ADRMOPTERM,APPEAL,RELATE,STAYED
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:19-cv-04717-PJH

City and County of San Francisco et al v. U.S. Citizenship and Immigration Services et al Assigned to: Judge Phyllis J. Hamilton Relate Case Cases: 4:19-cv-04975-PJH
4:19-cv-04980-PJH Case in other court: Ninth Circuit Court of Appeals, 19-
17213 U.S. Supreme Court, 20-00962 Cause: 05:551 Administrative Procedure Act

Date Filed: 08/13/2019 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff City and County of San Francisco

represented by Dennis J. Herrera City Attorney for the City and County of San Francisco 1 Dr. Carlton B. Goodlett Place City Hall, Room 234 San Francisco, CA 94102 (415) 554-4748 Fax: (415) 554-4715 Email: cityattorney@sfcityatty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew David Goldberg City & County of San Francisco City Attorney's Office 1390 Market Street Seventh Floor San Francisco, CA 94121 415-554-4285 Fax: 415-554-3985 Email: matthew.goldberg@sfcityatty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Jennifer Eisenberg San Francisco City Attorney's Office

Plaintiff County of Santa Clara

Chief of Strategic Advocacy City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102 (415) 554-4633 Fax: (415) 554-4715 Email: sara.eisenberg@sfcityatty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald P. Flynn San Francisco City Attorney's Office Chief Deputy City Attorney City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102-5408 (415) 554-4708 Fax: (415) 255-0733 Email: ronald.flynn@sfcityatty.org ATTORNEY TO BE NOTICED
Yvonne Rosil Mere San Franciscto City Attorney's Office Chief of Complex and Affirmative Litigation Fox Plaza 1390 Market Street, Sixth Street San Francisco, CA 94102 (415) 554-3874 Fax: (415) 437-4644 Email: yvonne.mere@sfcityatty.org ATTORNEY TO BE NOTICED
represented by James Robyzad Williams Santa Clara County Counsel's Office 70 West Hedding Street East Wing, Ninth Floor San Jose, CA 95110 (408) 299-6936 Fax: (408) 292-7240 Email: james.williams@cco.sccgov.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hannah Luke Edwards Santa Clara County Office of the County Counsel 70 West Hedding Street East Wing, 9th Floor San Jose, CA 95110 United Sta 408-299-5900 Fax: 408-292-7240 Email: luke.edwards@cco.sccgov.org ATTORNEY TO BE NOTICED
Julia Blau Spiegel Santa Clara County Counsel's Office 70 West Hedding Street East Wing, 9th Floor San Jose, CA 95110 United Sta 650-740-6621 Fax: 6507406621 Email: julia.spiegel@cco.sccgov.org ATTORNEY TO BE NOTICED
Laura Susan Trice Office of the County Counsel County of Santa Clara 70 W. Hedding Street East Wing, 9th Floor San Jose, CA 95110 408-299-5900 Fax: 408-292-7240 Email: Laura.Trice@cco.sccgov.org ATTORNEY TO BE NOTICED
Raphael N. Rajendra Office of the County Counsel County of Santa Clara 70 West Hedding Street East Wing, Ninth Floor San Jose, CA 95110 408-299-5900 Fax: 408-292-7240 Email: raphael.rajendra@cco.sccgov.org ATTORNEY TO BE NOTICED

V. Defendant U.S. Citizenship and Immigration Services
Defendant Department of Homeland Security
Defendant Kevin McAleenen Acting Secretary of Homeland Security
Defendant Kenneth T. Cuccinelli in his official capacity as Acting Director of U.S. Citizenship and

represented by Ethan Price Davis U.S. Department of Justice Civil Division 950 Pennsylvania Ave NW Room 3133 Washington, DC 20530 202-616-4171 Email: ethan.p.davis@usdoj.gov TERMINATED: 09/04/2020
Joshua Michael Kolsky Department of Justice Civil Division -- Federal Programs Branch 1100 L Street NW Washington, DC 20005 (202) 305-7664 Fax: (202) 616-8470 Email: joshua.kolsky@usdoj.gov ATTORNEY TO BE NOTICED
represented by Ethan Price Davis (See above for address) TERMINATED: 09/04/2020
Joshua Michael Kolsky (See above for address) ATTORNEY TO BE NOTICED
represented by Ethan Price Davis (See above for address) TERMINATED: 09/04/2020
Joshua Michael Kolsky (See above for address) ATTORNEY TO BE NOTICED
represented by Ethan Price Davis (See above for address) TERMINATED: 09/04/2020

Immigration Services
V. Movant Health Law Advocates, Inc.

