior and Health Services Research, 2014 Apr;41(2):125-39.
Bruen B, Ku L, Lu X, Shin P. No Evidence That Primary Care Physicians Offer Less Care To Medicaid, Community Health Center Or Uninsured Patients, Health Affairs, 32(9): 1624-30, Sept. 2013.
Ku L, Steinmetz E, Bruen, B. Continuous Eligibility Policies Stabilize Medicaid Coverage for Children and Could Be Extended to Adults with Similar Results, Health Affairs, 32(9): 1576-82, Sept. 2013.
Ku L, Sharac J, Bruen B, Thomas M, Norris L. Increased Use of Dental Services by Children Covered by Medicaid: 2000-2010 Medicare and Medicaid Research Review 3(3): E1-E12. July 2013. doi: http://dx.doi.org/10.5600/mmrr.003.03.b01
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Levy A, Bruen B, Ku L. Health Care Reform and Women’s Insurance Coverage for Breast and Cervical Cancer Screening. Preventing Chronic Disease. 9: 120069. Oct. 25, 2012. DOI: http//dx.doi.org/10.5888/pcd9.120069.
Levy A, Bruen B, Ku L. The Potential Employment Impact of Health Reform on Working-Age Adults With Disabilities, Journal of Disability Studies. 30 May 2012. DOI: 10.1177/1044207312446225
Willard R, Shah G, Leep C, Ku L. Impact of the 2008-2010 Economic Recession on Local Health Departments, Journal of Public Health Management and Practice, 18(2):106-114, Mar/Apr. 2012.
Richard P, West K, Ku L. The Return on Investment of a Medicaid Tobacco Cessation Program in Massachusetts PLoS ONE, 7(1): e29665, January 2012. doi: 10.1371/journal.pone.0029665. Available at http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0029665
Rosenbaum S, Ku L, Lantz P, et al. Examining the Evidentiary Basis of Congress’s Commerce Clause Power to Address Individuals’ Health Insurance Status, BNA’s Health Care Policy Report, Feb. 6, 2012, p 1-9.
Richard P, Ku L, Dor A, Tan E, Shin P, Rosenbaum S. Cost Savings Associated with the Use of Community Health Centers. Journal of Ambulatory Care Management, 35(1): 50-59. Jan-Mar. 2012.
Ku L, Jones E, Shin P, Burke FR, Long S. Safety-net providers after health care reform: lessons from Massachusetts Archives of Internal Medicine, 171(15): 1379-84, Aug. 8, 2011.
Bruen B, Ku L, Burke M, Buntin M. More Than Four in Five Office-Based Physicians Could Quality for Federal Electronic Health Record Incentives. Health Affairs, 30(3): 472-80, Mar. 2011.
Ku L, Jones K, Shin P, Bruen B, Hayes K. The States’ Next Challenge — Securing Enough Primary Care for an Expanded Medicaid Population. New England Journal of Medicine 364(6):493-95, Feb. 10, 2011. Also supplementary appendix available at http://www.nejm.org/doi/suppl/10.1056/NEJMp1011623/suppl_file/nejmp1011623_appendix.pdf
Ku L Ready, Set, Plan, Implement. Executing Medicaid’s Expansion. Health Affairs, 29(6): 1173-77, June 2010.
Ku L, Pervez F. Documenting Citizenship in Medicaid: The Struggle Between Ideology and Evidence, Journal of Health Politics, Policy and Law, 35(1): 5-28, February 2010.
Ku L. Medical and Dental Care Utilization and Expenditures Under Medicaid and Private Health Insurance, Medical Care Research and Review, 66(4):456-71, August 2009.
Ku L Health Insurance Coverage and Medical Expenditures for Immigrants and Native-Born Citizens in the United States, American Journal of Public Health, 99(7): 1322-28, July 2009.
Ku L, Broaddus M. Public and Private Health Insurance: Stacking Up the Costs, Health Affairs, 27(4):w318-327, June 2008. Also, Technical Appendix: Public and Private Health Insurance: Stacking Up the Costs, at http://content.healthaffairs.org/cgi/content/full/hlthaff.27.4.w318/DC2.
[Note between 2000 and 2008, I was working at the Center on Budget and Policy Priorities and was not principally working on refereed publications.]
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Ku L Improving Health Insurance and Access to Care for Children in Immigrant Families, Ambulatory Pediatrics, 7(6):412-20, November 2007.
Ponce, N., Ku L, Cunningham W, Brown ER. Language Barriers to Health Care Access Among Medicare Beneficiaries, Inquiry, 43(1):66–76, Spring 2006.
Ku L, Flores G. Pay Now or Pay Later: Providing Interpreter Services In Health Care, Health Affairs, 24(2) 435-44, March/April 2005.
Park E, Ku L, Broaddus M, More Than 900,000 Children Will Lose Health Insurance Due to Reductions in Federal SCHIP Funding, International Journal of Health Services, 33(2), 2003.
Ku L. The Number of Americans Without Health Insurance Rose in 2001 and Appears to Be Continuing to Rise in 2002, International Journal of Health Services, 33(2), 2003.
Lessard G, Ku L. Gaps in Coverage for Children in Immigrant Families, The Future of Children, 13(1):101-115, Spring 2003.
Ku L, St. Louis M, Black C, Aral S, Turner C, Lindberg L, Sonenstein F. Risk Behaviors, Medical Care and Chlamydial Infection Among Young Men in the United States, American Journal of Public Health, 92(7): 1140-42, July 2002.
Ku L, Matani S. Left Out: Immigrants’ Access to Health Care and Insurance, Health Affairs, 20(1):24756, Jan./Feb. 2001.
Ku L, Ellwood M, Hoag S, Ormond B, Wooldridge J. The Evolution of Medicaid Managed Care Systems and Eligibility Expansions, Health Care Financing Review, 22(2):7-29, Winter 2000.
Coughlin T, Ku L, Kim J., Reforming the Medicaid Disproportionate Share Program in the 1990s, Health Care Financing Review, 22(2):137-58, Winter 2000.
Ku L, Coughlin T, Sliding Scale Premium Health Insurance Programs: Four States’ Experience, Inquiry, 36(4):471-80, Winter 2000.
Lindberg L, Ku L, Sonenstein F, Adolescents' reports of reproductive health education, 1988 and 1995. Family Planning Perspectives, 32(5):220-6, Sept./Oct. 2000.
Porter L, Ku L. Use of Reproductive Health Services Among Young Men, 1995 Journal of Adolescent Health, 27(3):186-94, September 2000.
Bradner C, Ku L, Lindberg L. Older, but Not Wiser: How Do Men Get AIDS and Sexually Transmitted Disease Information after High School?, Family Planning Perspectives, 32(1):33-39, January/February 2000.
Lindberg L, Ku L, Sonenstein F. Adolescent Males' Combined Use of Condoms with Partners' Use of Female Contraceptive Methods, Maternal and Child Health Journal, 2(4): 201-9, Spring 1999.
Ku L, Sonenstein F, Lindberg L, Bradner C, Boggess S, Pleck J. Understanding Changes in Sexual Activity Among Young Metropolitan Men: 1979 to 1995, Family Planning Perspectives, 30(6): 256-62, November/ December 1998.
Ku L, Hoag S. Medicaid Managed Care and the Marketplace, Inquiry, 35(3):332-45, Fall 1998.
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Ellwood MR, Ku L. Welfare and Immigration Reforms: Unintended Side Effects for Medicaid, Health Affairs, 17(3):137-51, May/June 1998.
Sonenstein F, Pleck J, Ku L, Lindberg L, Turner C. Changes in Sexual Behavior and Condom Use Among Teenaged Males: 1988 to 1995, American Journal of Public Health, 88(6):956-959, June 1998.
Turner C, Ku L, Rogers S, Lindberg L Pleck J, Sonenstein F. Adolescent Sexual Behavior, Drug Use and Violence: New Survey Technology Detects Elevated Prevalence Among U.S. Males, Science, 280:86773, May 8, 1998.
Ku L, Sonenstein F, Turner C, Aral S, Black C, The Potential of Integrated Representative Surveys about STDs and Risk Behaviors, Sexually Transmitted Diseases, 24(5):299-309, May 1997.
Lindberg L, Sonenstein F, Ku L , Levine G, Young Men's Experience with Condom Breakage, Family Planning Perspectives, 29(3): 132-36, May/June 1997.
Pleck JH, Sonenstein F, Ku L. Black-white Differences in Adolescent Males' Substance Use: Are They Explained by Underreporting in Blacks?, Journal of Gender, Culture, and Health, 2, 247-265, 1997
Lindberg L, Sonenstein F, Ku L, Martinez G. Age Differences Between Minors Who Give Birth and Their Adult Partners, Family Planning Perspectives, 29(2):52-60, March/April 1997.
Sonenstein F, Ku L, Schulte M, Reproductive Health Care -- Patterns in a Changing Health Care Market, Western Journal of Medicine, 163(3 Suppl):7-14, September 1995.
Ku L, Coughlin T. Medicaid Disproportionate Share and Other Special Financing Programs, Health Care Financing Review, 16(3): 27-54, Spring 1995.
Holahan J, Coughlin T, Ku L, Lipson D, Rajan S. Insuring the Poor through Medicaid 1115 Waivers, Health Affairs, 14(1): 200-17, Spring 1995.
Coughlin T, Ku L, Holahan J, Heslam D, Winterbottom C. State Responses to the Medicaid Spending Crisis: 1988 to 1992, Journal of Health Politics, Policy and Law, 19(4):837-64, Winter 1994.
Ku L, Sonenstein F, Pleck J. The Dynamics of Young Men's Condom Use During and Between Relationships, Family Planning Perspectives, 26(6): 246-251, November/ December 1994.
Pleck J, Sonenstein F, Ku L. Attitudes Toward Male Roles: A Discriminant Validity Analysis, Sex Roles, 30(7/8):481-501, 1994.
Ku L, Sonenstein F, Pleck J. Factors Affecting First Intercourse Among Young Men, Public Health Reports, 108(6):680-94, November/December 1993.
Ku L, Sonenstein F, Pleck J. Neighborhood, Work and Family: Influences on the Premarital Behaviors of Adolescent Men, Social Forces, 72(2):479-503, December 1993.
Ku L, Sonenstein F, Pleck J. Young Men's Risk Behaviors for HIV Infection and Sexually Transmitted Diseases, 1988 through 1991, American Journal of Public Health, 83(11):1609-15, November 1993.
Pleck J, Sonenstein F, Ku L. Changes in Adolescent Males' Use of and Attitudes Towards Condoms: 1988-91, Family Planning Perspectives, 25(3):100-105, 117, May/June 1993.
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Pleck J, Sonenstein F, Ku L. Masculine Ideology: Its Impact on Adolescent Males' Heterosexual Relationships, Journal of Social Issues, 49(3):11-30, 1993.
Ku L, Sonenstein F, Pleck J. The Association of AIDS Education and Sex Education with Sexual Behavior and Condom Use Among Teenage Men, Family Planning Perspectives, 24(3):100-106, May/June 1992 (erratum, Family Planning Perspectives, 25(1):36, January/February 1993).
Ku L, Sonenstein F, Pleck J, Patterns of HIV Risk and Preventive Behaviors Among Teenage Men, Public Health Reports, 107(2):131-38, March/April 1992.
Sonenstein F, Pleck J, Ku L, Levels of Sexual Activity Among Adolescent Males in the United States, Family Planning Perspectives, 23(4):162-67, July /August 1991.
Pleck J, Sonenstein F, Ku L, Adolescent Males' Condom Use: The Influence of Perceived Costs-Benefits on Consistency, Journal of Marriage and the Family, 53:733-45, August 1991.
Pleck J, Sonenstein F, Ku L, Contraceptive Attitudes and Intention to Use Condoms in Sexually Experienced and Inexperienced Adolescent Males, Journal of Family Issues, 11(3):294-312, Sept. 1990.
Ku L, Ellwood MR, Klemm J. Deciphering Medicaid Data: Issues and Needs, Health Care Financing Review, 1990 Annual Supplement, p. 35-45.
Ku L, Fisher D, Attitudes of Physicians Toward Health Care Cost Containment Policies, HSR: Health Services Research, 25(1):25-42, April 1990 (Part I).
Sonenstein F, Pleck J, Ku L. Sexual Activity, Condom Use and AIDS Awareness Among Adolescent Males, Family Planning Perspectives, 21(4):152-58, July/August 1989.
Branch L, Ku L. Transition Probabilities to Disability, Institutionalization and Death for the Elderly Over a Decade, Journal of Aging and Health, 1(3):370-408, August 1989.
Ku L. Early Prenatal Enrollment in the WIC Program, Public Health Reports, 104(3): 301-06, May/June 1989.
Ku L, Shapiro L, Crawford P, Huenemann R. Body Composition and Physical Activity in Eight Year Old Children, American Journal of Clinical Nutrition, 34(12):2770-75, 1981.
Persellin R, Ku L. Effects of Steroid Hormones on Human Polymorphonuclear Leukocyte Lysosomes, Journal of Clinical Investigation, 54(4):919-25, 1974.
Books Authored or Co-authored
Ku L, Lin M, Broaddus M, Improving Children's Health: A Chartbook about the Roles of Medicaid and SCHIP: 2007 Edition, Center on Budget and Policy Priorities, Jan. 2007.
Ku L, Nimalendran S. Improving Children’s Health: A Chartbook About the Roles of Medicaid and SCHIP, Center on Budget and Policy Priorities, Jan. 15. 2004
Coughlin T, Ku L, Holahan J, Medicaid Since 1980: Costs, Coverage and the Shifting Alliance Between the Federal Government and the States, Washington, DC: Urban Institute Press, 1994. (Selected by Choice as one of ten outstanding academic books for 1994.)
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Sorensen, E, Bean F, Ku L, Zimmerman W, Immigrant Categories and the U.S. Job Market: Do They Make a Difference?, Urban Institute Report 92-1, Washington, DC: Urban Institute Press, 1992.
Articles or Chapters in Books (Refereed)
Ku L (contributor), CCH;s Law, Explanation and Analysis of the Patient Protection and Affordable Care Act, Vol.1, Commerce Clearinghouse, Wolters Kluwer, 2010.
Ku L. Changes in Immigrants’ Use of Medicaid and Food Stamps: the Role of Eligibility and Other Factors, in Immigrants and Welfare, edited by Michael Fix, Russell Sage Foundation and Migration Policy Institute, 2009, p, 153-92.
Ku L, Papademetrios DG. Access to Health Care and Health Insurance: Immigrants and Immigration, in Securing America’s Future: U.S. Immigrant Integration Policy Reader, M. Fix, editor, Migration Policy Institute, Feb. 2007.
Ku L. Prepared Statement. Insurance Coverage and Health Care Access for Immigrant Families, Living Without Health Insurance. Hearings of the Senate Committee on Finance, United States Senate on Who’s Uninsured and Why? And Solutions to the Problem. March 13 and 15, 2001. S. Hrg 107-81. U.S. Govt Printing Office. Pg. 148-53. https://books.google.com/books?id=ysrYaJZAew0C&pg=PA112&lpg=PA112&dq=Hearing+on +Who%27s+Uninsured+%26+Why?+%26+Solutions+to+the+Problem:+Charles+Grassley&sou rce=bl&ots=l7enGHC7pB&sig=ACfU3U2m_YwHwAYhqSNaVng1PWTFhFdgMQ&hl=en&sa =X&ved=2ahUKEwjJ0_G55pznAhXvmOAKHTH2BYIQ6AEwAHoECAkQAQ#v=onepage&q =Hearing%20on%20Who's%20Uninsured%20%26%20Why%3F%20%26%20Solutions%20to %20the%20Problem%3A%20Charles%20Grassley&f=false
Sonenstein FL., Ellen J, Pleck J, Ku L. Taking Risks: Understanding Adolescents’ Behavior, in STDs in Adolescents: Challenges for the 21st Century, edited by P. Hitchcock, et al. New York: Oxford University Press Inc.1999.
Ku L, Wooldridge J, Rajan S, Ellwood MR, Dubay L, Coughlin T, Hoag S, Wall S. The New Generation of Statewide Medicaid Managed Care Programs: State Health Reform Projects in Hawaii, Oklahoma, Rhode Island and Tennessee in Remaking Medicaid: Managed Care for the Public Good, edited by Steve Davidson and Steve Somers, San Francisco: Jossey-Bass, Inc., 1998, p. 147-78.
Wooldridge J, Ku L, Coughlin T, Dubay L., Ellwood MR, Rajan S, Hoag S, Reforming State Medicaid Programs: First Year Implementation Experiences from Three States, in Contemporary Managed Care, edited by Marsha Gold, Health Administration Press, pp. 211-26, 1998.
Sonenstein F, Ku L, Pleck J. Measuring Sexual Behavior Among Teenage Males in the U.S., in Researching Sexual Behavior: Methodological Issues, Bancroft, J., ed., Bloomington, IN: Indiana University Press, p. 87-105, 1997.
Turner, CF, Ku L, Sonenstein FL, Pleck JH, Impact of Audio-CASI on Reporting of Male-male Sexual Contacts: Preliminary Findings from the National Survey of Adolescent Males, in Health Survey Research Methods: Conference Proceedings, Warnecke, R.B., ed., Hyattsville, MD: National Center for Health Statistics, p. 171-76, 1995.
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Pleck J, Sonenstein F, Ku L, Problem Behaviors and Masculinity Ideology in Adolescent Males, in Adolescent Problem Behaviors: Issues and Research, R. Ketterlinus and M. Lamb, eds., Hillsdale, NJ: Erlbaum, 1994, p. 165-186.
Holahan J, Coughlin T, Ku L, Heslam D, Winterbottom C, Understanding the Recent Growth in Medicaid Spending, in Medicaid Financing Crisis: Balancing Responsibilities, Priorities and Dollars, D. Rowland, J. Feder and A. Salganicoff, eds., Washington, DC: AAAS Press, 1993, p. 23-44.
Sonenstein F, Pleck J, Ku L. Paternity Risk Among Adolescent Males in Young Unwed Fathers: Changing Roles and Emerging Policies, R. Lerman and T. Ooms, eds., Philadelphia, PA: Temple Univ. Press, p. 99-116, 1993.
Pleck J, Sonenstein F, Ku L. Masculine Ideology and Its Correlates in Gender Issues in Contemporary Society, S. Oskamp and M. Constanzo, eds., Claremont Symposium on Applied Social Psychology, Newbury Park: Sage Publications, p. 85-110, 1993.
Translational and Other Reports, Briefs, Blogs and Publications
Health Policy
[Note: Reports marked with [PR] went through an external peer-review process prior to release.]
Ku L. Assessing the Presidential Proclamation on Visas and Health Insurance. Health Affairs Blog. Dec. 17, 2019. https://www.healthaffairs.org/do/10.1377/hblog20191217.16090/full/
Ku L. Declaration in Support of Plaintiffs' Motion for a Preliminary Injunction (regarding Presidential Proclamation on Visas and Health Insurance), John Doe #1, et al. v Donald Trump, et al. United States District Court, District of Oregon, filed November 8, 2019. (Cited in November 26 court decision)
Ku L. Brantley E. Indiana’s Medicaid Work Requirements Program Is Expected to Cause Tens of Thousands to Lose Coverage. Oct. 28, 2019. https://www.commonwealthfund.org/blog/2019/indianasmedicaid-work-requirement-program-expected-cause-tens-thousands-lose-coverage
Ku L. Op-Ed: Medicaid Expansion Can and Does Expand Access to Care. Capitol Broadcasting Corporation. Oct. 16, 2019. https://mail.google.com/mail/u/0/#inbox/WhctKJVZrXGHBvSwwqpStCWklCtsCQcFsLvZxSHCLmtRjL gFWhRBwPhHqtBqjxsksKdGFxq Similar letter to the Editor, Raleigh News and Observer,. Oct. 16, 2019. https://www.newsobserver.com/opinion/letters-to-the-editor/article236193038.html
Ku L. New Evidence Demonstrating That the Public Charge Rule Will Harm Immigrant Families and Others. Health Affairs Blog. October 9, 2019. https://www.healthaffairs.org/do/10.1377/hblog20191008.70483/full/
Ku L. Declaration in Support of Plaintiffs' Motion for a Preliminary Injunction (regarding public charge regulation), La Clinica de la Raza, et al. v. Donald Trump, et al. United States District Court, Northern District of California, September 1, 2019. https://healthlaw.org/resource/declaration-of-leighton-ku-in-laclinica-de-la-raza-v-trump/. Similar declarations in Make the Road New York, et al v Ken Cucinelli, et al. United States District Court, Southern District of New York, Sept. 9, 2019. State of New York, et al. v. U.S. Department of Homeland Security, et al. United States District Court, Southern District of New York, Sept. 9, 2019. These declarations were filed again in subsequent appeals for these cases.
Ku L, Bruen B, Brantley E. The Economic and Employment Benefits of Expanding Medicaid in North
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Carolina: A 2019 Update. Cone Health Foundation and Kate B Reynolds Charitable Trust. June 26, 2019. Ncmedicaidexpansion.com
Ku L, Brantley E. Approved Medicaid Work Requirement Demonstration Projects in Nine States Could Cause About 600,000 to 800,000 Adults to Lose Medicaid Coverage. Commonwealth Fund. Blog. June 21, 2019. https://www.commonwealthfund.org/blog/2019/medicaid-work-requirements-ninestates-could-cause-600000-800000-adults-lose-coverage
Rosenbaum S, Rothenberg S, Velasquez M, Ku L, Brantley E. Are 1115 Medicaid Work Requirement Demonstrations Experimental Initiatives or a Way to Side-Step Congress? June 6, 2019. http://gwhpmmatters.com/blog-are-1115-medicaid-work-requirement-demonstrations-experimentalinitiatives-or-way-side-step
Ku L, Brantley E. New Hampshire’s Medicaid Work Requirements Could Cause More than 15,000 to Lose Coverage. Commonwealth Fund Blog. May 9, 2019. [PR] https://www.commonwealthfund.org/blog/2019/new-hampshires-medicaid-work-requirementscould-cause-coverage-loss
Chen CP, Ku, L, Regenstein M, Mullan F. Examining the Cost Effectiveness of Teaching Health Centers. Geiger Gibson / RCHN Community Health Foundation Research Collaborative. Policy Brief #58. March 2019. http://gwhpmmatters.com/sites/default/files/201903/Examining%20the%20Cost%20Effectiveness%20of%20Teaching%20Health%20Centers%20%28Che n%2C%20Ku%2C%20Regenstein%2C%20Mullan%29%20Mar%2021%2C%202019.pdf
Ku L, Brantley E. Proposed Work Requirements in Montana’s Medicaid Program: An Update. Mar. 15, 2019, revised. https://mthcf.org/resources/report-medicaid-work-requirements/
Ku L (primary author) and many co-signers. Comment Letter to Food and Nutrition Service, USDA on Proposed Rule: Supplemental Nutrition Assistance Program: Requirements for Able-Bodied Adults without Dependents, RIN 0584-AE57, Submitted thru regulations.gov. March 15, 2019.
Ku L, Brantley E. Potential Effects of Work Requirements in Montana’s Medicaid Program. Montana Healthcare Foundation. Feb. 13, 2019. https://mthcf.org/wp-content/uploads/2019/02/Potential-Effectsof-Work-Requirements-in-Montana%E2%80%99s-Medicaid-Program-Ku-Brantley-2-13-19.pdf.
Ku L, Brantley E. Updated Estimates of the Effects of Medicaid Work Requirements in Kentucky. GW Health Policy Matters. Jan. 4, 2019. http://gwhealthpolicymatters.com/sites/default/files/201901/Updated%20Estimates%20of%20the%20Effects%20of%20Medicaid%20Work%20Requirements%20 in%20Kentucky%20%28Ku%2C%20Brantley%29%20GWHPMMatters%201-4-19.pdf
Ku L (primary author) and many co-signers. Comment Letter to US Department of Homeland Security: RIN 1615-AA22 “Inadmissibility on Public Charge Grounds”. Dec. 9, 2018 Submitted thru regulations.gov.
Ku L, Sharac J, Gunsalus R, Shin P, Rosenbaum S. How Could the Public Charge Proposed Rule Affect Community Health Centers? Policy Brief # 55. Geiger Gibson RCHN Community Health Research Collaborative. Nov 2018. https://publichealth.gwu.edu/sites/default/files/downloads/GGRCHN/Public%20Charge%20Brief.pdf
Ku L, Pillai D. The Economic Mobility of Immigrants: Public Charge Rules Could Foreclose Future Opportunities. Nov. 15, 2018. Social Science Research Network. http://ssrn.com/abstract=3285546
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[This was in the top five downloaded reports about immigration for SSRN for late 2018.]
Ku L, Brantley E, Steinmetz E, Bruen B, Pillai D. Medicaid Work Requirements: Will They Help the Unemployed Get Jobs or Improve Health. Issue Brief. Commonwealth Fund. Nov. 2018 https://www.commonwealthfund.org/publications/issue-briefs/2018/nov/medicaid-work-requirementswill-they-help-jobs-health
Brantley E, Ku L. Arkansas’ Early Experience with Work Requirements Signals Larger Losses to Come. Commonwealth Fund Blog. Oct. 31, 2018. https://www.commonwealthfund.org/blog/2018/arkansasearly-experience-work-requirements
Ku L (primary author). Brief of the Amici Curiae Public Health Scholars in Support of Plaintiff-Appellant the Commonwealth of Massachusetts. Filed in Commonwealth of Massachusetts v. United States Department of Health and Human Services, et al. to the US Court of Appeals for the First Circuit, Sept. 24, 2018.
Vyas A, Wood SF, Landry M, Masselink L, Mead H, Ku L. District of Columbia Family Planning Community Needs Assessment. Conducted by The George Washington University Milken Institute School of Public Health for Washington Area Women’s Foundation, DC Family Planning Project. Sept. 2018. [PR] https://thewomensfoundation.org/2018/new-report-family-planning-community-needsassessment/
Erikson C, Han X, Ku L, Pittman P. Contribution of the National Health Service Corps Providers and Alumni to Medicare Beneficiaries in 2015. GW Health Workforce Institute. Aug. 2018. https://userniv7hdi.cld.bz/Contribution-of-the-NHSC-Providers-and-Recent-Alumni-to-Medicare-Beneficiaries-in2015/2/
Brantley E, Ku L. A First Glance at Medicaid Work Requirements in Arkansas: More Than One-Quarter Did Not Meet Requirement. Health Affairs Blog. Aug. 13, 2018. https://www.healthaffairs.org/do/10.1377/hblog20180812.221535/full/
Ku L, Shin P, Sharac J, Rosenbaum S. Legacy Community Health Services v Smith: What are the National Implications for Community Health Centers and Their Communities? Geiger Gibson/RCHN Community Health Foundation Research Collaborative Policy Research Brief # 53. August 2018. https://www.rchnfoundation.org/wp-content/uploads/2018/08/Legacy-GG-IB-53_FINAL_8.2.pdf
Ku L. Blog: The District of Columbia Is Trying to Preserve Health Insurance Coverage; Congress Is Trying to Interfere. Health Affairs Blog. July 23, 2018. https://www.healthaffairs.org/do/10.1377/hblog20180722.933880/full/
Ku L. Blog: The New District of Columbia Policy to Protect Insurance Coverage. July 5, 2018. http://gwhealthpolicymatters.com/blog-new-district-columbia-policy-protect-insurance-coverage.
Ku L. Data About Contraceptive Needs in the U.S. After the Affordable Care Act. June 26, 2018. [PR] http://gwhealthpolicymatters.com/data-about-contraceptive-needs-us-after-affordable-care-act.
Ku L. Declaration about Public Health and Employment Effects of Terminating the Deferred Action for Childhood Arrivals (DACA) program. Filed in support of the Mexican American Legal Defense and Educational Fund and the state of New Jersey, intervenors, in Texas v. United States in suit in Federal District Court of Southern District of Texas, June 14, 2018.
Brantley E, Ku L. Work Requirements: SNAP Data Show Medicaid Losses Could Be Much Faster and
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Deeper Than Projected. Health Affairs Blog. April 12, 2018. https://www.healthaffairs.org/do/10.1377/hblog20180412.310199/full/
Ku L. What is the Evidence of the Effects of the ACA’s Individual Mandate and of Its Repeal? DC Health Benefits Exchange Authority. Revised Feb. 12, 2018.
Ku L. It Makes More Sense to Strengthen SHOP Than to Expand Association Health Plans. Jan. 4, 2018. http://gwhealthpolicymatters.com/blog-it-makes-more-sense-strengthen-shop-expand-associationhealth-plans
Ku L, Steinmetz E. State Economic and Employment Losses If Community Health Center Funding Is Not Restored. Geiger Gibson/RCHN Community Health Foundation Research Collaborative Policy Research Brief # 51. Dec. 4, 2017. [PR] https://publichealth.gwu.edu/sites/default/files/downloads/GGRCHN/State%20Economic%20and%20Em ployment%20Losses%20if%20CHC%20Funding%20is%20Not%20Restored%2051.pdf
Ku L. Declaration about Public Health Effects of Terminating the Deferred Action for Childhood Arrivals (DACA) program. Filed in support of the state of New York and other plaintiff states, New York, et al. v. Trump in suit in Federal District Court of Eastern New York, Nov. 22, 2017.
Ku L. May You Live in Interesting Times: The Challenges of Health Policy Analysis in a Turbulent Period. GW Health Policy Matters. Oct. 2, 2017. http://gwhealthpolicymatters.com/may-you-liveinteresting-times-challenges-health-policy-analysis-turbulent-period-0
Ku L, Steinmetz E, Brantley E, Pillai D. The Graham-Cassidy Proposal Would Eliminate a Third of a Million Jobs, To the Point, The Commonwealth Fund, Sept. 26, 2017, [PR] available at: http://www.commonwealthfund.org/publications/blog/2017/sep/graham-cassidy-job-loss. Methods appendix at http://www.commonwealthfund.org/~/media/files/publications/blog/2017/gc-methodsappendix_final.pdf
Ku L, Seiler N. Medicaid Expansions Help States Cope with the Opioid Epidemic. GW Dept of Health Policy and Management. July 25, 2017. https://publichealth.gwu.edu/sites/default/files/images/Medicaid%20Expansions%20Help%20States%20 Cope%20with%20the%20Opioid%20Epidemic%207-25-17%20report.pdf
Ku L. Cutting immigrants’ access to health insurance would drive up costs for many Americans. Washington Post, Letter to the Editor. July 18, 2017.
Ku L, Steinmetz E, Brantley E, Holla N, Bruen B. The Better Care Reconciliation Act: Economic and Employment Consequences for States. Commonwealth Fund, July 6, 2017.[PR] http://www.commonwealthfund.org/publications/issue-briefs/2017/jul/bcra-economic-employmentconsequences-states
Bruen BK, Ku L. Community Health Centers Reduce the Costs of Children’s Health Care. Geiger Gibson / RCHN Community Health Foundation Research Collaborative Policy Research Brief # 48. June 22, 2017. https://publichealth.gwu.edu/sites/default/files/downloads/GGRCHN/Brief%2048%20Child%20Cost%20 Savings.pdf
Ku L, Steinmetz E, Brantley E, Holla N, Bruen B. The American Health Care Act: Economic and Employment Consequences for States. Commonwealth Fund, June 14, 2017. [PR]
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http://www.commonwealthfund.org/publications/issue-briefs/2017/jun/ahca-economic-and-employmentconsequences [Like the January 6th report, the June 14 and July 6 reports gained considerable interest and were widely cited by the media and by federal and state policy officials. This series of reports were among the most often downloaded reports for the Commonwealth Fund.]
Ku L, Paradise J, Thompson V. Data Note: Medicaid’s Role in Providing Access to Preventive Care for Adults. Kaiser Commission for Medicaid and the Uninsured. May 17, 2017. [PR] http://kff.org/medicaid/issue-brief/data-note-medicaids-role-in-providing-access-to-preventive-care-foradults/
Ku L In podcast: ACA Repeal Waves Goodbye to 3 Million Jobs and $1.5 Trillion. The Working Life. May 10, 2017. http://www.workinglife.org/politics/episode-29-aca-repeal-waves-goodbye-to-3-millionjobs-1-5-trillion/
Ku L, Brantley E. Medicaid Work Requirements: Who’s at Risk? Health Affairs Blog, April 12, 2017. http://healthaffairs.org/blog/2017/04/12/medicaid-work-requirements-whos-at-risk/
Ku L, Brantley E. Myths about the Medicaid Expansion and the “Able-Bodied.” Health Affairs Blog, March 6, 2017. http://healthaffairs.org/blog/2017/03/06/myths-about-the-medicaid-expansion-and-theable-bodied/
Ku L In podcast: The Financial Consequences of ACA Repeal. The Commonwealth Fund. Feb. 15, 2017. http://www.commonwealthfund.org/interactives-and-data/multimedia/podcasts/new-directions-inhealth-care/the-impact-of-aca-repeal
Bennett J, Brown C, Ku L, Bruen B. The Economic, Fiscal and Employment Effects of Health Care Modernization in Oklahoma. State Chamber (of Commerce) Research Foundation. Feb. 1, 2017. [PR] http://www.okstatechamber.com/sites/www.okstatechamber.com/files/OK%20Study%20%20REMI%20FINAL.pdf
Mitchell K. Interview with Leighton Ku. GW Expert: Repealing Obamacare Would Hurt Patients, Economy. GW Today. Jan. 17, 2017. https://gwtoday.gwu.edu/gw-expert-repealing-obamacare-wouldhurt-patients-economy
Ku L Steinmetz E, Brantley E, Bruen B. Repealing Federal Health Reform: The Economic and Employment Consequences for States. Brief, Commonwealth Fund, Jan. 6, 2017. http://www.commonwealthfund.org/Publications/Issue-Briefs/2017/Jan/Repealing-Federal-HealthReform [PR]
Ku L Steinmetz E, Brantley E, Bruen B. The Economic and Employment Consequences of Repealing Federal Health Reform: A 50 State Analysis. Milken Institute School of Public Health, George Washington University. Jan. 6, 2017. https://publichealth.gwu.edu/sites/default/files/downloads/HPM/Repealing_Federal_Health_Reform.pdf [PR]
[Note: The Jan. 6 reports were reported widely in numerous media including CBS, NBC, NPR, Forbes, Fortune, the Atlantic, etc. Findings were frequently cited by Congressmen and Senators in Congressional floor debates about repeal of the Affordable Care Act. One of the most popular Commonwealth Fund reports in 2017]
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Ku L, Steinmetz E, Bruen B. Changes in Insurance Coverage and Cardiovascular Risk for U.S. Adults in States Expanding and Not Expanding Medicaid. Dec. 2016 George Washington University and American Heart Association. [PR] https://publichealth.gwu.edu/sites/default/files/downloads/HPM/Americans%20Cardiovascular%20Risk %20and%20Changes%20in%20Health%20Insurance%20Coverage%20Dec%2016.pdf
Ku L. DC Health Link Has Expanded Health Insurance Coverage in the District. DC Health Benefits Exchange Authority, Sept. 29, 2016 [no author listed] http://hbx.dc.gov/sites/default/files/dc/sites/hbx/publication/attachments/SurveyReportGainedCoverage% 20final.pdf
Ku L. Up in smoke: We’ll spend billions tomorrow for not helping poor people quit smoking today, The Conversation. July 12, 2016. https://theconversation.com/up-in-smoke-well-spend-billions-tomorrowfor-not-helping-poor-people-quit-smoking-today-60686
Ku L. The Role of Medicaid In Pay For Success Models For Supportive Housing For Chronically Homeless Individuals: Opportunities And Challenges, Report to Office of the Assistant Secretary for Planning and Evaluation, HHS, under review. [PR]
Regenstein M, Jewers M, Nocella K, Goldberg D, Strasser J, Ku L, Mullan F. Cost Estimates for Training a Resident in a Teaching Health Center. Report to HRSA. GW Dept. of Health Policy and Management, Feb. 2016. [PR]
Lantz,P, Rosenbaum S., Ku L et al. Opportunities for Pay for Success Demonstrations in HHS Programs, Office of the Assistant Secretary for Planning and Evaluation, HHS, forthcoming. [PR]
Ku L, Steinmetz E, Bruen B., Bysshe T. Effects of the Affordable Care Act on Health Insurance Coverage of Americans at Risk of Cardiovascular Disease, Washington, DC: American Heart Association. Jan. 2016.
Ku L, Steinmetz, E, Bysshe T. Continuity of Medicaid Coverage in an Era of Transition, Washington, DC: Association of Community Affiliated Plans, Nov. 1, 2015. [PR]
Ku L, Bysshe T, Steinmetz E, Bruen B. Health Reform and the Implications for Cancer Screening. Report to American Cancer Society, Sept. 2015
Ku L, Bysshe T, Wu. X. The Changing Community Health Center Workforce: 2007-13, GW Health Workforce Research Center, Sept. 22, 2015. [PR] https://www.gwhwi.org/uploads/4/3/3/5/43358451/report_the_changing_community_health_cent er__8-10-15_.pdf
Ku L, Mullan F, Serrano C, Barber Z, Shin P. Teaching Health Centers: A Promising Approach for Building Primary Care Workforce for the 21st Century. Geiger Gibson / RCHN Community Health Foundation Research Collaborative Policy Research Brief # 40, March 10, 2015. http://www.rchnfoundation.org/?p=4651
Rosenbaum S, Ku l, et al. (unnamed authors). Amici Curiae Brief Of Public Health Deans, Chairs, And Faculty And The American Public Health Association In Support Of Respondents to the Supreme Court of the United States re: King v Burwell. Jan. 28, 2015. [PR]
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Ku L. Covering the Uninsured Through DC Health Link: Report on the First Year. DC Health Benefits Exchange Authority, Dec. 26, 2014. http://hbx.dc.gov/node/978322 [PR]
Ku L, Bruen B, Steinmetz E, Bysshe T. The Economic and Employment Costs of Not Expanding Medicaid in North Carolina: A County-Level Analysis. Dec. 2014. Cone Health Foundation and Kate B. Reynolds Charitable Trust. At www.ncmedicaidexpansion.com {PR]
Ku L, Bruen B, Steinmetz E, Brown C., Motamedi R, Stottlemyer C. Economic and Employment Effects of Expanding KanCare. Kansas Hospital Association, Nov. 2014 at http://www.kha-net.org/.
Steinmetz E, Bruen, B, Ku L. Children’s Use of Dental Care in Medicaid: Federal Fiscal Years 2000 – 2012. Report to CMS, Oct. 2014. Posted at http://www.medicaid.gov/medicaid-chip-programinformation/by-topics/benefits/dental-trends-2000-to-2012.pdf. [PR]
Stewart A, Cox M, Ku L. Health Insurance Benefits Advisors: Understanding Responsibilities, Regulations, Restrictions and Relevance in Implementing the Affordable Care Act. GW Dept of Health Policy, Sept. 2014. [PR]
Ku L Zur, J. Jones E, Shin P, Rosenbaum S. How Medicaid Expansions and Future Community Health Center Funding Will Shape Capacity to Meet the Nation’s Primary Care Needs: A 2014 Update Geiger Gibson / RCHN Community Health Foundation Research Collaborative Policy Research Brief # 37, June 18, 2014. [PR]
Miller V, Ku L. The Impact of Government Transfer Programs on State and Regional Personal Incomes, Department of Health Policy Issue Brief, April 30, 2014.
Ku L. Strengthening Immigrants’ Health Access: Current Opportunities GW Department of Health Policy Issue Brief, Dec. 13, 2013. http://hsrc.himmelfarb.gwu.edu/sphhs_policy_briefs/29/
Ku L Zur, J. Jones E, Shin P, Rosenbaum S. How Medicaid Expansions and Future Community Health Center Funding Will Shape Capacity to Meet the Nation’s Primary Care Needs Geiger Gibson / RCHN Community Health Foundation Research Collaborative Policy Research Brief # 34, Nov. 18. 2013
Paradise J, Rosenbaum S, Shin P, Sharac J, Alvarez C, Zur J, Ku L. Providing outreach and enrollment assistance: lessons learned from community health centers in Massachusetts. The Henry J. Kaiser Family Foundation. September 24, 2013. Available at: http://kff.org/health-reform/issue-brief/providingoutreach-and-enrollment-assistance-lessons-learned-from-community-health-centers-in-massachusetts/
Ku L, Steinmetz E. Bridging the Gap: Continuity and Quality of Coverage in Medicaid, Washington DC: Association of Community Affiliated Plans. Sept. 2013. [PR]
Ku L. The Bipartisan Senate Immigration Bill: Implications for Health Coverage and Health Access, GW Department of Health Policy, Aug. 8, 2013
Ku L. The Senate Immigration Bill’s Impact on Health Care, blog posted at www.cmwf.org, Aug. 8, 2013. [PR]
Ku L. Comprehensive Immigration Reform and Health Care: CBO’s Analysis of S. 744, Dept of Health Policy report, June 20, 2013. Also posted on HealthReformGPS.org.
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Ku L. Explaining Recent Changes in CBO Projections of Health Insurance Coverage and Costs under the Affordable Care Act, Implementation Brief posted on www.HealthReformGPS.org, June 5, 2013.
Ku L. Medicaid Expansions Using Private Plans: The Role of Premium Assistance and Cost-Sharing, commentary in www.HealthReformGPS.org April 2013. http://www.healthreformgps.org/resources/medicaid-expansions-using-private-plans-the-role-ofpremium-assistance-and-cost-sharing-2/
Ku L, Bruen B. Poor Immigrants Use Public Benefits At a Lower Rate than Poor Native-Born Citizens, Economic Development Bulletin No. 17, Washington, DC: Cato Institute. March 4, 2013 http://www.cato.org/sites/cato.org/files/pubs/pdf/edb17.pdf [PR]
Brown C, Motamedi R, Stottlemeyer C, Bruen B, Ku L. Economic and Employment Effects of Expanding Medicaid in Iowa, Regional Economic Models, Inc. and George Washington University. Prepared for Iowa Hospital Association. Mar. 2013. http://blog.iowahospital.org/wp-content/uploads/2013/03/IA-Medicaid-Expansion-Econ-Full-Report.pdf
Brown C, Motamedi R, Stottlemeyer C, Bruen B, Ku L. Economic and Employment Effects of Expanding Medicaid in Arizona, Regional Economic Models, Inc. and George Washington University. Prepared for Arizona Hospital and Healthcare Association. Feb. 2013. http://www.azhha.org/member_and_media_resources/documents/ArizonaMedicaidExpansionReportREM I2-28-13_000.pdf
Brown C, Motamedi R, Stottlemeyer C, Bruen B, Ku L. Economic and Employment Effects of Expanding Medicaid in Arkansas, Regional Economic Models, Inc. and George Washington University. Prepared for Arkansas Hospital Association. Feb. 2013. http://www.arkhospitals.org/Misc.%20Files/ReportBriefAppendix.pdf
Brown, C., Motamedi, R., Stottlemeyer, C., Bruen B and Ku L. Economic and Employment Effects of Expanding Medicaid in Kansas, Regional Economic Models, Inc. and George Washington University. Prepared for Kansas Hospital Association. Feb. 2013. http://m.kha-net.org/communications/mediareleases/102615.aspx
Ku L, Bruen B. The Use of Public Assistance Benefits by Citizens and Non-citizen Immigrants in the United States. Working Paper, Cato Institute, Feb. 2013. [PR]
Ku L, Jewers M. Health Care for Immigrants: Policies and Current Issues. Migration Policy Institute, June 2013. www.migrationpolicy.org [PR]
Ku L, Bruen B, and Steinmetz E. Task 9: Medicaid DSH Simulation: Final Report Report to the Office of the Assistant Secretary for Planning and Evaluation. Jan. 2013. [PR]
Ku L, Bruen B, Steinmetz E Beeson T. Task 7: Medicaid DSH Analytic Report Report to the Office of the Assistant Secretary for Planning and Evaluation. Oct. 2012. [PR]
Ku L Cartwright-Smith L, Sharac J, Steinmetz E, Lewis J, Shin P. Deteriorating Access to Women's Health Services in Texas: Potential Effects of the Women's Health Program Affiliate Rule, Geiger Gibson/RCHN CHF Research Collaborative Brief, Issue No. 31. October 11, 2012
Ku L, Regenstein M, Shin P, Mead H, Levy A, Buchanan K, Byrne, F.. Coordinating and Integrating Care for Safety Net Patients: Lessons from Six Communities. George Washington University Dept. of Health Policy, May 21, 2012.
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Ku L, Levy A, Bruen B. The Potential Primary Care Crisis in Texas: A County-Based Analysis Report for Methodist Healthcare Ministries, April 2012.
Ku L, Cunningham M, Goetz-Goldberg D., Darnell J, Hiller M.. Quality Incentives for Federally Qualified Health Centers, Rural Health Clinics and Free Clinics: A Report To Congress, report prepared for U.S. Department of Health and Human Services for submission to Congress, January 23, 2012. [PR]
Ku L. Saving Money: The Massachusetts Medicaid Tobacco Cessation Benefit: A Policy Paper. Partnership for Prevention. Jan. 2012. http://www.prevent.org//data/images/roi%20policy%20paper_a.pdf
Ku L, Levy A, Lantz P, Pierre-Matthieu R. Options for CDC’s Cancer Screening Programs: Implications of the Affordable Care Act. Report to the American Cancer Society and Centers for Disease Control and Prevention, Nov. 15, 2011. [PR]
Ku L, Regenstein M., Shin P, Mead H, Levy A, Buchanan K, Byrne F. Coordinating and Integrating Care for Safety Net Patients: Lessons from Six Communities, Draft Report to the Commonwealth Fund, Sept. 2011. [PR]
Ku L, Regenstein M., Shin P, Bruen B, Byrne FR. Improving the Integration and Coordination of Safety Net Health Providers Under Health Reform: Key Issues, Commonwealth Fund Pub 1552, Oct. 2011. Posted at http://www.commonwealthfund.org/~/media/Files/Publications/Issue%20Brief/2011/Oct/ 1552_Ku_promoting_integration_safetynet_providers_under_reform_ib.pdf [PR]
Ku L, Shin P, Jones E, Bruen B. Transforming Community Health Centers into Patient-Centered Medical Homes: The Role of Payment Reform, Report to the Commonwealth Fund, Sept. 28, 2011. Posted at http://www.commonwealthfund.org/Publications/Fund-Reports/2011/Sep/Transforming-CommunityHealth-Centers.aspx. [PR]
Ku L, Ferguson C. Medicaid Works: A Review of How Public Insurance Protects the Health and Finances of Low-Income Families and Individuals. First Focus and George Washington Univ. Dept. of Health Policy, June 2011.
Ku L. Medicaid in the Bull’s Eye.: Blog posted at Health Affairs blog website. April 15, 2011. http://healthaffairs.org/blog/2011/04/15/medicaid-in-the-bulls-eye.
Rosenbaum S, Shin P, Ku L. Who Are the Health Center Patients Who Risk Losing Care Under the House of Representatives Proposed FY 2011 Spending Reductions?. Issue No. 20. Geiger Gibson/RCHN Community Health Foundation Research Collaborative Feb 24, 2011.
Ku L, Richard P, Dor A, Tan E, Shin P, Rosenbaum S. Strengthening Primary Care to Bend the Cost Curve: The Expansion of Community Health Centers Through Health Reform, Brief No. 19. Geiger Gibson/RCHN Community Health Foundation Research Collaborative, June 30, 2010.
Ku L, Shin P, Bruen B. Can Health Care Investments Stimulate the Economy?. Blog posted at Health Affairs blog website, March 16, 2010. http://healthaffairs.org/blog/2010/03/16/can-health-care-investments-stimulate-the-economy/
Shin P, Bruen B, Jones E, Ku L, Rosenbaum S. The Economic Stimulus: Gauging the Early Effects of ARRA Funding on Health Centers and Medically Underserved Populations and Communities, Brief No. 17. Geiger Gibson/RCHN Community Health Foundation Research Collaborative, Feb. 2010.
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Shin P, Bruen B, Ku L, Mead KH, Regenstein M, Rosenbaum S, Buchanan K, Smith K. The Early Impact of ARRA on Community Health Centers: Analysis of HCQR2. Report to Health Resources and Services Administration, Rockville, MD. February 2010.
Ku L, Rosenbaum S, Shin P. Using Primary Care to Bend the Cost Curve: The Potential Impact of Health Center Expansion in Senate Reforms. Brief No. 16. Geiger Gibson/RCHN Community Health Foundation Research Collaborative, Oct 14, 2009.
Shin P, Ku L, Mauery R, Finnegan B, Rosenbaum S. Estimating the Economic Gains for States as a Result of Medicaid Coverage Expansions for Adults, Brief No. 15. Geiger Gibson/RCHN Community Health Foundation Research Collaborative, Oct 7, 2009.
Ku L, Richard P, Dor A, Tan E, Shin P, Rosenbaum S. Using Primary Care to Bend the Curve: Estimating the Impact of a Health Center Expansion on Health Care Costs. Brief No. 14. Geiger Gibson/RCHN Community Health Foundation Research Collaborative, Sep 1, 2009.
Ku L. Do Medicaid and CHIP Measure Errors Correctly?. Dept. of Health Policy, George Washington Univ. Aug. 4, 2009.
Ku L, Shin P, Rosenbaum S. Estimating the Effects of Health Reform on Health Centers’ Capacity to Expand to New Medically Underserved Communities and Populations. Issue No. 11. Geiger Gibson/RCHN Community Health Foundation Research Collaborative, Washington, DC. Jul 23, 2009. Rosenbaum S, Jones E, Shin P and Ku L National Health Reform: How Will Medically Underserved Communities Fare? Geiger Gibson / RCHN Community Health Foundation Research Collaborative, Washington, DC. July 9, 2009.
Ku L, MacTaggart P, Pervez F, Rosenbaum S. Improving Medicaid’s Continuity and Quality of Care, Association for Community Affiliated Plans, July 2009. [PR]
Finnegan B, Ku L, Shin P, Rosenbaum S. Boosting Health Information Technology in Medicaid: The Potential Effect of the American Recovery and Reinvestment Act. Geiger Gibson / RCHN Community Health Foundation Research Collaborative, Washington, DC. July 7, 2009.
Ku L. Expanding Coverage for Low-income Americans: Medicaid or Health Insurance Exchanges? Blog posted at Health Affairs blog website, June 23, 2009. http://healthaffairs.org/blog/2009/06/23/expandingcoverage-for-low-income-americans-medicaid-of-health-insurance-exchanges/
Shin P Ku L, Jones E, Finnegan B, Rosenbaum S. Financing Community Health Centers As Patient- And Community-Centered Medical Homes: A Primer, George Washington Univ., May 27, 2009. [PR]
Ku L, Jones E, Finnegan B, Shin P, Rosenbaum S. Community Health Centers in the Midst of Massachusetts’ Health Reform: How Is the Primary Care Safety Net Faring? Kaiser Commission on Medicaid and the Uninsured and Geiger Gibson Community Health Program. March 2009. [PR]
Ku L. Restoring Medicaid and SCHIP Coverage to Legal Immigrant Children and Pregnant Women: Implications for Community Health and Health Care for Tomorrow’s Citizens, Geiger Gibson/RCHN Community Health Foundation Research Brief #7, Jan. 13, 2009. https://www.rchnfoundation.org/wpcontent/uploads/2013/02/GG-RCHN_No7.pdf
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Ku L, Feiden K. Examining the Health Consequences of the 2008-09 Recession, Rapid Public Health Policy Response Project, GW School of Public Health and Health Services, January 2009.
Ku L. The Dial and the Dashboard: The Child Well-Being Index and Public Policy, prepared for the Foundation for Child Development, Jan. 2009.
Jones E, Ku L, Lippi J, Whittington R, Rosenbaum S. Designation of Medically Underserved and Health Professional Shortage Areas: Analysis of the Public Comments on the Withdrawn Proposed Regulation. Geiger Gibson/RCHN Community Health Foundation Research Brief #5. September 2008.
Shin P, Ku L, Jones E, Rosenbaum S. Grantee-Level Estimates Show that 31 Percent of All Health Centers would Fail to Meet Tier Two Status under HRSA’s Proposed MUA/MUP/HPSA Designation Regulations. Geiger Gibson/RCHN Community Health Foundation Research Brief #3. May 2008.
Shin P, Ku L, Jones E, Rosenbaum S. Analysis of the Proposed Rule on Designation of Medically Underserved Populations and Health Professional Shortage Areas, (report and highlights) Geiger Gibson/RCHN Community Health Foundation Research Collaborative, Department of Health Policy, The George Washington University, revised May 1, 2008.
Ku L, Lindblom E. (authors not named) Expanding Children’s Health Insurance and Raising Federal Tobacco Taxes Helps Low-Income Families, Joint Paper of the Center on Budget and Policy Priorities and the Campaign for Tobacco-Free Kids, Oct. 16, 2007. Ku L. ’Crowd-Out’ Is Not the Same as Voluntarily Dropping Private Health Insurance for Public Program Coverage, Center on Budget and Policy Priorities, Sept. 27, 2007
Greenstein R, Ku L (authors not named) Charge That Bipartisan SCHIP Compromise Bill Aids Undocumented Immigrants Is False, Center on Budget and Policy Priorities, Sept. 25, 2007.
Ku L. Collateral Damage: Children Can Lose Coverage When Their Parents Lose Health Insurance, Center on Budget and Policy Priorities, Sept. 17, 2007.
Ku L (author not named), More Americans, Including More Children, Now Lack Health Insurance, Center on Budget and Policy Priorities, Aug. 31, 2007.
Ku L, New Research Shows Simplifying Medicaid Can Reduce Children's Hospitalizations, Center on Budget and Policy Priorities, June 11, 2007.
Ku L, Comparing Public and Private Health Insurance for Children, Center on Budget and Policy Priorities, May 11, 2007.
Ku L, Reducing Disparities in Health Coverage for Legal Immigrant Children and Pregnant Women, Center on Budget and Policy Priorities, April 20, 2007.
Ku L, Census Revises Estimates of the Number of Uninsured People, Center on Budget and Policy Priorities, April 5, 2007.
Ku L, Schneider A, Solomon J, The Administration Again Proposes to Shift Federal Medicaid Costs to States, Center on Budget and Policy Priorities, Feb.14, 2007.
Ku L. Medicaid Costs Are Growing More Slowly Than Costs For Medicare or Private Insurance, Center on Budget and Policy Priorities, Nov. 13, 2006.
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Ku L, Broaddus M. Coverage of Parents Helps Children, Too, Center on Budget and Policy Priorities, Oct. 20, 2006.
Ku L Paying for Language Services in Medicare: Preliminary Options & Recommendations, National Health Law Program and Center on Budget and Policy Priorities, Oct. 2006. (www.healthlaw.org/library.cfm?fa=detail&id=118637&appView=folder)
Ku L, Broaddus M. Is Medicaid Responsible for the Erosion of Employer-Based Health Coverage?, Center on Budget and Policy Priorities, Sept. 22, 2006.
Greenstein, R., Ku L and Dean, S. Survey Indicates House Bill Could Deny Voting Rights To Millions Of U.S. Citizens, Center on Budget and Policy Priorities, Sept. 22, 2006.
Ku L, Cohen Ross D, Broaddus M. Documenting Citizenship and Identity Using Data Matches: A Promising Strategy for State Medicaid Programs, Center on Budget and Policy Priorities, Sept. 1, 2006.
Ku L. Why Immigrants Lack Adequate Access to Health Care and Health Insurance, Migration Information Source, Migration Policy Institute, Sept. 2006. [PR](www.migrationinformation.org/Feature/display.cfm?id=417)
Kogan R, Ku L, et al. Budget Process Bill Would Result in Deep Cuts in Medicare and Medicaid, Center on Budget and Policy Priorities, Aug. 9, 2006.
Ku L. Revised Medicaid Documentation Requirement Jeopardizes Coverage for 1 To 2 Million Citizens, Center on Budget and Policy Priorities, July 13, 2006.
Ku L. Using Information Technology to Document Citizenship in Medicaid, Center on Budget and Policy Priorities, June 20, 2006.
Ku L. The Slowdown in Medicaid Expenditure Growth, Center on Budget and Policy Priorities, March 13, 2006.
Ku L, Broaddus M. New Requirement For Birth Certificates or Passports Could Threaten Medicaid Coverage For Vulnerable Beneficiaries: A State-By-State Analysis, Center on Budget and Policy Priorities, Revised Feb. 17, 2006.
Ku L Cohen Ross D. Broaddus M. Survey Indicates Deficit Reduction Act Jeopardizes Medicaid Coverage for 3 to 5 Million U.S. Citizens, Center on Budget and Policy Priorities, Revised Feb. 17, 2006.
Schneider A, Ku L, et al. Administration’s Medicaid Proposals Would Shift Federal Costs to States, Center on Budget and Policy Priorities, Feb. 14, 2006.
Ku L, Cohen Ross D. New Medicaid Requirement Is Unnecessary and Could Impede Citizens' Coverage, Center on Budget and Policy Priorities, Revised Jan. 4, 2006.
Wachino V, Ku L, et al. Medicaid Provisions of House Reconciliation Bill Both Harmful and Unnecessary Senate Bill Achieves Larger Savings Without Reducing Access to Care, Center on Budget and Policy Priorities, Dec. 9, 2005
Ku L, Wachino V. Greenstein R. The House Reconciliation Bill’s Provisions On Medicaid Co-Payments and Premiums: Are They Mild or Harsh? Center on Budget and Policy Priorities, Nov. 22, 2005.
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Wachino V, Ku L , et al. An Analysis of The National Governors Association’s Proposals For Short-Run Medicaid Reform Center on Budget and Policy Priorities, Oct. 14, 2005.
Ku L and Wachino V. Don't Shift Medicaid's Costs onto Those Who Can Least Afford Them The Hill, July 20, 2005.
Ku L. Medicaid: Improving Health, Saving Lives, Center on Budget and Policy Priorities, July 19, 2005.
Ku L. New Research Sheds Light on Risks from Increasing Medicaid Cost-Sharing and Reducing Medicaid Benefits, Center on Budget and Policy Priorities, July 18, 2005.
Ku L, Wachino V. Medicaid Commission Named By Secretary Leavitt Lacks Balance, Center on Budget and Policy Priorities, July 10, 2005
Ku L, Wachino V. Assessing The National Governors Association's Proposals To Allow Increases In Cost-Sharing Charges To Medicaid Beneficiaries, Center on Budget and Policy Priorities, July 7, 2005.
Ku L, Wachino.V. The Effect Of Increased Cost-Sharing In Medicaid: A Summary Of Research Findings, Center on Budget and Policy Priorities, Revised, July 7, 2005.
Ku L, Broaddus M. Out-Of-Pocket Medical Expenses For Medicaid Beneficiaries Are Substantial And Growing, Center on Budget and Policy Priorities, May 31, 2005.
Ku L, Solomon, J. Is Missouri's Medicaid Program Out-of-Step and Inefficient?, Center on Budget and Policy Priorities, April 4, 2005.
Wachino V, Schneider A, Ku L. Medicaid Budget Proposals Would Shift Costs To States And Be Likely To Cause Reductions In Health Coverage: Administration’s Proposal Also Implies Cap On Federal Funding, Center on Budget and Policy Priorities, Feb. 18, 2005
Ku L, Broaddus M, Wachino, V.. Medicaid and SCHIP Protected Insurance Coverage for Millions of Low-Income Americans, Jan. 31, 2005
Ku L and Wachino V. The Potential Impact of Eliminating TennCare and Reverting to Medicaid: A Preliminary Analysis, Center on Budget and Policy Priorities, Nov. 15, 2004.
Ku L, Deschamps E, Hilman J. The Effects of Copayments on the Use of Medical Services and Prescription Drugs in Utah’s Medicaid Program, Center on Budget and Policy Priorities, Nov. 2, 2004.
Ku L. Will the New TennCare Cutbacks Help Tennessee’s Economy? Center on Budget and Policy Priorities, July 8, 2004.
Ku L, Nimalendran S. Losing Out: States Are Cutting 1.2 to 1.6 Million Low-Income People from Medicaid, SCHIP and Other State Health Insurance Programs, Center on Budget and Policy Priorities, Dec. 22, 2003.
Ku L, Broaddus M. Funding Health Coverage For Low-Income Children In Washington, Center on Budget and Policy Priorities, Nov. 10, 2003.
Ku L, Report Documents Growing Disparities in Health Care Coverage Between Immigrant and Citizen Children as Congress Debates Immigrant Care Legislation, Center on Budget and Policy Priorities, Oct. 14, 2003
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Ku L. CDC Data Show Medicaid and SCHIP Played a Critical Counter-Cyclical Role in Strengthening Health Insurance Coverage during the Economic Downturn, Center on Budget and Policy Priorities, Rev. Oct. 8, 2003.
Ku L. How Many Low-Income Medicare Beneficiaries In Each State Would Be Denied The Medicare Prescription Drug Benefit Under The Senate Drug Bill? Center on Budget and Policy Priorities, July 31, 2003.
Ku L. State Fiscal Relief Provides An Opportunity To Safeguard Medicaid Budgets, Center on Budget and Policy Priorities, June 4, 2003
Ku L, Charging the Poor More For Health Care: Cost-Sharing In Medicaid, Center on Budget and Policy Priorities, May 7, 2003.
Ku L, Fremstad S, Broaddus M. Noncitizens' Use Of Public Benefits Has Declined Since 1996, Center on Budget and Policy Priorities, April 14, 2003.
Nathanson M, Ku L. Proposed State Medicaid Cuts Would Jeopardize Health Insurance Coverage For 1.7 Million People: An Update, Center on Budget and Policy Priorities, Mar. 21, 2003.
Ku L, Shift In Costs From Medicare To Medicaid Is A Principal Reason For Rising State Medicaid Expenditures, Center on Budget and Policy Priorities, March 3, 2003.
Ku L, The Medicaid-Medicare Link: State Medicaid Programs Are Shouldering A Greater Share of The Costs Of Care For Seniors And People With Disabilities, Center on Budget and Policy Priorities, Feb. 25, 2003.
Ku L, Broaddus M. Why Are States' Medicaid Expenditures Rising? Jan. 13, 2003.
Cohen-Ross D, Ku L. Quarterly Status Reporting Could Jeopardize The Health Coverage Of Hundreds Of Thousands Of Eligible Low-Income Californians, Center on Budget and Policy Priorities, Revised Dec. 23, 2002
Ku L, et al., Proposed State Medicaid Cuts Would Jeopardize Health Insurance Coverage for One Million People, Center on Budget and Policy Priorities, Dec. 23, 2002.
Ku L, Cohen-Ross D. Staying Covered: The Importance of Retaining Health Insurance Coverage for Low-income Families, Commonwealth Fund, Dec. 2002. (One of the most frequently downloaded Commonwealth Fund reports in 2006.) [PR]
Ku L, New CDC Data Show the Importance of Sustaining Medicaid and SCHIP Coverage as Private Health Insurance Erodes in 2002, Center on Budget and Policy Priorities, Revised Oct. 8, 2002.
Ku L, Cohen-Ross D, Nathanson M. State Medicaid Cutbacks and the Federal Role In Providing Fiscal Relief to States, Center on Budget and Policy Priorities, Revised. Aug. 8, 2002
Ku L, Park E., Improving Transitional Medicaid to Promote Work and Strengthen Health Insurance Coverage, Center on Budget and Policy Priorities, April 29, 2002.
Capps R, Ku L, et al. How Are Immigrants Faring After Welfare Reform? Preliminary Evidence from Los Angeles County and New York City, Report to the Office of the Assistant Secretary for Planning and
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Evaluation, Dept. of Health and Human Services, March 2002. Available at http://aspe.hhs.gov/hsp/immigrants-faring02/index.htm. [PR]
Broaddus M, et al. Expanding Family Coverage: States' Medicaid Eligibility Policies for Working Families in the Year 2000, Center on Budget and Policy Priorities, Revised Feb. 2002.
Ku L, Park E, Administration's Regulation to Reduce Medicaid Upper Payment Limit Would Further Worsen State Budget Crises, Center on Budget and Policy Priorities, Dec. 11, 2001.
Ku L, Park E. Federal Aid to State Medicaid Programs Is Falling While the Economy Weakens, Center on Budget and Policy Priorities, Oct. 6, 2001.
Ku L, Rothbaum E. Many States Are Considering Medicaid Cutbacks in the Midst of the Economic Downturn, Center on Budget and Policy Priorities, October 26, 2001.
Park E, Ku L, Health Care Provisions of House Ways And Means Committee Stimulus Package Offer Little Help for the Health Insurance Needs of Unemployed Workers, Center on Budget and Policy Priorities, Oct. 19, 2001.
Park E, Ku L, Temporary Medicaid Improvements As Part of a Stimulus Package, Center on Budget and Policy Priorities, Oct. 9, 2001.
Ku L, Counting the Uninsured: A Guide for the Perplexed, Center on Budget and Policy Priorities, Sept. 21, 2001
Park E, Ku L. Administration Medicaid and SCHIP Waiver Policy Encourages States to Scale Back Benefits Significantly and Increase Cost-Sharing for Low-Income Beneficiaries, Center on Budget and Policy Priorities, August 15, 2001.
Ku L, Guyer J. Medicaid Spending: Rising Again But Not to Crisis Levels, Center on Budget and Policy Priorities, April 20, 2001.
Broaddus M, Ku L. Nearly 95 Percent of Low-Income Uninsured Children Now Are Eligible for Medicaid or SCHIP, Center on Budget and Policy Priorities, Dec. 6, 2000. 12/6/00
Ku L, Freilich A., Caring for Immigrants: Health Care Safety Nets in Los Angeles, New York, Miami and Houston, Kaiser Commission on Medicaid and the Uninsured, Feb. 2001.
Holahan J, Ku L, Pohl M.. Is Immigration Responsible for the Growth in the Number of Uninsured People? Kaiser Commission on Medicaid and the Uninsured, March 2001.
Ku L, Blaney S. Health Coverage for Legal Immigrant Children: New Census Data Highlight Importance of Restoring Medicaid and SCHIP Coverage, Center on Budget and Policy Priorities, Revised. Oct. 10, 2000.
Ormond B, Ku L and Bruen B. Engine of Change or One Force among Many? Section 1115 Demonstration Projects and Trends in Medicaid Expenditures (Baltimore, MD: Health Care Financing Administration, February 2001).
Ku L, Limiting Abuses of Medicaid Financing: HCFA’s Plan to Regulate the Medicaid Upper Payment Limit, Center on Budget and Policy Priorities, Sept. 27, 2000.
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Ku L, Broaddus M. The Importance of Family-Based Insurance Expansions: New Research on the Effects of State Health Reforms, Center on Budget and Policy Priorities, September 5, 2000.
Ku L, Matani S. Immigrants’ Access to Health Care and Insurance on the Cusp of Welfare Reform, Assessing the New Federalism Discussion Paper 00-03, Washington, DC: The Urban Institute, June 2000.
Ku L, Garrett B. How Welfare Reform and Economic Factors Affected Medicaid Participation: 1984-96, Assessing the New Federalism Discussion Paper 00-01, Washington, DC: The Urban Institute, February 2000.
Ku L, Ellwood MR, Hoag S, Ormond B, Wooldridge J. The Evolution of Medicaid Managed Care Systems and Eligibility Expansions in Section 1115 Projects. Final report to the Health Care Financing Administration, from the Urban Institute and Mathematica Policy Research, Inc., May 2000. [PR]
Coughlin T, Ku L, Kim, J., Reforming the Medicaid Disproportionate Share Program in the 1990s, Assessing the New Federalism, The Urban Institute, Discussion Paper 99-14, (joint release with Commonwealth Fund), 1999. [PR]
Ku L, Bruen B. The Continuing Decline in Medicaid Coverage, Assessing the New Federalism Brief A37, The Urban Institute, December 1999.
Ku L, Ullman F, Almeida R, What Counts? Determining Medicaid and CHIP Eligibility for Children, Assessing the New Federalism Discussion Paper 99-05, Washington, DC: The Urban Institute, 1999.
Ku L, Hoag S. Medicaid Managed Care and the Marketplace: State Health Reforms in Hawaii, Oklahoma, Rhode Island and Tennessee, Report to the Health Care Financing Administration from the Urban Institute and Mathematica Policy Research, February 1998.
Ku L, Kessler B. The Number and Cost of Immigrants on Medicaid: National and State Estimates, Report to the Office of the Assistant Secretary for Planning and Evaluation from the Urban Institute, December 1997. [PR]
Ku L, Berkowitz, A., Ullman F, Regenstein M. Health Policy for Low-Income People in Mississippi, Assessing the New Federalism, Washington, DC: The Urban Institute, December 1997. [PR]
Nichols L, Ku L, Norton S, Wall S. Health Policy for Low-Income People in Washington Assessing the New Federalism, Washington, DC: The Urban Institute, November 1997. [PR]
Ku L, Wall S. The Implementation of Oklahoma's Medicaid Reform Program: SoonerCare, Report to the Health Care Financing Administration from the Urban Institute and Mathematica Policy Research, October 1997. [PR]
Ku L, Coughlin T, The Use of Sliding Scale Premiums in Subsidized Insurance Programs, Urban Institute Working Paper, March 1997. [PR]
Ku L, Coughlin T, How the New Welfare Reform Law Affects Medicaid, Assessing New Federalism Policy Brief No. A-7, the Urban Institute, February 1997. [PR]
Wooldridge J., Ku L, Coughlin T, Dubay L, Ellwood MR, Rajan S, Hoag S., Reforming State Medicaid Programs: First Year Implementation Experiences from Three States, Mathematica Policy Research, January 1997. [PR]
App. 94

Wooldridge J, Ku L, Coughlin T, Dubay L, Ellwood MR, Rajan S, Hoag S. Implementing State Health Care Reform: What Have We Learned from the First Year? The First Annual Report of the Evaluation of Health Reform in Five States. Report to the Health Care Financing Administration, from Mathematica Policy Research Inc. and the Urban Institute, December 1996. [PR]
Ku L, Wade M, Dodds S. How Cost-Reimbursement Affected Patients, Health Centers and Medicaid: The Federally Qualified Health Center Program, Report to the Health Care Financing Administration, from the Urban Institute and Mathematica Policy Research, Inc., August 1996.
Long S, Ciemnecki A, Coughlin T, Kenney G, Ku L, Mitchell J, Rajan S, Rosenbach M, Thornton C, Wade M, Zuckerman S. Designing an Evaluation of the Medicaid Health Reform Demonstrations, Report to the Health Care Financing Administration, from the Urban Institute, Center for Health Economics Research and Mathematica Policy Research, Inc., Feb. 1996.
Holahan J, Coughlin T, Liu K, Ku L, Kuntz C, Wade M, Wall S. Cutting Medicaid Spending in Response to Budget Caps, Report to the Kaiser Commission on the Future of Medicaid, Sept. 1995. [PR]
Wade M, Ku L, Dodds S. (1995). The Impact of the Medicaid FQHC Program on Center Users, FQHCs and the Medicaid Program, Urban Institute Working Paper 06428-03, May 1995.
Ku L, Coughlin T. Medicaid Disproportionate Share and Related Programs: A Fiscal Dilemma for the States and the Federal Government, Report to the Kaiser Commission on the Future of Medicaid from the Urban Institute, December 1994.
Holahan J, Coughlin T, Ku L, Lipson D, Rajan S. Increasing Insurance Coverage through Medicaid Waiver Programs, Urban Institute Working Paper 06433-005-01, November 1994.
Rajan S, Coughlin T, Ku L, Holahan J, Lipson, D. Increasing Insurance Coverage through Medicaid Waiver Programs: Case Studies, Urban Institute Working Paper 06433-005-02, November 1994.
Ku L, Publicly Supported Family Planning in the United States: Financing of Family Planning Services. Report to the Kaiser Family Foundation, The Urban Institute, June 1993.
Holahan J, Coughlin T, Ku L, Heslam D, Winterbottom C, The States' Response to Medicaid Financing Crisis: Case Studies Report, Health Policy Center Report 6272-02, The Urban Institute, December 1992 (revised).
Sonenstein F, Ku L, Juffras J, Cohen B. Promising Prevention Programs for Children, Report to the United Way of America, The Urban Institute, March 1991.
Ellwood MR, Ku L. Summary and Policy Recommendations: Studies on Health Care Services to Severely Disabled Children, Report Submitted to the Office of the Assistant Secretary for Planning and Evaluation, DHHS, Lexington, MA: SysteMetrics/ McGraw-Hill, August 1990.
Ku L, Who's Paying the Big Bills?: Very High Cost Pediatric Hospitalizations in California in 1987, Report to Office of the Assistant Secretary for Planning and Evaluation, DHHS, Lexington, MA: SysteMetrics/McGraw-Hill, August 1990.
Sonenstein F, Ku L, Adams EK, Orloff T. Potential Research Strategies to Evaluate the Effect of Transitional Medicaid and Child Care Benefits, Report to the Office of the Assistant Secretary for Planning and Evaluation, DHHS, Lexington, MA: SysteMetrics/McGraw-Hill, May 1990.
App. 95

HIV/AIDS and Reproductive Health
Lindberg L, Ku L, Sonenstein F. Minor Mothers and Adult Fathers: Age Differences Between Teen Mothers and Their Partners, Urban Institute Working Paper, 1996.
Sonenstein FL., Pleck JH, Ku L. Why Young Men Don't Use Condoms: Factors Related to Consistency of Utilization, Sexuality and American Policy Seminar Series, Kaiser Family Foundation and American Enterprise Institute for Public Policy Research, Washington, D.C., May 1995.
Ku L and the NSAM Study Team, Preliminary Results of the Pretest for the National Survey of Adolescent Males, Report to the Centers for Disease Control and Prevention and the National Institute for Child Health and Human Development, November 1994.
Ku L, Levine G, Sonenstein F, State STD Reporting Rules and Research Surveys, Report to the Centers for Disease Control and Prevention, September 1994.
Sonenstein F, Pleck J, Ku L, The Male Side of the Equation, TEC Networks, 33:3-4, June 1992.
Sonenstein F, Pleck J, Ku L, Influences on Adolescent Male Premarital Sexual Behavior, Final Report to the Office of Population Affairs, DHHS from Urban Institute, May 1992.
Sonenstein F, Pleck J, Ku L, Sex and Contraception Among Adolescent Males, TEC Networks, 29:1-3, June 1991.
Sonenstein F, Pleck J, Calhoun C, Ku L, 1988 National Survey of Adolescent Males: A User's Guide to the Machine Readable Files and Documentation, Data Set G6, Data Archives on Adolescent Pregnancy and Pregnancy Prevention, Los Altos, CA: Sociometrics Corp, 1991.
Sonenstein F, Pleck J, Calhoun C, Ku L, Determinants of Contraceptive Use by Adolescent Males, Final Report to the National Institute for Child Health and Human Development, Urban Institute, February 1991.
Food and Nutrition Policy
Ku L, Debating WIC, The Public Interest, 135: 108-12, Spring 1999. [PR]
Ku L, Cohen B, Pindus N. Full Funding for WIC: A Policy Review, Washington, DC: Urban Institute Press, 1994.
Ku L, Long S, Brayfield A. and others, Low-Income Children's Nutritional Needs and Participation in USDA's Food Assistance Programs. Final Report to the Food and Nutrition Service, USDA from the Urban Institute, September 1993.
Ku L, Institutional Participation in the National School Lunch and Breakfast Programs, Final Report to the Food and Nutrition Service, USDA from the Urban Institute, March 1993.
Ku L, Reported Meal Production Costs and Reimbursement Rates in the National School Lunch Program, Draft Report to the Food and Nutrition Service, USDA from the Urban Institute, April 1992.
App. 96

Ku L, Brayfield A, and others, Evaluation of Low-Income Children's Nutritional Needs and Participation in USDA's Food Assistance Programs: Conceptual Assessment. Report to Food and Nutrition Service, USDA from the Urban Institute, February 1992.

Ku L, McKearn M. Effects of the Temporary Emergency Food Assistance Program (TEFAP) on Displacement of Commercial Sales, (with the Economic Research Service and Mathematica Policy Research), Report to Congress, U.S. Dept. of Agriculture, August 1987.* [PR]

Ku L, Dalrymple R., Differences Between SIPP and Food and Nutrition Service Program Data on Child Nutrition and WIC Program Participation, Survey of Income and Program Participation (SIPP) Working Papers, No. 8707, Bureau of the Census, May 1987.

Ku L, Nutritional Research Relating to Infant Feeding in the WIC Program, Report to the Assistant Secretary for Food and Consumer Services, June 1986.*

Richman L, Hidelbaugh T, McMahon-Cox N, Ku L, Dayton CM, Goodrich N. Study of WIC Participant and Program Characteristics, Report to Congress, Food and Nutrition Service, U.S. Dept. of Agriculture (with Ebon Research Systems and Abt Associates Inc.), April 1986. [PR]

Ku L, Abbot J, Forchheimer M. The Feasibility, Costs and Impacts of a Universal School Lunch Program, Draft Report to Congress, U.S. Dept. of Agriculture, June 1985.

Puma M, Ku L, Economic Analysis of the Temporary Emergency Food Assistance Program, Report to Congress, Food and Nutrition Service, U.S. Dept. of Agriculture, May 1985.* [PR]

Ku L, Nichols A. Report on the Food Bank Demonstration Project, Report to Congress, Food and Nutrition Service, U.S. Dept. of Agriculture, April 1984.* [PR]

*

These reports were issued as official Agency or Department reports with no listed authors. In

addition, Leighton Ku wrote numerous proposed and final regulations and legislative and budget

reports while on the staff of the Food and Nutrition Service. In many cases, these were published

in the Federal Register, Congressional Record and related Federal series.