Joshua Michael Kolsky (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen Health Law Advocates, Inc. Health Law Advocates, Inc. 1 Federal St., 5th Floor Boston, MA 02135 617-275-2891 Fax: 617-338-5242 Email: acohen@hla-inc.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe healthlawadvocates One Federal Street Boston, MA 02110 617-275-2981 Fax: 617-338-5242 Email: jlowe@hla-inc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody Leiff Cabraser Heimann & Bernstein LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 415-956-1000 Fax: 415-956-1008 Email: kdermody@lchb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit Lieff Cabraser et al 275 Battery St Fl 29 San Francisco, CA 94111-3339 415-956-1000

Fax: 415-956-1008 Email: mlevin@lchb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet Health Law Advocates, Inc. 416 Huntington Ave. Boston, MA 02116 617-373-2019 Email: w.parmet@northeastern.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London Foley Hoag LLP 155 Seaport Boulevard Boston, MA 02210 617-832-1737 Email: alondon@foleyhoag.com PRO HAC VICE ATTORNEY TO BE NOTICED
Christian Springer Foley Hoag LLP 1717 K St NW Suite 1200 Washington, DC 20006 United Sta 303-642-6391 Email: cspringer@foleyhoag.com PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash Foley Hoag LLP 155 Seaport Boulevard Boston, MA 02210-2600 617-832-1000 Email: enash@foleyhoag.com PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp Foley Hoag LLP

Movant
Latino Coalition for a Healthy California

155 Seaport Boulevard Boston, MA 02210 617-832-1000 Email: kbuncedefilipp@foleyhoag.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant
California Pan-Ethnic Health Network

Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE

Movant
Korean Community Center of the East Bay

ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant
California Immigrant Policy Center

represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sadik Harry Huseny Latham & Watkins LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111 415-391-0600 Fax: 415-395-8095 Email: sadik.huseny@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash

Movant Health Care For All

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Community Catalyst

Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address)

Movant
Massachusetts Law Reform Institute

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Northeastern Universitys Center for Health Policy and Law
Movant Health in Justice Action Lab

represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Public Health Law Watch

Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address)

Movant Northwest Health Law Advocates

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Movant
Charlotte Center for Legal Advocacy

Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address)

Movant Kentucky Equal Justice Center

PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Michigan Immigrant Rights Center

Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE

Movant Florida Health Justice Project

ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp

Movant Maine Immigrant Rights Coalition

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant New York Immigration Coalition

represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Community Healthcare Network

represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant
Arab Community Center for Economic and Social Services

represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Treatment Action Group

represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Welcome Project

represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Families USA

represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant UMass Memorial Health Care, Inc.

represented by Andrew Paul Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Wendy Ellen Parmet (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristyn Marie DeFilipp (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Movant Northeastern University Center for Health Policy and Law
Movant American Hospital Association

represented by Justin Jonathan Lowe (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Ian Levin-Gesundheit (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew M. London (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emily Joanne Nash (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales Hogan Lovells US LLP 1999 Avenue of the Stars Ste. 1400 Los Angeles, CA 90067 310-785-4670 Email: michelle.roberts@hoganlovells.com ATTORNEY TO BE NOTICED
Sean Michael Marotta Hogan Lovells US LLP 555 Thirteenth Street, N.W. Washington, DC 20004 202-637-4881 Email: sean.marotta@hoganlovells.com

Movant America's Essential Hospitals
Movant Association of American Medical Colleges
Movant Catholic Health Association of the United States
Movant The Children's Hospital Association
Movant The Federation of American Hospitals

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales (See above for address) ATTORNEY TO BE NOTICED
Sean Michael Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales (See above for address) ATTORNEY TO BE NOTICED
Sean Michael Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales (See above for address) ATTORNEY TO BE NOTICED
Sean Michael Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales (See above for address) ATTORNEY TO BE NOTICED
Sean Michael Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Michelle Roberts Gonzales (See above for address)

Movant
American Public Health Association

ATTORNEY TO BE NOTICED
Sean Michael Marotta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Edward Todd Waters Feldesman Tucker Leifer Fidell, LLP 1129 20th Street N.W., Fourth Floor Washington, DC 20036 202-466-8960 Fax: 202-293-8103 Email: ewaters@ftlf.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Ellen Doi Hanson Bridgett LLP 500 Capitol Mall, Suite 1500 Sacramento, CA 95814 (916) 491-3024 Fax: (916) 491-3079 Email: KDoi@hansonbridgett.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher John Frisina Feldesman Tucker Leifer Fidell, LLP 1129 20th Street N.W., Fourth Floor Washington, DC 20036 202-466-8960 Fax: 202-293-8103 Email: cj.frisina@gmail.com TERMINATED: 10/17/2019
Phillip Anselm Escoriaza Feldesman Tucker Leifer Fidell, LLP 1129 20th Street N.W., Fourth Floor Washington, DC 20036 202-466-8960 Fax: 202-293-8103 Email: pescoriaza@ftlf.com PRO HAC VICE

Movant American Academy of Nursing
Movant NHLP; FRAC; CLASP, et al.

ATTORNEY TO BE NOTICED
represented by Edward Todd Waters (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Ellen Doi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher John Frisina (See above for address) TERMINATED: 10/17/2019
Phillip Anselm Escoriaza (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert Adam Lauridsen Keker Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111-1809 415-391-5400 Fax: 415-397-7188 Email: alauridsen@keker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victor H. Yu Keker Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111-1809 (415) 391-5400 Fax: (415) 397-7188 Email: vyu@keker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant American Academy of Pediatrics
Movant American Medical Association
Movant American College of Physicians

Frances Cheston Thacher Keker, Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111 (415) 391-5400 Fax: (415) 397-7188 Email: cthacher@keker.com TERMINATED: 12/21/2020
represented by Susan Marie Krumplitsch Cooley LLP 3175 Hanover Street Palo Alto, CA 94304 650-843-500 Fax: 650-849-7400 Email: skrumplitsch@cooley.com TERMINATED: 05/29/2020 LEAD ATTORNEY
Priyamvada Arora Cooley LLP 3175 Hanover Street Palo Alto, Ca 94304 650-843-5244 Email: parora@cooley.com ATTORNEY TO BE NOTICED
represented by Susan Marie Krumplitsch (See above for address) TERMINATED: 05/29/2020 LEAD ATTORNEY
Priyamvada Arora (See above for address) ATTORNEY TO BE NOTICED
represented by Susan Marie Krumplitsch (See above for address) TERMINATED: 05/29/2020 LEAD ATTORNEY
Priyamvada Arora (See above for address)

ATTORNEY TO BE NOTICED

Movant American Academy of Pediatrics, California
Movant Fiscal Policy Institute
Movant Presidents' Alliance on Higher Education and Immigration
Movant Economic Progress Institute
Movant Oasis Legal Services
Movant Community Action Marin
Movant

represented by Susan Marie Krumplitsch (See above for address) TERMINATED: 05/29/2020 LEAD ATTORNEY
Priyamvada Arora (See above for address) ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Child Care Law Center
Movant Boundless Immigration
Movant National Center for Law and Economic Justice
Movant Virginia Interfaith Center for Public Policy
Movant Kids Forward
Amicus Justice in Aging

represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sadik Harry Huseny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christina Maria Assi Proskauer Rose LLP 2029 Century Park East Suite 2400 Los Angeles, CA 90067 310-284-4570 Fax: 3105572193 Email: cassi@proskauer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn Proskauer Rose LLP Eleven Times Square New York, NY 10036 (212) 969-3286