Selected Presentations and Testimony
Han X, Ku L. Enhancing Staffing in Rural Community Health Centers Can Improve Behavioral Health Care. Health Affairs press briefing, National Press Club, Washington DC, Dec. 4, 2019
Ku, L. Testimony: Economic and Employment Benefits of Expanding Medicaid in North Carolina. Field Hearing, North Carolina Assembly. Winston-Salem, NC. Aug. 16, 2019. Similar presentation at Field Hearing, North Carolina Legislature, Raleigh, NC, Oct. 1, 2019.
Ku L. Current Threats to Medicaid. Dialogue on Diversity. Unidos US. Washington, DC. June 26, 2019.
Ku, L, Rosenbaum S, Keith K, Blumberg L, Sidhu A. Health Policy Goes to Court: Collaborations of Law and Research. AcademyHealth Annual Research Conf. Washington, DC. June 2, 2019
Ku L, Brantley E, Pillai D. The Effects of SNAP Work Requirements in Reducing Participation and Benefits. AcademyHealth Annual Research Conf. Washington, DC. June 4, 2019

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Brantley E, Pillai D, Ku L. Factors Affecting Enrollment in Public Programs. AcademyHealth Annual Research Conf. Washington, DC. June 2, 2019
Ku, L. Immigrants and American Health Policy. Boston College. Global Migration Conference: Inclusion and Exclusion. Boston MA April 12, 2019.
Ku, L. Medicaid Policy in the States. Scholars Strategy Network National Leadership Conference, Washington DC. Jan. 18, 2019.
Ku, L. Health Insurance Coverage for DC Latinos. DC Latino Health Leadership Symposium. Washington DC. Jan. 9, 2019.
Seiler N, Ku L. Medicaid’s Role in Addressing the Opioid Crisis. GW seminar, Nov. 16, 2017.
Ku L. Medicaid: Addressing Tobacco & Opioid Addictions. Presentation at Addressing Addiction: Policy Prescriptions to Preventing Opiate Abuse and Tobacco Use. Health Policy Institute of Ohio, Columbus, OH, Sept. 26, 2017.
Ku L. Economic and Employment Effects of the Better Care Reconciliation Act. Testimony to the Maryland Legislative Health Insurance Coverage Protection Commission, Maryland House of Delegates, Annapolis, MD. Aug. 1, 2017. Similar presentation at REMI webinar, Aug. 2, 2017.
Ku L. Economic and Employment Effects of the American Health Care Act. Presentation at AcademyHealth Annual Research Conference, New Orleans, June 25, 2017. Similar presentations at Policy in the Trump Era: National, State, and Regional Economic Impacts Conference, Hall of States, Washington, D.C. June 19, 2017 and at Medicaid Policy Conference, Council of State Governments, Washington, DC, June 29, 2017.
Ku L. Repealing Obamacare: Effects on the Health Workforce. Presentation at AcademyHealth Annual Research Conference, New Orleans, June 26, 2017.
Brantley E, Ku L. Promoting Tobacco Cessation: The Role of Medicaid and Other Policies. Poster at AcademyHealth Annual Research Conference, New Orleans, June 26, 2017.
Ku L. The Future of Medicaid. Conference on Obamacare After Obama. Southern Illinois Healthcare/Southern Illinois University School of Law. Springfield, IL, May 19, 2017.
Brantley E, Ku L. Linking Data to Uncover Medicaid's Role in Cessation. National Conference on Tobacco or Health, Austin TX, March 23, 2107.
Ku L. The Future of Medicaid and the Safety Net. Health Policy Expert Series. Milken Institute School of Public Health. March 21, 2017.
Ku L. Financial Consequences of ACA Repeal. Podcast, Feb. 15, 2017 http://www.commonwealthfund.org/interactives-and-data/multimedia/podcasts/new-directions-in-healthcare/the-impact-of-aca-repeal
Ku L. Repealing Health Reform: Economic and Employment Consequences for States. REMI Seminar, Washington, DC. Jan. 27, 2016. Similar national webinar Feb. 1, 2017.
Ku L. Pay for Success Demonstrations of Supportive Housing for Chronically Homeless Individuals: The Role of Medicaid. Association for Public Policy and Management Research Conference, Washington, DC. Nov. 4, 2016.
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Ku L. Immigrants and Community Health Centers. Pennsylvania Association of Community Health Centers, Lancaster PA. Oct. 12, 2016.
Ku L. Moving Medicaid Data Forward (discussant). Mathematica Policy Research, Washington, DC Oct. 11, 2016.
Ku L. Medicaid Can Do More to Help Smokers Quit, Michael Davis Lecture, University of Chicago, Oct. 4, 2016. Similar seminar at Univ. of Maryland, Sept. 15, 2016.
Ku L, Borkowski L. Publish or Perish: Advice for Publishing for Peer-Reviewed Journals in Health Policy. GW Department of Health Policy & Management seminar, Sept. 20, 2016.
Ku L . Family Planning, Health Reform and Potential Restrictions on Coverage or Access, presented at Contraception Challenged: Putting Zubik v. Burwell in Context, sponsored by National Family Planning and Reproductive Health Association meeting at Capitol Visitors Center, Washington, DC, June 7, 2016.
Ku L Russell T. et al. Debate on the Role of Public Programs in Care for the Poor. Benjamin Rush Institute, Washington, DC, April 1, 2016.
Brantley E, Ku L. Improved Access and Coverage Under The ACA: Are Immigrants at the Table?, presented at GW Research Day, March 30, 2016. (Won prize for best policy and practice research.)
Ku L. The Role of the Health Care Safety Net, Virginia Commonwealth University, Richmond, March 17, 2016.
Ku L, Steinmetz E, Bysshe T. Medicaid Continuity of Coverage in an Era of Transition. Webinar for Association of Community-Affiliated Plans, Nov. 2, 2015.
Ku L Bruen B, Steinmetz E, Bysshe T. Trends in Tobacco Cessation Among Medicaid Enrollees, presented at AcademyHealth Annual Research Meeting, Minneapolis, June 15, 2015.
Ku L. Using Economic Impact Analysis in Medicaid Advocacy, presented at AcademyHealth Annual Research Meeting, Minneapolis, June 13, 2015.
Ku L. The Translation of Health Services Research into Policy Related to the Affordable Care Act, Presented at American Association of Medical Colleges, March 20, 2015.
Ku L. Policy and Market Pressures on Safety Net Providers, National Health Policy Conference, Feb. 10, 2015.
Ku L. ‘Economic and Employment Costs of Not Expanding Medicaid in North Carolina, Cone Health Foundation, Greensboro, NC, Jan. 9, 2015.
Ku L . Health Reform: How Did We Get Here, What the Heck Is Going On and What Next? Keynote Address: Medical Librarians Association, Alexandria VA, Oct. 20, 2014.
Ku L. Health Reform and the Safety Net. Testimony before Maryland Community Health Resources Commission. Annapolis, MD, Oct. 2, 2014.
Ku L. Some Key Issues in Health Reform. Presented at American Association for the Advancement of Science Health Policy Affinity Group Meeting, Washington, DC July 24, 2014.
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Ku L, Curtis D. Barlow P. District of Columbia’s Health Benefits Exchange at the Launch of a StateBased Exchange: Challenges and Lessons Learned Georgetown Law School Summer Session on Health Reform, July 23, 2014.
Ku L. The Big Picture on Medicaid for State Legislators Presented at Council of State Governments. Medicaid Workshop for Health Leaders, Washington, DC June 20, 2014.
Ku L, Frogner B, Steinmetz E, Pittman P. Many Paths to Primary Care: Flexible Staffing and Productivity in Community Health Centers, Presented at Annual Research Conference AcademyHealth, San Diego, CA, June 10, 2014.
Ku L, Zur J., Jones E, Shin, P, Rosenbaum S. How Medicaid Expansions and Post-ACA Funding Will Affect Community Health Centers’ Capacity. Presented at Annual Research Conference AcademyHealth, San Diego, CA, June 9, 2014.
Ku L. Critical Issues for Community Health Centers, Alliance for Health Reform briefing, Commonwealth Fund, Washington, DC. May 16, 2014.
Ku L. Immigrants' Health Access: At the Nexus of Welfare, Health and Immigration Reform, Keynote talk at Leadership Conference on Health Disparities, Harvard Medical School, Boston, MA May 6, 2014.
Ku L. Wellness and the District of Columbia. District of Columbia Chamber of Commerce forum, Washington, DC, March 11, 2014.
Ku L. Health Care for Immigrant Families: A National Overview. Congressional Health Justice Summit, Univ. of New Mexico - Robert Wood Johnson Center for Health Policy, Albuquerque, NM, Sept. 7, 2013.
Ku L. Health Reform: Promoting Cancer Prevention and Care. Talk to DC Citywide Navigators Network, Washington, DC, July 15, 2013.
Ku L. Analyzing Policies to Promote Prevention and Health Reform. Seminar at the Centers for Disease Prevention and Promotion, Atlanta, GA. July 10, 2013.
Ku L. Medicaid: Key Issues for State Legislators. Council on State Governments, Medicaid Workshop for Health Leaders, Washington, DC, June 22, 2013.
Ku L, Steinmetz E. Improving Medicaid’s Continuity of Care: An Update. Association of Community Plans Congressional Briefing, May 10, 2013.
Ku L (with Brown C, Motamedi R, Stottlemeyer C, Bruen B) Economic and Employment Impacts of Medicaid Expansions. REMI Monthly Policy Seminar, Washington, DC, April 24, 2013.
Ku L. Building Texas’ Primary Care Workforce, Legislative Briefing: Health Care Coverage Expansion & Primary Care Access in Texas, Center on Public Priorities and Methodist Healthcare Ministries, Texas Capitol, Austin, TX, Mar. 8, 2013
Ku L, Jewers M. Health Care for Immigrants: Policies and Issues in a New Year. Presentation to Conference on After the Election: Policies Affecting Young Children of Immigrants, Migration Policy Institute, Washington, DC, Jan. 17, 2013.
Ku L. Health Reform and the New Health Insurance Exchanges: Issues for Indiana Families, Indiana
App. 100

Family Impact Seminar at Indiana State Legislature, Nov. 19, 2012.
Ku L. Pediatric Preventive Medical and Dental Care: The Role of Insurance and Poverty, AcademyHealth Annual Research Meeting, Orlando, FL, June 24, 2012.
Ku L. A Medicaid Tobacco Cessation Benefit: Return on Investment, Webinar for Partnership for Prevention and Action to Quit, Feb. 8, 2012.
Ku L. Safety Net Financing Issues, Webinar for National Workgroup on Integrating a Safety Net, National Academy for State Health Policy, Feb. 6, 2012
Ku L. How Medicaid Helps Children: An Introduction. Briefing to Congressional Children’s Health Caucus, Jan. 25, 2012
Ku L. Market Access Webinar: Provider Access: Coordinating Medicaid & Exchanges: Continuity of Services & the Role of Safety Net Providers, Webinar for Center for Consumer Information and Insurance Oversight, Centers for Medicare & Medicaid Services, Dec. 15, 2011.
Ku L. The Safety Net: An Evolving Landscape, Presented to Grantmakers in Health, Washington, DC. Nov. 3, 2011. [Similar talks in Orlando, FL to Blue Cross Blue Shield of Florida Foundation, Feb. 17, 2012 and in Williamsburg, VA to Williamsburg Community Health Foundation Apr. 3, 2012 and to Virginia Health Foundation, Nov. 13, 2012]
Ku L. Open Access Publishing. Presented at forum for GW Medical Center faculty and staff, Oct. 24, 2011.
Ku L, Levy A. Implications of Health Reform for CDC’s Cancer Screening Programs: Preliminary Results, Presentation to National Breast and Cervical Cancer Early Detection Program and Colorectal Cancer Control Program Directors Meeting, Atlanta, GA, Oct. 21, 2011.
Ku L. Coordinating Medicaid & Exchanges: Continuity of Services & the Role of Safety Net Providers, Presented to America’s Health Insurance Plans, Washington, DC. Sept. 16, 2011.
Ku L. The Potential Impact of Health Reform on CDC’s Cancer Screening Programs: Preliminary Results, Presented to NBCCEDP Federal Advisory Committee Meeting, Atlanta, GA, Jun. 17, 2011. (Similar presentations to the American Cancer Society, Sept. 2011.)
Ku L. Crystal Balls and Safety Nets: What Happens After Health Reform? Presented at AcademyHealth, Seattle, WA, June 2011.
Ku L. Strengthening Primary Care to Bend the Cost Curve: Using Research to Inform U.S. Policy, International Community Health Center Conference, Toronto, Canada, June 2011
Ku L. Integrating/Coordinating Care for Safety Net Providers: Issues and Local Examples, International Community Health Center Conference, Toronto, Canada, June 2011.
Ku L. Health Reform: Federal Implementation and More Unanswered Questions Presented at American Society of Public Administration, Baltimore, MD, Mar. 14, 2011.
Ku L. Key Issues in the Confusing World of Health Reform, Presented to Industrial College of the Armed Forces, National Defense University, Washington, DC, Feb. 25, 2011.
App. 101

Ku L. Reducing Disparities and Public Policy Conflicts, Institute of Medicine Workshop on Reducing Disparities in Life Expectancy, Washington, DC, Feb. 24, 2011.
Ku L. Primary Care, Hospitalizations and Health Reform, American Enterprise Institute Workshop, Washington, DC, Feb. 17, 2011.
Ku L. The Promise and Perils of Health Policy for Asians in the United States, Invited keynote talk at 4th International Asian Health and Wellbeing Conference, Univ. of Auckland, New Zealand, NZ, July 6, 2010. Similar talk at symposium sponsored by the New Zealand Office of Ethnic Affairs, Wellington, NZ, July 8, 2010.
Ku L, Strengthening Primary Care to Bend the Cost Curve: The Expansion of Community Health Centers Through Health Reform, Briefing for Senate and House staff and media, convened by Sen. Bernie Sanders (VT), Russell Senate Office Building, June 30, 2010.
Ku L. Ready, Set, Plan, Implement. Executing Medicaid’s Expansion, Health Affairs Conference on Health Reform, Washington, DC, June 8, 2010.
Ku L. Coordinating Care Among Safety Net Providers, Primary Care Forum, National Academy of State Health Policy, Alexandria, VA, June 2, 2010.
Ku L. Title VI: The Role of Culturally Competent Communication in Reducing Ethnic and Racial Health Care Disparities, National Minority AIDS Education and Training Center Spring Symposium, Howard Univ. May 29, 2010.
Ku L. American Health Reform as Massive Incrementalism, American Association for Budget and Program Analysis, Nov. 24, 2009.
Ku L. The Health Care Safety Net and Health Reform, National Academy of Public Administration, Conference on Health Care for the Future, Nov. 22, 2009.
Ku L. The Health of Latino Children, National Council of La Raza Symposium on Latino Children and Youth, Oct. 22, 2009.
Ku L. What the Obama Administration Will Mean for Child Health, AcademyHealth preconference session on Child Health, Chicago, IL June 2009.
Ku L. Immigrants and health reform, 6th Annual Immigration and Law Conference, Georgetown Univ. Law School, Migration Policy Institute and Catholic Legal Immigration Network, Washington, DC, June 24, 2009.
Ku L. From the Politics of No! to the Potential for Progress, invited keynote talk about immigrant policy and research to Society for Research in Child Development, Denver, CO, April 1, 2009.
Ku L. Strengthening the Primary Care Safety Net, National Association of Community Health Centers, Policy and Issues Conference, March 26, 2009.
Ku L. The Dial and the Dashboard: Assessing the Child Well-Being Index, Presentation to the Board of the Foundation for Child Development, March 3, 2009.
App. 102

Ku L. Key Data Concerning Health Coverage for Legal Immigrant Children and Pregnant Women, invited presentation to Senate staff, Jan. 13, 2009.
Ku L. Comparing the Obama and McCain Health Plans, George Washington Univ. Medical School Alumni Conference, Sept. 27, 2008.
Ku L. The Future of Medicaid, Medicaid Congress, sponsored by Avalere Health and Health Affairs, Washington, DC, June 5, 2008.
Ku L. A Brief Appreciation of Health Advocates: Progress Made, Some Setbacks, Challenges Ahead, Public Interest Law Center of Philadelphia Conference, Philadelphia, PA, May 14, 2008.
Ku L. Financing Health Care Reform in New Jersey: Making Down Payments on Reform, Rutgers-AARP Conference, New Brunswick, NJ. Mar. 18, 2008
Ku L, Perez T, Lillie-Blanton M. Immigration and Health Care-What Are the Issues, Kaiser Family Foundation Health Cast, webcast interview March 12, 2008.
Ku L. How Research Might Affect SCHIP Reauthorization, Child Health Services Research Meeting at AcademyHealth, Orlando, FL, June 2, 2007.
Ku L. Immigrant Children and SCHIP Reauthorization, Capital Hill Briefing conducted by the Population Resource Center, April 20, 2007.
Ku L. Health Policy and Think Tanks, Robert Wood Johnson Health Policy Fellows, Institute of Medicine, June 2006. Similar talk in other years.
Ku L. Medicaid Reform and Mental Health, National Alliance for the Mentally Ill, Annual Conference, Austin, TX, June 20, 2005.
Ku L. Cost-sharing in Medicaid and SCHIP: Research and Issues, National Association of State Medicaid Directors, Washington, DC, Nov. 18, 2004. Similar talk given to National Academy of State Health Policy, St. Louis, MO, Aug. 2, 2004.
Ku L. Coverage of Poverty-Level Aged and Disabled in Mississippi’s Medicaid Program, Testimony to Mississippi Senate Public Health and Welfare Committee, Aug. 24, 2004
Ku L. Medicaid Managed Care Issues, Testimony to Georgia House of Representatives Appropriations Committee, March 2, 2004.
Ku L. Medi-Cal Budget Issues, Testimony to Joint Hearing of California Senate Budget and Health and Human Services Committees, Feb. 26, 2003.
Ku L .New Opportunities to Improve Health Care Access and Coverage, American College of Emergency Physicians, May 1, 2001.
Ku L,. Medicaid DSH and UPL: Perplexing Issues, National Association of Public Hospitals Health Policy Fellows Conference, Washington, DC, Mar. 20, 2001.
Ku L, Insurance Coverage and Health Care Access for Immigrant Families, Testimony Before the U.S. Senate Finance Committee, Washington, DC, March 13, 2001.
App. 103

Ku L. Increasing Health Insurance Coverage for Low-Income Families and Children, Insuring the Uninsured Project Conference, Sacramento, CA, Feb. 13, 2001.
Ku L, Concerning the Healthy Families Program Parent Expansion Proposal, Testimony Before a Joint Hearing of the California Senate Health and Human Services and Insurance Committees and Budget and Fiscal Review Subcommittee # 3, Sacramento, CA, January 30, 2001.
Ku L, Insurance Trends and Strategies for Covering the Uninsured, National Health Law Program Conference, Washington, DC, Dec. 3, 2000.
Ku L, Improving Health Care Access and Coverage: New Opportunities for States in 2001, Midwest Leadership Conference, Council of State Governments, Minneapolis, MN, August 6, 2000.
Ku L, Health Care for Immigrants: Recent Trends and Policy Issues, Alliance for Health Reform, Washington, DC, August 2, 2000. Similar talks in Miami at Florida Governor’s Health Care Summit and in San Diego at California Program on Access to Care conference.
Ku L, Matani S, Immigrants’ Access to Health Care and Insurance on the Cusp of Welfare Reform, presented at Association for Health Services Research Conference, Los Angeles, CA, June 25, 2000.
Ku L, Matani S. Immigrants and Health Care: Recent Trends and Issues, presented to the Association of Maternal and Child Health Programs meeting, Washington, DC, March 7, 2000.
Ku L, Ellwood MR., Hoag S, Ormond B, Wooldridge J. Building a Newer Mousetrap: the Evolution of Medicaid Managed Care Systems and Eligibility Expansions in Section 1115 Projects, presented at American Public Health Association meeting, Chicago, IL, Nov. 10, 1999.
Ku L. Young Men’s Reproductive Health: Risk Behaviors and Medical Care@, presented at D.C. Campaign to Prevent Teen Pregnancy Meeting, Washington, DC, Oct. 19, 1999.
Ku L, Medicaid and Welfare Reform: Recent Data, presented at Getting Kids Covered Conference, sponsored by National Institute for Health Care Management and Health Resources and Services Administration, Washington, DC, Oct. 6, 1999.
Ku L, Garrett B. How Welfare Reform and Economic Factors Affected Medicaid Participation, presented at Association for Health Services Research meeting, Chicago, IL, June 29, 1999.
Ku L. Recent Factors Affecting Young Men's Condom Use, presented to conference sponsored by National Campaign to Prevent Teen Pregnancy and Advocates for Youth, Washington, DC, February 1999.
Medicaid, Welfare Reform and CHIP: The Growing Gulf of Eligibility Between Children and Adults, presented to National Association of Public Hospitals and Health Systems, Washington, DC, and to Generations United, Washington, DC, September 1998.
Ku L. Sliding Scale Premiums and Cost-Sharing: What the Research Shows presented at workshop on CHIP: Implementing Effective Programs and Understanding Their Impacts, Agency for Health Care Policy and Research User Liaison Program, Sanibel Island, FL, June 30, 1998.
Ku L, Sonenstein F, Boggess S, Pleck J. Understanding Changes in Teenage Men's Sexual Activity: 1979 to 1995, presented at 1998 Population Association of America Meetings, Chicago, IL, April 4, 1998.
App. 104

Ku L. Welfare Reform, Immigrants and Medicaid presented at Annual Meeting of the Association of Maternal and Child Health Programs, Washington, DC, March 9, 1998. Similar talk presented at Association for Health Services Research Meeting, Washington, DC, June 23, 1998.
Ku L. Medicaid Policy and Data Issues: An Overview presented to National Committee on Vital and Health Statistics, DHHS, September 29, 1997.
Ku L. How Welfare Reform Will Affect Medicaid Coverage presented to National Ryan White Title IV Program Conference, Washington, DC, November 8, 1996.
Ku L, Rajan S, Wooldridge J, Ellwood MR, Coughlin T, Dubay L. Using Section 1115 Demonstration Projects to Expand Medicaid Managed Care in Tennessee, Hawaii and Rhode Island, presented at Association of Public Policy and Management, Pittsburgh, Nov. 1, 1996.
Ku L. The Federal-State Partnership in Medicaid: Is Divorce Inevitable or Would Therapy Be Enough? presented to Council of State Governments Conference on Managing the New Fiscal Federalism, Lexington, KY, May 10, 1996.
Ku L. The Male Role in the Prevention of Teen Pregnancy, presented to the Human Services Committee, National Council of State Legislatures, Washington, DC, May 9, 1996
Ku L. Implications of Converting Medicaid to a Block Grant with Budget Caps, presented to American Medical Association State Legislation Meeting, Aventura, FL, Jan. 1996 and to the American Psychiatric Association Public Policy Institute, Ft. Lauderdale, FL, March 1996.
Ku L. Medicaid: Program Under Reconstruction, presented at Speaker's Forum at New York City Council, September 12, 1995.
Ku L. State Health Reform Through Medicaid Section 1115 Waivers, presented at Pew Health Policy Conference, Chicago, IL, June 3, 1995.
Ku L. Setting Premiums for Participants in Subsidized Insurance Programs, presented at Conference on the Federal-State Partnership for State Health Reform, sponsored by HCFA, the National Academy of State Health Policy and RTI, March 15, 1995.
Ku L. Medicaid Disproportionate Share and Related Programs: A Fiscal Dilemma for the Federal Government and the States, with Teresa Coughlin, presented to the Kaiser Commission on the Future of Medicaid, November 13, 1994.
Ku L. Full Funding for WIC: A Policy Review, with Barbara Cohen and Nancy Pindus, presented at Dirksen Senate Office Building, Washington, DC, in a panel hosted by the Center on Budget and Policy Priorities, Bread for the World, the Food Research and Action Center and the National Association of WIC Directors, May 5, 1994.
Ku L. The Financing of Family Planning Services in the U.S., presented at the Institute of Medicine, National Academy of Sciences on February 15, 1994 and at the American Public Health Association meeting, San Francisco, CA, October 25, 1993.
Ku L. Using SUDAAN to Adjust for Complex Survey Design in the National Survey of Adolescent Males, with John Marcotte and Karol Krotki, briefing at National Institute of Child Health and Human Development, Rockville, MD, April 2, 1992.
App. 105

Ku L. The Association of HIV/AIDS Education with Sexual Behavior and Condom Use Among Teenage Men in the United States with Freya Sonenstein and Joseph Pleck, presented at the Seventh International Conference on AIDS, Florence, Italy, June 1991.
Ku L. Patterns of HIV-Related Risk and Preventive Behaviors Among Teenage Men in the United States, with Freya Sonenstein and Joseph Pleck, paper presented at the Sixth International Conference on AIDS, San Francisco, CA, June 23, 1990.
Ku L. Trends in Teenage Childbearing, Pregnancy and Sexual Behavior, paper presented at the American Sociological Association Meeting, Washington, D.C., August 15, 1990.
Ku L. Research Designs to Assess the Effect of WIC Participation by Pregnant Women on Reducing Neonatal Medicaid Costs, briefing to Congressional staff, February 1987.
Ku L. Testimony about the Special Supplemental Food Program for Women, Infants and Children (WIC), with Frank Sasinowski, presented to House Education and Labor Committee on behalf of the American Public Health Association, March 1983.
Media
Leighton Ku has extensive experience with electronic and print media. He has been interviewed by ABC, NBC, CBS, Fox, PBS, National Public Radio, CNN, Bloomberg TV, BBC and other television or radio news broadcasts and webcasts. He has been quoted or his research has been cited in the New York Times, Los Angeles Times, Washington Post, Wall Street Journal, USA Today, Christian Science Monitor, Huffington Post, Forbes, Fortune, US News and World Report, Politico, The Hill, Buzzfeed, and trade publications, such as Modern Health Care, Nation’s Health or CQ HealthBeat, Kaiser Health News, etc. He has been an online contributor to the Washington Post. He was a regular panelist on a radio talk show about health policy, broadcast on WMAL in the Washington DC region. He has been cited as an expert by PolitiFact and related fact-checking sources.
Service and Honors
Member, Executive Board, District of Columbia Health Benefits Exchange Authority (2012-now) (The board governs the new health insurance exchange for the District of Columbia, based on the Patient Protection and Affordable Care Act. This is a voluntary, unpaid position, appointed by the Mayor and approved by the City Council. I was reappointed in 2018.) Chair of the Research Committee and the Information Technology Committee. Led working groups that developed the financial sustainability plan for the Exchange, dental plans, standardized benefit plans and changes required in light of threats to the Affordable Care Act.
One of three top reviewers of the year, Milbank Quarterly, December 2019
Social Science Research Network, one of five most downloaded papers in field, Oct-Dec. 2018.
Commonwealth Fund, two of the top ten most frequently downloaded reports (2017).
Commonwealth Fund, one of top ten most frequently downloaded reports (2006).
Award for promoting racial and economic justice, Mississippi Center for Justice, 2005
Service award from the National WIC Directors Association (2002).
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Choice (the magazine of the American Library Association for academic publications), top ten academic books of the year (1994)
Pew Health Policy Fellow, Boston University and Brandeis University, 1987-1990.
Other Service
Submitted expert witness declaration in a federal lawsuit regarding the President’s proclamation which would have denied visas to those without approved forms of health insurance, Declaration in Support of Plaintiffs' Motion for a Preliminary Injunction (regarding Presidential Proclamation on Visas and Health Insurance), John Doe #1, et al. v Donald Trump, et al. United States District Court, District of Oregon, filed November 8, 2019. [Resulted in an injunction prohibiting implementation of the visa denials.]
Submitted expert witness declaration in federal lawsuits on public charge regulations and health, including La Clinica de la Raza, et al. v. Donald Trump, et al. United States District Court, Northern District of California, September 1, 2019. Make the Road New York, et al v Ken Cucinelli, et al. United States District Court, Southern District of New York, Sept. 9, 2019. State of New York, et al. v. U.S. Department of Homeland Security, et al. United States District Court, Southern District of New York, Sept. 9, 2019. [Resulted in injunctions prohibiting implementation of the public charge regulations.]
Helped develop and cosigned amicus briefs on behalf of public health scholars in key federal lawsuits, including King v Burwell (health insurance exchanges), Stewart v Azar (approval of Kentucky work requirement waiver, versions 1 and 2), Gresham v Azar (approval of Arkansas work requirements). Texas v Azar (constitutionality of ACA), Philbrick v Azar (approval of New Hampshire work requirement) and Massachusetts v. US Dept of Health and Human Service (contraceptive mandate).
Parliamentarian, Milken Institute School of Public Health, 2019
Member, Technical Expert Panel, AHRQ Panel on Future of Health Services Research, RAND, 2019.
Served as expert witness in federal lawsuits on immigration and health, including State of Texas v United States and Perez and State of New York v Trump (Deferred Action for Childhood Arrivals). 2018.
Co-Director, PhD Health Policy Program. First at GW Trachtenberg School of Public Policy and Administration, now at Milken Institute School of Public Health, 2015-now
Served as search committee member, chair, Department of Health Policy and Management, 2019 and 2020 and faculty, Dept. of Exercise and Nutrition Sciences, 2019.
Search committee, Associate Provost for Graduate Studies, George Washington Univ, 2019
Member, AcademyHealth/NCHS Health Policy Fellowship Program board. 2016-17.
Affiliated faculty, Jacobs Institute of Women’s Health, 2015-now.
Advisory Board, Remaining Uninsured Access to Community Health Centers (REACH) Project, Univ. of California Los Angeles, 2015-17.
Member, DC Metro Tobacco Research and Instruction Consortium (MeTRIC). 2014- present
Member, Health Workforce Research Institute, GW, 2013-present.
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Member, National Advisory Board, Public Policy Center of University of Iowa, 2014-18.
Chair/Vice Chair, Advocacy Interest Group, AcademyHealth, 2014-17.
Member, Advisory Committee on Non-Health Effects of the Affordable Care Act, Russell Sage Foundation, Dec. 2013.
Member, Technical Expert Group on the Affordable Care Act and the National Survey of Family Growth, National Center for Health Statistics, Centers for Disease Control and Prevention, Nov. 2013
Member, Steering Committee, GW Institute of Public Policy, 2013-now
Member, External Review Committee for Department of Family Science for the University of Maryland School of Public Health, 2012.
GW Faculty Senator, representing School of Public Health and Health Services, 2010-12.
Member of numerous University, School and Departmental committees. 2008-present.
Member or chair, numerous faculty and dean search committees, Milken Institute School of Public Health and School of Nursing, George Washington University. 2008-present.
National Institutes of Health, member of various grant review study sections (1996-now).
Invited reviewer. Committee on National Statistics. National Academy of Sciences. Databases for Estimating Health Insurance Coverage for Children. 2010-11.
Grant reviewer. Robert Wood Johnson Public Health and Law program. 2010.
Invited reviewer, Institute of Medicine report on family planning services in the U.S., 2009.
External reviewer for faculty promotion and tenure for Harvard School of Public Health, Harvard Medical School, Univ. of California at Los Angeles and at San Diego, Boston University, Baruch College, George Mason University, University of Maryland, University of Iowa, Kansas University, Portland State University, etc., 2008-present.
Submitted expert witness affidavits/declarations in federal, state and local lawsuits including: Texas v United States and New York, et al. v. Trump (Deferred Action for Childhood Arrivals), Wood, et al. v. Betlach, (Medicaid cost sharing), Lozano v. City of Hazleton (immigrant rights), Spry, et al., v. Thompson (Medicaid cost-sharing), Dahl v. Goodno (Medicaid cost-sharing), Newton-Nations, et al., v. Rogers (Medicaid cost-sharing) and Alford v. County of San Diego (cost-sharing for a local health program).
Board Member and Treasurer, Alliance for Fairness in Reforms to Medicaid (2002-2008)
Urban Institute, founding member, Institutional Review Board (1997-2000)
National Health Research Institute (Taiwan’s NIH) grant reviewer (1999).
Urban Institute, member, Diversity Task Force (1995)
Pew Health Policy Fellow, Boston University and Brandeis University, 1987-1990.
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Consultant Services
Consortium of law practices, including Justice Action Center, Paul Weiss, National Health Law Program and New York State Attorney General, 2019 Mexican American Legal Defense and Educational Fund, 2018 New Jersey State Attorney General, 2018 New York State Attorney General, 2017 First Hospital Foundation, Philadelphia PA, 2017 Wilmer Hale/Planned Parenthood Federation, 2017 Centers for Disease Control and Prevention, 2016
Professional Society Memberships and Service
AcademyHealth (formerly Association for Health Services Research), Program Selection Committees (multiple years), chair Advocacy Interest Group (2014-16). American Public Health Association Association of Public Policy and Management, Program Selection Committees (many years)
Editorial Peer Review Service
Associate editor, BMC Health Services Research, 2009 – 2013.
Reviewer for numerous journals, including Health Affairs, New England Journal of Medicine, Journal of the American Medical Association, Milbank Quarterly, Pediatrics, American Journal of Public Health, Inquiry, Medical Care, HSR, Medicare and Medicaid Research Review, American Journal of Preventive Medicine, Family Planning Perspectives, Journal of Association of Public Policy and Management, Nicotine and Tobacco Research, Maternal and Child Health, Journal of Health Care for the Poor and Underserved, JAMA-Internal Medicine, Public Administration Review (1990 to now). In 2017, I reviewed 16 manuscripts for journals. External reviewer for RAND Corporation, National Academy of Science, Oxford Univ. Press, etc.
Awarded as one of three top reviewers of the year, Milbank Quarterly, December 2019
Public Health Practice Portfolio
Member, Executive Board, District of Columbia Health Benefits Exchange Authority (2012-now). The board governs the new health insurance exchange for the District. (Nominated by the Mayor and appointed by the City Council; reappointed in 2017). Chair of the IT and Eligibility Committee, Research Committee and various working groups.
Member, Technical Expert Group, the Future of Health Services Research, for Agency for Healthcare Research and Quality, conducted by RAND. Jan. 2019.
Expert Advisor, Russell Sage Foundation. Non-health effects of the Affordable Care Act. (2013).
Expert Advisor, Revisions to the National Survey of Family Growth, National Center for Health Statistics, CDC (2013)
Member, Technical Advisory Committee for Monitoring the Impact of the Market Reform and Coverage Expansions of the Affordable Care Act, sponsored by ASPE. (2013)
Member, Technical Advisory Group for the Design of the Evaluation of the Medicaid Expansion Under
App. 109

the ACA, sponsored by ASPE (2012)
Member, National Workgroup on Integrating the Safety Net, National Academy of State Health Policy, July 2011 – 2013.
Member, National Advisory group for Iowa Safety Net Integration project, 2011-2013.
Foundation for Child Development, Selection Committee, Young Scholars Program, 2008-2015.
Foundation for Child Development, Advisory Committee, Child Well-Being Index, 2008-present
Member, National Advisory Board, Center on Social Disparities on Health, University of California at San Francisco, 2005-2008.
National Campaign to Prevent Teen Pregnancy, Member, Effective Programs and Research Task Force (2000)
Doctoral Students Mentored/Advised
Dissertations Completed Prof. Peter Shin (chair) Prof. Megan McHugh Dr. Sarah Benatar Dr. Emily Jones (chair) Dr. Saqi Cho (chair) Dr. DaShawn Groves (chair) Dr. Heitor Werneck Dr. Brad Finnegan (chair) Dr. Maliha Ali Dr. Christal Ramos Dr. Qian (Eric) Luo Dr. Bill Freeman Dr. Serena Phillips Dr. Julia Strasser Dr. Kristal Vardaman (chair) Dr. Brian Bruen Dr. Xinxin Han (chair) Dr. Jessica Sharac (chair) Dr. Nina Brown Dr. Mariellen Jewers (chair) Dr. Leo Quigley (chair) Dr. Erin Brantley Dr. Roberto Delhy
In Progress Evelyn Lucas-Perry (chair) Kyle Peplinski (chair) Shin Nozaki Brent Sandmeyer (chair)
Other Student Advising
App. 110

Co-Director, Health Policy PhD Program. Faculty advisor, MPH, health policy. Provide guidance to about a dozen MPH students per cohort. Faculty Advisor, GW Health Policy Student Association, 2016-now
App. 111

No. 19A785 In the
Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al., Applicants,
v. NEW YORK, et al.,
Respondents.
I, Eden Almasude, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. I am currently a second-year resident physician in psychiatry at the Yale School of Medicine (“Yale”). I graduated from the University of Minnesota Medical School in 2018. 2. In the two years since becoming a resident physician in psychiatry at Yale, I have worked in numerous medical facilities in and around New Haven, including the Yale New Haven Hospital, the Connecticut Mental Health Center (CMHC), Yale Health (a medical and mental health clinic servicing the Yale University community), the Yale Psychiatric Hospital (YPH) (an inpatient facility specializing in the rapid assessment and treatment of acute and severe psychiatric symptoms), and the West Haven VA Medical Center. I currently treat patients at CMHC, a community health center that provides mental health services for 5,000 people in the Greater New Haven area each year, including many immigrants. In the course of my work as a resident physician, I regularly consult with my colleagues, including doctors, medical students, social workers, and other healthcare professionals.
1 App. 112

3. During this public health crisis, many of my patients are understandably anxious and fearful, and many of my clients have lost their jobs. Myself and other clinicians regularly discuss these issues with our clients as part of our therapeutic process.
4. In recent weeks, two patients receiving outpatient treatment reported concerns about going to the hospital for COVID-19 care because they worried that any benefits that they might use to access that care—including even the Yale Freecare Program, which I understand is not subject to the Public Charge Rule—might negatively impact their immigration status.
5. As part of my work, I have received reports of multiple patients who had symptoms consistent with COVID-19 but were afraid to go to the hospital or even obtain COVID-19 testing because they were concerned about the public charge consequences of testing and treatment and feared that a huge hospital bill would leave their families destitute. Immigrants’ concerns and fears are ongoing during this crisis.
6. Recently, one of my clients described how they had lost their income and were facing food insecurity. However, they did not want to seek food stamp benefits because they worried that it looked “bad” on an immigration application to get such benefits.
7. I am also a member of the New Haven Medic Collective, a mutual aid medical collective in New Haven comprised of working clinicians. The Medic Collective provides public health and information to callers over the telephone. During the COVID-19 public health crisis, our collective regularly advises patients whether and when they should go to a hospital to obtain medical treatment.
8. As part of my work at the Medic Collective, I am aware of at least three individuals who were afraid to get tested for COVID-19 because, among other things, they worried that getting tested or being admitted to the hospital would count against them for immigration purposes. These calls took place during the last few weeks, since the COVID-19 pandemic became of acute concern
2 App. 113

in Connecticut. Clinicians such as myself and other doctors on the front lines of this crisis are illequipped to advise patients as to the immigration consequences of their decisions to seek testing and treatment.
9. When immigrants or their family members are fearful of obtaining the testing and treatment that they need, they are at a higher risk of complications for COVID-19. In addition, without timely and appropriate testing and treatment, their households and other contacts are also much more likely to spread the illness. As a medical professional, the Public Charge Rule is a critical barrier to care and is contributing to the spread of illness in our communities. DATED this ______day of April, 2020 at PLACE
______________________________ DR. EDEN ALMASUDE
3 App. 114

No. 19A785 In the
Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al., Applicants,
v. NEW YORK, et al.,
Respondents.
I, Bitta Mostofi, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. I am the Commissioner of the City of New York (the “City”)’s Mayor’s Office of Immigrant Affairs (“MOIA”). I have worked at MOIA since 2014, becoming Acting Commissioner in 2017 and appointed Commissioner in 2018. As Commissioner, I provide advice and guidance to the Mayor, his staff in other divisions of the Mayor’s Office, and to other City agencies, on a range of issues related to immigration. I also guide and oversee the work of approximately 70 City employees assigned to work on fulfilling MOIA’s mission. 2. MOIA, established in the Charter of the City of New York in 2001 by referendum, develops and implements policies designed to assist immigrants across the city by enhancing their economic, civic, and social integration into the community. In order to achieve that mission, MOIA conducts research and analysis, provides guidance to other City agencies, develops partnerships with community-based organizations, and advocates at all levels of government.
1 App. 115

3. I swear this declaration to describe the way in which the rule entitled “Inadmissibility on Public Charge Grounds,” (the “Rule”), which the Department of Homeland Security (“DHS”) began implementing on February 24, 2020, has fostered widespread confusion, uncertainty, and fear among members of New York City’s immigrant community in the midst of a public health crisis, when we can least afford the potential devastating consequences of that confusion, uncertainty and fear on the food security and health of immigrant communities in the city, and on the public health of the city as a whole. I base my declaration on my own personal knowledge and observations, on regular briefings that I receive from MOIA’s staff, and on my review of the business records of the City and its agencies.
4. Given MOIA’s mission, and its strong relationships with the immigrant community, ethnic media, as well as with non-governmental organizations that serve the immigrant community, we have taken the lead on and coordinated much of the City’s response to the expanded scope of the Rule. Through this work, we have engaged a wide range of stakeholders—from health care leaders to social service organizations to legal service providers and other local government leaders—to raise awareness about the Rule and to mitigate its impact on New York City’s immigrant communities.
ActionNYC Immigration Hotline 5. Among the many steps that the City has taken to empower immigrants in New York City to make informed decisions about their lives, including their benefit utilization in the face of the expanded Rule, is the expansion of ActionNYC, the City’s central immigration-related telephone hotline. ActionNYC, overseen and funded by the City through MOIA in partnership with the City University of New York, is the City’s program to connect immigrant New Yorkers to free, safe, and high-quality immigration legal services in their community and their language. It
2 App. 116

operates through a citywide hotline, a centralized appointment-making system, and accessible service locations at 21 community-based organizations, rotating public school locations, and public hospitals.
6. The City, through MOIA, has expanded the staffing and capacity of the citywide ActionNYC hotline, operated by Catholic Charities, in response to significant developments in immigration law such as the expansion of public charge. In the months leading up to and following publication of the final Rule in August 2019, MOIA worked closely with Catholic Charities to prepare the ActionNYC hotline for an anticipated surge in demand, tasking it with, among other things, (1) expanding its scope to address immigrant New Yorkers’ questions about the categories of people to whom public charge applies; (2) connecting immigrants in need of legal assistance with a City-funded ActionNYC navigation team qualified to provide legal screening, advice, and assistance, including assistance in the process of preparing and filing public charge-related immigration forms; and if necessary, (3) referring immigrants with more complex public chargerelated legal needs to specialists at the Legal Aid Society.
7. In January and February 2020, with the announcements and attendant media coverage about the fact that the Supreme Court had stayed the nationwide preliminary injunction that had been holding in abeyance the final Rule, and that USCIS would begin implementation of the Rule in late February, the ActionNYC hotline saw considerable spikes in activity. Average monthly call volume to the hotline in 2019 was 1,888, however, the volume of calls to the hotline increased in January and February 2020. Notably, on January 27, 2020, the Supreme Court stayed the nationwide preliminary injunction, and on January 30, 2020, USCIS announced that the Rule would take effect on February 24th. Following those events in late January, there was a spike in calls to the hotline: prior to January 27th, the average daily call volume in FY2020 was 99; on
3 App. 117

January 27th and 28th, daily call volume jumped by 35% and 77%, respectively, to 134 and 175 calls. Similarly, on January 30th, the hotline received 137 calls, a 38% increase from the FY2020 daily average.
8. During February 2020, calls to the ActionNYC hotline increased to 2,973, a 57% increase from the monthly average in 2019. In addition, there was another substantial spike in calls beginning when the Rule took effect: 201 calls were received on February 24th, and 263 on February 25th, increases of 103% and 166%, respectively, over the FY2020 average daily call volume. In addition to an increase in total calls to the hotline, the number of those calls that related to the Rule also increased: at least 544 calls to ActionNYC in February and March 2020 concerned public charge. Alarmingly, in February 2020, nine callers to the hotline were so insistent on disenrolling from public benefits—even though they were entitled to the benefits and not subject to a public charge test—that hotline operators had to refer them to specialists at the Legal Aid Society for more in-depth counseling on the public charge rule.
9. This past month, as the COVID-19 pandemic became an increased threat to the health, safety and well-being of New Yorkers, calls to the ActionNYC continued at rates 15% higher than the 2019 average. For example, in March 2020, the ActionNYC hotline received 2,166 calls, and 7% of those calls related to public charge. In addition, in the second half of March as NYC began to implement stay at home policies, the ActionNYC hotline received 12 calls related to the implications of the Rule for COVID-19. These calls were from immigrants with legal permanent resident status who had lost their jobs, and were concerned about whether having applied for or received unemployment benefits would be held against them if they sought to adjust their immigration status in the future. These calls demonstrate the continued confusion about and chilling effect of the Rule, even amongst those to whom it does not apply.
4 App. 118