Fax: (212) 969-2900 Email: rhirschhorn@proskauer.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Denny W Chan Justice in Aging 3660 Wilshire Blvd Ste 718 Los Angeles, CA 90010 213-375-3559 Email: dchan@justiceinaging.org PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean Justice in Aging 1444 EYE ST. NW, SUITE 1100 WASHINGTON, DC 20005 United Sta 202-621-1038 Email: nkean@justiceinaging.org PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters Proskauer Rose LLP 1001 PENNSYLVANIA AVE N.W. SUITE 600 SOUTH Washington, DC 20004 (202) 416-6828 Fax: (202) 416-6899 Email: omasters@proskauer.com TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey Justice In Aging 1114 I St. NW Suite 1100 Washington, DC 20005 202-683-1990 Email: rbailey@justiceinaging.org PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus American Society on Aging
Amicus Caring Across Generations

represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Denny W Chan (See above for address)

Amicus
Jewish Family Service of Los Angeles

PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey

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

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY

Amicus
National Hispanic Council on Aging

PRO HAC VICE ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters

Amicus MAZON
Amicus PHI

(See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Maria Assi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus The Cities of Los Angeles and Oakland, California; Harris County, Texas; and 26 Additional Cities, Counties, and Local Government Agencies TERMINATED: 09/12/2019
Amicus County of Santa Cruz, California
Amicus

Russell Laurence Hirschhorn (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Denny W Chan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Natalie Elise Kean (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Owen Masters (See above for address) TERMINATED: 05/29/2020 PRO HAC VICE
Regan M Bailey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein Office of the Los Angeles City Attorney 200 North Spring Street 14th Floor Los Angeles, CA 90012 213.978.1868 Fax: 213.978.2286 Email: danielle.goldstein@lacity.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED

County of Harris, Texas

represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED

Amicus Housing Authority of the City of Los Angeles, California
Amicus City of Dallas, Texas
Amicus County of San Mateo, California
Amicus City of Albuquerque, New Mexico
Amicus County of Monterey, California
Amicus City and County of Denver, Colorado
Amicus City of Los Angeles
Amicus City of West Hollywood, California
Amicus

represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED

County of Travis, Texas
Amicus City of Somerville, Massachusetts
Amicus City of Houston, Texas
Amicus City of Holyoke, Massachusetts
Amicus City of Detroit, Michigan
Amicus City of Minneapolis, Minnesota
Amicus City of Stockton, California
Amicus City of Baltimore, Maryland
Amicus City of Santa Monica, California
Amicus

represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED

City of Philadelphia, Pennsylvania
Amicus County of Marin, California
Amicus City of Seattle, Washington
Amicus County of King, Washington
Amicus City of Santa Fe, New Mexico
Amicus City of South Bend, Indiana
Amicus City of Sacramento, California
Amicus City Of Oakland
Amicus City of Austin, Texas
Amicus

represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED

City of Chicago, Illinois
Amicus Deans, Chairs, and Scholars

represented by Danielle Luce Goldstein (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Todd Waters (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Ellen Doi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher John Frisina (See above for address) TERMINATED: 10/17/2019
Phillip Anselm Escoriaza (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 08/13/2019
08/13/2019

# Docket Text
1 COMPLAINT against Kenneth T. Cuccinelli, Department of Homeland Security, Kevin McAleenen, U.S. Citizenship and Immigration Services (Filing fee $ 400, receipt number 0971-13605223.). Filed by City and County of San Francisco, County of Santa Clara. (Attachments: # 1 Civil Cover Sheet)(Herrera, Dennis) (Filed on 8/13/2019) Modified on 8/14/2019 (slhS, COURT STAFF). (Entered: 08/13/2019)
2 Case assigned to Magistrate Judge Jacqueline Scott Corley.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of