Community Outreach in Light of COVID-19 10. Over the past two years, as changes to public charge inadmissibility were rumored, proposed, and then enacted, the City became aware of a high likelihood of chilling effect on use of benefits within immigrant communities. First, a survey that MOIA commissioned in 2018 found that 76% of non-citizens surveyed would consider withdrawing from, or not applying for, public benefits, as a result of the public charge rule. Monitoring of calls to the ActionNYC hotline has confirmed that benefit disenrollment is a real concern: just since October 2019, hotline operators have referred 23 callers for a more in-depth public charge-related benefits screening when they insisted on disenrolling from public benefits despite being exempt from a public charge test. 11. As a result, MOIA has focused substantial resources on community outreach, undertaken in coordination with our community partners, in an effort to counteract that chilling effect. MOIA’s outreach efforts have continued since the expanded Public Charge Rule came into effect on February 24, 2020, and they continue now during the public health crisis that has engulfed the city. As part of this outreach, MOIA’s staff has listened to community concerns about the changes to public charge, and has sought to correct misinformation and misunderstandings about this very complex topic, and to urge immigrants to make use of the substantial legal and informational resources that the City has made available before making any decisions about forgoing medical care, and about enrollment in or disenrollment from benefits. MOIA has also focused its efforts on assessing community needs in light of the COVID-19 crisis. 12. During MOIA’s recent outreach engagements, immigrants—directly or through community organizations working on their behalf—have shared the agonizing decisions they face of whether or not to seek out desperately needed SNAP, Medicaid, and other benefits because of fears that it may result in them being separated from their loved ones, or may put at risk their
5 App. 119

dreams of obtaining or extending a visa or obtaining a green card, in hopes of eventually becoming American citizens.
13. As troubling as the chilling effect of Public Charge has always been to the City, we are even more concerned that during the COVID-19 pandemic that chilling effect can and will have deadly consequences. Specifically, it has become apparent that certain immigrants are making the decision to forego medical screening and treatment due to fear about the public charge implications of seeking that treatment. While USCIS apparently recognized this potential chilling effect of public charge, and issued guidance aimed at counteracting it, our observations suggest that it has not been successful in achieving that goal.
14. On or around March 13, 2020, the U.S. Citizenship and Immigration Services (USCIS) posted an alert (in English only). This alert explained that while the Public Charge rule “does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19,” USCIS was nonetheless required to “consider the receipt of certain cash and noncash public benefits, including those that may be used to obtain testing or treatment for COVID19 in a public charge inadmissibility determination,” including most forms of federally funded Medicaid. See https://www.uscis.gov/greencard/public-charge.
15. Since that time, and despite that guidance, we have heard from our community partners that immigrants continue to be hesitant to seek out medical care, even when they are manifesting symptoms of illness. For example, on March 24, 2020, a community partner who provides services to food service workers in the City reported that members of its constituency, despite feeling ill, are afraid to seek treatment in public hospitals for fear of immigration consequences. Similarly, another community partner who works on behalf of youth and their families, described fear within the community about seeking medical care because of immigration
6 App. 120

status. Finally, yet another community partner, this one a neighborhood-based family and social services organization serving immigrant communities in Brooklyn, reported that immigrants it served were afraid to seek out and obtain COVID-19 testing due to fear about how that might impact their status.
16. Through our recent community outreach, we have also learned that New York City’s immigrant communities have been drastically and negatively impacted by the slowdown and shutdown of so many industries that make up the City’s economic engines due to COVID-19, resulting in a desperate need for assistance with rent, food, and medication. Community partners have reported that the city’s restaurant and domestic workers have been incredibly hard hit, and with little to no savings, these workers are facing a need to go out and perform jobs that no one else wants to do, despite the fact that doing so would expose themselves to risk. We have also learned that many in the immigrant community are struggling due to a lack of access to paid medical leave, and ineligibility to receive federal aid or unemployment benefits due to either the nature of the work they perform, or their immigration status.
17. On the other hand, other community partners report that even those immigrant New Yorkers who may be eligible for federal disaster aid or other public benefits are hesitant to apply for or accept such benefits, and have expressed a fear that accepting any public benefits might result in a public charge determination that would carry negative immigration consequences. For example, during a conversation among over 400 members of an online chat group operated by a community partner serving a defined immigrant community, at least 10 participants—most of whom had applied for or been granted asylum—asked whether applying for SNAP or cash benefits from the City would adversely affect their applications for green cards and/or citizenship. Another example is a construction worker from Brooklyn who is unemployed due to COVID-19 and has a
7 App. 121

pending green card application, including a scheduled interview. This worker asked whether an application for unemployment benefits could negatively impact his green card application, and our staff was able to direct him to the ActionNYC hotline for further guidance.
18. Based on MOIA’s information and outreach, it appears likely that USCIS’ March 13, 2020 statement that it would “consider the receipt of certain cash and non-cash public benefits, including those that may be used to obtain testing or treatment for COVID-19 in a public charge inadmissibility determination,” contributes significantly to the fear and confusion we are seeing in the immigrant community, despite our efforts to encourage community members to seek and accept public benefits where they are eligible for them.
19. Based on what we have learned in the course of our community outreach efforts, we have serious concerns that the chilling effect of the public charge rule is interfering with the City’s ability to effectively respond to the medical, and economic needs of immigrant communities during the COVID-19 pandemic.
I declare under penalty of perjury that the foregoing is true and correct and of my own personal knowledge. DATED this __9th__ day of April, 2020 at New York, New York

8 App. 122

______________________
BITTA MOSTOFI Commissioner Mayor’s Office of Immigrant Affairs City of New York 253 Broadway, 14th Floor New York, NY 10007

In the Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al., Applicants,
v. NEW YORK, et al.,
Respondents.
I, Sabrina Fong, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. I am Deputy Director of Research and Policy Advisor at the City of New York (the
“City”)’s Mayor’s Office of Immigrant Affairs (“MOIA”). MOIA, established in the Charter of the City of New York in 2001 by referendum, develops and implements policies designed to assist immigrants across the City by enhancing their economic, civic, and social integration into the community. In order to achieve that mission, MOIA conducts research and analysis, provides guidance to other City agencies, develops partnerships with community-based organizations, and advocates at all levels of government.
2. I have been employed by MOIA since May 2015, and have held my current role since November 2018. In my capacity as Deputy Director of Research and Policy Advisor, I am responsible for developing MOIA’s strategic research initiatives, including by conducting data analysis, working with data experts on their research, data analysis, planning, coordination and
App. 123

data forecasting, and by translating research and analysis into reports and presentations. As such, I am familiar with research and data analysis undertaken by MOIA.
3. I swear this declaration to describe an analysis that I undertook in April 2020 to quantify the representation of immigrant and non-citizen New Yorkers in certain frontline occupations, namely those occupations requiring in-person interaction with the public, that were among those occupations deemed by New York Governor Andrew Cuomo to be essential to New York during the COVID-19 pandemic, and in particular, to summarize (1) the data that was analyzed, and (2) the analysis that was undertaken, and (3) the results of the analysis. I base my declaration on my own personal knowledge, work performed, and data analysis.
4. On or about March 18, 2020, New York Governor Andrew Cuomo issued Executive Order 202.6 (“Order 202.6”), directing that businesses in New York utilize to the maximum extent possible any telecommuting or work from home procedures and reduce their inperson workforce by at least 50%. Order 202.6 exempted certain essential businesses from the “work from home” directive. Following the issuance of the Order 202.6, the Empire State Development Corporation (“Empire State Development”) was to provide a detailed list of “essential businesses” by March 19, 2020. See Executive Order 202.6, found at https://www.governor.ny.gov/news/no-2026-continuing-temporary-suspension-andmodification-laws-relating-disaster-emergency.
5. On or about March 19, 2020, Empire State Development announced a list of 12 categories of businesses that were designated as essential during the COVID-19 pandemic: (1) essential health care operations; (2) essential infrastructure; (3) essential manufacturing; (4) essential retail, (5) essential services, (6) news media; (7) financial institutions, (8) providers of basic necessities to economically disadvantaged populations; (9) construction; (10) defense; (11)
App.2124

essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses; and (12) vendors that provide essential services or products, including logistics and technology support, child care and services. See “Governor Cuomo Issues Guidance on Essential Services Under the ‘New York State on Pause’ Executive Order,” found at https://www.governor.ny.gov/news/governor-cuomo-issues-guidance-essential-services-undernew-york-state-pause-executive-order. Within each category of essential businesses, Empire State Development list several sub-categories of essential occupations. For example, essential occupations in the category of essential healthcare operations include doctors, home healthcare workers, hospital staff, medical billing support personnel, and individuals working in research and laboratory services.
6. On March 20, 2020, Governor Cuomo issued Executive Order 202.8 (“Order 202.8” or “New York State of Pause” Order), which expanded the reduction of the in-person workforce in non-essential businesses to 100%. Order 202.8 retained the same exemptions for essential businesses as Order 202.6.
7. It was in this context that I undertook, on behalf of MOIA, an analysis of the designated essential businesses and their component industries and occupations, and the demographic makeup in New York City of those industries and occupations, to better understand the demographics of the New York City population that would be exempted from the Governor’s “work from home” directive, and thereby be placed at greater risk of exposure to COVID-19 during the course of performing their essential functions for the benefit of the city and state.
8. The source data for my analysis was the 2018 American Community Survey (“ACS”), an annual survey administered by the United States Census Bureau to a random sample of American households every year, with an estimated response rate of 95%. In particular, I
App.3125

analyzed the ACS Public Use Microdata Sample at the Community District Level, focusing on the 55 Public Use Microdata Areas that roughly correlate to the Community Districts that make up New York City.
9. Within the 55 Public Use Microdata Areas of New York City, I filtered the ACS microdata by place of birth and citizenship status of respondents, and by those industries and occupations that most closely approximated the businesses deemed to be essential by Empire State Development that could not be done remotely.
10. In conducting the analysis, I matched as closely as possible the Census industry and occupational categories to those identified as “essential businesses” by Empire State Development, erring on the side of under-inclusiveness by omitting categories of industries and occupations where there was not a clear match to those categories identified by New York State as essential.1 In addition, for some of the industries and occupations falling into the “essential business” categories and sub-categories, working from home may be feasible, allowing in-person interaction with customers to be avoided. Those occupations were also excluded from the analysis.
11. Based on the ACS data, non-citizens make up approximately 16% of the New York City population, and 19% of the New York City workforce. Immigrants make up 44% of the New York City workforce.2
12. The top-line findings of my analysis were that non-citizens and immigrants are disproportionately represented in the occupations and industries that have been deemed by the
1 For example, under the essential businesses guidance provided by Empire State Development, construction workers would only be considered essential where construction was being undertaken for essential structural or emergency repair, and thus I did not include construction workers as falling within essential occupations generally in my analysis. 2 The term immigrants refers to naturalized U.S. citizens and non-citizens, combined together.
App.4126

Governor to be essential businesses exempted from the ‘New York State on Pause’ “work from home” directive. For example, while non-citizens are approximately 19% of the New York City workforce, they are approximately 24% of the workforce in the essential industries—that is the U.S. Census-categorized industries that correspond to Governor’s “essential businesses,” and approximately 26% of the workforce in essential occupations—that is, the U.S. Censuscategorized occupations within the essential industries.3 Similarly, while immigrants are approximately 44% of the New York City workforce, they represent approximately 56% of the workforce in the essential industries, and 58% of the workforce in essential occupations.
13. The numbers are even more stark when particular occupations are considered—for example in New York City, non-citizens make up 42.4% and immigrants 81.5% of home health aides; non-citizens make up 29.1% and immigrants 68.3% of personal care aides; non-citizens make up 42.3% of cooks and 44.4% of chefs and head cooks, and immigrants 65.5% of cooks, and 71.7% of chefs and head cooks; non-citizens make up 26.9% and immigrants 53.4% of janitors and building cleaners; non-citizens make up 37.1% and immigrants 59.2% of food preparation workers; non-citizens make up 37.3% and immigrants 84.8% of taxi drivers; and non-citizens make up 56.3% and immigrants 87.0% of laundry and dry-cleaning workers.
14. I prepared a spreadsheet of the findings of my analysis, for use by MOIA to help identify, and guide outreach to and protection of non-citizen and immigrant populations in New York City who are particularly at risk for exposure to COVID-19. Attached as Exhibits A, B, and C to this declaration are spreadsheets documenting the main findings with regard to the
3 As the U.S. Census uses them, an “industry” describes the kind of business conducted by a person's employing organization; an “occupation” is the kind of work a person does to earn a living. For example, two people can be in the same industry (medical) but have two very different occupations, such as a nurse in the medical industry or an accountant for that industry.
App.5127

DocuSign Envelope ID: B86B9BB5-9BFB-4BE8-9400-98339736C1E2
demographic makeup of the New York City workforce in the industries and occupations that exist within the designated “essential businesses.”
15. Exhibit A presents a list of the impacted industries by citizenship status. 16. Exhibit B presents a list of the impacted occupations by citizenship status. 17. Exhibit C presents the New York City population by citizenship status. These percentages help provide broader context to determine what is and is not proportionate. I declare under penalty of perjury that the foregoing is true and correct and of my own personal knowledge. DATED this 8th day of April, 2020 at New York, New York.
~:::~~75::~ I.DocuSigned by:
____________________ SABRINA FONG Deputy Director of Research and Policy Advisor Mayor’s Office of Immigrant Affairs City of New York 253 Broadway, 14th Floor New York, NY 10007
App.6128

Exhibit A
App. 129

Industry recode for 2018 and later based on 2017 IND codes
ENT-Drinking Places, Alcoholic Beverages ENT-Restaurants And Other Food Services MED-General Medical And Surgical Hospitals, And Specialty (Except Psychiatric And Substance Abuse) Hospitals MED-Home Health Care Services MED-Nursing Care Facilities (Skilled Nursing Facilities) MED-Offices Of Dentists MED-Offices Of Optometrists MED-Offices Of Other Health Practitioners MED-Offices Of Physicians MED-Other Health Care Services MED-Outpatient Care Centers MED-Psychiatric And Substance Abuse Hospitals MED-Residential Care Facilities, Except Skilled Nursing Facilities MFG-Fruit And Vegetable Preserving And Specialty Foods MFG-Medical Equipment And Supplies MFG-Pharmaceuticals And Medicines PRF-Waste Management And Remediation Services RET-Beer, Wine, And Liquor Stores RET-Convenience Stores RET-Pharmacies And Drug Stores RET-Specialty Food Stores RET-Supermarkets and Other Grocery (Except Convenience) Stores SCA-Community Food And Housing, And Emergency Services SRV-Drycleaning And Laundry Services TRN-Bus Service And Urban Transit TRN-Services Incidental To Transportation TRN-Taxi And Limousine Service TRN-Truck Transportation WHL-Grocery And Related Product Merchant Wholesalers AVERAGE

Born in the U.S.
6,443 134,053

Born in Puerto Rico, Guam, the U.S. Virgin Islands, or the Northern Marianas 108 3,407

Born abroad of American parent(s)
94 4,756

116,281 27,661 17,681 9,957 944 9,416 22,402 17,406 22,819 2,256 9,729 1,037 2,967 4,275 8,354 2,363 1,461 18,519 4,938 26,092 8,075 2,989 35,892 15,518 13,796 8,904 9,801
562,029

2,917 3,768
795 82 86
602 871 494 305
53 147 288 120 408 947 704
60 1,434
328 574
94 680 19,272

2,351 2,039
669 127 389 1,526 173 449 318 144 -
91 39 772 715 1,571 84 28 943 230 1,904 472 561 20,445

U.S. citizen by naturalization

Not a citizen of the U.S.

% Non-Citizen

298 76,190

1,218 117,541

14.9% 35.0%

% Foreign-Born
18.6% 57.7%

83,677 59,087 23,027
4,813 466
3,199 14,237 13,884
9,885 439
5,956 535
1,601 3,121 1,598 2,200
923 10,428
4,072 15,498
2,860 3,380 27,658 10,308 42,639 7,192 6,537 435,708

21,837 57,119 7,051 3,420
226 615 4,899 5,272 5,132 119 2,905 126 969 1,787 2,527 358 611 4,150 5,512 26,129 1,143 4,859 5,510 5,534 32,571 6,440 7,710 333,290

9.6% 38.2% 14.3% 18.6% 13.8%
4.5% 11.2% 14.0% 13.2%
4.2% 15.1%
7.2% 16.6% 19.5% 19.7%
7.2% 19.6% 12.1% 36.2% 37.2%
8.9% 42.9%
7.7% 17.3% 35.6% 27.9% 30.5% 24.3%

46.5% 77.6% 61.1% 44.7% 42.3% 27.8% 43.8% 50.9% 38.7% 19.8% 46.1% 37.7% 44.1% 53.4% 32.1% 51.6% 49.2% 42.5% 62.9% 59.3% 31.1% 72.8% 46.4% 49.6% 82.2% 59.0% 56.3% 56.1%

App. 130

Exhibit B
App. 131

Occupation recode for 2018 and later based on 2018 OCC codes
CLN-Janitors And Building Cleaners EAT-Chefs And Head Cooks EAT-Cooks

Born in Puerto

Rico, Guam, the Born

Born in U.S. Virgin abroad of

the U.S. Islands, or the American

Northern parent(s)

54,768

Marianas 5,791

1,653

9,251

328

512

19,424

929

256

U.S. citizen by naturalization
35,371 9,722
13,821

Not a citizen of the U.S.
35,884 15,815 25,258

% Non- % ForeignCitizen Born

26.9% 44.4% 42.3%

53.4% 71.7% 65.5%

EAT-First-Line Supervisors Of Food Preparation And Serving Workers EAT-Food Preparation Workers HLS-Home Health Aides HLS-Medical Assistants HLS-Nursing Assistants HLS-Other Healthcare Support Workers HLS-Personal Care Aides HLS-Pharmacy Aides MED-Cardiovascular Technologists and Technicians MED-Clinical Laboratory Technologists And Technicians MED-Emergency Medical Technicians

8,277 14,068 21,403
8,412 14,615
1,805 14,645
882 528 3,923 2,193

302 380 2,919 397 482
76 637 156 129

745 1,462 394 797 390 667 132 -

3,660 8,215 54,584 4,963 22,750 2,059 19,674 1,146
514 4,562
381

2,722 13,810 59,105
1,897 8,085
571 14,619
121 197 488 403

18.2% 37.1% 42.4% 11.8% 17.3% 11.7% 29.1%
5.2% 15.9%
5.4% 13.0%

42.7% 59.2% 81.5% 42.7% 66.0% 53.7% 68.3% 55.0% 57.4% 55.5% 25.2%

App. 132

MED-Healthcare Diagnosing Or Treating Practitioners, All Other MED-Licensed Practical And Licensed Vocational Nurses MED-Medical Records Specialists MED-Miscellaneous Health Technologists and Technicians MED-Nurse Anesthetists MED-Nurse Practitioners, And Nurse Midwives MED-Opticians, Dispensing

415 9,696 1,346 1,102
1,569
471

-

-

658

106

-

211

203

-

-

-

-

64

-

-

79 10,732
902 1,339
86 1,497
183

134 5,292
68 429 178
68 226

21.3% 20.0%
2.7% 14.0% 67.4%
2.1% 25.7%

33.9% 60.5% 38.4% 57.5% 100.0% 48.9% 46.5%

MED-Other Healthcare Practitioners and Technical Occupations MED-Paramedics MED-Pharmacists MED-Pharmacy Technicians

1,059 1,898 3,745 2,723

-

-

106

246

252

47

-

193

839

-

0.0% 44.2%

265

-

0.0% 10.5%

2,945

415

5.6% 45.4%

3,322

575

8.4% 57.2%

MED-Physician Assistants MED-Physicians MED-Radiologic Technologists And Technicians MED-Registered Nurses MED-Surgeons MED-Surgical Technologists MGR-Medical And Health Services Managers PRD-Laundry And Dry-Cleaning Workers PRS-Childcare Workers PRT-Firefighters PRT-Police Officers SAL-Cashiers SAL-Retail Salespersons TRN-Ambulance Drivers And Attendants, Except Emergency Medical Technicians TRN-Bus Drivers, Transit And Intercity TRN-Driver/Sales Workers And Truck Drivers TRN-Locomotive Engineers And Operators TRN-Taxi Drivers TRN-Transportation Service Attendants AVERAGE

4,123 19,382
1,449 33,999
693 528 10,786 619 29,775 7,292 20,337 57,531 64,293
188 10,758 27,258
1,714 9,692
267 498,902

273 210
73 70 639 77 1,285 829 1,876 1,399

155 646 1,585 136 165 676 219 431 2,639 2,168

492 1,529 257 22,754

143 665 1,725 19,228

1,998 10,179
1,611 33,412
67 1,048 6,429 1,642 24,028
464 5,895 25,984 24,778

308 5,020
227 7,226
668 319 1,460 3,015 24,396 131 975 28,043 16,128

491 6,145 22,274
248 36,603
581 407,488

383 2,181 26,424
336 28,697
606 332,903

4.7% 14.1%
6.9% 9.5% 40.8% 16.2% 7.5% 56.3% 30.4% 1.6% 3.4% 24.2% 14.8%
36.1% 11.1% 33.8% 14.6% 37.3% 41.7% 26.0%

35.0% 42.8% 55.9% 53.2% 44.9% 69.6% 40.5% 87.0% 60.4%
7.3% 24.1% 46.5% 37.6%
82.3% 42.2% 62.3% 25.4% 84.8% 81.6% 57.8%

App. 133

Exhibit C
App. 134

Source: ACS 1-Year Estimates - Public Use Microdata Sample 2018

Weight used: PWGTP

Citizenship status

Born in the U.S.

4,986,237

Born in Puerto Rico, Guam, the U.S. Virgin Island1s8,4o,r82th5e Northern Marianas

Born abroad of American parent(s)

127,593

U.S. citizen by naturalization

1,765,932

Not a citizen of the U.S.

1,332,820 15.9%

App. 135

No. 19A785 In the
Supreme Court of the United States
DEPARTMENT OF' HOMELAND SECURITY, et al.,
Applicants,
V.
NEW YORK, et al.,
Respondents.
I, John Paul "Jack" Newton, pursuant to 28 U.S.C. § 1746, hereby declare as follows: I. I am over the age of eighteen. I am an attorney licensed to practice law before the State of
New York. I am also admjtted to appear before the District Court for the Southern District of New York. 2. I am the Director of the Public Benefits Unit ("PBU") at Bronx Legal Services ("BxLS").
3. BxLS is a constituent corporation of Legal Services NYC ("LSNYC"), which is the largest
provider of free civil legal services in the nation. 4. The public charge rule changes have made us all more vulnerable to this new global health
crisis. In the recent weeks and months, COVID-19 has created new emergencies, new problems, and new inequities among and for noncitizen New Yorkers. This virus has created new ways in which the new public charge rules are irreparably harming noncitizens, their families, and the communities in which we live. The Public Benefits Unit at Bronx Legal Services 5. The PBU of BxLS is the largest single team of public advocates in the State of New York,
App. 136

with 21 advocates, including attorneys, paralegals, and masters-level social workers. Our
PBU works to obtain, retain, or increase a wide spectrum of vital public benefits
administered by the New York City Department ofSocial Services ("DSS"), the New York
State ofHealth ("NYSOH"), the New York State Department of Health ("SDOH"), and other
related city and state agencies. 6. From January 1, 2019, through March 25, 2020, we handled almost 3,500 individual public
benefits cases, helping over 6,800 Bronx residents. More than one-quarter of our clients are noncitizens, and more than one-third of client households contain at least one noncitizen.
7. Our PBU provides representation, advocacy, advice, and assistance on a number of different
public benefits, including:
a. Cash public assistance benefits, including those funded by federal Temporary Assistance for Needy Families ("TANF") moniesI and those funded by New York;2
b. Supplemental Nutrition Assistance Program ("SNAP") benefits,3 formerly known as Food Stamps;
c. Child care benefits for recipients of public assistance with work requirements;4 d. Women, Infants, & Children ("WIC") benefits,5 which is a voucher program that
covers certain nutritious foods for children under age 5, pregnant women, and new mothers;
e. Public health insurance such as Medicaid,6 Medicare,7 and Essential Plans

1 See, e.g., N.Y. Soc. Serv. L. § 349.

2 See, e.g., N.Y. Soc. Serv. L. § 159.

3 See 7 U.S.C. § 201 I, et seq.

4 See N.Y. Soc. Serv. L. § 410-w.

5 See 42 U.S.C. § 1786.

6 7

See generally42 U.S.C. §
42 U.S.C. § 1395, et seq.

1396,

etseq.;N.Y.

Soc.

Serv.

L.

§§

122,131,

&363-369.

2

App. 137

administered by NYSOH;8 f. Personal care/home care services9 for disabled, infirm, and elderly clients who want
to age in place as an alternative to institutionalization;
g. Veteran's benefits; and,
h. HIV/AIDS Services Administration ("HASA") 10 benefits. 8. In addition to our direct legal services, which are the heart of our practice, we also maintain
deep roots in the communities we serve by running clinics and conducting outreach, community trainings, and other events. Since January 2019, our PBU conducted over 42 different trainings or clinics, reaching over 1,800 people.
9. After the announcement of the proposed public charge changes in October 2017, our PBU immediately saw a spike in requests for advice and information about how the receipt of public benefits will affect people's immigration status. Within the fust few days after the proposed public charge rules were initially reported in the press, we received calls from dozens of social services agencies and individual clients who were concerned about the changes. Many of the individuals had closed their public benefits cases, and those of their citizen children, as a precautionary measure even before receiving any advice.
10. Those first two weeks highlighted the fear among noncitizen clients and communities, as well as in the social service agencies helping these communities, and the need for us to provide accurate information expeditiously. We created a flyer with our hotline number and invited people to call our hotline for a consultation on public charge issues.
11. As of late March 2020 and excluding the flood of inquiries we initially received in October
8 42 U.S.C. § 18001, et seq.
9 See, e.g., N.Y. Soc. Serv. L. § 365-a.
10 See, e.g., N.Y.C. Admin. Code§§ 26-126, -127, & -1 28; 18 N.Y.C.R.R. § 352.3(k). 3
App. 138

2017, our PBU has conducted almost 600 individual consultations for noncitizens about the public charge rule. Around 75% of our consultations include concerns or questions noncitizens have about the receipt of SNAP and/or Medicaid.
12. PBU has conducted several different public charge-related events, including community-
facing trainings, clinics for people with questions about how public charge will affect them, and different trainings on the public charge doctrine for advocates. The community events that we have held were flooded with attendees. We could not possibly meet individually with every person who attended our public charge community clinics and trainings. 13. Attendance at our community trainings markedly increased in winter 2019-2020, drawing in audiences of approximately double the size we had been experiencing in summer 2019. 14. Thus, our perspective about what the changes to the public charge doctrine have done, will do, and are doing to our noncitizen clients is based on our on-the-ground experience providing direct services to thousands of individuals. COVID-19 Has Accelerated & Amplified the Harm of the Public Charge Rule Changes
15. In a matter of days, our country's economic, public henefitc;, and public health systems
changed due to COVID-19. As employment collapsed practically overnight, we were reminded ofthe central role that access to health care, nutrition, and subsistence benefits has not only in the well-being of individuals but also in the health and vibrancy of communities, neighborhoods, and cities. Unfortunately, the changes to the public charge rule - and the fear surrounding it - gravely threaten the ability of noncitizens, their families, and our communities to remain healthy.
16. Because SNAP and Medicaid were added to public charge consideration for essentially the first time in history, these benefits quickly became the focus for noncitizens' growing fears
4
App. 139

surrounding the consequences of obtaining assistance. In recent months, we have seen noncitizens disenrolling themselves (and, at times, their citizen children or other family members) from Medicaid and nutritional support programs, like SNAP and WIC. 17. As a result, the most frequent questions we receive from noncitizens and their advocates are, "Will using Medicaid cause my children or me to be deported? Is it safe for us to use Medicaid?" 18. Many New Yorkers mistakenly believe they are receiving Medicaid as defmed in the public charge rule, due to misunderstanding of the program in general. As a result, thousands of people think they receive Medicaid when, in fact, they are in receipt of other low-cost health
insurance programs. Unfortunately, the misinformation and fear has taken on a life of its
own, and we have seen hundreds of clients close their "Medicaid" cases for themselves, their citizen children, and other family members. 19. Particularly in Queens and the Bronx, we have encountered many noncitizens who are afraid to get COVID-19 testing. First and foremost, the reason we have heard time and again behind the reluctance to get tested is simple: people are afraid that testing requires Medicaid, which would get them depo1ted. Rather than promoting the public good, the public charge doctrine is endangering our communities by deterring people from obtaining COVID- 19 testing and assistance that is critical to flattening the curve and reducing transmission. 20. The "guidance" issued by the United States Citizenship and Immigration Services ("USCIS") in recent weeks about public charge and accessing care for COVID-19 has not offered any comfort or clarity for both advocates and noncitizen community members. If anything, it only introduced more fear among noncitizen communities, since the alert seems to equivocate on how, whether, when or if seeking COVID-19 treatment would trigger public charge issues.
5
App. 140

Without Medicaid, Noncitizens Stop Treating Chronic Conditions 21. Disenrollment from Medicaid has a very real consequence: people stop attending primary
care appointments and stop seeking medical help, until there are life-threatening emergencies. While this result is dire in any circumstance - from diabetes management to early breast cancer screenings - the COVID-19 pandemic has potentially made early access to care a life-or-death decision for individuals, their families, and their communities. Primary care is critical in treating asthma and hypertension, which, along with diabetes, are underlying conditions that have been associated with more severe COVID-19 complications. 22. In the span of a few weeks, we have begun to see first-hand what delayed primary care has done to noncitizens who were afraid to use Medicaid, though I fear the suffering will continue to grow as the COVID-19 pandemic peaks in New York City. Our clients have left conditions untreated because they closed Medicaid cases to be " safe" and because "it wasn't worth the risk to treat asthma" only to fall extremely ill with shortness ofbreath, high fevers, headaches, body aches, and chills. One of our clients is now hospitalized. 23. We also have HIV-positive clients who closed out their HASA benefits when the public charge rules went into effect. HASA benefits include health and nutrition support benefits for people living with HIV/AIDS. Lack of consistent HIV care causes viral loads to skyrocket and immune systems to crash. With COVID-19 now a global pandemic, we are terrified what will happen to HIV-positive noncitizens who have foregone public health insurance, like Medicaid, and other benefits out of fear that they will be deported. Significant increases in requests for public benefits assistance since COVID-19 24. Comparing the weeks before COVID-19 with the most recent two weeks, we have seen an 850% increase in requests for assistance with public benefits issues.
6
App. 141

25. A substantial part of that increase includes requests for assistance from noncitizens who are trying to access health care without insurance. Although almost all of the people seeking our assistance were otherwise eligible for low- or no-cost insurance programs, they had disenrolled from, or wanted to avoid enrolling in, health insurance plans out of fear that they or their families would be deported.
26. Since the public charge changes went into effect in late February 2020, we have seen an increase in noncitizen clients seeking emergency food assistance, including food pantries. Even in famil ies in which only citizen children are eligible for SNAP, we have seen a reluctance to use or receive the benefit out offear of deportation and family separation. The hunger we have seen in our noncitizen clients has become so severe that we now bring Food Bank NYC booklets to our intake meetings in anticipation ofthe need for pantry assistance.
27. The advent of COVID-19 has turned unreliable access to nutrition into a public health crisis, rendering noncitizens and their neighbors more vulnerable to the ravages ofCOVID-19. We also saw a wave of unemployment crash down on low-income New Yorkers - particularly those most vulnerable to job loss, including noncitizens who are home health aides, caregivers, cleaners, and janitors - which has immeasurably exacerbated and increased the need for SNAP and nutrition supports generally. Right now in the Bronx, virtually all of the food pantries have closed or sharply reduced hours due to COVID-19, which eliminates a vital lifeline for noncitizens who are hungry. The few pantries that remain open during this crisis are running out of food at alarming rates, with a significant portion of people seeking their help being noncitizens.
28. The public charge rule changes drove and are driving noncitizens and their families offof critical benefits, including low-cost health insurance and SNAP, and have rendered low-
7
App. 142

income noncitizens even more susceptible to this vims, and in doing so have made all of us
less safe. DATED this 7th day ofApril, 2020, at New York, NY
Directo , Bronx Legal Services 349 E. 1491h Street, 10th Floor Bronx, NY 10451 j n e w t o n@ lsn y c . o r g (718) 928-3691
8
App. 143

Declaration of the New York Legal Assistance Group
I, Sarah Nolan, under penalty of perjury, hereby declare:
1. My name is Sarah Nolan. I am a Supervising Attorney in the LegalHealth division of the New York Legal Assistance Group (NYLAG). I have nine years of experience providing immigration legal services and developing legal services programs in New York City.
2. NYLAG is a not-for-profit legal services organization located in New York City. NYLAG uses the power of the law to help New Yorkers in need combat social and economic injustice. We address emerging and urgent legal needs with comprehensive, free civil legal services, impact litigation, policy advocacy, and community education. NYLAG serves immigrants, veterans, seniors, the homebound, families facing foreclosure, renters facing eviction, low-income consumers, those in need of government assistance, children in need of special education, domestic violence victims, people with disabilities, patients with chronic illness or disease, low-wage workers, low-income members of the LGBTQ community, Holocaust survivors, as well as others in need of free legal services.
3. NYLAG’s LegalHealth Unit is the nation’s largest medical-legal partnership, with clinics at 36 hospitals and community health organizations in New York City, Westchester County and Long Island. LegalHealth complements health care with legal care by providing free legal services onsite at medical facilities and training health care professionals to understand the legal issues their patients face as well as their role in addressing these issues. The majority of LegalHealth’s clients are individuals with chronic and serious illnesses, including cancer, end-stage renal disease, high blood pressure, diabetes, HIV, asthma and heart disease. LegalHealth’s immigration practice provides comprehensive legal services on a wide range of issues, including naturalization, adjustment of status, relative petitions, asylum, U & T Visas and VAWA self-petitions, medical deferred action, visa extensions and Special Immigrant Juvenile Status (SIJS).
4. NYLAG’s attorneys, especially in LegalHealth’s medical-legal partnership setting, have a unique perspective about how the public charge inadmissibility rule has profoundly impacted immigrants as they grapple with difficult decisions about their health care and immigration status. In December 2018, NYLAG submitted public comments objecting to the proposed changes to the rule. Our comments detailed the myriad ways in which our clients’ fear of the public charge rule has led to serious health consequences for themselves and their families. Since the proposed rule was first leaked, and through the present, our attorneys have advised many clients who express profound fear that receiving medical care
1 App. 144

for themselves or their families will cause them to be denied their green cards on public charge grounds. We have had to explain to doctors and social workers why patients they were treating successfully may have suddenly disappeared or refused to continue their care. We have seen that immigrants across the spectrum—from lawful permanent residents seeking to naturalize, to those applying for humanitarian relief or family-based adjustment of status to the undocumented—are all worried about the implications of the rule changes on their immigration status. Our public comments provided numerous case examples of how this fear has lead immigrants to forego life-saving treatment, discontinue chronic care disease management, and decline preventive care for themselves and their family members. 5. LegalHealth also has a unique perspective on the devastating impact of the public charge rule because of our close relationships with medical professionals, who have continually sought our advice on how to combat the widespread chilling effect on immigrant families’ willingness to apply for Medicaid and seek healthcare. In response, LegalHealth has conducted or participated in over 30 trainings and community events related to public charge in partnership with New York City Health + Hospitals, the Greater New York Hospital Association (GNYHA), Mt. Sinai Hospital, Weill Cornell Hospital, National Center for Medical Legal Partnership, and others. LegalHealth trains medical professionals about the rule, how to communicate with patients and how to refer concerned patients for legal advice. To supplement our training program, LegalHealth set up a specialized hotline to provide information about the public charge rule to our partner health care professionals and patients. 6. Even with the extensive efforts by NYLAG’s LegalHealth unit and other advocates to train and provide information and advice to health professionals and immigrant communities, we continue to observe a high level of ongoing confusion and fear about the public charge rule. 7. Now, with New York as the epicenter of the worldwide COVID-19 pandemic, with a staggering 159,937 cases to date, including 7,067 deaths, we are facing an unprecedented public health crisis. The impact of pandemic among immigrant communities will be even more catastrophic as a result of the continued fear in immigrant communities related to public charge. 8. NYLAG revised its materials after March 14, 2020 to reflect the USCIS announcement that COVID-19 related treatment would not be considered in the public charge analysis. With our extensive experience over two years trying to allay fear and confusion among immigrants related to public charge, we believe this announcement on it own is not nearly sufficient to overcome the newlyemerging fears around public charge in the current COVID-19 crisis. 9. Since March 2020, NYLAG’s LegalHealth unit has observed that community
2 App. 145

members are already declining or delaying seeking health treatment and applying for benefits that are needed because of the COVID-19 pandemic because of public charge concerns as demonstrated by the following examples. 10. A LegalHealth client with a pending U visa who is residing in a shelter had COVID-19 like symptoms and was seriously ill, but did not want to go to a hospital for testing and treatment out of fear it would impact her pending application. 11. A lawful permanent resident who lost his job recently called the LegalHealth public charge hotline with concerns that receiving Medicaid and applying for unemployment would impact his permanent residency. 12. NYLAG has received requests for assistance from temporary non-immigrants in New York, such as those on B2 visas, who intended to return to their home countries but are now unable to because of travel restrictions and cancelled flights. Most urgently, these immigrants who were not planning to remain in the U.S., are now scrambling to figure out how to continue to support themselves here. Some now require medical care that they were not intending to receive in the U.S., such as emergency labor and delivery services, treatment for cancer, or treatment for COVID-19. Several clients have expressed concern about how they will support themselves now without causing public charge problems in the future. 13. NYLAG has also received questions from immigrants who are concerned about applying for unemployment benefits, emergency benefits, or cash assistance after losing a job due to the closures related to the COVID-19 pandemic. Clients have expressed fear that applying for or receiving these benefits will have a negative impact on their current immigration status or on a pending application for benefits. 14. As with health-related benefits, this fear of applying for benefits needed because of COVID-19 related job losses exists among those not subject to public charge inadmissibility. For example, a NYLAG client who is a lawful permanent resident and wishes to eventually apply for citizenship expressed concerns about applying for public assistance after recently losing a job due to the COVID-19 crisis. 15. The above examples provide clear evidence that immigrants, regardless of their legal status, remain extremely fearful of accessing healthcare and benefits as a result of the public charge rule. These fears are now causing immigrant clients to delay seeking urgently needed medical and financial help related to COVID-19, compounding the harms already caused by this public health crisis of unprecedented scale and scope.
3 App. 146

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Dated:

New York, New York April 10, 2020

Sarah Nolan Supervising Attorney, LegalHealth New York Legal Assistance Group 7 Hanover Square, 18th Floor New York, NY 10004 212-613-5059

4 App. 147

No. 19A785 In the
Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al., Applicants,
v. NEW YORK, et al.,
Respondents.
I, C. Mario Russell, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. My name is Mario Russell, and I serve as the Director of the Division of Immigrant and Refugee Services, Catholic Charities Community Services, Archdiocese of New York (“CCCS-NY”). I submit this declaration in support of Respondents’ application to modify the Court’s January 27, 2020, stay of the district court’s October 11, 2019 order preliminarily enjoining the U.S. Department of Homeland Security’s (DHS) public charge rule, (the “Rule”) in the above-captioned case, and the related case Make the Road New York, et al. v. Cuccinelli, et al., (“MRNY v. Cuccinelli”), which is currently the subject of a pending appeal before the Second Circuit Court of Appeals. I submitted a declaration dated September 9, 2019, in support of
1 App. 148

Plaintiffs’ motion to enjoin the Rule on a preliminary basis in MRNY v. Cuccinelli. Following the Court’s issuance of a stay, the Rule became effective on February 24, 2020. Catholic Charities Community Services, Archdiocese of New York
2. CCCS-NY is a nonprofit organization with program sites and affiliates located throughout New York City and the Lower Hudson Valley. Our staff reaches immigrant and rural community residents in all five New York City boroughs and seven upper counties, including Westchester, Rockland, Putnam, Orange, Ulster, Sullivan, and Dutchess.
3. CCCS-NY’s mission is to provide high quality human services to New Yorkers of all nationalities and religions who are in need, especially the most vulnerable: the newcomer, the family in danger of becoming homeless, the hungry child, developing youth, and persons struggling with mental health issues. CCCS-NY’s mission is grounded in the belief in the dignity of each person and the building of a just and compassionate society.
4. CCCS-NY has been pursuing this mission since 1949 through a network of programs and services that enable participants to access eviction/homelessness prevention; tenant education and financial literacy training; case management services to help people resolve financial, emotional and family issues; long-term disaster case management services to help hurricane survivors rebuild their homes and lives; emergency food and access to benefits and other resources; immigration legal services; refugee resettlement; English as a second language services; specialized assistance for the blind; after-school and recreational programs for children and youth; dropout prevention and youth employment programs; and supportive housing programs for adults with severe mental illness.
2 App. 149

Impact on Clients Using CCCS-NY’s Immigration Hotlines 5. CCCS-NY’s Immigrant and Refugee Services Division operates two hotlines that
are fundamental to the provision of legal services and legal information to immigrants in both New York City and New York State. The ActionNYC hotline partners with the New York City Mayor’s Office of Immigrant Affairs (“MOIA”). The hotline serves as the primary number New York City residents can call when they have immigration law questions. Depending on the issue they present they are referred to one of 21 legal services providers contracted with MOIA to handle cases. The New Americans Hotline partners with the New York Department of State Office of New Americans (“ONA”). The hotline is toll-free; it refers immigrants from around the state to immigration services and provides callers with accurate information regarding issues of concern in the immigrant community. In 2019 Catholic Charities operators staffing these two lines answered a combined total of 43,000 calls in 18 languages and made referrals to legal service providers throughout New York State. Before the Rule took effect, CCCS-NY saw spikes in call volume to these hotlines when the proposed and final versions of the Rule were published in the Federal Register in October 2018 and August 2019, respectively.
6. Over the past couple of weeks, CCCS-NY has fielded calls through these two hotlines related to the intersection of COVID-19 and the Rule. Of the approximately 60 calls related to public charge, approximately 40% involved specific mention of COVID-19 as the specific reason for seeking supportive benefits. Many of these callers expressed fear of seeking medical treatment for COVID-19 and enrolling in SNAP for their children. Others asked questions about whether they will be able to access unemployment benefits in the wake of a job loss. Given the pervasiveness of infection in the areas we serve and the extraordinary rise in unemployment, we believe the vast majority of inquiries during this recent period were triggered
3 App. 150

by fear of the public charge consequences of seeking benefits (e.g., medical insurance, SNAP, housing assistance) needed because of COVID-19.
7. Overall, these calls demonstrate a high level of confusion, panic, and misinformation concerning the Rule, particularly as it relates to individuals’ ability to access benefits during this crisis. Impact on Clients Obtaining Legal Services from CCCS-NY
8. The Immigrant and Refugee Services Division also provides legal services directly to immigrant clients. These services include assistance with immigration applications (including adjustment applications), removal defense, and work authorization, integration, and case management support, support to unaccompanied minors, job development, English and civics, and citizenship preparation. During 2019, the Immigrant and Refugee Services programming directly assisted over 20,000 individuals—children, families, workers—in New York. Because our ability to contact individuals is limited by New York’s lockdown order and the CDC’s social distancing guidance, we are hindered in getting information to individuals who may be affected by the Rule.
9. In the last couple of weeks, the questions that our clients have presented during these sessions have been similar to those we have seen through our hotline operations. These revolved around capacity to care for their families during a uniquely difficult economic period and how to navigate the legal and practical issues they face as a result. Individuals who are in need of supplemental benefits to get through this difficult period are reluctant to accept any aid for fear of being deemed public charges. For example, even clients who are not subject to public charge – such as when adjustment of status will be based on humanitarian status (e.g., Asylum,
4 App. 151

Special lmcnigrant Juveni1e status)-havc c.xpressed feaf or colk·cting unemployment after losing theirjob due to COVID-19. Need to Suspeml tlte Ruk
10. Suspending the Rule during lhis period of national crisis would allow our clien1s and the communities we serve to meet their immediate needs for health care and suppJemental benefits for which the}' are eligible and need to get through this crisis without risking their immigratior1 s(alt.ls. Thjs wouJd alleviate some of the confusion and fear that we have obseived, and would fue1her the goals aniculated by government actors ofproviding relief to those impacted by COVJD- l9. Suspending the Rule during this period of nationaJ crisis w·ould also allow CCCS•NY to l>ettef advise our clients, and callers to our hotlines., regatding the benefits laat are eligjble to them, and wou1d be abJe to make relCrrals to these pJO<Jl'ams without individuals needing to choose between accepting help and 1.he facfog the prospect of negative j111migrn1ioo consequences.
I declare under penalty of perjul)' that the foregoi ng is true :lJld correct,

fa: E«~euted this

day ofApril. 2020

New York. New York.

-~
ario Russell, Esq.

5 App. 152

No. 19A785 In the
Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al., Applicants,
v. NEW YORK, et al.,
Respondents.
I, Theo Oshiro, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. I am a Deputy Director for Make the Road New York (“MRNY”), where I am responsible for overseeing our services teams, which include our legal, health, and adult education departments. I submit this declaration in support of Respondents’ application to modify the Court’s January 27, 2020 stay of the district court’s October 11, 2019 order preliminarily enjoining the U.S. Department of Homeland Security’s (DHS) public charge rule, (the “Rule”) in the above-captioned case, and the related case Make the Road New York, et al. v. Cuccinelli, et al., (“MRNY v. Cuccinelli”), which is currently the subject of a pending appeal before the Second Circuit Court of Appeals. I submitted a declaration dated September 9, 2019 in support of Plaintiffs’ motion to enjoin the Rule on a preliminary basis in MRNY v. Cuccinelli. Following the Court’s issuance of a stay, the Rule became effective on February 24, 2020.
1
App. 153

Make the Road New York 2. MRNY is a non-profit community-based membership organization, which has
been in existence for over 20 years, and is dedicated to building the power of immigrant and working-class communities to achieve dignity and justice through organizing, policy innovation, transformative education, and survival services. MRNY currently has over 200 staff members, who provide services to thousands of individuals a year, including both members, students and clients from the community. Our membership comprises more than 24,000 low-income New Yorkers, many of them from immigrant communities. We operate five community centers in the state of New York: in Brooklyn, Queens, Staten Island, Long Island and Westchester County, each of which are areas of the State widely affected by the COVID-19 pandemic.
3. Over the past several weeks, we have seen how the COVID-19 pandemic has rapidly caused a pervasive health crisis in the New York City metropolitan area and a massive increase in food instability and unemployment, especially acute in the communities MRNY serves. During this time, MRNY has been at the front lines of working with, supporting, and educating immigrant communities on their rights in the COVID-19 crisis. We are providing food assistance, including distribution of food, to hundreds of families through our food pantries in Queens and Brooklyn, and are raising and disseminating a million dollars to meet immediate needs, including emergency food visa cards, and funds to cover expenses for individuals who have lost immediate relatives due to COVID-19. We are also holding regular information and Know Your Rights (KYR) sessions on Facebook Live and other online platforms; conducting a high volume of health insurance and services screenings; and handling a similarly high volume of questions through our workers’ rights, housing and immigration legal teams. We have also been helping hundreds of community members connect by phone to medical providers who can
2
App. 154

advise the individual if they should go to the hospital for treatment, or if it is safe for them to stay home. We continue to follow up with these individuals to ensure they are safe and have all the support they need. The Public Charge Rule and COVID-19
4. Since it was announced, the public charge Rule has placed our clients’ and members’ health and security in jeopardy. Even before the Rule became effective on February 24, 2020, we saw the Rule cause enormous fear in the immigrant communities MRNY serves, driving people to consider withdrawing from life-saving health and nutritional benefits due to concerns that receipt would endanger their immigration status. This included many people who are not subject to public charge but were nonetheless reluctant to keep or apply for benefits, including benefits that are explicitly not considered under the Rule.
5. When the Court granted the stay of the district court’s preliminary injunction on January 27, 2020 and the Rule became effective on February 24, 2020, the impact of the Rule on our members and clients became even greater. We are especially concerned that the COVID-19 crisis has accelerated the deleterious effects of the Rule on our clients and their communities at an alarming rate and actively undermines MRNY’s efforts and those of other organizations and state agencies to assist families in need access health care, food, and other assistance.
6. The stakes for families reluctant to access government assistance because of the Rule have become even greater with the unfolding of the COVID-19 crisis. MRNY’s communities have been devastated by the current crisis. The organization has lost over ten members or immediate family of staff, many of them from communities or groups (such as trans women of color) that have historically lacked access to healthcare. These consequences show that fear of accessing health care, including COVID-19 testing and treatment, because of public
3
App. 155

charge implications can have life-altering health consequences for our clients; other members of their households, including U.S. citizens; and their neighbors and communities. Fear of accessing food assistance and other benefits because of public charge consequences can also result in people staying in unsafe work situations, and for those who are unemployed, simply going hungry.
7. Since the first stay-at-home order was issued for New York City on March 22, 2020, we have seen clients reluctant to access health and other benefits in three main areas of our work: (a) screening clients for health insurance and SNAP eligibility and helping individuals access medical care; (b) providing food assistance to clients and members and advising them on how to access other vital social support services; and (c) advising workers about benefits and protections available to them, including unemployment insurance, food assistance, and health insurance. In each area, clients and members express fear that public charge will result in them or their family members being penalized for using such assistance or benefits, including from MRNY’s own food pantries and crisis-support funds.
8. MRNY's health team conducts hundreds of individual health consultations per month in order to assist people in accessing healthcare. In the course of these consultations, a large number of people express fear of accessing health benefits due to concerns about public charge.
9. MRNY’s immigration and workers practices have also fielded a large volume of questions and concerns from members and clients about accessing unemployment insurance, healthcare, food assistance, and even school resources based on public charge consequences. For instance, many individuals have expressed concerns over whether accepting food through food pantries, MRNY’s own emergency food program, or the NYC meal program will negatively
4
App. 156

impact their immigration cases. Similarly, MRNY’s workers team has fielded questions from several clients who qualify for unemployment insurance but are fearful of accessing it given public charge concerns. The workers team has also referred individuals concerned with accessing healthcare due to public charge concerns to MRNY’s health team. Some clients have even expressed fear that accessing resources from their children’s schools for purposes of remote learning and food support will have negative immigration consequences.
10. The clients expressing these fears include people to whom public charge is not applicable because they are LPRs or hold other status not affected. For example, parents have expressed concern about applying for SNAP benefits for their U.S.-citizen children and how their immigration cases will be impacted if they were to apply, as have individuals who are not be impacted by the public charge rule at all based on their available immigration relief such as U nonimmigrant visa.
11. Although our counseling and consultations often result in clients resolving their confusion about the public charge rule, the fear that our members and clients express demonstrates that many individuals in New York’s immigrant communities are currently actively deterred from accessing benefits. In addition, the need to screen, counsel and reassure people causes delay in obtaining necessary benefits. And we know based on our work that there are many more New Yorkers for whom the issue is not delay, but downright refusal to access benefits they need because of the public charge consequences.
12. On March 13, 2020, U.S. Citizenship and Immigration Services (USCIS) posted an English-only alert explaining that while the Public Charge rule “does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19,” USCIS was nonetheless required to “consider the receipt of certain cash and non-cash public benefits,
5
App. 157

including those that may be used to obtain testing or treatment for COVID-19 in a public charge inadmissibility determination,” including most forms of federally funded Medicaid. See https://www.uscis.gov/greencard/public-charge. The apparent internal contradiction of the statement has not helped us to alleviate client concerns about benefits use during the COVID-19 pandemic and public charge inadmissibility. In fact, it has only created more confusion for our clients and required us to expend additional resources to adequately provide counsel.
13. First, for those clients who are subject to public charge, specifying that the negatively-weighed circumstances related to COVID-19 – which could include the use of benefits that do count in the public charge analysis, reduced income and resources due to unemployment, an interruption in school, and chronic health conditions resulting from the virus – will be considered in the totality of the circumstances is too vague and open to broad interpretation to be helpful. As a result, it provides little clarity or comfort to clients trying to balance their urgent need for assistance during the pandemic with their long-term dreams of permanent residence in the U.S.
14. Second, the alert is not being broadly distributed and, as a single website posting in English, is not reaching the communities who need this reassurance. Most of our clients would never see the USCIS alert unless we showed it to them. The alert is difficult to locate on the agency’s website. It is only posted in connection with information on public charge, and does not appear in connection with the information posted about COVID-19. None of the clients we discussed with were familiar with it.
15. Absent the Court lifting the stay of the injunction, which would send a clear message to immigrants that access to health and other supplemental benefits is of paramount importance during this public health crisis, we will continue to see immigrants in the
6
App. 158

communities we serve delaying, deferring or avoiding access to life-saving health and food resources.
16. We know that not everyone seeks out our services. While we try our best to reach as many individuals as possible, and even if we are provided with additional resources, there will continue to be frightened and vulnerable members of the immigrant communities that we are unable to reach and who are at risk of getting infected with COVID-19, and who lack access to key information and resources to access healthcare, benefits and support services. DATED this 10th day of April, 2020 Croton-on-Hudson, NY
_________________________ Theo Oshiro
7
App. 159

APR/ 06/ 2020/MON12:23 PM

FAX No.

P. 002

No. 19A785
In the Supreme Court of the United States
DEPARTMENT OF HOMELAND SECURITY, et al.,
Applicants,
V.
NEW YORK, et al.,
Respondents.
I, Pedro Moreno, pursuant to 28.U.S.C.1746, hereby declare as follows
1; I am an Assistant Professor of Family Medicine at the University of California San Francisco. I am a member of the COVID-19 Leadership Team in the Monterey County Health Department Clinics. On the Leadership Team my role is to lead other physicians at the Health Department clinics in providing medical and social services to patients affected by COVID-19,
2. For the last 22 years 1have provided medical care to immigrant families in the Alisa] Health Center, a Federally Qualified Community Health Center in Salinas, California. Many of my patients work in the fields harvesting vegetables and berries, and in processing plants that package salads and other agricultural products. In my clinic I work closely with a multidisciplinary team of social workers, public health nurses, physicians, and mental health professionals to provide medical and social services to primarily immigrant farmworker families.
3. Our region, the Salinas Valley in California, is also known as the "Salad Bowl of the United States." Our immigrant farmworkers feed America and are considered ''essential workers," exempt from the California Shelter in Place Order. Every day they ride crowded buses to work in the fields to harvest our nation's vegetables, risking being infected with COVID-19.
4. In Monterey County, we are in the early stages of the pandemic. So far, I have seen an increasing number of patients each week with symptoms of possible COVID19. Some of these patients have told me that they are afraid to seek medical care in our hospital. They don't have health insurance and are fearful to receive expensive
1 App. 160
04/06/2020 3:28PM (GMT-04:00)

APR/ 06/ 2020/MON 12:23 PM

FAX No.

P. 003

bills if they visit the emergency room. They are also fearful of negative immigration consequences if they use publicly subsidized medical services due to the public charge rule. I am deeply afraid that these farmworkers who don't r eceive medical attention with early COVID-19 will spread the infection in our community.
5. I understand that state-funded services, emergency health services, and COVID19 testing and treatment are supposed to be exempt from consideration under the public charge rule. My patients' fears and concerns about the risks associated with use of public benefits, however, apply even to services exempted by the rule.
6, I have patients with symptoms of COVID-19, and I have advised them to stay at
home. However, some have told me they cannot stop working because they have no other income or resources, and their families will otherwise go hungry. They are afraid to apply for nutrition assistance programs, such as CalFresh, the California Supplemental Nutrition Assistance Program, due to fear that if they receive those benefits, the public charge rule will negatively affect their immigration status in the future.
7. I have also witnessed many farmworkers who are sufferi ng with extreme anxiety and depression since the beginning of the COVID-19 epidemic. Unfortunately, they
report to me that they are afraid to receive behavioral health services due to fea'rs that receipt of those services will negatively affect their immigration status.
8. I am aware of USCIS's March 1 3th announcement concerning COVID-19 and public charge. Fear and confusion has persisted in my patient population in regards to the public charge and access to COVID-19 related care and other benefits, even after this guidance was issued. Many of my patients appear unaware of the guidance. I am not able to advise my patients about particular immigrati on consequences that they or their family members could likely face given their particular circumstances and benefits utilization.
9. I believe some of my farmworker patients have already been infected with COVID-19 by other farmworkers in the fields. Unfortunately, many of them a.re afraid to seek medical care due to the public charge rule, and are already spreading the infection in our community. This interferes with my and my colleagues' work to mitigate the risks of COVID-19 to our farmworking community.
Dated this 6th day of April, 2020 at Salinas, California
DR. PEDRO MORENO, MD

2
App. 161

04/06/2020 3:28PM (GMT-04:00)

,7190436Ā-6:25782Ā/,(Ā+$"."#"!Ȁ"% %Ȁ$%,&Ȁ*'+)Ȁ.,#*$&&+!&,.
No. 19A785 In the
Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al., Applicants,
v. NEW YORK, et al.,
Respondents.
I, Aaron Coskey Voit, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. I am over the age of eighteen. I am an attorney licensed to practice law before the State of
California. 2. I am the Managing Attorney of the Monterey County Medical-Legal Partnership at California
Rural Legal Assistance, Inc. (“CRLA”). 3. CRLA is a Legal Services Corporation (LSC), which provides free legal services to more
than 40,000 rural, low-income Californians every year. 4. The Monterey County Medical-Legal Partnership provides free legal services to hundreds of
patients every year at the Monterey County Health Department’s nine Federally Qualified Health Centers, which serve more than 40,000 low-income primary care patients every year. A team of three full-time CRLA attorneys is on site at the County’s safety net healthcare clinics every week working alongside healthcare providers to assist patients with healthharming legal needs. 5. Since the beginning of 2018, the Monterey County Medical-Legal Partnership has provided
App1. 162

,7190436Ā-6:25782Ā/,(Ā+$"."#"!Ȁ"% %Ȁ$%,&Ȁ*'+)Ȁ.,#*$&&+!&,.
services to more than 145 patients with legal needs related to public benefits. Since the beginning of 2018, the Medical-Legal Partnership has also provided training to over 750 doctors, physician’s assistants, nurse practitioners, medical assistants, social workers, and social services providers regarding public benefits. 6. Monterey County declared a COVID-19 State of Emergency on March 6, 2020, and issued a Shelter in Place order on March 17, 2020. I am part of the Monterey County Health Department’s COVID-19 Social Determinants of Health Team. 7. In Monterey County, many low-income residents are reluctant to access emergency healthcare and social services in response to the COVID-19 pandemic because they fear how the new public charge rules will impact them. The new public charge rules took effect on February 24, 2020, only weeks before Monterey County issued its COVID-19 Shelter-InPlace Order. COVID-19 has prevented planned public charge community education campaigns from moving forward, and there remains a significant chilling effect in the community that is preventing many residents from accessing needed healthcare and social services to cope with COVID-19. Monterey County residents are vulnerable to forgoing needed healthcare and social services because of lack of information regarding the new public charge rules. 8. Thirty percent of Monterey County residents are foreign-born.1 9. Nearly 1 in 4 households in Monterey County relies on income related to agriculture. While estimates vary from year to year, Monterey County is home to as many as 90,000 farmworkers every year. Crops grown in Monterey County supply large percentages of total national pounds produced each year: 61% of leaf lettuce, 57% of celery, 48% of broccoli,
1 U.S. CENSUS BUREAU, American Community Survey (ACS) and Puerto Rico Community Survey (PRCS), 5-Year Estimates, https://www.census.gov/quickfacts/montereycountycalifornia.
App2. 163

,7190436Ā-6:25782Ā/,(Ā+$"."#"!Ȁ"% %Ȁ$%,&Ȁ*'+)Ȁ.,#*$&&+!&,.
38% of spinach, and 28% of strawberries.2 10. The agricultural workers that CRLA serves are predominantly immigrants, mostly from
Mexico. 11. Most of the farmworkers in this area do not speak English, and some only speak indigenous
languages. Language barriers deter access to guidance on public charge currently being disseminated – only 33% of farmworkers report being able to speak English well and nearly as many (27%) report they cannot speak English at all.3 Most are Spanish speakers, but many only speak indigenous languages, such as Mixtec, Zapotec, or Triqui. Many of the Mexican indigenous languages are only oral, meaning there is not commonly understood written language. 12. Only 39% of farmworkers have schooling beyond the ninth grade. In contrast, 96.5% of all U.S. adults 24 years or older, have completed the eighth grade.4 Many farmworkers cannot read or write in English or Spanish. Many do not know how to operate a computer. 13. Many farmworkers in Monterey and Santa Cruz Counties live and work in remote, rural areas that are severely underserved by medical and social services providers. 14. There are significant barriers to disseminating information in farmworker communities that CRLA serves. The rural nature of farmwork means that residents are spread out over wide geographic areas. Many farmworkers cannot read and cannot access written informational materials, even if the materials are also in Spanish. Other farmworkers are able to read, but have never used a computer and do not have an email address. 15. Due to these barriers, effective community education in farmworker communities typically
2 MONTEREY COUNTY FARM BUREAU, Facts Figures, and FAQs, http://montereycfb.com/index.php?page=factsfigures-faqs. 3 U.S. DEP’T OF LABOR, EMP’T & TRAINING ADMIN., NATIONAL AGRICULTURAL WORKERS SURVEY (NAWS), PUBLIC DATA SETS, http://www.doleta.gov/agworker/naws.cfm. 4 U.S. DEP’T OF LABOR, EMP’T & TRAINING ADMIN., NATIONAL AGRICULTURAL WORKERS SURVEY (NAWS), PUBLIC DATA SETS, http://www.doleta.gov/agworker/naws.cfm.
App3. 164

,7190436Ā-6:25782Ā/,(Ā+$"."#"!Ȁ"% %Ȁ$%,&Ȁ*'+)Ȁ.,#*$&&+!&,.
requires face-to-face meetings and outreach at large events where agencies can work with trusted community leaders to help disseminate information in-person. The roll-out of the new public charge rules created significant confusion about when they took effect, whom they applied to, and which public benefits they included. 16. On October 10, 2018, the Department of Homeland Security (DHS) proposed a change to the long-standing public charge policy by excluding anyone who is likely to use certain health care, nutrition or housing programs in the future. The publication of this proposed rule created significant anxiety and confusion about whom the public charge test applied to, and what public benefits were included in the test. 17. The Final Rule, published on August 8, 2019, included some changes from the proposed rule published the year prior. These changes created further confusion about the new public charge rules. 18. DHS issued a correction of the final rule on October 2, 2019, contributing to still more confusion about the contents of the new public charge rules. 19. Following publication of the final rule, states, counties and non-profit organizations filed a total of nine legal challenges to the rule and multiple federal courts issued preliminary injunctions blocking implementation of the rule. 20. On January 27, 2020, the U.S. Supreme Court stayed the preliminary injunction from New York that prevented the DHS public charge rule from taking effect. The DHS rule went into effect nationwide on February 24, 2020. 21. The ever changing status and contents of the new public charge rules, including expansive language in the February 5, 2020 USCIS policy alert, created an urgent need for community
App4. 165

,7190436Ā-6:25782Ā/,(Ā+$"."#"!Ȁ"% %Ȁ$%,&Ȁ*'+)Ȁ.,#*$&&+!&,.
education to clarify when the new rules went into effect, to whom they applied, and what public benefits they considered. COVID-19 has prevented necessary community education efforts about the new public charge rules. 22. On February 24, 2020, when the new public charge rules went into effect, there remained significant confusion among Monterey and Santa Cruz County residents about when the rule would go into effect, and what the new rules entailed. In the following days and weeks, CRLA fielded questions nearly every day from patients and healthcare providers about the new public charge rules. 23. On February 6, 2020, in anticipation of the new public charge rules going into effect, the CRLA began planning a public charge community education campaign. This community education campaign involved nearly every civil legal services non-profit in Monterey and Santa Cruz Counties—more than ten different organizations. 24. On February 25, 2020, representatives from civil legal services providers in Monterey and Santa Cruz Counties met in Salinas, California to plan the public charge community education campaign. The plans entailed in-person community education through town hall events in as many as ten different locations in Monterey and Santa Cruz Counties. The plans for in-person town hall events featured participation from more than ten agencies and included transportation assistance for participants, simultaneous interpretation into indigenous languages, and a community participatory theater performance. 25. On March 6, 2020, Monterey County declared a COVID-19 State of Emergency. On March 17, 2020, Monterey County issued a Shelter in Place order. With the prohibition on public gatherings and orders regarding social distancing and sheltering in place, it is no longer
App5. 166

,7190436Ā-6:25782Ā/,(Ā+$"."#"!Ȁ"% %Ȁ$%,&Ȁ*'+)Ȁ.,#*$&&+!&,.
feasible to move forward with the public charge community education campaign. 26. Due to COVID-19, all of CRLA’s 18 offices across the state are closed to walk-ins and
members of the public cannot come to us in-person for a legal consultation. Ordinarily, the vast majority of our consultations with the public usually take place in-person. While rural Californians always face increased challenges in accessing civil legal aid, it is now more difficult than ever for them to get assistance for urgent legal needs. COVID-19 has stymied public charge community education efforts, and there is still significant confusion about the new public charge rules that is causing Monterey County residents to forgo medically necessary COVID-19 related healthcare. 27. Since Monterey County declared a COVID-19 State of Emergency, the Monterey County Medical-Legal Partnership has been inundated with questions related to public charge. I have personally spoken with multiple patients that have refused to seek COVID-19 related treatment because they fear the new public charge rules. I spoke with a patient that said they would refuse COVID-19 related treatment even after I counseled them on the contents of the March 13, 2020 USCIS Policy Alert regarding public charge and COVID-19. 28. I have also received inquiries from several Monterey County Health Department doctors that report some of their patients have refused needed COVID-19 related services due fear about the new public charge rules. 29. Since Monterey County declared a COVID-19 State of Emergency, I have not spoken with any patients that were familiar with the recent USCIS alert that COVID-19 treatment or preventative services will not negatively affect any alien as part of a future public charge analysis. 30. Given the confusion created in the roll-out of the new public charge rules and the current
App6. 167

,7190436Ā-6:25782Ā/,(Ā+$"."#"!Ȁ"% %Ȁ$%,&Ȁ*'+)Ȁ.,#*$&&+!&,.
limitations on community education due to COVID-19 shelter-in-place orders, the USCIS alert is not sufficient to inform residents and advocates on how, whether, when or if seeking COVID-19 treatment would trigger public charge issues. As a result, the new public charge rules are presently causing Monterey County residents to forgo medically necessary COVID19 related care. DATED this 9th day of April, 2020 at Salinas, CA
InDocuSigned by:
~ ~~~Aa~:La----- Signed: [s]________________________
Aaron Voit Monterey County Medical-Legal Partnership, Managing Attorney California Rural Legal Assistance, Inc. 3 Williams Rd. Salinas, CA 93955 avoit@crla.org (831) 757-5221 ext. 1411
App7. 168

No. 19A785 In the
Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al., Applicants,
v. NEW YORK, et al.,
Respondents.
I, Alejandra Aguilar, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. I am the Lead Health Educator in the HIV Navigation Services unit of the East Los Angeles Women’s Center (“ELAWC”). In this role, I provide health education, support services, and links to HIV testing and treatment to clients throughout East Los Angeles. I also provide support to ELAWC’s Rape Crisis Center by connecting people who have experienced domestic abuse, sexual assault, and human trafficking to support services and counseling. During my fifteen years of employment and consulting as a health educator at ELAWC, I have provided healthcare navigation and other services to hundreds of predominantly immigrant clients and have personally observed their efforts to secure essential healthcare. I submit this declaration in support of Respondents’ application in the above-captioned matter. 2. The mission of the East Los Angeles Women’s Center is to ensure that all women, girls and their families live in a place of safety, health, and personal well-being, free from violence and abuse, with equal access to necessary health services and social support, with
1 App. 169

an emphasis on Latino communities. The vast majority of clients ELAWC serves are immigrant women — most of whom are monolingual Spanish speakers — and their families living below the federal poverty line. Most of our clients are also uninsured or underinsured. These clients represent extremely underserved segments of the population with needs that stem from their transition out of dangerous situations, including people who have experienced sexual assault, survivors of domestic abuse, and individuals who are homeless or at risk of homelessness. ELAWC plays a critical role in connecting clients who have immediate healthcare, housing, and nutritional needs with partners who provide these services or who can enroll them in benefits programs. Additionally, ELAWC provides two forms of shelter for survivors of sexual assault, domestic abuse, human trafficking, and/or other trauma: a hospital-based shelter and separate transitional housing for women and families who are moving out of dangerous situations.
3. Prior to government-mandated quarantine, I provided frequent in-person community presentations on several health-related topics, including linkage to health services; HIV navigation; HIV prevention; general wellness; and crisis support. I prepared for these presentations by consulting with healthcare providers and enrollment specialists to better inform clients of the agencies and organizations who can enroll clients in appropriate medical coverage or provide free or low-cost medical care. I also provided one-on-one navigation— typically serving between three and five clients a day — in person and by phone.
4. Since California’s mandatory quarantine went into effect on March 13, 2020, I have moved to taking calls from clients and providing health navigation services over the phone, as well as connecting people with crisis counseling and connecting them to other resources.
2 App. 170

The Rule has Led to Fear and Confusion 5. Since approximately two years ago, when reports about changes to public charge policies in immigration began reaching the communities I work in, I have continuously answered questions from clients who are afraid to use services for fear of impacting their eligibility for future adjustments to their immigration status. In the last two months — after the Supreme Court’s order staying injunctions blocking the DHS public charge rule’s implementation throughout the country — I have received more questions about public charge than I ever have previously. 6. To help resolve fear and confusion about public charge in our client communities, ELWAC has invited immigration attorneys and partner organizations to speak to our clients about changes to the immigration system. This information has been helpful to those who we are already assisting, but I am concerned that others in the community whom we have not yet reached remain misinformed and confused about how the public charge framework operates. Recent contact with new clients has confirmed this apprehension, as clients who come into initial contact with our organization misunderstand the public charge rule and how it impacts them. 7. Unless clients actively reach out to us or we are able to locate them through outreach services, they are extremely unlikely to receive accurate information about who public charge applies to and how. In many initial meeting with my clients, they have expressed a mistaken belief that receiving any state or local healthcare assistance, such as state health insurance through Medi-Cal or My Health LA, a low-cost healthcare plan for people in Los Angeles county without health insurance, would result in future immigration consequences and that they should therefore avoid them. Although I am able to correct these misunderstandings
3 App. 171

when I meet with clients, I am sure that countless others who I do not reach will continue to make choices that impact their health and wellbeing based on misinformation.
8. In particular, these concerns have been particularly acute for clients who are at risk of contracting HIV. At present, I estimate that one out of every ten calls I receive for HIV prevention services are questions about immigration consequences for HIV testing and treatment because of the public charge rule.
Clients have Avoided or Withdrawn from Benefits Since the Rule Took Effect 9. In the past two months, several clients have told me that they will forgo or withdraw from medical and nutritional benefits due to fear over the public charge Rule. It is especially troubling that clients who are at risk of having contracted HIV have decided to avoid testing and free treatment because they fear that getting tested or the fact of having HIV will have immigration consequences. 10. Similarly, clients we serve with children — where many of those children are U.S. citizens — who are eligible for coverage and services are frightened that they will be unable to pursue immigration relief like adjustment to permanent residence if their children receive this support. Some clients have discontinued vital services for their children like medical coverage through Medi-Cal, Special Supplemental Nutrition Program for Women, Infants, and Children (“WIC”), and other programs out of fear of public charge consequences. 11. One of my sessions from late February 2020 with a client who works in food service with several other immigrants provides an example of the level of misinformation in the community and its broad impact. This client had previously withdrawn from Medi-Cal after hearing about public charge. At the time she came in to ELAWC, she was spending more of her pay on out-of-pocket medical costs for herself and for her citizen children. After withdrawing
4 App. 172

from Medi-Cal, she told several coworkers that she had withdrawn and why, and many of those coworkers (who also had citizen children) also withdrew. These families were especially frightened of seeking care after the public charge rule went into effect and continued to avoid medical care through various illnesses — only visiting the doctor and paying out of pocket when they were desperate —as of early March 2020.
12. On March 20, 2020, I counseled a client’s daughter. My client’s daughter is a college student in the DACA program who is five months pregnant. My client requested that I speak to her daughter because she was avoiding prenatal care. The daughter had visited the doctor only once for a pregnancy test, when she was seen her based on presumptive eligibility for Medi-Cal. When my client’s daughter learned that she would need to visit a county office to be fully enrolled in Medi-Cal to receive future coverage, she avoided doing so because she was afraid that the public charge rule would impact her ability to adjust her immigration status in the future. At that time, she used the internet to research whether public charge would apply in her situation, but she was confused by the information she found. Because she was afraid of jeopardizing her future in the United States and could not afford to pay for care without health coverage, she stopped visiting the doctor for prenatal visits.
13. I am also aware of a woman who is avoiding medical care while awaiting adjudication of a U-visa application. She has an eight-year-old daughter who is a U.S. citizen. After learning about the public charge rule, she withdrew her family from Medi-Cal out of fear that receipt of state medical benefits would make her ineligible for the visa. She has since stopped taking her daughter to physicals or dental examinations because she cannot afford them and will only take her to the doctor when she is very sick. For her family’s illnesses, she uses over-the-counter medications. I have explained to her that the public charge rule would not apply
5 App. 173

to her family if her daughter continued to receive benefits that she is eligible for, but she will not re-enroll due to serious fears about potential separation from her daughter.
14. The client stories above are representative of many others that my colleagues have described to me since the public charge rule took effect. Before our offices closed due to COVID-19, clients were so afraid of immigration consequences under public charge that they where reluctant to share their name and demographic information on sign-in sheets that we use for documentation purposes.
15. The COVID-19 pandemic has dramatically changed our operations and has provoked serious fear in our client communities. As part of my health education with clients, I am now providing basic information about COVID-19, sharing available resources related to the virus, offering hygiene education, and offering sanitizers when we have access to those items. ELAWC’s hospital-based and transitional shelters are still open and operational as emergency resources and each is at full capacity. The health vulnerabilities of people with HIV and at risk of contracting HIV and the dangers of COVID-19 infection are of special concern due to the acute danger infection poses to people with compromised immune systems.
16. Since the COVID-19 global health emergency began, I have experienced an increase in the volume of calls to our HIV information line. The majority of this increase has been sparked by COVID-19. Clients are anxious about the pandemic’s impact on their health. Fear is especially acute among HIV-positive patients. During the week of March 22 to March 28, 2020, alone, I received more calls than I typically receive in a whole month.
17. On or around March 13, 2020, the U.S. Citizenship and Immigration Services (USCIS) posted an alert (in English only). This alert explained that while the public charge rule “does not restrict access to testing, screening, or treatment of communicable diseases, including
6 App. 174

COVID-19,” USCIS was nonetheless required to “consider the receipt of certain cash and noncash public benefits, including those that may be used to obtain testing or treatment for COVID19 in a public charge inadmissibility determination,” including most forms of federally funded Medicaid. See https://www.uscis.gov/greencard/public-charge. My clients have not indicated to me that they have seen or heard about this notice. ELAWC health navigators are still receiving questions from clients who are confused about how and when the public charge rule applies to them.
COVID-19 Has Amplified Clients’ Fear of Using Benefits 18. The effects of COVID-19 on my clients are even greater because of the economic shocks the pandemic has created in the community. Financial uncertainty among my clients who have lost jobs and income because of the pandemic is particularly troubling because many can no longer afford to pay out of pocket for medical costs when they need healthcare if they are not insured. Public charge makes this challenge more complicated because clients are also unwilling to seek out health coverage that they may be eligible for. This combination of factors means that many of our clients will avoid medical treatment altogether, even though the COVID-19 pandemic makes that treatment more important than ever. 19. I believe our clients and other community members are more likely to avoid healthcare because they do not have the money to pay for it and are fearful of the immigration consequences of receiving government healthcare benefits because of the public charge rule. Studies show that survivors of abuse and survivors of sexual assault are more likely to be impacted by chronic conditions like diabetes or hypertension.1 I believe that these conditions may mean that COVID-19 is more dangerous to our clients.
1 https://bmcpublichealth.biomedcentral.com/articles/10.1186/1471-2458-14-1286
7 App. 175

DATED this _n_i_nt_h__day of April, 2020 at Los Angeles, California ______________________________ Alejandra Aguilar
8 App. 176

No. 19A785 In the
Supreme Court of the United States
DEPARTMENTOFHOMELAND SECURITY, et al., Applicants,
v. NEW YORK, et al.,
Respondents.
I, Janel Heinrich, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. As the Director of Public Health Madison and Dane County (PHMDC), I lead our City and County Health Department's efforts to ensure healthy people and places throughout Dane County, Wisconsin. PHMDC supports and improves health and wellbeing by delivering programs and services related to individual, community, and environmental health to residents. We do this through the observation, monitoring, education, enforcement, and policy advancement of public health best practices in our community. We work with a wide range of community partners to help connect community members with valuable local, state and federal resources such as nutrition programs, Medicaid-eligible health programs, and other community benefits. 2. At PHMDC, we believe that all residents of Dane County deserve healthy places to live, work, and play. We also believe that the health of all people is interconnected. I submit this declaration in support of the Respondents' application in the above-captioned matter.
1
App. 177

3. Beginning with the first proposed changes to the public charge rule in 2017 and especially once the rule was allowed to go into effect, our department has been hearing numerous reports of immigrant residents of Dane County who have disenrolled themselves and family members from public benefit programs to avoid potential complications with their long-term goals of adjusting their immigration status and later pursuing citizenship.
4. PHMDC operates the Dane County.office for the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). WIC is a vital resource for low-income families and promotes long-term positive health outcomes for children and families. In 2019, our project served over 7,000 pregnant and postpartum women, infants, and children under the age of 5. Alth~ugh WIC was not included in the final public charge rule, since the beginning of 2020, our WIC staffhas consistently received calls from participants asking to remove themselves from WIC and other federal programs they are on. Immigrant callers frequently cited "public charge" as their reason for seeking to disenroll and expressed that they now fear using public benefits because it could threaten pending or future efforts to adjust their immigration status. The rule's implementation has clearly increased anxiety and confusion in Dane County's immigrant community. Because of the complex and confusing nature of the public charge rule, Dane County residents believe that they must weigh the important health benefits of participating in WIC and other nutrition and housing programs against the fear of destabilizing their longer-term goals of securing a future in the United States.
5. Many families who receive WIC in Dane County also use the Supplemental Nutrition Assistance Program (SNAP), Medicaid, and public housing resources. In fact, 74.9% of WIC families also participate in SNAP, Medicaid, or both. Since implementation of the public charge rule began in February 2020, we expect that the long-term impact of reducing access to
2
App. 178

SNAP will be to increase food and housing insecurity as well as to reduce access to healthcare in Dane County. These concerns are heightened during the current pandemic as families are being told to stay at home, so long as they have access to food and shelter, to reduce the transmission of COVID-19.
6. Dane County emergency food providers like food banks and pantries have reported seeing significant increases in participation by vulnerable groups since March. Additionally, food costs are increasing and there are new challenges for accepting donated food and school-age children remain out of school where many often get free and reduced breakfast and lunch. We are concerned for our emergency food partners' ability to sustain these high levels of emergency feeding indefinitely throughout this crisis. In short, this is a perfect storm for an increase in hunger in our community. Historically, when the economy worsens and hunger increases, hunger increases the most for racial and ethnic minorities, immigrants, families with children, and other vulnerable groups. For this reason, PHMDC believes that our immigrant community will acutely experience the negative public health effects ofthe pandemic-related economic downturn, and that this harm will be exacerbated by fear and confusion around the public charge rule. Supporting eligible community members' access to food through WIC and SNAP would help ensure that the emergency food safety net remains available and sustainable. The public charge rule has made doing so significantly more difficult.
7. Since the COVID-19 global health emergency began, our community partners have expressed elevated difficulties in supporting the immigrant community in Dane County. The public charge rule has eroded the trust of many of our immigrant households in the institutions of government and healthcare because they are concerned that choosing to access public benefits is necessarily tied to immigration processing and enforcement. That loss oftrust has resulted in these
3
App. 179

families avoiding contact with supportive services and has increased the difficulty in reaching these communities with important messaging and infor~ation about the COVID-19 pandemic such as where households can access resources and what to do in the event that they are exposed to the virus.
8. PHMDC is aware that U.S. Citizenship and Immigration Services (USCIS) issued an alert in March explaining that the public charge rule "does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19." That notice, however, was only posted only in English and states that USCIS will still "consider the receipt of certain cash and non-cash public benefits, including those that may be used to obtain testing or treatment for COVID-19 in a public charge inadmissibility determination," including most types of Medicaid. See https://www.uscis.gov/greencard/public-charge (emphasis added). Some Dane County immigrant communities do not appear to be aware of this notice while other immigrant populations we speak to remain concerned about accessing healthcare that would provide access to COVID-19 testing and treatment because of public charge concerns.
9. We believe that in order to ensure all members of our community are able to safely shelter in place and social distance during the COVID-19 pandemic, access to healthcare, food, and housing are paramount. Restricting access to these fundamental, life-sustaining necessities will only worsen the spread of COVID-19. Losing access to such programs will force families to choose between their access to healthcare during this epidemic and how often they eat or whether they can access safe and affordable living conditions. The health ofDane County requires everyone to have access to the necessities they need to be well. The public charge rule has complicated PHDMC's work to advance toward this goal, especially during the COVID-19 pandemic.
4
App. 180

DATED t h i s ~day of April, 2020 at Dane County, WI
5
App. 181

No. 19A785 In the
Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al., Applicants,
v. NEW YORK, et al.,
Respondents.
I, Rachel Pryor pursuant to 28 U.S.C. § 1746, hereby declare as follows:
1. I serve as the Deputy Director for Administration for the Virginia Department of Medical Services (“DMAS”) since October 2018. Prior to my appointment, I served as the Senior Health Policy Advisor on the Democratic Staff of the Energy and Commerce Committee in the U.S. House of Representatives, managing a broad legislative portfolio that included Medicaid & CHIP, Medicare, and Long-Term Care issues. I have a Masters in Social Work from the University of Maryland with a dual Clinical/Policy focus, and a Juris Doctor from Georgetown University Law Center.
2. I submit this declaration in support of Plaintiffs’ application in the above-captioned matter. I have compiled the information in the statements set forth below either through personal knowledge, through the DMAS personnel who have assisted me in gathering this information, or
App. 183

on the basis of documents that I have reviewed. I have also familiarized myself with the Public Charge Final Rule (“Rule”) in order to understand its immediate impact upon DMAS.
3. As Deputy Director, I work directly with the DMAS Director and the Virginia Secretary for Health and Human Resources on high-level policy and strategic issues. I directly supervise a team of more than 150 staff members, overseeing all eligibility and enrollment operations, appeals operations, legislation and all regulatory and policy functions for the Agency. DMAS incudes more than 700 full-time, wage and contract individuals, and a wide range of programs and projects. The Agency oversees a broad portfolio of services and works extensively with state, local, tribal and community partners to improve the health and well-being of Virginians through access to high quality health care coverage. The biennial budget for DMAS is roughly $27 billion, approximately 60% of which is federal funding.
4. DMAS administers Virginia’s Medicaid and Children’s Health Insurance (“FAMIS”) programs. Through the Medallion 4.0 and Commonwealth Coordinated Care (“CCC”) Plus managed care programs, more than 1.5 million Virginians access primary and specialty health services, inpatient care, behavioral health, and addiction and recovery treatment services. In addition, Medicaid long-term services and supports enable thousands of Virginians to remain in their homes or to access residential and nursing home care. Medicaid members historically have included children, pregnant women, parents and caretakers, older adults, and individuals with disabilities. In 2019, Virginia expanded the Medicaid eligibility rules to make health care coverage available to over 400,000 newly eligible, low-income adults.
5. DMAS works with a multitude of community partners throughout the Commonwealth of Virginia who represent Medicaid/FAMIS beneficiaries in issues to DMAS,
2 App. 184

including the Virginia Health Care Foundation (“VHCF”) and the Virginia Poverty Law Center (“VPLC”).
6. The VHCF is a non-profit public/private partnership established by Virginia’s General Assembly in 1992 with the mission of increasing access to primary health care for uninsured and medically underserved Virginians. VHCF operates a number of programs and provides grants throughout the state to fulfill its mission. A number of these grants fund a cadre of 23 Outreach Workers who provide 1:1 application assistance to those eligible for Virginia’s Medicaid and FAMIS health insurance programs.
7. The DMAS contracts with VHCF to fund and oversee nine of these outreach workers and to provide “SignUpNow” workshops to train individuals who help their clients or patients apply for Medicaid. DMAS and VHCF have worked hand-in-hand for 20 years to maximize enrollment in state-sponsored health insurance and address policy and system issues that create barriers to achieving this mutual objective.
8. The VPLC is a statewide non-profit organization that provides training to local legal aid program staff, private attorneys, and low-income clients relating to the legal rights of low-income Virginians. The VPLC is a community partner that brings forward Medicaid issues on behalf of DMAS recipients.
9. The DMAS has received reports from the Virginia Department of Social Services (“DSS”), our community partners, and health care advocates, prior to the release of the February 24, 2020 new U.S. Citizenship and Immigration Services (“USCIS”) guidance and since the release of the guidance, that individuals have requested the closure of their Medicaid benefits because of the Rule.
App. 185

10. DMAS has also received information from community partners both before and after USCIS issued guidance relating to the rule and COVID-19 treatment in mid-March reflecting that immigrant families are still very confused about their rights to benefits and the possible impact of the Rule. DMAS has been informed by a community partner that the fear even keeps immigrant families from coming to assisters or asking additional questions.
11. VHCF outreach workers have experienced the chilling effect of the Rule, prior to the release of the March USCIS guidance and since the release of the guidance, on individuals seeking health care and applying for Medicaid/FAMIS since the start of the pandemic. Even when outreach workers try to assure families that it is ok to apply for Medicaid/FAMIS, outreach workers are seeing an increasing number of families who ultimately decide not to apply and in some cases, withdraw from coverage.
12. One outreach worker reported to DMAS she has heard from families and local human services providers that the immigrant community is very concerned about medical bills due to the lack of health insurance, so they are not going to the doctor if they present symptoms of COVID-19. They will wait to go to the emergency room when the condition gets serious.
13. During various outreach events occurring in February and March 2020 at Northern Virginia free clinics, five families did not want to apply for Medicaid for their children due to the fear of the Rule. All family members were green card holders and were looking into applying for citizenship.
14. The VHCF outreach workers have had some clients withdraw new applications and clients who were already covered cancel because of the public charge. New clients calling for information about the programs are hesitant to apply.
4 App. 186

15. During the week of March 9, 2020 one VHCF outreach worker met with a family from Venezuela that did not apply for health insurance benefits because they fear this would affect their ability to adjust their immigration status. The mother works for a Richmond area human services organization. She did come to the appointment and said that she felt very hesitant to submit an application for her two children because of the public charge rule. Based on the information provided by the worker, she decided to not apply.
16. Over the past eight weeks, staff at several health safety net organizations has shared with a VHCF outreach worker that prospective patients have refused to go through the clinic’s financial screening process, because it includes submitting a Medicaid application prior to determining their eligibility for clinic services.
17. One family with a child who has autism and many medical needs in the Richmond area withdrew their Medicaid application due to fear of the Rule.
18. On or around March 13, 2020, USCIS posted an alert (in English only). This alert explained that while the Rule “does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19,” USCIS was nonetheless required to “consider the receipt of certain cash and non-cash public benefits, including those that may be used to obtain testing or treatment for COVID-19 in a public charge inadmissibility determination,” including most forms of federally funded Medicaid. See https://www.uscis.gov/greencard/public-charge.
19. Despite this guidance, outreach workers continue to report that immigrants are confused and are deterred from accessing medical treatment or testing for COVID-19.
20. Prior to the release of the March 13 USCIS guidance and since the release of the guidance, navigators and community partners (food banks, free clinics, and hospitals) have
5 App. 187

reported immigrants throughout Virginia expressing concerns with the Rule and terminating/avoiding enrollment in public benefits.
21. For example, a client who entered the United States with an approved asylum applied for FAMIS only for her three children, all under the age of five years-old, at the end of March 2020. On April 3, 2020, the parent called and requested that the applications for all three children be withdrawn due to concern with the Rule. DATED this 7th day of April, 2020
______________________________ Rachel Pryor, Deputy Director Virginia Department of Medical Assistance Services
6 App. 188

No. 19A785 In the
Supreme Court of the United States DEPARTMENT OF HOMELAND SECURITY, et al.,
Applicants,
v.
NEW YORK, et al., Respondents.
App. 189

I, Lisa M. Newstrom, pursuant to 28 U.S.C. § 1746, hereby declare as follows:

1. I have personal knowledge ofthe facts set forth in this declaration, and, if called as a

witness, could and would testify competently to the matters set forth below.

2. I am Managing Attorney ofthe Santa Clara County Regional Office of Bay Area Legal

Aid ("BayLegal"), the largest provider oflegal services to the poor in the San Francisco Bay Area and

one ofthe largest in California. BayLegal and its predecessor organizations have practiced poverty law

in this region for over 50 years. In the Bay Area, approximately 1.5 million people live in poor or low-

income households (under 200% ofthe federal poverty measure).

3. I submit this declaration in support ofRespondents' application in the above-captioned

matter. 4.

In this declaration, I explain how the public charge rule-- the Final Rule on

Inadmissability on Grounds ofPublic Charge (84 Fed. Reg. 41292)-has impacted the clients of Bay

Area Legal Aid ("BayLegal"), particularly during the COVID-19 crisis. The rule has a chilling effect

that prevents families from getting needed health care or food assistance even when the assistance is

critical in the face of the COVID-19 pandemic, and even when getting the assistance would not actually

harm the family' s immigration status under the new public charge rule. Based on my experience, I

believe there is a significant risk that the public charge rule will cause some people to avoid testing and

treatment for COVID-19, which would endanger their own lives and place entire communities at risk.

Background 5. Bay Area Legal Aid has regional offices serving the counties of Santa Clara, San
Francisco, Alameda, Contra Costa, San Mateo, Marin, and Napa. Our staff protects and advances the rights of low-income families, immigrants, and language minorities in domestic violence, public benefits, hea1thcare, consumer protection, and housing matters before the courts, administrative agencies, and legislative bodies. We have 147 staff members, including 100 attorneys and 10 legal advocates, providing free legal services across these seven counties.
6. BayLegal's primary client intake.mechanism is through our Legal Advice Line and Health Consumer Center hotlines. These hoAtplipne. s1a9r0e staffed by attorneys.and trained legal advocates
1

working under the close supervision ofattorneys, and perform eligibility screening, including gathering client demographic data, as well as providing advice and counsel to eligible individuals on a wide range of practice areas, including matters related to immigration, domestic violence, Section 8, public housing, Medi-Cal (California's Medicaid program), Supplemental Security Income C'SSI"), CalWORKs (California' s TANF program), and CalFresh (California's SNAP, or "food stamps" program). Nearly all the immigrant clients BayLegal serves are lawful permanent residents or humanitarian immigrants such as domestic violence survivors who qualify for U non-immigrant status ("U visa'') or human trafficking survivors who qualify for T nonimmigrant status ("T visa"), and all our immigrant clients are eligible for legal services per 45 C.F.R. § 1626.4-5.
7. BayLegal handles over 12,000 cases annually, and our intake units at the Legal Advice Line and Health Consumer Center handle over 26,000 calls per year. We also provide legal services to thousands of individuals each year through pro per clinics.
8. I have served as Managing Attorney in Santa Clara County since 2013. Over the last six years, I have supervised attorneys and advocates who provide free legal services to Santa Clara residents in a number of areas, including eligibility for public benefits, immigration law, rights ofsurvivors of domestic violence and human trafficking, housing law, and others.
9. To demonstrate the way that the public charge rule has impacted BayLegal, I provide information known to me as a longtime legal aid attorney and as a manager at Bay Area Legal Aid, as well as limited information about some people who are suffering harm as a result of the chilling effect caused by the public charge rule. By making this declaration I do not waive any attorney-client privilege or client confidentiality.
Systemic Barriers Complicating Application of the Public Charge Rule
10. It is very difficult for recipients of aid to obtain the information necessary to determine whether the public charge mle applies to them, including: documentation in plain language that explains what benefits they have received, what funding streams were implicated in the provision of that aid,
App. 191 2

which members ofa household received aid, and in which months the aid was received (especially if

that receipt was several years in the past).

11. In my experience, local welfare agencies often provide documentation of aid that is

unclear, contains errors, and is rife with abbreviations and terms ofart that are unfamiliar to the general

public. When an agency has made an error and later corrects it-for example, by granting aid to a

household member who is ineligible for benefits, and then rescinding that aid-it is often impossible to

get accurate documentation or timelines showing all the relevant facts.

12. USCIS officials regularly display a lack of understanding about public benefits programs.

users For example, BayLegal often asks

to waive filing fees for indigent clients. In connection with

users our fee waiver petitions, we regularly provide

with documentation that our clients receive

means-tested public benefits. We regularly receive incorrect rejections from USCIS decision-makers

who are confused by state-specific names for programs (e.g. in California, Medicaid is called Medi-Cal),

or by similar-sounding programs (e.g. confusing Supplemental Security Income (SSI) with State

Disability Insurance (SDI)). BayLegal attorneys are usually able to correct the mistakes made by

USCIS. However, given our limited resources we are able to help only a small fraction ofthe people

who need assistance.

13. Based on my experience, I believe that immigrants subject to the public charge rule

would need the help ofskilled legal experts ifthey are to successfully obtain all relevant information

from the benefit-granting agencies needed to show whether they have received benefits that triggered the

proposed public charge rule, and to explain and negotiate with USCIS to ensure that the information is

reviewed correctly. However, there are not enough lawyers available and with the expertise to provide

such help; further, even with legal representation it may at times be impossible to obtain documentation

users from the benefits programs that

can understand. As a result, I believe many eligible immigrants

will be too afraid to seek the aid they need - including testing and care during the COVID 19 pandemic.

Public Charge Rule Has a Dangerous Chilling Effect 14. In my experience as both a public benefits practitioner and a manager of other attorneys
practicing in this area, I have observed thatAthpepr.e1ce9n2tly enacted public charge rule has caused a chilling 3

effect, preventing needy immigrants- including those fleeing human trafficking, and asylees-from getting the food and medical care that are essential to survival. It has this effect even for families that are eligible for aid and who are exempt from the public charge rule, and for whom immigration status
would be unaffected by receiving aid. And it has this effect even during the current public health
emergency. This is because the public charge rule is extremely confusing-both for advocates and for immigrants who are less familiar with our legal system and may have limited English proficiency.
15. As explained above, there are multiple iterations of multiple categories of public benefit programs, and it requires extreme technical proficiency to parse which versions of which aid programs might trigger a presumption that a person is a "public charge," and which do not. There are also a wide variety of different categories ofimmigration status, some ofwhich are categorically exempted from the public charge exclusion rule, and others of which are at risk of being deemed a public charge ifthey receive aid. To complicate things further, many families have members each of which has different immigration status, different eligibility for benefits, and different risk of being deemed a public charge if they receive aid. As a result, most immigrants-and most immigration advocates--do not know
whether they will put their immigration status at risk ifthey apply for food aid or medical care that their
families need. 16. For our humanitarian immigrant clients who are fleeing abuse or exploitation, being
denied the ability to adjust their immigration status, and therefore having to return to their country of origin would be devastating. Clients who are asylees and refugees may face persecution, war, and deadly threats iftbey return, while survivors of domestic violence or human trafficking may face recurrent abuse, loss of the legal protections from their abuser or trafficker, and retaliation for having cooperated with American law enforcement. In short, for many of these immigrants, risking their ability to stay in the United States is risking death.
17. USCIS can take years to process and approve applications for humanitarian immigration status, and this prolongs the period of uncertainty during which immigrants must make decisions about accessing needed services. For example, anticipated wait time for USCIS to adjudicate a U visa application for a noncitizen survivor of domestic violence is more than 7 years, and it can take another 6
App. 193 4

or more years after receiving the U visa before that same immigrant is eligible to apply for lawful permanent residency and have their adjustment of status adjudicated.
18. Even for lawful permanent residents who may have been in the United States for decades, and who are not usually subject to the public charge rule, a decision to apply for benefits can pose risk. As the immigrant or family members abroad get older, I have observed several times how a short trip to visit family can be complicated by a sudden health crisis that requires a lengthier stay, and after 180 days outside the United States, the lawful pennanent resident may need to seek readmission-triggering the public charge grounds ofexclusion. Predicting whether such a situation may arise in the next 36 months (the look-back period for considering receipt of benefits as a heavily negative factor) can feel like an impossible gamble.
19. I and those under my supervision in the local offices who handle immigration, housing, and public benefits cases have also seen an increase in inquiries from clients, the general public, and community-based organizations concerned that the new public charge rule is causing people to drop essential health or food programs out offear for their immigration status. Specifically, over the past few weeks our Legal Advice Line and Health Consumer Center hotlines have seen an increase in calls from people who need financial assistance, public benefits, or health care due to the public health crisis. For those callers who are immigrants or in mixed-status households, we are frequently getting questions about whether it is safe for them to get the health care and economic supports they need, and for which they legally qualify, or whether doing so will endanger their immigration status.
20. Most ofthe fears we have heard in our local offices are from lawful permanent residents and survivors of domestic violence, who are contemplating dropping healthcare and nutrition programs, as well as employment support programs. Many of these clients have U.S. citizen children who will also lose access to public benefits programs iftheir parents simply drop out or refuse to apply for the programs they need.
21. The aid programs that our clients and potential clients are dropping (or considering dropping) most frequently are those that provide basic essentials: food (CalFresh and the Women Infants and Children nutrition program); health care-particularly for children-under Medi-Cal (the state version of Medicaid); and services forApprepg.n1a9n4t women.
5

22. Among the sorts of public charge concerns our staff attorneys have handled are: a crime

victim with a U visa dropping health coverage during treatment for cancer due to fear oftriggering

public charge; multiple calls from people afraid to access work supports and food assistance, such as a U

visa holder afraid to get CalWORKs for herself or her U.S. citizen children; immigrants avoiding public

food programs and going to food banks; and lawful permanent residents afraid that getting health

insurance for their U.S. citizen children will keep them from naturalizing.

23. I and the staff attorneys working under my supervision regularly reassure many ofthese

exempt clients that they should not be subject to the new public charge rule, and can receive the aid they

need without fear of immigration consequences; but we are regularly told by our clients that they are

still afraid or unwilling to access the public benefits for which they and their children might otherwise

qualify. 24.

The public health crisis caused by COVID-19 has forced BayLegal to adapt its services to

address the most pressing of our clients' legal needs, while keeping up with ever-changing operating

rules ofcourts and administrative agencies, yet we have still had to expend significant resources

addressing fears about public charge. Even in the face of this crisis, I have received inquiries from

immigration attorneys outside our organization who are afraid that their clients cannot access essential

services because of the public charge rule. For example, I have learned of clients who are survivors of

human trafficking, and who were laid off when their employers closed down because of COVID-19, but

who are too scared to apply for Unemployment Insurance Benefits.

25. In my capacity as Managing Attorney, I am aware that BayLegal attorneys have also

spoken with numerous immigrant crime victims in the past few weeks who have lost jobs or income due

to COVID-19 and are too worried to get the help they need, including state-funded Medi-Cal and

nutrition assistance, for fear it will prevent them from getting U.S. citizenship or lawful permanent

residence. Examples iriclude: a. a low-income crime victim with a U visa recently gave birth to a U.S. citizen

child, but even as the public health crisis was developing, she was afraid to seek

public health insurance for herself and her newborn due to public charge;

App. 195
6

b. a crime victim with a U visa whose work hours were cut, and who could no longer afford to feed her family, but is too afraid to get food benefits for herself and her children;
c. another crime victim with a U visa whose employer closed due to COVID-1 9 public health restrictions, and although the individual has the right to seek Unemployment Insurance Benefits- and needs those benefits for the economic survival oftheir family-they are too afraid to apply for aid;
d. A fourth crime victim with a U visa who cancelled nutrition assistance for herself and her child in the midst ofeconomic hardship because she was worried about public charge; and
e. another crime victim with a U visa who lost her job due to the pandemic, but was afraid to apply for Unemployment Insurance Benefits-and was even considering whether she should cancel basic nutrition assistance for herself and her U.S. citizen children because of public charge.
26. In my capacity as Managing Attorney, the attorneys staffing our Legal Advice Line and Health Consumer Center hotlines also report numerous calls in the past few weeks from lawful pennanent residents or U.S. citizens in mixed-status families suffering under the current pandemic and afraid to get nutrition or health programs they or their families need because of public charge. Examples include:
a a single parent with lawful pennanent residency who was planning to cancel Medi-Cal coverage for herself and her U.S. citizen children in the midst of the pandemic because she was afraid she would lose her immigration status and be separated from her family;
b. a mother who is a U.S. citizen with U.S. citizen children, and who needs subsidized healthcare, nutrition assistance, and housing, who was afraid to apply for these benefits because she was afraid it would hurt the immigration status of her husband, a lawful permanent resident;
App. 196 7

c. a young lawful permanent resident who lost her job and was afraid to apply for Medi-Cal health coverage for fear of public charge;
d. a U.S. citizen who lost his job and needed to make sure his family could get health care, but was worried about getting Medi-Cal for himself and his family because his wife and one child were lawful permanent residents;
e. a developmentally-disabled U.S. citizen child whose parents, here on employment visas, were afraid to get the Medi-Cal-funded developmental services their child needed; and
f. a young father who was working despite the pandemic, but was worried he needed to drop necessary Medi-Cal coverage for himself, his spouse, and their children due to public charge.
Conclusion 27. In the midst of the COVID-19 pandemic, BayLegal is regularly responding to inquiries
from people who should not be directly impacted by the rule-including citizens, lawful permanent residents, and hwnanitarian immigrants- but who are nonetheless afraid. My direct impressions based on the nature and type oflegal inquiries we are receiving from the general public, from community based organizations providing services to immigrants, and from other legal service providers, is that the nwnbers ofpeople who will disenroll from benefits or forego benefits for which they or their children are eligible is much higher than the 2.5% estimate USCIS anticipates as the number ofeligible immigrants and mixed-status households who will forego needed aid due to the rule.
28. I believe this chilling effect will cause lawful permanent residents, domestic violence survivors, survivors ofhuman trafficking, and U.S. citizen children wi~ immigrant parents to go without healthcare, nutrition assistance, and housing assistance they need to survive during the COVID19 pandemic. Without access to essential programs, individuals may become sick with the virus and suffer irreparable harm to their physical and economic wellbeing - and also increase the risk of infection in the communities where they live.
App. 197 8

I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on April 3, 2020, in Fremont, Alameda County, California.
Lisa M. Newstrom
App. 198
9

No. 19A785 In the
Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al., Applicants,
v. NEW YORK, et al.,
Respondents.
I, Lawrence L. Benito, Executive Director of the Illinois Coalition for Immigrant and Refugee Rights (ICIRR), pursuant to 28 U.S.C. § 1746, hereby declare as follows:
1. I am over the age of 18, competent to testify as to the matters herein and make this declaration based on my personal knowledge. I submit this declaration in support of Respondents’ application in the above-captioned matter. In my role as the Executive Director of ICIRR, I am responsible for running all facets of the organization including the leadership of our membership and coalitions.
2. ICIRR is a non-profit organization located in Chicago, Illinois. ICIRR is dedicated to promoting the rights of immigrants and refugees to full and equal participation in the civic, cultural, social, and political life of our diverse society in Illinois and beyond. ICIRR is a membership-based organization, representing nearly 100 nonprofit organizations and social and health service providers throughout Illinois, many of which provide health care, nutrition, housing, and other services for immigrants, including immigrants of color, regardless of their immigration status or financial means. A core mission of ICCIR and its member organizations is to provide
1 App. 199

health and social services to immigrant Illinoisans. ICIRR member organizations include community health centers, health and nutrition programs, social service providers and other organizations that work to ensure immigrants receive the supports they need to be successful. Created in 1986, ICIRR has been at the forefront of helping immigrants realize and contribute to the dream that is America. In that time, ICIRR won establishment of an Office of New Americans within the Governor’s office (2005) and the Office of the Mayor of the City of Chicago (2011); created the New Americans Initiative (2005), which has helped 534,000 people gain access to citizenship and assisted 105,394 immigrants prepare applications for citizenship; created the Immigrant Family Resource Project (“IFRP”) (1999), which has connected more than 500,000 individuals and families to safety net services; and led efforts to create the Cook County Direct Access Program, which has expanded healthcare services to over 25,000 individuals. ICIRR also operates the Immigrant Healthcare Access Initiative (“IHAI”), which works to increase access to care and improve health literacy for tens of thousands of low-income uninsured immigrants in Illinois, in order to reduce their reliance on emergency room care and to improve the overall public health of the community. As a part of IHAI, ICIRR leads the Illinois Alliance for Welcoming Healthcare, an alliance comprised of 25 healthcare providers, including clinics and hospitals, and 20 community-based organizations that convene to create and share best practices in the provision of healthcare services to immigrants and their families. ICIRR also leads the Healthy Communities Cook County (“HC3”) coalition, which seeks to address and mitigate barriers to accessing healthcare for the uninsured, regardless of immigration status, through policy and systems change.
3. In spring 2018, in direct response to the Proposed and Final Rule and the growing fear and confusion within immigrant communities, ICIRR co-founded the Protecting Immigrant Families-Illinois coalition (“PIF-IL”). PIF-IL was created specifically to (1) respond to the
2 App. 200

proposed changes to the public charge rule; and (2) provide assistance to and accurate information to immigrant communities seeking to safely make use of public benefits for which they are eligible.
4. Since the news leaked about a proposed change to the public charge rule that penalize immigrants who used safety net programs, ICIRR and its member organizations have seen a decrease in immigrants enrolling in public benefit programs and increase in immigrants seeking to disenroll from public benefit programs. In June 2019, ICIRR conducted a survey of its member organizations to document the impact of the Proposed Final Rule on its organizations and the individuals they serve. From responses to that survey, ICIRR ascertained that there was a reduction in enrollment in public benefits programs, even those benefits not subject to the public charge rule, such as unemployment benefits and WIC. The survey also confirmed that immigrants, even those who are not subject to the public charge rule, were attempting to disenroll from SNAP, Medicaid, TANF, and WIC for themselves and even their U.S. citizen children out of fear that the rule will harm their immigration status and options.
5. Since the U.S. Supreme Court decision lifting the Illinois injunction, some organizations who are part of ICIRR’s Immigrant Family Resource Program (“IFRP”) report receiving an increased number of calls from individuals expressing fears about how the use of public benefits could subject them to the public charge rule. They are either afraid to enroll in public benefits they are eligible for or are seeking to disenroll from public benefits they already receive. In an effort to alleviate those fears and slow declining enrollment, one IFRP organization is planning to record a public charge informational video for the community.
Increased confusion due to the USCIS Public Charge COVID-19 guidance 6. On or around March 13, 2020, the U.S. Citizenship and Immigration Services (USCIS) posted an alert (in English only). This alert explained that while the Public Charge rule
3 App. 201

“does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19,” USCIS was nonetheless required to “consider the receipt of certain cash and noncash public benefits, including those that may be used to obtain testing or treatment for COVID19 in a public charge inadmissibility determination,” including most forms of federally funded Medicaid. See https://www.uscis.gov/greencard/public-charge.
7. Due to confusion around this USCIS guidance, ICIRR member organizations and IFRP partners report that some immigrants fear that they cannot access medical treatment or testing for COVID-19 due to the public charge rule.
Increased need for food, housing, and medical assistance in light of COVID-19 8. Since the global health emergency began and Illinois residents became subject to a shelter in place order on March 21, 2020, ICIRR and its member and IFRP partner organizations have received an increase in calls from immigrants seeking assistance with food, housing, and medical care, as well as an increased concern that using public benefits will subject them to the public charge rule. 9. Immigrants in Illinois, including individuals subject to the public charge rule, are predominately employed in fields or industries that are disproportionately impacted by the COVID-19 pandemic, in that they are now either unemployed or considered essential workers. It is predicted that nearly 1.5 million Illinois workers will lose employment or hours due to COVID19. 10. Out of concern for the public health, Illinois has joined other states in closing all non-essential businesses, including bars, restaurants, and most manufacturing businesses where immigrants are disproportionately employed. Many have now lost their jobs as a result. Immigrants are also disproportionately employed as domestic workers, such as cleaning staff, personal care
4 App. 202

aides, or nannies, and many have lost their employment due to their employers’ losing their own job or experiencing a decline of income. All these individuals and their families are thus more likely than ever to need public assistance, including SNAP, Medicaid, and housing assistance.
11. At the same time, immigrants also are disproportionately employed in fields deemed essential, including home health care aides and grocery store employees. This essential status and the inability to work from home increases their exposure to COVID-19 and their need for quality treatment and preventative care for themselves and the health of everyone they contact.
12. Organizations that are part of ICIRR’s IFRP network and public benefit coordinators employed at organizations who are a part of PIF-Illinois report an increased volume of calls from immigrants, especially mixed-status households, who have lost employment as a result of COVID-19. These callers report needing cash assistance, free health care, rental assistance, and help feeding their children, including U.S. citizen children. They are seeking information about enrolling in Section 8 or public housing, SNAP, and Medicaid, but they are concerned that such enrollment, including for their U.S. citizen children, will subject them to the public charge rule. They are also afraid to apply for unemployment benefits out of fear of becoming a public charge, even though they will not be subject to the public charge rule for using unemployment benefits. Callers afraid to apply for SNAP are referred to food pantries. Because many food pantries in Latinx neighborhoods in Chicago have either closed or are seeing a marked increase in requests for food assistance, fewer residents will have their food security needs met through local pantries.
13. Since the COVID-19 crisis, fear remains rampant among immigrants calling these organizations for advice regarding medical testing and treatment. Callers are expressing concern that receiving Covid-19 related medical testing or treatment for themselves, their families or their
5 App. 203

family members will subject them to public charge. This concern is primarily coming from seniors or individuals with underlying health conditions, even though they are at greater risk of serious health complications or even death due to COVID-19. Many callers are concerned that seeking COVID-19 related medical testing or treatment may risk their ability to stay in the country. I, Lawrence L. Benito, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this 9th day of April 2020 in Cook County, Illinois.
______________________________ Lawrence L. Benito
6 App. 204

No. 19A785 In the
Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al., Applicants,
v. NEW YORK, et al.,
Respondents.
I, Maria Lucia Chavez, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. I am over the age of 18 and am competent to testify as to the matters herein and make this declaration based on my personal knowledge. 2. I am the Deputy Director of Northwest Immigrant Rights Project (NWIRP). NWIRP is one of the largest nonprofit organizations focused exclusively on providing immigration legal services in the Western United States. NWIRP provides direct legal services to immigrants with low income in Washington State, and engages in systemic advocacy and community education around policies and practices impacting immigrant rights. As an organization, we have over three decades of experience with family-based adjustment of status and consular process, and we have helped thousands apply for this important immigration benefit. 3. In my role as Deputy Director, I provide supervision and oversight of legal services across the organization, serve as an ambassador for NWIRP internally and externally, provide
1 App. 205

strategic leadership for the organization, and I provide direct representation and other forms of

legal assistance to NWIRP clients.

4. On February 24, 2020, the Department of Homeland Security (DHS) implemented

its new public charge rule. As expected, this change created a sense of fear and urgency in both

the impacted community members and legal practitioners, including NWIRP's legal advocates.

5. The implementation of the new public charge rule has caused an uptick in

avoidance of benefits by immigrants and their family members, including U.S. citizens and lawful

permanent residents as well as other immigrants who are otherwise not subject to a public charge

analysis. Immigrants are aware that applying for benefits will be considered either a negative factor

or have a negative impact in a public charge determination as the rule lists as a factor to be

considered whether the applicant for adjustment of status "has applied for, been certified to receive,

or received public benefits (as defined in the rule) on or after October 15, 2019" (now February

24, 2020).

6.

Since the global health COVID-19 crisis began, immigrant communities have a

heightened fear in accessing public benefits, even related to benefits not considered in the new

public charge rule analysis, like accessing a COVID-19 hotline service, food banks, or emergency

health-related services. NWIRP has observed an increase in calls across our four offices related to

accessing benefits and the impact this may have on a client's case or their family member's case.

Despite clarification and the new rule's explicit mention that only an applicant's receipt of benefits

would be considered, U.S. citizens, lawful permanent residents, and other immigrants who would

not be subject to a public charge analysis continue to be confused or hesitant to accessing much

needed benefits. For example, a community member who lacks health insurance asked whether

this would impact his ability to receive treatment for COVID-19.

App2. 206

7. Since our communities became subject to a "Stay Home, Stay Healthy" emergency order, NWIRP has seen a rise in calls related to unemployment and financial insecurity and how accessing certain benefits could impact a person's case. See llttps://www.go ernor.wa.tov/ne, smedia/inslee-extends-stav-home-stav-healthv-thr mdi-may-4 . Our offices have received questions from asylum seekers, U visa applicants, and self-petitioners in need of food stamps for their children or food bank assistance, concerned that these benefits could subject them to a public charge determination. We have also received calls from people with employment authorization wondering whether applying for unemployment would affect their asylum case due to public charge. NWIRP' s social services coordinator has connected with three pregnant women who fear accessing care because of the public charge rule even though they are exempt to receive Medicaid in their situation. One woman was unwilling to enroll even after we explained her eligibility.
Access to testing and treatment in light o(CQT, TD- 19 8. While local efforts have emerged to compile resources and provide frequently asked questions related to medical testing or treatment of COVID-19 and how this access does not have public charge implications on a person's immigration case, immigrants continue to avoid seeking any assistance that in their minds could be considered in a public charge analysis. Instead, community members who may be in need of medical care are reluctant to seek care because their fear of a future case denial based on a public charge determination overcomes any current need. 9. On or around March 13, 2020, U.S. Citizenship and Immigration Services (USCIS) posted an alert (in English only). This alert explained that while the Public Charge rule "does not restrict access to testing, screening, or treatment of communicable diseases, including COVID19," USCIS was nonetheless required to "consider the receipt of certain cash and non-cash public benefits, including those that may be used to obtain testing or treatment for COVID-19 in a public
,.,
AppJ. 207

charge inadmissibility determination," including most forms of federally funded Medicaid. See https://www.usci s.gov/12:reencard/public- harge. While USCIS encourages people to seek services in this situation, any receipt of this important service could be considered a negative factor in the applicant's totality of circumstances test even if they could submit a statement explaining the impact. This does not in fact reduce fear in communities and confusion related to accessing medical treatment or testing for COVID-19. We recently received a call from a community member asking whether getting assistance for COVID-19 treatment would affect them later as a public charge.
Increase in food insec:uri() ;n lighL o( OVID-19 10. During this COVID-19 crisis, NWIRP has limited our direct legal services as our four offices are closed to the public and are conducting most of our services remotely. This past month, however, NWIRP has seen an increase in acting as a resource to community members who have questions about available services and resources due to loss of employment, potential eviction, becoming homeless, and food insecurity. We have heard from a community advocate that on a region of Washington's peninsula there are about 150 families (mix-status families) without work until July as their work is seasonal and they are unable to afford moving to areas where there may have access to more resources. On April 6, 2020, Washington's Governor announced school closures for grades K-12 through the end of the school year. Many community members have had difficulty choosing to care for their children or working, making their family's financial situation even more dire. We have heard from people who are being laid off from their jobs and are lawful permanent residents who are worried about applying for unemployment benefits. They are afraid that this would impact their future application for naturalization or their family member's application for adjustment of status due to a potential finding of public charge. We have been asked by service providers what the impact would be on a youth who is under 21 years of age receiving
App4. 208

mental health services under Medicaid and how that might impact their family-based immigration case in the future, related to public charge.
11. Since the new DHS public charge rule went into effect, NWIRP has yet to file a family-based application for adjustment of status subject to the new rule. Clients are afraid and advocates have found their work has more than doubled. The current COVID-19 crisis has added an extra layer of fear and uncertainty in our community members' lives and has negatively impacted their pursuit for lawful immigration status. DATED this 7th day of April, 2020 at Seattle, Washington.
Maria Lucia Chavez Deputy Director Northwest Immigrant Rights Project
App5. 209

No. 19A785 In the
Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al., Applicants,
v. NEW YORK, et al.,
Respondents.
I, Lawrence L. Benito, Executive Director of the Illinois Coalition for Immigrant and Refugee Rights (ICIRR), pursuant to 28 U.S.C. § 1746, hereby declare as follows:
1. I am over the age of 18, competent to testify as to the matters herein and make this declaration based on my personal knowledge. I submit this declaration in support of Respondents’ application in the above-captioned matter. In my role as the Executive Director of ICIRR, I am responsible for running all facets of the organization including the leadership of our membership and coalitions.
2. ICIRR is a non-profit organization located in Chicago, Illinois. ICIRR is dedicated to promoting the rights of immigrants and refugees to full and equal participation in the civic, cultural, social, and political life of our diverse society in Illinois and beyond. ICIRR is a membership-based organization, representing nearly 100 nonprofit organizations and social and health service providers throughout Illinois, many of which provide health care, nutrition, housing, and other services for immigrants, including immigrants of color, regardless of their immigration status or financial means. A core mission of ICCIR and its member organizations is to provide
1 App. 210

health and social services to immigrant Illinoisans. ICIRR member organizations include community health centers, health and nutrition programs, social service providers and other organizations that work to ensure immigrants receive the supports they need to be successful. Created in 1986, ICIRR has been at the forefront of helping immigrants realize and contribute to the dream that is America. In that time, ICIRR won establishment of an Office of New Americans within the Governor’s office (2005) and the Office of the Mayor of the City of Chicago (2011); created the New Americans Initiative (2005), which has helped 534,000 people gain access to citizenship and assisted 105,394 immigrants prepare applications for citizenship; created the Immigrant Family Resource Project (“IFRP”) (1999), which has connected more than 500,000 individuals and families to safety net services; and led efforts to create the Cook County Direct Access Program, which has expanded healthcare services to over 25,000 individuals. ICIRR also operates the Immigrant Healthcare Access Initiative (“IHAI”), which works to increase access to care and improve health literacy for tens of thousands of low-income uninsured immigrants in Illinois, in order to reduce their reliance on emergency room care and to improve the overall public health of the community. As a part of IHAI, ICIRR leads the Illinois Alliance for Welcoming Healthcare, an alliance comprised of 25 healthcare providers, including clinics and hospitals, and 20 community-based organizations that convene to create and share best practices in the provision of healthcare services to immigrants and their families. ICIRR also leads the Healthy Communities Cook County (“HC3”) coalition, which seeks to address and mitigate barriers to accessing healthcare for the uninsured, regardless of immigration status, through policy and systems change.
3. In spring 2018, in direct response to the Proposed and Final Rule and the growing fear and confusion within immigrant communities, ICIRR co-founded the Protecting Immigrant Families-Illinois coalition (“PIF-IL”). PIF-IL was created specifically to (1) respond to the
2 App. 211

proposed changes to the public charge rule; and (2) provide assistance to and accurate information to immigrant communities seeking to safely make use of public benefits for which they are eligible.
4. Since the news leaked about a proposed change to the public charge rule that penalize immigrants who used safety net programs, ICIRR and its member organizations have seen a decrease in immigrants enrolling in public benefit programs and increase in immigrants seeking to disenroll from public benefit programs. In June 2019, ICIRR conducted a survey of its member organizations to document the impact of the Proposed Final Rule on its organizations and the individuals they serve. From responses to that survey, ICIRR ascertained that there was a reduction in enrollment in public benefits programs, even those benefits not subject to the public charge rule, such as unemployment benefits and WIC. The survey also confirmed that immigrants, even those who are not subject to the public charge rule, were attempting to disenroll from SNAP, Medicaid, TANF, and WIC for themselves and even their U.S. citizen children out of fear that the rule will harm their immigration status and options.
5. Since the U.S. Supreme Court decision lifting the Illinois injunction, some organizations who are part of ICIRR’s Immigrant Family Resource Program (“IFRP”) report receiving an increased number of calls from individuals expressing fears about how the use of public benefits could subject them to the public charge rule. They are either afraid to enroll in public benefits they are eligible for or are seeking to disenroll from public benefits they already receive. In an effort to alleviate those fears and slow declining enrollment, one IFRP organization is planning to record a public charge informational video for the community.
Increased confusion due to the USCIS Public Charge COVID-19 guidance 6. On or around March 13, 2020, the U.S. Citizenship and Immigration Services (USCIS) posted an alert (in English only). This alert explained that while the Public Charge rule
3 App. 212

“does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19,” USCIS was nonetheless required to “consider the receipt of certain cash and noncash public benefits, including those that may be used to obtain testing or treatment for COVID19 in a public charge inadmissibility determination,” including most forms of federally funded Medicaid. See https://www.uscis.gov/greencard/public-charge.
7. Due to confusion around this USCIS guidance, ICIRR member organizations and IFRP partners report that some immigrants fear that they cannot access medical treatment or testing for COVID-19 due to the public charge rule.
Increased need for food, housing, and medical assistance in light of COVID-19 8. Since the global health emergency began and Illinois residents became subject to a shelter in place order on March 21, 2020, ICIRR and its member and IFRP partner organizations have received an increase in calls from immigrants seeking assistance with food, housing, and medical care, as well as an increased concern that using public benefits will subject them to the public charge rule. 9. Immigrants in Illinois, including individuals subject to the public charge rule, are predominately employed in fields or industries that are disproportionately impacted by the COVID-19 pandemic, in that they are now either unemployed or considered essential workers. It is predicted that nearly 1.5 million Illinois workers will lose employment or hours due to COVID19. 10. Out of concern for the public health, Illinois has joined other states in closing all non-essential businesses, including bars, restaurants, and most manufacturing businesses where immigrants are disproportionately employed. Many have now lost their jobs as a result. Immigrants are also disproportionately employed as domestic workers, such as cleaning staff, personal care
4 App. 213

aides, or nannies, and many have lost their employment due to their employers’ losing their own job or experiencing a decline of income. All these individuals and their families are thus more likely than ever to need public assistance, including SNAP, Medicaid, and housing assistance.
11. At the same time, immigrants also are disproportionately employed in fields deemed essential, including home health care aides and grocery store employees. This essential status and the inability to work from home increases their exposure to COVID-19 and their need for quality treatment and preventative care for themselves and the health of everyone they contact.
12. Organizations that are part of ICIRR’s IFRP network and public benefit coordinators employed at organizations who are a part of PIF-Illinois report an increased volume of calls from immigrants, especially mixed-status households, who have lost employment as a result of COVID-19. These callers report needing cash assistance, free health care, rental assistance, and help feeding their children, including U.S. citizen children. They are seeking information about enrolling in Section 8 or public housing, SNAP, and Medicaid, but they are concerned that such enrollment, including for their U.S. citizen children, will subject them to the public charge rule. They are also afraid to apply for unemployment benefits out of fear of becoming a public charge, even though they will not be subject to the public charge rule for using unemployment benefits. Callers afraid to apply for SNAP are referred to food pantries. Because many food pantries in Latinx neighborhoods in Chicago have either closed or are seeing a marked increase in requests for food assistance, fewer residents will have their food security needs met through local pantries.
13. Since the COVID-19 crisis, fear remains rampant among immigrants calling these organizations for advice regarding medical testing and treatment. Callers are expressing concern that receiving Covid-19 related medical testing or treatment for themselves, their families or their
5 App. 214

family members will subject them to public charge. This concern is primarily coming from seniors or individuals with underlying health conditions, even though they are at greater risk of serious health complications or even death due to COVID-19. Many callers are concerned that seeking COVID-19 related medical testing or treatment may risk their ability to stay in the country. I, Lawrence L. Benito, declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this 9th day of April 2020 in Cook County, Illinois.
______________________________ Lawrence L. Benito
6 App. 215

+608/325Ā,5914671Ā.+(Ā,+)'#!%*Ȁ*'-,Ȁ# "-Ȁ)-&"Ȁ)+!'#$!$)!-
No. 19A785 In the
Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al., Applicants,
v. NEW YORK, et al.,
Respondents.
I, Camille Kritzman, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 1. I am a case manager at Integrated Refugee & Immigrant Services (“IRIS”). IRIS, which primarily serves as a refugee resettlement program based in Connecticut, provides refugees with a variety of services designed to help them on the road to self-sufficiency by providing lifesaving support during their transition to life in the United States. IRIS also works with asylees, individuals seeking asylum in the United States, undocumented immigrants, as well as other nonrefugee immigration status. I work as a case manager for immigrants seeking asylum. As a case manager, I help my clients enroll their children in school, assist them in obtaining immigration assistance, and connect my clients with a variety of social services, including services provided by IRIS or the State of Connecticut. I have worked for IRIS for the last year and graduated from the University of Connecticut in 2013. I have personal knowledge of all of the facts set forth in this declaration.
1 App. 216

+608/325Ā,5914671Ā.+(Ā,+)'#!%*Ȁ*'-,Ȁ# "-Ȁ)-&"Ȁ)+!'#$!$)!-
2. Since the Public Charge Rule went into effect at the end of February, I have observed that many of my clients who are eligible for social services have refused to apply for those necessary social services.
3. For example, at the end of February 2020, one of the families that I work with disenrolled from HUSKY, the State of Connecticut’s public health coverage program for eligible children, parents, relative caregivers, elders, individuals with disabilities, adults without dependent children, and pregnant women, because they feared that there could be immigration consequences to their continued enrollment. The parents worried that if they enrolled in health insurance, they would risk negative immigration consequences and feared being separated from their child for immigration reasons.
4. The COVID-19 crisis has caused many of my clients to lose their employment, and many face serious food insecurity. However, some of my clients have refused to sign up for food benefits because they fear the immigration consequences of accessing those services. For example, in March of 2020, one family that I work with told me that it was better for them to be without food than to apply for SNAP because they feared adverse immigration consequences. Another client recently refused to sign up to use IRIS’s own food pantry because of the Public Charge Rule. I could not convince this client—who is currently unemployed because of the COVID-19 epidemic—to access this necessary food resource, even though use of the food pantry is totally outside of the scope of the Rule.

DATED this ______day of April, 2020 at New Haven, CT
______________________________ CAMILLE KRITZMAN
2 App. 217

No. 19A785 In the
Supreme Court of the United States
DEPARTMENT OF HOMELAND SECURITY, et al., Applicants,
V.
NEW YORK, et al., R esponden ts .
I, Dana Kennedy, pursuant to 28 U.S.C. § 1746, hereby declare as follows: L I am the Director of Community Partnerships at the Center for Health Progress ("CHP") in Denver, Colorado. In that role, I work to build the capacity of Colorado' s healthcare systems to better serve patients, especially focused on healthcare prov iders providing care to immigrant communities. In partnership with several organizational partners, I offer trainings and direct support to healthcare providers and communities on issues related to the impact of
immigration status on the availability of healthcare. As the Director of Community Partnerships, r
also collaborate closely with several colleagues at CHP who are in constant, direct communication with immigrant communities concerning their healthcare needs and associated policies that impact their access to healthcare and related resources. I have worked with CHP for three and a halfyears and for more than fifteen years in the field of community health. I submit this declaration in support ofRespondents' application in the above-captioned matter.
2. At the Center for Health Progress, our mission is to create opportunities and eliminate barriers to health equity for Coloradans. Our work with communities throughout
App. 218

Colorado stems from the belief that all Coloradans should have the opportunity to live a healthy life. As part of this work, we center the leadership of people most impacted systemic inequities in the healthcare system to work with healthcare providers and policymakers to ensure that all individuals and families can get the care they need. CHP partners with and serves communities from diverse backgrounds, including Latino, East African, and Somali immigrants.
3. In my work with CHP, I concentrate on building capacity among healthcare providers, especially those serving large immigrant populations, to better provide service to their patients. To do this most effectively, I regularly solicit feedback from hospitals, clinics, and other healthcare providers as to the issues causing the greatest difficulty in reaching underserved populations and promoting community health. I also regularly interact with benefits enrollment workers based in healthcare clinics to assess their needs and maximize enrollment among eligible members of immigrant populations in benefits programs, including enrollment of U.S. citizen children from immigrant households.
4. State organizers at CHP play a critical role in advancing our m1ss10n, each providing one-on-one support to between five and ten immigrant clients who are facing difficulties accessing healthcare every day. Prior to the COVID-19 quarantine, CHP organizers also regularly delivered trainings to larger groups. As part of their work, organizers empower leaders from the community to educate their peers and policymakers concerning the realities of accessing healthcare in the United States. CHP organizers have deep knowledge of the communities they partner with because of their personal experiences as immigrants themselves and/or because they spent decades growing up in the communities they serve. In some cases, CHP organizers have personally navigated healthcare systems as immigrants or have done so for family members. This personal expertise is extremely beneficial in identifying the most pressing challenges that
2
App. 219

immigrant communities in Colorado face in obtaining necessary healthcare, such as language barriers, affordability, and fears associated with immigration status. Their personal experiences allow them to better assist Colorado's immigrant communities by providing culturally competent support. I regularly speak with CHP organizers and have personal knowledge of their observations and information they gather from communjties they work with.
The Public Charge Rule Has Created Fear and C01~fusion Among CHP Clients 5_ Over the past two years - and especially since the Supreme Court stayed lower court orders preventing the DHS public charge rule from being implemented in January - CHP organizers report that addressing healthcare needs in the immigrant community has become significantly more difficult. For example, some famil ies that organizers speak with have withdrawn their U.S. citizen children from healthcare coverage out of a mistaken fear that their children's coverage wi ll trigger immigration consequences related to public charge. Families are also generally frightened and confused about who the rule applies to and how, and are forgoing services they are eligible for because of this fear. These community members believe that they must make an extremely painfu l choice between accessing assistance they need and are eligible for and keeping their families together. 6_ Confusion and fear among immigrants as to how public charge applies is widespread across a variety of programs. Since the mid-January, 2020, CHP staff have encountered many families who withdrew from healthcare, nutrition, and other support systems, often dis,eorolling or refraining from enrolling eligible citizen chiJdren into those programs. For example, CHP staff counseled a single mother of an autistic U.S. citizen child. The client was afraid to enroll her son in necessary healthcare and educational services because of fear that it would complicate her pending application for adjustment to permanent residency in the United
3
App. 220

States, despite the rule's exclusion of benefits received by the eligible citizen children from the public charge test. Similarly, classes of immigrants to whom the public charge rule does not apply, such as Lawful Permanent Residents, have also disenrolled from services out of the mistaken fear that they could face immigration consequences for receiving benefits. In other cases, community members have received the incorrect impression that receiving assistance not covered by the public charge rule, such as accepting donations from food banks or allowing their children to access free school lunch, will have immigration consequences associated with public charge. One particularly
troubling example involved a pregnant woman in her third trimester who told CHP staff that she
was foregoing prenatal care because she believed that any hospital bills she might accrue would complicate her ability to adjust her immigration status in the future even though medical assistance received while pregnant is not considered during the test. Although CHP organizers spend many hours trying to explain how the complex public charge rule operates and connecting clients to services they are eligible for, it is extremely difficult to combat the fear that the individual has without certainty that they will not be affected by the rule. For this reason, many families continue to disenroll or refrain from enrolling despite our efforts.
7.. On April 2, 2020, a CHP organizer spoke with an immigrant mother from El Salvador with questions about healthcare options for her U.S. citizen daughter. The caller is in the process of applying for permanent residence and is fearful of accepting any benefits for her daughter at this ti.me. She informed the CHP organizer that she plans to let her daughter's Medicaid coverage lapse, because she fears that her continued enrollment in the program will count against her as she tries to adjust her status.
4
App. 221

The Rule Has Erected Barriers to Healthcare Access 8. Like CHP organizers, healthcare providers have similarly expressed deep concern about their ability to provide services to patients in need because of community fears associated with public charge. Since the beginning of the year, each training I have presented to providers related to healthcare access among immigrants has prompted questions from attendees about the impacts ofthe public charge rule, even where the training was otherwise unrelated to public charge. Interest among hospital and clinic personnel in providing accurate information and learning ways to overcome fear ofpublic charge in the immigrant community has necessitated additional learning by CHP and demonstrates the scope of the rule's impact on healthcare systems in Colorado. I have witnessed first hand a marked increase in questions about public charge from healthcare cbnics and other providers, as well as from human and social services organizations since January 2020. 9. Healthcare clinics, which provide low-cost medical services on a sliding scale for people who do not have health coverage, frequently offer to assist eligible immigrants and their children with enrollment in healthcare services like Medicaid, or for other coverage like Colorado's Child Health Plan Plus. As recently as early April, clinics report that many eligible immigrants have refused enrollment in these programs because ofmistaken beliefs about potential immigration consequences for receipt of healthcare benefits under public charge and associated fears. Each clinic that I have spoken to this year about their work with immigrant communities has described this problem.
CHP Clients Remain Fea,ful ofAccepting Healthcare Services During the COVID-19 Pandemic
I0. The current national crisis has furthered the need for CHP to assist immigrant families. Due to Colorado's state-wide stay-at-home order in response to the COVID-19 pandemic, CHP closed its offices and stopped providing in-person services to communities. CHP' s staff has
5
App. 222

shifted to providing services over the phone wherever possible. CaJI volume since CHP staffbegan working remotely has been extremely high. During this time, CHP has heard from several immigrant clients who are uninsured or at risk oflosing their insurance and has assisted them with access to coverage and/or medical services.
11 . Since Monday, March 23, 2020, the majority of calls to CHP have been from clients from immigrant communities who are confused or frightened about how their families will be impacted by COVID-19. Clients have asked for information about symptoms, for simple, understandable descriptions of the meaning of shelter-in-place, as well as questions about how to access needed items like school supplies, and who qualifies as an "essential worker." CHP staff have also received calls from immigrant clients expressing interest in federal support programs available to them due to economic hardship they have experienced because of the pandemic, but who fear accepting assistance because ofimmigration consequences related to public charge. Some have chosen not to seek out nutritional and health benefits due to public charge related fears.
12. Since closing its offices, CHP bas focused on ensuring that individuals without insurance can still access healthcare. As part of this effort, CHP is in frequent contact with healthcare clinics that provide low-cost services and is gathering information about any challenges that healthcare facilities are experiencing in serving immigrant communities, including where community members show symptoms of COVID-19. On Friday, March 27, 2020, I spoke with a community partner concerned with whether and how immigrant clients can access testing for COVID-19 given various barriers to healthcare access they experience. Since then, CHP has increasingly heard from immigrants about their fears related to accessing any COVID-19-related services, other healthcare, or basic support services. While this has always been true to a degree,
6
App. 223

we have observed greater anxiety in the community because ofthe degree ofeconomic uncertainty the country is facing and fears ofjob loss.
13. On March 20, 2020 ata Pueblo food bank, two CHP organizers spoke with a woman seeking services. She sought out CHP staff to ask whether it was possible to get COVID-] 9 testing anonymously. Although she and her husband were fearful of flu-like of symptoms, she refused a referral to a clinic because she was afraid that it would impact her immigration status. An executive director of a community development non-profit in Commerce City, Colorado has also reported to me directly that several clients with mixed status families - where some family members have permanent immigration status and others do not - have described flu-like symptoms in their households. These families are afraid to seek medical care at local clinics because they believe that testing and related services could someday count against them under the public charge rule. According to the director, "this puts the rest of their family and the entire community at risk for contracting COVID-19."
14. We are aware that U.S. Citizenship and Immigration Services (USCIS) posted an alert in English only in March explaining that public charge rule "does not restrict access to testing, screening, or treatment of communicable diseases, including COVlD-19." This notice also stated that USCIS would still "consider the receipt ofcertain cash and non-cash public benefits, including those that may be used to obtain testing or treatment for COVID-19 in a public charge
inadmissibility determination," including most forms of federally funded Medicaid. See
https://www.uscis.gov/greencard/public-cbarge. While we have emphasized the notice in sharing information with our clients, communities that CHP works are typically unaware of this notice until we reach them. Despite this notice, the immigrant populations we speak to remain concerned about accessing healthcare coverage or low-cost care and organizations who work with our
7
App. 224

communities conti nue to ask questions about whether immigrant clients can access COVID-1 9 testing.
15. The dangers of COVID-19 to the immigrant communities that CHP partners with and serves are extremely worrisome to me and to my colleagues. A significant portion ofour client population works in rural towns, such as Fort Morgan, Colorado, where many are employed as essential workers in meatpacking plants, dairies, or sugar beet factories. Our clients in those industries will remain exposed to crowds of their coworkers and will therefore be at greater risk for COVID-19 infections than people who are s.heltering-in-place. However, most of our clients who work in Fort Morgan are immigrants - many of whom are uninsured - and would avoid healthcare if they were to show signs of COVID-1 9 infection either because they cannot afford to pay out-of-pocket costs or because they are afraid that receiving free services would subject them to immigration consequences under the public charge m le. The likelihood that they would avoid care because of economic and immigration concerns risks not only their health, but the health of other people in their workplace. Other clients we serve throughout Colorado in various essential industries face similar risks. They are terrified of being separated from their families. This fear is likely to prompt them to not only refuse to seek care - even in times of serious need - for themselves and also for children who may be exposed to COVID-19, as other clients have prior to the pandemic.
DATED this 9th day of April, 2020 at Denver, Colorado
Dana Kennedy
8 App. 225

March 18, 2020
Chad Wolf Acting Secretary U.S. Department of Homeland Security 2707 Martin Luther King Jr. Ave. SE Washington, DC 20528
Matthew Albence Senior Official Performing the Duties of the Director U.S. Immigration and Customs Enforcement 500 12th Street, S.W. Washington, D.C. 20536
Kenneth T. Cuccinelli Senior Official Performing the Duties of the Director U.S. Citizenship and Immigration Services 20 Massachusetts Ave. NW Washington, DC 20001
Dear Acting Secretary Wolf, Acting Directors Albence and Cuccinelli:
As the leadership of the NYC Department of Health and Mental Hygiene, NYC Health + Hospitals, NYC Department of Social Services and NYC Mayor’s Office of Immigrant Affairs, we write to urge the U.S. Department of Homeland Security (“DHS”), and its component agencies U.S. Immigration and Customs Enforcement (“ICE”) and U.S. Citizenship and Immigration Services (“USCIS”), to immediately take critical actions as a part of the nationwide COVID-19 pandemic response.
Our city is in the midst of a national effort to limit the spread of COVID-19 and to ensure that those who become severely ill and in need of health services are able to access them without barriers. Through a multilingual messaging campaign and in coordination with elected officials, community partners, and health care providers, we are disseminating guidance to New Yorkers, including urging all New Yorkers to practice good hand hygiene and to stay home if they are feeling sick. We are also advising New Yorkers who are ill that if their symptoms worsen, they should consult with their health care provider.
To minimize the consequences of this pandemic as much as possible, it is critical that all residents of our city are able to follow the guidance issued by public health authorities and that
1 App. 226

they seek care when they need it – without fear, and regardless of immigration status or ability to pay.
Unfortunately, we know that many families in our immigrant communities are already fearful due to changes in immigration policy, such as the recently implemented new public charge rule, as well as due to a dramatic increase in immigration enforcement in New York City. Even prior to the current COVID-19 crisis, there was tremendous confusion and fear about the use of health services and other supportive services and possible negative impacts on immigrant families’ ability to remain together now or in the future. Thus, for months, our agencies have worked with partners to promote a welcoming message to all New Yorkers to “seek care without fear.”
With this pandemic upon us, we are deeply concerned as we reinforce this message and address any fears that will deter immigrants from seeking the care they need. As leaders charged with a duty to protect the health and well-being of the City of New York as a whole, we know that now more than ever, these kinds of barriers to care will only cause harm to public health – and in this case, may lead to increased transmission of disease and adverse health outcomes for individuals. Lives will be lost if action is not taken to address these barriers.
Accordingly, we ask that during this public health crisis, USCIS suspend implementation of the final rule on Public Charge Inadmissibility to facilitate public health efforts to fight the pandemic. The continued implementation of this rule undermines our efforts to mitigate the harm of COVID-19. For well over a year, we have invested tremendous time and resources as a City to combat widespread confusion and fear around the rule. We have engaged extensively with a wide array of stakeholders – medical professionals, patients, staff and clients of City agencies and services, communities and community-based organizations, journalists, and elected officials. Across the board, we have heard confusion and fear about many aspects of the rule, including how a person’s use of healthcare could affect their immigration status, even for permanent residents and others not subject to public charge. We continue to undertake robust outreach and education efforts in an attempt to stop misinformation, but the need for this work persists. Against the backdrop of this rapidly spreading virus, our work to protect the health of New Yorkers is hindered by the ongoing implementation of the Public Charge rule.
While we recognize and appreciate the public message USCIS shared on March 13 urging individuals to get necessary medical treatment related to COVID-19 and clarifying, among other things, that care received related to COVID-19 will not be considered in public charge determinations, we remain concerned about the level of public misunderstanding and confusion regarding public charge, especially among those who are not subject to the rule. At this time, from a public health perspective, the strongest possible message we can share to address confusion about public charge and COVID-19 is to affirm that the new rule has been suspended for the duration of this crisis.
In addition, we also urge DHS to take into account the efforts of local and state public health officials during the COVID-19 crisis in its immigration enforcement activities and adjust those activities appropriately by suspending planned escalations in immigration enforcement and accounting for at-risk individuals in making detention determinations. We appreciate the recent public reinforcement of ICE’s sensitive locations guidance. However
2 App. 227

more can and should be done. In light of significant barriers to care already experienced by immigrant communities, the planned escalations in civil immigration enforcement in New York City and other cities this spring will almost certainly be counterproductive to public health efforts. The arrest and detention of individuals who are most at risk for severe illness (including those with chronic lung disease, heart disease, diabetes, cancer, or weakened immune systems) and the prospective spread of COVID-19 in immigration detention facilities is also of significant concern. We need individuals and families to work with our teams to better understand the spread of the disease and its characteristics. Thus, ICE should suspend escalations in immigration enforcement and any detention determinations must be made with consideration of the current crisis and the risk of diminishing the willingness of individuals to engage with medical providers and public health authorities.
This pandemic requires a coordinated response that sets aside politicized rhetoric and the ongoing immigration debate to lean into what public health experts widely and confidently agree on: the way to mitigate harm from the COVID-19 crisis with the least possible damage is to take every measure available to ensure that every member of our society is equally capable of accessing the health services they need, when recommended by public health officials. We urge you to take these steps without delay.
Sincerely,
Dr. Oxiris Barbot Commissioner NYC Department of Health and Mental Hygiene
Dr. Mitchell Katz President and CEO NYC Health + Hospitals
Bitta Mostofi Commissioner NYC Mayor’s Office of Immigrant Affairs
3 App. 228

Steven Banks Commissioner NYC Department of Social Services
4 App. 229

 
 No. 19A785 ________________________________________________________________ ________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
DEPARTMENT OF HOMELAND SECURITY, ET AL., APPLICANTS
v.
NEW YORK, ET AL.
_______________
RESPONSE IN OPPOSITION TO RESPONDENTS’ MOTION TO TEMPORARILY LIFT OR MODIFY
THE COURT’S STAY
_______________
NOEL J. FRANCISCO Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

IN THE SUPREME COURT OF THE UNITED STATES _______________ No. 19A785
DEPARTMENT OF HOMELAND SECURITY, ET AL., APPLICANTS v.
NEW YORK, ET AL. _______________ RESPONSE IN OPPOSITION TO RESPONDENTS’ MOTION TO TEMPORARILY LIFT OR MODIFY THE COURT’S STAY _______________
The Solicitor General, on behalf of applicants Department of Homeland Security (DHS) et al., respectfully files this response to respondents’ motion to temporarily lift or modify the January 27, 2020 stay entered by this Court of the nationwide injunctions issued by the United States District Court for the Southern District of New York (Mot. App. 6-32).
STATEMENT 1. The Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., provides that an alien is “inadmissible” if, “in the opinion of the [Secretary of Homeland Security] at the time of application for admission or adjustment of status, [the alien] is likely at any time to become a public charge.” 8 U.S.C. 1182(a)(4)(A); see Stay Appl. 5-8. In August 2019, following notice and comment rulemaking, DHS promulgated a rule regarding public-charge inadmissibility determinations under the INA. 84 Fed. Reg. 41,292, 41,501 (Aug. 14, 2019) (Rule). The Rule defines

2 “public charge” -- which the statute itself does not define -- to mean “an alien who receives one or more [designated] 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).” Ibid. The designated public benefits include cash assistance for income maintenance and certain federally funded or administered non-cash benefits, including most Medicaid benefits, Supplemental Nutrition Assistance Program benefits, and federal housing assistance. Ibid. They do not, however, include emergency medical services under Medicaid. Id. at 41,363, 41,483-41,484, 41,501. Nor do they include non-cash benefits that are not federally funded or administered, such as state and local public benefits. Id. at 41,312. Receipt of those benefits therefore will not be considered in making a public-charge inadmissibility determination under the Rule.
In August 2019, movants -- a group of three States and the City of New York -- challenged the Rule in the United States District Court for the Southern District of New York. Movants argued that the Rule’s definition of “public charge” is not a permissible construction of the INA, that the Rule is arbitrary and capricious, and that the Rule violates the Rehabilitation Act of 1973, 29 U.S.C. 701 et seq. On October 11, 2019, the district court granted movants’ request for a nationwide preliminary

3 injunction and stay under 5 U.S.C. 705 barring DHS from implementing the Rule. See Mot. App. 6-29. The district court also granted identical relief in another case filed by private plaintiffs. See Stay Appl. 9.
On January 27, 2020, this Court stayed the nationwide injunctions issued by the district court in their entirety, “pending disposition of the Government’s appeal in the United States Court of Appeals for the Second Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought.” 140 S. Ct. 599, 599. In a concurring opinion, Justice Gorsuch, joined by Justice Thomas, expressed concerns about “the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.” Id. at 601. Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the application for a stay. Id. at 599.
2. The government also has been litigating challenges to the Rule in four other district courts. See Stay Appl. 12-13 (describing other litigation). Two of those district courts issued nationwide injunctions against implementation of the Rule, while the remaining two issued more limited injunctions. See ibid.
The United States Court of Appeals for the Ninth Circuit granted the government’s motions for stays pending appeal in the cases filed in that circuit, including one case in which the district court had entered a nationwide injunction. City & County

4 of San Francisco v. USCIS, 944 F.3d 773 (2019). In a lengthy published opinion that canvassed the history of the public-charge provision and related immigration laws, the Ninth Circuit held that “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.” Id. at 781. The United States Court of Appeals for the Fourth Circuit also granted a stay pending appeal of the nationwide injunction entered by a district court in Maryland. Order, Casa de Maryland, Inc. v. Trump, No. 19-2222 (Dec. 9, 2019).
The United States Court of Appeals for the Seventh Circuit did not grant the government’s motion for a stay pending appeal of an injunction against the Rule issued by a district court in Illinois, and denied the government’s renewed motion for a stay following this Court’s issuance of a stay in this case. See 2/10/2020 Order, Cook County v. Wolf, No. 19-3169. In its subsequent application to this Court for a stay of the Illinois injunction, the government explained that by staying the nationwide injunctions here, the Court had “necessarily determined that the government had a fair prospect of success * * * on the merits of its defense of the challenged Rule.” Stay Appl. at 15, Wolf v. Cook County, No. 19A905 (Feb. 13, 2020). This Court granted a stay of the Illinois injunction “pending disposition of the Government’s appeal in the United States Court of Appeals for

5 the Seventh Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought.” Wolf v. Cook County, 140 S. Ct. 681, 681 (2020) (No. 19A905).
3. On March 13, 2020, President Trump issued a proclamation stating “that the COVID-19 outbreak in the United States constitutes a national emergency.” Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 18, 2020). That same day, U.S. Citizenship and Immigration Services (USCIS) issued guidance explaining that it “encourages all those, including aliens, with symptoms that resemble Coronavirus Disease 2019 (COVID-19) (fever, cough, shortness of breath) to seek necessary medical treatment or preventive services. Such treatment or preventive services will not negatively affect any alien as part of a future Public Charge analysis.” Mot. App. 44 (emphasis added). The guidance specifically states that “[t]o address the possibility that some aliens impacted by COVID-19 may be hesitant to seek necessary medical treatment or preventive services, USCIS will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination.” Ibid.
ARGUMENT This Court has twice stayed the effect of preliminary injunctions preventing implementation of the Rule. Both times, the Court’s entry of a stay reflected its assessment of whether

6 challenges to the Rule are likely to succeed. Movants do not argue that the current public-health crisis has any bearing on that assessment, and they do not ask this Court to revisit it. Remarkably, movants nevertheless ask the Court to enter relief that would require DHS to modify the status quo nationwide by halting its ongoing implementation of the Rule. In other words, even though movants’ suit is likely to fail as a legal matter, they want this Court to block the Rule in the interim by evaluating new declarations and making a factual assessment of how the Executive Branch should best respond to the COVID-19 pandemic.
Movants identify no case in which this Court has ever granted that sort of relief. The Executive Branch has moved aggressively to address the current public-health emergency. As relevant here, it has made clear that aliens’ use of publicly funded prevention and treatment services related to COVID-19 will not be considered in making predictions about whether aliens are likely to become public charges in the future. Movants’ attempt to discount that guidance is more than incorrect; it is unhelpful by creating confusion about the Rule and the government’s COVID-19 response in an effort to advance this litigation. In any event, movants’ declarations -- submitted for the first time in this Court -provide no basis for this Court to second-guess the Executive’s response to the COVID-19 pandemic.

7 1. To the government’s knowledge, this Court has never articulated the standard applicable to a motion to vacate a stay previously issued by the full Court. That is unsurprising, given that movants have not identified any instance in which the Court has granted a contested motion to vacate or even temporarily lift a stay that the full Court had previously granted. Cf. Cities Serv. v. Mobil Oil Corp., 487 U.S. 1245, 1245 (1988) (partially granting a “[j]oint application to vacate the stay”); Stephen M. Shapiro, et al., Supreme Court Practice § 17.12, at 897 (10th ed. 2013) (explaining that even stay orders entered by individual Justices are reviewed and reversed by the Court “only in the most extraordinary circumstances”). When, as here, a motion asks this Court to vacate or lift a stay in a manner that would materially change the status quo, the correct legal standard should be similar to the one that the Court would apply if it were vacating or lifting a lower court’s order, or enjoining an administrative rule in the first instance. See Mot. 14 (invoking the All Writs Act, 28 U.S.C. 1651, and Section 705 of the Administrative Procedure Act, 5 U.S.C. 705). The status quo secured by a prior order of this Court should not be entitled to less respect than the status quo secured by an order of a lower court. Cf. Supreme Court Practice § 15.6, at 837-840 (describing the heightened standard this Court applies to petitions for rehearing).

8 But even assuming that movants in effect seek reconsideration, at a minimum they bear the burden of showing that the Court’s previous determination that the government had satisfied the factors for obtaining a stay -- a reasonable probability of certiorari, a fair prospect of success on the merits, and a likelihood of irreparable harm absent a stay -- is now incorrect in light of the current public-health crisis. See Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers) (setting forth the factors to obtain a stay). Movants have not attempted to make that showing; their motion does not even cite those factors, much less explain how the COVID-19 pandemic renders incorrect the Court’s legal judgment as to those factors. That is reason enough to deny the motion. 2. In particular, as the government has explained (Stay Appl. 18-31), and as the Ninth Circuit has recognized in a lengthy published opinion addressing materially identical challenges to the Rule, see City & County of San Francisco v. USCIS, 944 F. 3d 773 (2019), the government is likely to succeed on the merits of its defense of the Rule because the Rule “easily” qualifies as a permissible interpretation of the INA, id. at 799. Movants’ challenge to the Rule is inconsistent with the INA’s broader structure, express statutory statements of national immigration policy, and DHS’s careful and considered judgment about how best

9 to implement its responsibilities under the INA. See Stay Appl. 18-31; Stay Appl. Reply Br. 3-10.
This Court has twice granted relief to the government based on those arguments about the likelihood that challenges to the Rule would fail -- first in its January 27 order in this case, and later in its order staying the Illinois-specific injunction in Wolf v. Cook County, 140 S. Ct. 681 (2020) (No. 19A905). Yet movants make no attempt to show that the intervening COVID-19related events on which their motion relies have any bearing on the legal merit of their challenge. Nor could they: all of those events post-date the finalization of the Rule and are thus legally irrelevant in their underlying challenge. Movants’ attempts to set aside the Rule are thus just as unlikely to succeed now as they were three months ago. And because the Rule is lawful, the Court should not lift its January 27 stay simply because movants believe the Rule reflects bad policy.
Movants’ reliance (Mot. 17) on Orloff v. Willoughby, 72 S. Ct. 998 (1952) (Douglas, J., in chambers), and King v. Smith, 88 S. Ct. 842 (1968) (Black, J., in chambers), is misplaced. In Orloff, Justice Douglas did not lift the stay that he had previously entered (as movants request here); rather, he simply clarified that the stay -- which he had issued solely to preserve this Court’s jurisdiction over a service member’s habeas petition -would not prevent the government from reassigning the service

10 member to another military base. See 72 S. Ct. at 998-989. In King, Justice Black vacated his own previously issued stay in light of “[a] recent congressional amendment to the” relevant federal statute that altered his earlier assessment of the stay factors, see 88 S. Ct. at 842, and the full Court eventually ruled in favor of the parties that had sought the stay modification, see King v. Smith, 392 U.S. 309, 333 (1968). The motion in King was thus unlike the motion here in at least three important respects: (i) it concerned a single Justice’s modification of his own previously issued stay; (ii) the movants had a likelihood of success on the merits; and (iii) the motion depended on an intervening legal change, rather than contested arguments about the effect of intervening factual developments.
3. Rather than explain how the Court erred in its evaluation of any of the traditional stay factors when issuing its January 27 order, movants argue (Mot. 14) that the current public-health crisis has “shifted the balance of equities.” When evaluating an application for a stay, such considerations are relevant only “in a close case.” Conkright, 556 U.S. at 1402 (Ginsburg, J., in chambers) (citation omitted); see ibid. (“[I]n a close case it may be appropriate to ‘balance the equities’ -- to explore the relative harms to applicant and respondent, as well as the interests of the public at large.”) (citation omitted). Accordingly, to the extent the Court granted the January 27 stay because the government had

11 made a strong showing on the traditional stay factors set forth above, it would not have had occasion to engage in that balancing -- and nothing in the present motion would even be relevant to the propriety of the existing stay.
To the extent that the balance of equities factored into the Court’s prior order, movants have not met their burden to show that those equities have shifted in a way that would warrant revisiting the Court’s earlier decision. Movants assert (Mot. 14) that the Rule is “impeding efforts to stop the spread of the coronavirus, preserve scarce hospital capacity and medical supplies, and protect the lives of everyone in our communities.” They therefore contend (Mot. 22) that it would be in “the public interest” to lift the stay, which would have the effect of suspending the Rule, in its entirety, nationwide. But the public has an interest in both addressing the COVID-19 crisis and enforcing lawful immigration policy -- and it is the Executive Branch that is charged with determining how best to do both. See Nken v. Holder, 556 U.S. 418, 435-436 (2009). The Executive Branch has considered the arguments movants advance, and has concluded that movants’ preferred outcome -- a wholesale suspension of the Rule, just as they sought before the COVID-19 crisis -- is not warranted. Movants provide no basis for this Court to overrule that judgment about how the Nation’s lawful immigration policies should be implemented during the COVID-19 crisis.

12 Rather than a wholesale suspension, the Executive Branch has instead opted to take more targeted steps to ensure that the Rule is being administered in an appropriate way in light of current conditions. Specifically, USCIS’s March 13 guidance makes clear that the government will exclude from consideration the receipt of any public benefits related to COVID-19 care -- including testing, treatment, preventive care, and vaccinations -- when making public-charge inadmissibility determinations under the Rule. Mot. App. 44. The guidance also reiterates that the Rule, by its own terms, does not consider the receipt of emergency medical services under Medicaid; “CHIP, or State, local, or tribal public health care services/assistance that are not funded by federal Medicaid”; or various other non-federal benefits in public-charge inadmissibility determinations. Ibid. And it makes clear that in all events, “USCIS considers the receipt of public benefits as only one consideration among a number of factors and considerations in the totality of the alien’s circumstances over a period of time with no single factor being outcome determinative.” Ibid. Movants seek to undermine that guidance, claiming that an alien “who obtains or maintains Medicaid coverage that helps him access COVID-19 testing or treatment will still receive an automatic negative factor in the public-charge analysis based on his Medicaid coverage, even if his COVID-19 test or treatment will not itself be considered.” Mot. 13; see Mot. 24-25. But movants

13 are incorrect: under USCIS’s guidance (as DHS has reaffirmed to this Office), if an alien enrolls in Medicaid to receive COVID19-related care, that enrollment will not be a negative factor in a public-charge inadmissibility determination, so long as the alien disenrolls from Medicaid once he or she no longer needs COVID-19-related care, or provides evidence of a request to disenroll. That is why USCIS explicitly advised the public that COVID-19-related “treatment or preventive services will not negatively affect any alien as part of a future Public Charge analysis.” Mot. App. 44 (emphasis added).
Movants also assert that “an applicant who applies for SNAP benefits because a COVID-19 public-health order forced him out of his job will continue to receive a negative factor in a publiccharge inquiry.” Mot. 13; see Mot. 23-24. But as the USCIS guidance explains, if an alien “must rely on public benefits for the duration of the COVID-19 outbreak and recovery phase” as a result of extrinsic factors -- such as enforced social distancing or an employer’s shutting down -- “the alien can provide an explanation and relevant supporting documentation” and “[t]o the extent [those materials are] relevant and credible, USCIS will take all such evidence into consideration” when making publiccharge inadmissibility determinations. Mot. App. 44.
Even if USCIS had not undertaken those discretionary steps, the Rule’s effects on current benefits usage during the COVID-19

14 crisis still would have been modest. That is because most aliens to whom the Rule could potentially apply are not presently eligible for federal means-tested benefits like Medicaid. See 8 U.S.C. 1613(a), 1641(b), and 1642(a). The Rule cannot possibly prevent or deter aliens from using benefits for which they are not eligible. Conversely, many aliens who are eligible for meanstested federal benefits (such as refugees and asylees) are not subject to the Rule in the first place. See Mot. App. 46. And while certain lawfully present aliens who are pregnant or under age 21 may be both subject to the public-charge ground of inadmissibility and also eligible for Medicaid, the Rule itself exempts their receipt of Medicaid benefits from public-charge inadmissibility determinations. See 84 Fed. Reg. at 41,297.
Movants assert (Mot. 14) that notwithstanding USCIS’s COVID19-related guidance and the limited relevance of the Rule to aliens who are actually eligible for benefits, “the Rule is deterring many immigrants and their family members, including those who are U.S. citizens, from seeking testing or treatment for COVID-19.” But their accompanying declarations make clear that this asserted effect is not the result of the Rule itself, but rather of “mistaken belief[s]” about the Rule’s application and content. Mot. App. 171 (emphasis added).* In fact, nearly every example

*

See also, e.g., Mot. App. 60 (“[U]ninsured people may be

able to receive medical care free through safety net facilities,

such as community health centers or government clinics; evidence

15
movants cite (Mot. 19-20) involves aliens who wrongly believe that
obtaining COVID-19-related care will affect a public-charge
inadmissibility determination in the future, contrary to the USCIS
guidance. Plaintiffs identify no case holding that the “balance
of the equities” favors suspending a lawful Rule because some
subset of people misunderstands its legal effects.
That is not to say that movants are without recourse. If, as
they say, members of their communities are avoiding COVID-19-
related care and treatment because of mistaken beliefs about the
Rule, then movants should address that problem by helping to
correct those misunderstandings -- not by filing motions that, if
anything, only reinforce them.
suggests that the chilling effect leads to reductions in use of services like these, even though the public charge determinations do not apply to such programs.”); ibid. (“[A]lthough the public charge rule does not apply to benefits from the Women, Infants and Children (WIC) nutrition assistance program, many immigrants have avoided enrolling in WIC because of public charge fears.”); id. at 140 (“Many New Yorkers mistakenly believe they are receiving Medicaid as defined in the public charge rule, due to misunderstanding the program in general. * * * [W]e have encountered many noncitizens who are afraid to get COVID-19 testing” because “people are afraid that testing requires Medicaid, which would get them deported.”); id. at 220 (“[S]ome families that organizers speak with have withdrawn their U.S. citizen children from healthcare coverage out of a mistaken fear that their children’s coverage will trigger immigration consequences related to public charge.”); id. at 221 (“[C]lasses of immigrants to whom the public charge rule does not apply, such as Lawful Permanent Residents, have also disenrolled from services out of the mistaken fear that they could face immigration consequences for receiving benefits.”).

16 4. In all events, movants are not entitled to reinstatement of the nationwide injunctions. As the government has explained (Stay Appl. 32-39; Stay Appl. Reply Br. 10-12), the nationwide aspect of the preliminary injunctions here is an independent issue warranting this Court’s attention. This Court stayed the injunctions in their entirety, making it unnecessary to address the issue at that time. See 140 S. Ct. at 599-601 (Gorsuch, J., concurring). But if the Court were inclined to grant this motion now, it would have to confront that issue, which was squarely raised and presented. If the district court lacked authority under Article III and traditional principles of equity to enter injunctions that applied outside movants’ jurisdictions, see Stay Appl. 32-39; Stay Appl. Reply Br. 10-12, there would be no basis to lift or modify the Court’s January 27 stay, even on a temporary basis, to the extent the stay precludes the injunctions from operating in that universal fashion. 5. Finally, the Court also should reject movants’ alternative request (Mot. 16) that the Court “clarify” that its January 27 stay order “does not preclude the district court from considering whether the current COVID-19 crisis warrants temporary, tailored relief from the Public Charge Rule.” As movants recognize (ibid.), the district court probably lacks the authority to modify the nationwide injunctions it issued, now that the Court has stayed those injunctions. See Heckler v. Turner,

17 468 U.S. 1305, 1308-1309 (1984) (Rehnquist, J., in chambers). Even if it has that authority, movants do not explain why the district judge should in effect be permitted to second-guess and modify a stay issued by this Court. Judicial economy alone counsels against that course, for the losing party would, as movants recognize (Mot. 16), inevitably seek “appellate review” of any adverse decision.
To the extent movants seek to obtain a new injunction, the district court probably lacks authority to issue one. Such a “new” injunction would for all intents and purposes be identical to the injunctions that the Court already has stayed -- but simply issued based on the district judge’s “new” evaluation of the applicable equitable factors. If the district court lacks the authority to modify the existing injunctions, it also must lack the authority to end run that rule by issuing a materially identical “new” injunction. And even setting aside the question of the court’s authority, movants would be precluded by ordinary law-of-the-case principles from re-litigating in district court the issues that this Court necessarily decided in granting the January 27 stay, including that the government has a fair prospect of success on the merits of its defense of the Rule’s lawfulness, and that the government -- and thus the public -- would suffer irreparable harm were the Rule enjoined. Movants thus could not demonstrate the likelihood of success and irreparable harm required to secure new

18 injunctive relief against the Rule’s enforcement. See Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008).
* * * * * Movants identify no prior case in which the Court has granted the kind of relief they request here -- and this case should not be the first. The Executive Branch has taken aggressive actions to address the current public-health crisis. Those actions include issuing guidance about the Rule that clearly assures the public that USCIS will exclude from consideration the receipt of public benefits for COVID-19-related care when making public-charge inadmissibility determinations. In light of that guidance, the Executive Branch has determined that a wholesale suspension of the Rule is unwarranted. Nothing in the motion or in the accompanying new declarations provides any basis for this Court to second-guess that policy judgment.
CONCLUSION The motion should be denied. Respectfully submitted.

APRIL 2020

NOEL J. FRANCISCO Solicitor General

 
 No. 19A785 In the
Supreme Court of the United States
_____________________________________________
DEPARTMENT OF HOMELAND SECURITY, et al.,
Applicants, v. NEW YORK, et al.,
Respondents.
REPLY OF GOVERNMENT PLAINTIFFS ON THEIR MOTION TO TEMPORARILY LIFT OR MODIFY
THE COURT’S STAY OF THE ORDERS ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

MATTHEW COLANGELO Chief Counsel for Federal Initiatives ELENA GOLDSTEIN Deputy Bureau Chief Civil Rights Bureau MING-QI CHU Section Chief, Labor Bureau

LETITIA JAMES Attorney General State of New York BARBARA D. UNDERWOOD* Solicitor General
STEVEN C. WU Deputy Solicitor General
JUDITH N. VALE Senior Assistant Solicitor General 28 Liberty Street New York, New York 10005 (212) 416-8016 barbara.underwood@ag.ny.gov

*Counsel of Record for Government Plaintiffs

Dated: April 22, 2020
(Additional counsel appear on signature page.)

TABLE OF CONTENTS Page
ARGUMENT ...................................................................................................................................1 CONCLUSION ................................................................................................................................8

ARGUMENT The fundamental purpose of a stay is “to balance the equities as the litigation moves forward” rather than to “conclusively determine the rights of the parties. Trump v. International Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (“IRAP”). Here, as plaintiffs’ motion explained, the unprecedented COVID-19 crisis has so drastically altered the balance of the equities that this Court should revisit its previously issued stay and either lift it during the pendency of the national emergency declared by the president concerning COVID-19, or clarify that the lower court may consider these changed circumstances (including plaintiffs’ new evidence) in the first instance. (Mot. by Gov’t Pls. to Temporarily Lift or Modify the Court’s Stay (“Mot.”) 14-24.) Defendants do not dispute that this Court has the power to issue such relief. Nor do they dispute that there is a direct connection between the COVID-19 crisis and the Public Charge Rule at issue here—indeed, they have already been forced to limit the Rule in light of the COVID-19 crisis, and they have announced further changes for the first time in their response to plaintiffs’ motion here. Their arguments against the narrow relief that plaintiffs request are meritless. First, defendants miss the mark in presuming that this Court has already deemed plaintiffs’ claims unlikely to succeed and that any change to the balance of the equities would thus not “even be relevant to the propriety of the existing stay.” (Response in Opp. to Resps.’ Mot. to Temporarily Lift or Modify the Court’s Stay (“Opp.”) 11; see also id. at 5-6, 8-10.) A stay is “often dependent as much on the equities of a given case as the substance of the legal issues it presents.” IRAP, 137 S. Ct. at 2087 (citations omitted). Indeed, the stay order does not mention the parties’ merits arguments at all. (App. 1.) At minimum, there are sufficiently serious questions about defendants’ likelihood of success on the merits that this Court can and should evaluate whether the drastically changed

circumstances presented by the COVID-19 crisis warrant a temporary halt to the Rule. See Wolf v. Cook County, Ill., 140 S. Ct. 681, 683 (2020) (Sotomayor, J., dissenting) (noting “weighty arguments on the merits” raised by plaintiffs in separate challenge to the Rule). And as plaintiffs’ motion established and defendants do not contest, the Court plainly has authority to temporarily lift or modify its own stay, or to postpone the effective date of the Rule under 5 U.S.C. § 705, in order to properly “balance the equities as the litigation moves forward.” IRAP, 137 S. Ct. at 2087. (See Mot. 14-16.)
Second, this Court’s exercise of its undisputed authority here would not be unprecedented, as defendants contend. (See Opp. 7, 10, 18.) In prior cases, this Court, acting through a single Justice or the full Court, has lifted, modified, or clarified the meaning of its own stay orders when new circumstances not previously considered by the Court warranted such a response. See, e.g., King v. Smith, 88 S. Ct. 842, 843 (1968) (Black, J., in chambers). For example, in IRAP, this Court effectively clarified that its earlier-issued stay order permitted the entry of “grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law,”1 notwithstanding the president’s executive order halting immigration from certain countries, when it rejected the federal government’s effort to limit that stay only to more immediate family members. See Trump v. Hawaii, 138 S. Ct. 34 (2017) (Mem.); IRAP, 137 S. Ct. at 2088. And lower courts routinely alter or lift their own equitable orders when new circumstances warrant such a change. See, e.g., New York v. Kraeger, 972 F. Supp. 2d 291, 295 (N.D.N.Y. 2013) (granting in part motion to modify injunction given “significant change in circumstances”); NML Capital, Ltd. v. Republic of Argentina, No. 08-cv-6978, 2016 WL 836773, at *2 (S.D.N.Y. Mar. 2, 2016) (lifting
1 Hawai’i v. Trump, 263 F. Supp. 3d 1049, 1054 (D. Haw. 2017).
2

previously issued injunctions where “circumstances have changed so significantly as to render the injunctions inequitable and detrimental to the public interest”).
Moreover, this Court is likely the only court that can provide temporary relief from the harms imposed by the Public Charge Rule during the national emergency. Defendants themselves strenuously argue that the district court here “probably lacks the authority” to consider plaintiffs’ concerns about the changed circumstances presented by the COVID-19 pandemic “now that the Court has stayed” the district court’s orders of preliminary relief. (Opp. 16.) Thus—unless this Court clarifies that, contrary to defendants’ assertion, the district court can consider the COVID19 crisis and appropriately tailor temporary relief to those new circumstances—only this Court can decide whether the balance of the equities warrants the lifting or modification of its own stay.
In any event, the unprecedented crisis currently facing this nation calls for unprecedented relief. The COVID-19 pandemic is the largest public-health and economic disaster that the country has faced in at least a century. And the Public Charge Rule is impeding efforts to mitigate the virus’s spread and to stabilize the economy. These exceptional circumstances have already led to extraordinary changes in this country—and indeed around the world. The temporary and targeted relief that plaintiffs request here is thus not disproportionate to the severe problems that we are facing.
Third, defendants dispute that the “equities have shifted in a way that would warrant revisiting” this Court’s stay. (See Opp. 11.) In so arguing, defendants do not contest that the Public Charge Rule is deterring immigrants and their family members from obtaining publicly funded health insurance and medical care during the COVID-19 pandemic, thus undermining efforts to slow the spread of the virus. (See Mot. 18-22.) Nor do they dispute that the Rule is deterring immigrants and their family members from using public benefits, such as Medicaid and
3

Supplemental Nutrition Assistance Program benefits, that are critical to helping plaintiffs and the nation recover from the current economic crisis. (Id. at 22-24.) Indeed, defendants do not challenge as a factual matter any of the concrete evidence of harms presented by plaintiffs.
Instead, defendants assert that they have “taken aggressive actions to address the current public-health crisis” through the alert they issued regarding the application of the Public Charge Rule to COVID-19 medical treatment or preventive services. (Opp. 18.) But plaintiffs have already explained why defendants’ alert is inadequate and thus no substitute for the relief requested here. (Mot. 24-26.) Tellingly, defendants’ principal response to plaintiffs’ objections is to further modify the Rule’s application by stating for the first time that “if an alien enrolls in Medicaid to receive COVID-19-related care, that enrollment will not be a negative factor in a public-charge inadmissibility determination.” (Opp. 13.) Although defendants purport to base this position on the text of the alert they issued, the alert actually appears to say the opposite by admonishing that defendants will continue “to consider the receipt of certain cash and non-cash public benefits, including those that may be used to obtain testing or treatment for COVID-19 in a public charge inadmissibility determination.” (App. 44 (emphasis added).) Defendants’ attempt to further alter the Rule through their opposition to a motion in this Court not only highlights the defects in the original alert, but will also likely cause more confusion about the Rule’s applicability during these tumultuous times—thus further demonstrating the need for this Court to issue a clear ruling that temporarily lifts or modifies its stay until the national emergency ends.
In any event, defendants’ new modification of the Rule’s application falls short for additional reasons. For example, under the alert, the Rule continues to penalize an LPR applicant for seeking or using Medicaid coverage to obtain treatment for medical conditions other than COVID-19 that place patients at high risk of suffering more severe symptoms or death if they
4

contract COVID-19. (See Mot. 25; App. 66 (explaining that because “much of the medical harm of COVID-19 is related to other medical problems, such as heart disease, asthma, or diabetes, effective treatment may involve care for other medical problems for which insurance is necessary”).) And defendants’ assertion that they may consider other COVID-19-related factors that lead an immigrant to access public benefits—“such as enforced social distancing or an employer’s shutting down” (Opp. 13)—is no assurance at all because defendants purport to retain complete discretion to give such factors any weight they choose, including no weight at all. The ambiguous and incomplete nature of defendants’ alert thus should not preclude this Court from determining whether the equities here warrant narrow relief from this Court to fully address the Public Charge Rule’s impact on the COVID-19 crisis.
Defendants also contend (Opp. 14-15) that the Court should simply ignore the evidence of the Rule’s new harms to public health and the economy because many immigrants are forgoing or disenrolling from critical public benefits out of “mistaken beliefs about the Rule’s application and content.” (Opp. 14 (quotation marks and alterations omitted).) But defendants do not dispute that the Public Charge Rule is in fact deterring many immigrants and their family members from using any publicly funded healthcare or nutritional benefits, even if those individuals or benefits are not directly subject to the Rule. In the standing context, this Court has recognized that cognizable injury can be based on the “predictable effect[s]” of a challenged government action—including the effects on individuals who are not directly subject to the government’s action and who react based on purportedly “unfounded fears.” Department of Commerce v. New York, 139 S. Ct. 2551, 2566 (2019). Defendants have cited no case that would preclude this Court from similarly considering such predictable harms in balancing the equities here—particularly when the Rule’s
5

deterrent effects, and their resulting harms to both the parties and the public interest, are not only predictable but are actually happening now.
Moreover, defendants cannot simply dismiss the confusion about the Public Charge Rule that is deterring many immigrants and their family members from using public benefits during the current crisis when that confusion is largely the product of defendants’ own actions. It is entirely understandable that the many ambiguities and deficiencies in the alert and the Rule are driving many immigrants and their family members to avoid public benefits rather than risk losing the opportunity to obtain LPR status and, eventually, U.S. citizenship. (See, e.g., App. 158 (alert has “only created more confusion” about Public Charge Rule); App. 192-193 (explaining difficulties in differentiating between use of federally funded Medicaid, which is a negative or heavily weighted negative factor under Rule depending on duration of use, and use of purely state-funded Medicaid or other healthcare benefits, which is not a negative factor under Rule).) And contrary to defendants’ contention (Opp. 15), officials and agencies in plaintiffs’ jurisdictions, as well as many other state and local officials and private organizations across the country, are expending significant resources to educate the public and clarify the scope of the Public Charge Rule. These efforts have continued during the pandemic despite the enormous strains that COVID-19 is placing on plaintiffs’ resources. (See, e.g., App. 36-37, 116-118.) But temporary and targeted relief from this Court is needed precisely because the Rule continues to drive many immigrants and their family members away from publicly funded healthcare and benefits despite plaintiffs’ efforts to mitigate such harms.
Finally, defendants object to the Court temporarily lifting or modifying its stay on the ground that such relief will halt implementation of the Rule nationwide until the federal emergency ends. (See Opp. 16.) But such nationwide relief is perfectly appropriate to address the nationwide
6

harms that the Rule is inflicting during a public-health and economic crisis that is currently affecting every State in the country. And temporary, nationwide relief will provide needed clarity about the Rule’s application during the pandemic. In any event, to the extent that the Court is concerned about this point, it “need not grant the total relief sought by the applicant but may mold its decree to meet the exigencies of the particular case.” IRAP, 137 S. Ct. at 2087 (quoting 11A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2947, at 115 (3d ed. 2013)). The Court may thus temporarily lift or modify its stay as applied to plaintiffs’ jurisdictions, which are some of the jurisdictions hardest hit by the pandemic. Or the Court may clarify that its stay does not preclude the district court from reconsidering the geographic scope of any further preliminary relief to respond to the new circumstances caused by the COVID-19 pandemic.
7

CONCLUSION

The Court should temporarily lift or modify its stay to halt implementation of the Public

Charge Rule during the national emergency declared on March 13, 2020. In the alternative, the

Court should clarify that its stay does not preclude the district court from considering whether

changed circumstances from the COVID-19 outbreak warrant temporary relief from

implementation of the Public Charge Rule.

Dated: New York, New York April 22, 2020

Respectfully submitted,

LETITIA JAMES
Attorney General State ofNew York

MATTHEW COLANGELO
ChiefCounselfor Federal Initiatives
ELENA GOLDSTEIN
Deputy Bureau Chief Civil Rights Bureau
MING-QI CHU
Section Chief, Labor Bureau

BARBARA D. UNDERWOOD*
Solicitor General
STEVENC. Wu
Deputy Solicitor General
JUDITHN. VALE
Senior Assistant Solicitor General
(212) 416-8016 barbara.underwood@ag.ny.gov * Counsel of Record

WILLIAM TONG
Attorney General State ofConnecticut 55 Elm St. P.O. Box 120 Hartford, CT 06106

THOMAS J. DONOVAN, JR.
Attorney General State of Vermont 109 State St. Montpelier, VT 05609

JAMES E. JOHNSON
Corporation Counsel City ofNew York 100 Church St. New York, NY 10007

8

 
 Cite as: 589 U. S. ____ (2020)

1

GORSUCH, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________
No. 19A785
_________________
DEPARTMENT OF HOMELAND SECURITY, ET AL. v. NEW YORK, ET AL.
ON APPLICATION FOR STAY
[January 27, 2020]
The application for stay presented to JUSTICE GINSBURG and by her referred to the Court is granted, and the District Court’s October 11, 2019 orders granting a preliminary injunction are stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Second Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
JUSTICE GINSBURG, JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN would deny the application.
JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, concurring in the grant of stay.
On October 10, 2018, the Department of Homeland Security began a rulemaking process to define the term “public charge,” as it is used in the Nation’s immigration laws. Approximately 10 months and 266,000 comments later, the agency issued a final rule. Litigation swiftly followed, with a number of States, organizations, and individual plaintiffs variously alleging that the new definition violates the Constitution, the Administrative Procedure Act, and the immigration laws themselves. These plaintiffs have urged courts to enjoin the rule’s enforcement not only as it applies

2 DEPARTMENT OF HOMELAND SECURITY v. NEW YORK
GORSUCH, J., concurring
to them, or even to some definable group having something to do with their claimed injury, but as it applies to anyone.
These efforts have met with mixed results. The Northern District of California ordered the government not to enforce the new rule within a hodge-podge of jurisdictions—California, Oregon, Maine, Pennsylvania, and the District of Columbia. The Eastern District of Washington entered a similar order, but went much farther geographically, enjoining the government from enforcing its rule globally. But both of those orders were soon stayed by the Ninth Circuit which, in a 59-page opinion, determined the government was likely to succeed on the merits. Meanwhile, across the country, the District of Maryland entered its own universal injunction, only to have that one stayed by the Fourth Circuit. And while all these developments were unfolding on the coasts, the Northern District of Illinois was busy fashioning its own injunction, this one limited to enforcement within the State of Illinois.
If all of this is confusing, don’t worry, because none of it matters much at this point. Despite the fluid state of things—some interim wins for the government over here, some preliminary relief for plaintiffs over there—we now have an injunction to rule them all: the one before us, in which a single judge in New York enjoined the government from applying the new definition to anyone, without regard to geography or participation in this or any other lawsuit. The Second Circuit declined to stay this particular universal injunction, and so now, after so many trips up and down and around the judicial map, the government brings its well-rehearsed arguments here.
Today the Court (rightly) grants a stay, allowing the government to pursue (for now) its policy everywhere save Illinois. But, in light of all that’s come before, it would be delusional to think that one stay today suffices to remedy the problem. The real problem here is the increasingly common practice of trial courts ordering relief that transcends the

Cite as: 589 U. S. ____ (2020)

3

GORSUCH, J., concurring
cases before them. Whether framed as injunctions of “nationwide,” “universal,” or “cosmic” scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.
Equitable remedies, like remedies in general, are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit. When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place. But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III. See Trump v. Hawaii, 585 U. S. ___, ___ (2018) (THOMAS, J., concurring); Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 471–472 (2017) (Bray); Morley, De Facto Class Actions? Plaintiff- and Defendant-Oriented Injunctions in Voting Rights, Election Law, and Other Constitutional Cases, 39 Harv. J. L. & Pub. Pol’y 487, 523–527 (2016).
It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice. As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions. Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little

4 DEPARTMENT OF HOMELAND SECURITY v. NEW YORK
GORSUCH, J., concurring
opportunity for the adversarial testing of evidence. This is not normal. Universal injunctions have little ba-
sis in traditional equitable practice. Bray 425–427. Their use has proliferated only in very recent years. See Trump, 585 U. S., at ___–___ (THOMAS, J., concurring) (slip op., at 8–9). And they hardly seem an innovation we should rush to embrace. By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions. Bray 461–462. The traditional system of lower courts issuing interlocutory relief limited to the parties at hand may require litigants and courts to tolerate interim uncertainty about a rule’s final fate and proceed more slowly until this Court speaks in a case of its own. But that system encourages multiple judges and multiple circuits to weigh in only after careful deliberation, a process that permits the airing of competing views that aids this Court’s own decisionmaking process. Ibid. The rise of nationwide injunctions may just be a sign of our impatient times. But good judicial decisions are usually tempered by older virtues.
Nor do the costs of nationwide injunctions end there. There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal. Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide. Id., at 457–461. The risk of winning conflicting nationwide injunctions is real too. Id., at 462–464. And the stakes are asymmetric. If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94to-0 win in the district courts into a 12-to-0 victory in the courts of appeal. A single loss and the policy goes on ice— possibly for good, or just as possibly for some indeterminate

Cite as: 589 U. S. ____ (2020)

5

GORSUCH, J., concurring
period of time until another court jumps in to grant a stay. And all that can repeat, ad infinitum, until either one side gives up or this Court grants certiorari. What in this gamesmanship and chaos can we be proud of?
I concur in the Court’s decision to issue a stay. But I hope, too, that we might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.

 
 Case C1:a1s9e-c1v9--037579717,-DGoBcDu-mOeTnWt 56D2o-1c,u1m0e/0n7t /2220720,F2ile9d471500/047, /P2a0geP1aogfe11 1o9f -1cv-7777(GBD)
MANDATE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th day of August, two thousand twenty.

Before:

Pierre N. Leval,

Peter W. Hall,

Gerard E. Lynch,

Circuit Judges.

____________________________________

State of New York, City of New York, State of Connecticut, State of Vermont,

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: ______________
JUDGMENT
Docket No. 19-3591

Plaintiffs - Appellees, v.

United States Department of Homeland Security, Secretary Chad F. Wolf, in his official capacity as Acting Secretary of the United States Department of Homeland Security, United States Citizenship and Immigration Services, Director Kenneth T. Cuccinelli II, in his official capacity as Acting Director of United States Citizenship and Immigration Services, United States of America,

Defendants - Appellants. ________________________________________

The appeal in the above captioned case from orders of the United States District Court for the Southern District of New York was argued on the district court’s record and the parties’ briefs. Upon consideration thereof,

IT IS HEREBY ORDERED, ADJUDGED and DECREED that the district court’s orders are AFFIRMED AS MODIFIED.

For the Court: Catherine O’Hagan Wolfe, Clerk of Court

MANDATE ISSUED ON 10/07/2020

 
 CaseCa1s:1e92-c0v--20573777,7D-GocBuDmeDnto3c6u,m0e8n/1t 2/02402F0,ile2d900686/1324/,2P0agPea1goef 12 of 2N19.Y-c.vS-.7D7.7c7a(sGeB#D)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: ______________

At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of August, two thousand twenty.

State of New York, City of New York, State of Connecticut, State of Vermont,
Plaintiffs-Appellees,
v.
United States Department of Homeland Security, Secretary Chad F. Wolf, in his official capacity as Acting Secretary of the United States Department of Homeland Security, United States Citizenship and Immigration Services, Director Kenneth T. Cuccinelli II, in his official capacity as Acting Director of United States Citizenship and Immigration Services, United States of America,
Defendants-Appellants.

ORDER No. 20-2537

Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services, (Archdiocese of New York), Catholic Legal Immigration Network, Inc.,
Plaintiffs-Appellees,
v.
Kenneth T. Cuccinelli, in his official capacity as Acting Director of United States Citizenship and Immigration Services, United States Citizenship and Immigration Services, Chad F. Wolf, in his official capacity as Acting Secretary of Homeland Security, United States Department of Homeland Security,
Defendants-Appellants.

PETER W. HALL, Circuit Judge:
Upon due consideration of the Defendants-Appellants’ motion seeking a stay, pending resolution by the panel assigned to decide the motion, it is hereby ORDERED that the injunction entered by the District Court on July 29, 2020 is stayed with respect to all states other than those

CaseCa1s:1e92-c0v--20573777,7D-GocBuDmeDnto3c6u,m0e8n/1t 2/02402F0,ile2d900686/1324/,2P0agPea2goef 2 of 2 within the Second Circuit: Connecticut, New York, and Vermont. See New York v. United States Dep’t of Homeland Sec., No. 19-3591, 2020 WL 4457951, at *32 (2d Cir. Aug. 4, 2020).
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
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 19-cv-7777(GBD) Case 1:C1a9s-cev2-007-2757377-G, DBoDc-uOmTeWnt 9D3o,c0u9m/1e1n/t2201220, 2F9il2e9d30691/,1P1a/2g0e1Poaf g1e2 1 of 12

20-2537 New York v. DHS

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: Sept. 10, 2020 _

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
___________________
August Term, 2020 (Submitted: August 19, 2020 Decided September 11, 2020)
Docket No. 20-2537 ___________________
STATE OF NEW YORK, CITY OF NEW YORK, STATE OF CONNECTICUT, STATE OF VERMONT, MAKE THE ROAD NEW YORK, AFRICAN SERVICES COMMITTEE, ASIAN AMERICAN FEDERATION, CATHOLIC CHARITIES COMMUNITY SERVICES, (ARCHDIOCESE
OF NEW YORK), CATHOLIC LEGAL IMMIGRATION NETWORK, INC.,
Plaintiffs-Appellees, v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, SECRETARY CHAD F. WOLF, IN HIS OFFICIAL CAPACITY AS ACTING SECRETARY OF THE UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, DIRECTOR KENNETH T. CUCCINELLI II, IN HIS OFFICIAL CAPACITY AS ACTING DIRECTOR
OF UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES OF AMERICA,
Defendants-Appellants.
___________________

Before: LEVAL AND LYNCH, Circuit Judges.*
In appealing from a preliminary injunction granted to the plaintiffs by the United States District Court for the Southern District of New York (Daniels, J.), the defendant Department of Homeland Security (“DHS”) moves to stay the preliminary injunction pending resolution of this appeal. We conclude that the moving party has demonstrated
1
* Circuit Judge Peter W. Hall, originally a member of the panel, is currently unavailable, and the motion is being adjudicated by the two available members of the panel, who are in agreement. See 2d Cir. IOP E(b).
CERTIFIED COPY ISSUED ON 09/11/2020

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likelihood of success on the merits as we doubt that the district court had jurisdiction to issue the preliminary injunction while this Court was considering an appeal from a prior, virtually identical preliminary injunction. Accordingly, we stay the preliminary injunction pending further order of this Court by the panel charged with deciding its merits.
___________________
Judith N. Vale, Senior Assistant Solicitor General, State of New York, New York, NY (Letitia James, Attorney General, Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, Matthew Colangelo, Chief Counsel for Federal Initiatives, Elena Goldstein, Deputy Bureau Chief, Civil Rights, Ming-Qi Chu, Section Chief, Labor Bureau, State of New York, New York, NY, William Tong, Attorney General, State of Connecticut, Hartford, CT, Thomas J. Donovan, Jr., Attorney General, State of Vermont, Montpelier, VT, James E. Johnson, Corporation Counsel, City of New York, New York, NY, on the brief), for Plaintiffs-Appellees State of New York, City of New York, State of Connecticut, State of Vermont.
Jonathan H. Hurwitz, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY (Andrew J. Ehrlich, Elana R. Beale, Robert J. O’Loughlin, Daniel S. Sinnreich, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Ghita R. Schwarz, Brittany Thomas, Baher A. Azmy, Center for Constitutional Rights, New York, NY, Susan E. Welber, Kathleen Kelleher, Susan Cameron, Hasan Shafiqullah, The Legal Aid Society of New York, New York, NY, on the brief), for Plaintiffs-Appellees Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services, (Archdiocese of New York), Catholic Legal Immigration Network, Inc.
Gerard Sinzdak, Appellate Staff Attorney, Civil Division, United States Department of Justice, Washington, DC (Joseph H. Hunt, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC, Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, Daniel Tenny, Joshua Dos Santos, Appellate Staff Attorneys, Civil Division, United States Department of Justice, Washington, DC on the brief), for Defendants-Appellants United States Department of
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Homeland Security, Acting Secretary Chad F. Wolf, United States Citizenship and Immigration Services, Acting Director Kenneth T. Cuccinelli, United States of America.
William E. Havemann, Office of General Counsel, United States House of Representatives, Washington, DC (Douglas N. Letter, General Counsel, Todd B. Tatelman, Principal Deputy General Counsel, Megan Barbero, Josephine Morse, Adam A. Grogg, Office of General Counsel, United States House of Representatives, Washington, DC, Robert M. Loeb, Thomas M. Bondy, Peter E. Davis, Orrick, Herrington & Sutcliffe LLP, Washington, DC, Rene Kathawala, Orrick, Herrington & Sutcliffe LLP, New York, NY, on the brief), for Amicus Curiae United States House of Representatives, in support of Plaintiffs-Appellees. ___________________
PER CURIAM:
On January 27, 2020, the Supreme Court stayed a preliminary injunction issued by
the United States District Court for the Southern District of New York (George B. Daniels,
J.) that had enjoined the Department of Homeland Security (“DHS”) from implementing a
final rule setting out a new agency interpretation of our immigration law that expands the
meaning of “public charge” in determining whether a non-citizen is admissible to the
United States. While the appeal of that preliminary injunction was pending before us, the
district court issued a new, nationwide, preliminary injunction preventing DHS from
enforcing that same rule based on its finding that the COVID-19 pandemic heightened the
need for the stay. The initial issue here is whether the district court had jurisdiction to enter
a second preliminary injunction, given the then pending appeal of the first injunction.
Because DHS has demonstrated likelihood of success on the merits, given our doubt that
3

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the district court had jurisdiction to enter the preliminary injunction while its prior, virtually identical injunction was pending appeal before this Court, we grant DHS’s motion to stay.
PROCEDURAL HISTORY This case involves a challenge to the implementation of a DHS rule that introduced a new framework for determining the admissibility of non-citizens to the United States, expanding the meaning of the “public charge” ground of inadmissibility, see 8 U.S.C. § 1182(a)(4), to include significantly more people than would have been found inadmissible under previous administrative understandings of that ground. See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (“the Rule” or “the Final Rule”). In October 2019, the district court enjoined DHS from implementing the Rule anywhere in the United States, in a set of orders in two now consolidated cases. New York v. Dep’t of Homeland Sec., No. 19-cv7777 (S.D.N.Y.); Make the Road New York v. Cuccinelli, No. 19-cv-7993 (S.D.N.Y.). Several other district courts, in the District of Maryland, the Northern District of Illinois, the Northern District of California, and the Eastern District of Washington, issued similar preliminary injunctions prohibiting DHS’s enforcement of the Rule nationwide. See CASA de Maryland, Inc. v. Trump, No. 19-cv-2715 (D. Md.); Cook Cty. v. Wolf, No. 19-cv-6334 (N.D. Ill.); City and Cty. of San Francisco v. USCIS, No. 19-cv4717 (N.D. Cal.); California v. Dep’t of Homeland Sec., No. 19-cv-4975 (N.D. Cal.); Washington v. Dep’t of Homeland Sec., No. 19-cv-5210 (E.D. Wash.).
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DHS appealed the October 2019 preliminary injunctions, and a motions panel of this Court denied its motion to stay the injunctions pending its appeal. New York v. U.S. Dep’t of Homeland Sec., No. 19-3591, 2020 WL 95815 (2d Cir. Jan. 8, 2020). While that appeal was pending in this Court, the Supreme Court granted DHS’s application for a stay of the injunction:
[The] October 11, 2019 orders granting a preliminary injunction are stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Second Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. Dep’t of Homeland Sec. v. New York, --- U.S. ---, 140 S. Ct. 599, 206 L.Ed.2d 115 (2020). With the district court’s preliminary injunctions thus stayed, the Rule went into effect nationwide. In April 2020, the Plaintiffs asked the Supreme Court to modify its stay of the injunction during the pendency of the national emergency caused by the COVID-19 virus. The Supreme Court denied the request but suggested an alternative route to potential relief, noting that “[t]his order does not preclude a filing in the District Court as counsel considers appropriate.” Dep’t of Homeland Sec. v. New York, --- S. Ct. ---, 206 L.Ed.2d 847, 2020 WL 1969276, at *1 (Apr. 24, 2020).
The Plaintiffs returned to the district court. Notwithstanding that the court had already granted a preliminary injunction against implementation of the Rule, the merits of which were on appeal before this Court, and which had been stayed by the Supreme Court,
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the Plaintiffs filed a new motion for a preliminary injunction. They argued that the COVID19 pandemic dramatically increases the public harm caused by the Rule, because the Rule deters non-citizens from getting tested for COVID-19 or seeking treatment, thus impeding efforts to prevent COVID-19’s spread, and puts the non-citizens themselves at a particular risk given that they make up a significant portion of the work force in essential industries that have continued to work throughout the pandemic and been disproportionately impacted by COVID-19. DHS opposed the motion, asserting that the district court lacked jurisdiction to issue a preliminary injunction while DHS’s appeal of the initial preliminary injunction was before this Court.
The district court issued a new injunction on July 29, 2020, concluding that the Rule “impedes public efforts . . . to stem the spread of the disease.” New York v. U.S. Dep’t of Homeland Sec., No. 19-cv-7777, 2020 WL 4347264, at *10 (S.D.N.Y. July 29, 2020). It found that it had jurisdiction to issue another preliminary injunction despite “[o]verlapping legal issues” with the prior injunction then pending on appeal before us, because of the new COVID-19-related evidence and because the district court is better suited to make factual findings and provide narrowly tailored relief than an appellate court. Id. at *9. It opined that this new, nationwide preliminary injunction did not contravene the Supreme Court’s stay of the initial preliminary injunction, reasoning that there was “no indication that the Supreme Court disagreed with [its] analysis of the merits,” and that the Supreme Court’s stay was issued “on a significantly different factual record.” Id. Although the district court concluded that it had jurisdiction to issue a new preliminary injunction, it
6

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acknowledged the possibility that we might have a different opinion and explained that “[s]hould the Second Circuit determine that this Court does not presently have jurisdiction to issue this injunction and remand[ ] this case for the purpose of further considering the Plaintiffs’ present motion, this Court would issue a preliminary injunction based on factual findings as set forth herein.” Id. at *14.
Just days later, on August 4, 2020, we ruled on DHS’s appeal of the initial preliminary injunctions entered in October 2019. New York v. U.S. Dep’t of Homeland Sec., 969 F.3d 42 (2d Cir. 2020). Addressing only those preliminary injunctions, we affirmed the district court’s rulings in part. We agreed with the district court that the Plaintiffs are likely to succeed on the merits of their claim that the Rule is arbitrary and capricious, that the Plaintiffs had shown that they would suffer irreparable injury if the Rule’s implementation was not enjoined, and that the public interest favored a preliminary injunction given DHS’s acknowledgment that the Rule “will likely result in ‘[w]orse health outcomes, including increased prevalence of obesity and malnutrition, . . . [i]ncreased prevalence of communicable diseases, . . . [i]ncreased rates of poverty and housing instability[,] and [r]educed productivity and educational attainment.’” Id. at 87 (quoting 83 Fed. Reg. at 51,270). Although we therefore upheld the preliminary injunctions blocking the Rule, we narrowed the scope of the injunctions to the States within this Circuit – New York, Connecticut, and Vermont – each of which had joined in this suit and demonstrated that it and its citizens would suffer irreparable injury from the Rule. We noted the skepticism of the Supreme Court toward nationwide injunctions in these very
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cases, see Dep’t of Homeland Sec. v. New York, 140 S. Ct. at 599-601 (Gorsuch, J., concurring in the grant of stay), and concluded that, to the extent that the issuance of such injunctions would in some cases be appropriate, the “issuance of unqualified nationwide injunctions is a less desirable practice where, as here, numerous challenges to the same agency action are being litigated simultaneously in district and circuit courts across the country. 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 v. U.S. Dep’t of Homeland Sec., 969 F.3d at 88. Thus, we found no need for a broader injunction, particularly given the Supreme Court’s stay, which remains in effect “not only through our disposition of the case, but also through the disposition of DHS’s petition for a writ of certiorari, should DHS seek review of this decision.” Id.
DHS now appeals the district court’s second nationwide preliminary injunction. Currently before us is its motion to stay the new injunction and allow the Rule to remain in effect during our consideration of this new appeal.
DISCUSSION
The factors relevant in assessing a motion for a stay pending appeal are the applicant’s “strong showing that he is likely to succeed on the merits,” irreparable injury to the applicant in the absence of a stay, substantial injury to the nonmoving party if a stay is issued, and the public interest. See Nken v. Holder, 556 U.S. 418, 434 (2009). The first
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two factors are the most critical, but a stay “is not a matter of right, even if irreparable injury might otherwise result”; rather, a stay is “an exercise of judicial discretion,” and “[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of discretion.” Id. at 433-34 (internal quotation marks omitted).
In our view, DHS has shown that it is likely to succeed on the merits, primarily because we doubt that the district court had jurisdiction to issue the July 29 preliminary injunction while the appeal of its virtually identical prior preliminary injunction was pending before this Court. We also doubt whether the nationwide application of the injunction was proper in light of the considerations we set forth in New York v. Dep’t of Homeland Sec., which was not available to the district court at the time it issued the second injunction. Finally, we conclude that DHS has shown irreparable injury from the district court’s prohibition on effectuating the new regulation.
The filing of a “timely and sufficient notice of appeal” divests the district court of jurisdiction “as to any matters involved in the appeal” or “as to the matters covered by the notice.” Leonhard v. U.S., 633 F.2d 599, 609-10 (2d Cir. 1980); accord Motorola Credit Corp. v. Uzan, 388 F.3d 39, 53-54 (2d Cir. 2004) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982); N.Y. State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1350 (2d Cir. 1989)). In our view, the Supreme Court’s response to Plaintiffs’ April 2020 motion to lift or modify the stay of the initial preliminary injunction, that its “order does not preclude a filing in the District Court as counsel considers appropriate,” Dep’t of
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Homeland Sec. v. New York, 2020 WL 1969276, at *1, does not mean the district court was vested with jurisdiction.
We have held that “once a notice of appeal has been filed, a district court may take actions only ‘in aid of the appeal or to correct clerical errors.’” Int’l Ass’n of Machinists and Aerospace Workers, AFL-CIO v. E. Air Lines, Inc., 847 F. 2d 1014, 1017 (2d Cir. 1988) (quoting Leonhard, 633 F.2d at 609-10)). We are not persuaded by the district court’s reliance on instances where we have found district courts had jurisdiction during the pendency of an appeal. In Webb v. GAF, 78 F.3d 53 (2d Cir. 1996), for example, we dismissed an appeal of a preliminary injunction as moot, when during the pendency of the appeal of the preliminary injunction, the district court decided pending post-trial motions in accordance with jury determinations, and made a dispositive ruling on the merits of the case that rendered the injunction permanent. See Webb, 78 F.3d at 53-56. Webb is not analogous to the instant case: There the district court proceeded with the case on the merits, which resulted in a permanent injunction that mooted the preliminary relief that was the subject of the appeal; here, in contrast, the district court undertook to reconsider the very preliminary injunction that was under review in this Court, and simply provided new reasons to justify the preliminary relief itself.
Nor, in our view, does International Ass’n of Machinists and Aerospace Workers, AFL-CIO, support the district court’s exercise of jurisdiction. There, we held that where an appeal of an injunction is pending, Federal Rule of Civil Procedure 62 grants the district court specific authority to “suspend, modify, restore, or grant an injunction during the
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pendency of the appeal,” but that the Rule should be “narrowly interpreted to allow district courts to grant only such relief as may be necessary to preserve the status quo.” 847 F.2d at 1018 (quoting Fed. R. Civ. P. 62(c)). Here, the district court did not attempt to preserve the status quo. In January, the Supreme Court stayed the initial preliminary nationwide injunctions in their entirety “pending disposition of the Government’s appeal in the United States Court of Appeals for the Second Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought.” Dep’t of Homeland Sec. v. New York, 140 S. Ct. at 599. The district court’s injunction thus disrupted the status quo by imposing an injunction where the Supreme Court had stayed the preexisting injunctions.
Nor did our August 4, 2020, ruling on the merits of the district court’s October 2019 preliminary injunction retroactively cure the district court’s apparent lack of authority. See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (stating that the filing of a notice of appeal “confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal”). Our ruling addressed the merits of the original preliminary injunction that had been stayed by the Supreme Court. Our ruling affirmed the grant of preliminary relief but limited its scope. We did not address – nor did the district court – the jurisdictional impact of the Supreme Court’s stay pending a timely petition by the Government for a writ of certiorari. We did, however, modify the injunction to limit its reach to the three plaintiff states that make up this Circuit. Whether or not the pandemic affects the balance of equities favoring preliminary relief, it is not
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obvious that the effects of the pandemic bear on the considerations that led us to modify the district court’s initial injunction.
Accordingly, we conclude that DHS has shown a likelihood of success on the merits based primarily on the district court’s apparent lack of jurisdiction to issue the preliminary injunction during the appeal of its prior, virtually identical injunction (coupled with DHS’s showing of irreparable harm resulting from its inability to enforce its regulation).
CONCLUSION For the foregoing reasons, it is ORDERED that the district court’s July 29, 2020 grant of a preliminary injunction is STAYED pending further order of this Court. The merits of this appeal will be considered by another panel of this Court. The views expressed herein on the question whether the district court had jurisdiction to enter the order appealed from and on the nationwide scope of the injunction are intended solely as informing our assessment of whether the moving party demonstrated likelihood of success on the merits and are not intended to bind the merits panel on that question.
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