08/13/2019 08/14/2019
08/14/2019 08/14/2019 08/14/2019 08/14/2019 08/15/2019 08/16/2019 08/16/2019 08/19/2019 08/19/2019 08/20/2019

the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 8/27/2019. (as, COURT STAFF) (Filed on 8/13/2019) (Entered: 08/13/2019)
3 Proposed Summons. (Herrera, Dennis) (Filed on 8/13/2019) (Entered: 08/13/2019)
4 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 11/7/2019. Initial Case Management Conference set for 11/14/2019 01:30 PM in San Francisco, Courtroom F, 15th Floor. (slhS, COURT STAFF) (Filed on 8/14/2019) (Entered: 08/14/2019)
5 NOTICE of Appearance by Sara Jennifer Eisenberg (Eisenberg, Sara) (Filed on 8/14/2019) (Entered: 08/14/2019)
6 Summons Issued as to Kenneth T. Cuccinelli, Department of Homeland Security, Kevin McAleenen, U.S. Citizenship and Immigration Services. (slhS, COURT STAFF) (Filed on 8/14/2019) (Entered: 08/14/2019)
7 NOTICE of Appearance by Ronald P. Flynn (Flynn, Ronald) (Filed on 8/14/2019) (Entered: 08/14/2019)
8 NOTICE of Appearance by Matthew David Goldberg (Goldberg, Matthew) (Filed on 8/14/2019) (Entered: 08/14/2019)
9 NOTICE of Appearance by Yvonne Rosil Mere (Mere, Yvonne) (Filed on 8/15/2019) (Entered: 08/15/2019)
10 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by County of Santa Clara.. (Spiegel, Julia) (Filed on 8/16/2019) (Entered: 08/16/2019)
11 NOTICE of Appearance by Hannah Luke Edwards (Edwards, Hannah) (Filed on 8/16/2019) (Entered: 08/16/2019)
12 NOTICE of Appearance by Julia Blau Spiegel (Spiegel, Julia) (Filed on 8/19/2019) (Entered: 08/19/2019)
13 CERTIFICATE OF SERVICE by City and County of San Francisco Proof of Service (Eisenberg, Sara) (Filed on 8/19/2019) (Entered: 08/19/2019)
14 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.

08/20/2019 08/21/2019
08/21/2019
08/22/2019
08/22/2019 08/27/2019 08/27/2019 08/28/2019

ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.
This is a text only docket entry; there is no document associated with this notice. (ahm, COURT STAFF) (Filed on 8/20/2019) (Entered: 08/20/2019)
15 NOTICE of Appearance by Laura Susan Trice (Trice, Laura) (Filed on 8/20/2019) (Entered: 08/20/2019)
16 ORDER, Case Reassigned using a proportionate, random, and blind system pursuant to General Order No. 44 to Judge Phyllis J. Hamilton for all further proceedings. Magistrate Judge Jacqueline Scott Corley no longer assigned to the case.. Signed by The Clerk on 8/21/19. (haS, COURT STAFF) (Filed on 8/21/2019) (Entered: 08/21/2019)
17 MOTION to Consider Whether Cases Should Be Related filed by State of California. (Attachments: # 1 Declaration William Downer ISO Motion to Relate, # 2 Proposed Order Granting Motion to Relate, # 3 Certificate/Proof of Service)(Downer, William) (Filed on 8/21/2019) Modified on 8/22/2019 (ajsS, COURT STAFF). (Entered: 08/21/2019)
18 ORDER SETTING CASE MANAGEMENT CONFERENCE. Joint Case Management Statement due by 11/7/2019. Initial Case Management Conference set for 11/14/2019 at 02:00 PM in Oakland, Courtroom 3, 3rd Floor. Signed by Judge Phyllis J. Hamilton on 8/22/19. (kcS, COURT STAFF) (Filed on 8/22/2019) (Entered: 08/22/2019)
19 Judicial Referral for Purpose of Determining Relationship of Cases re 19-cv- 4980-HSG. Signed by Judge Haywood S. Gilliam, Jr. on 8/22/2019. (ndrS, COURT STAFF) (Filed on 8/22/2019) (Entered: 08/22/2019)
20 ORDER RELATING CASE. Case C-17-4717-PJH is related to C-194975. Signed by Judge Phyllis J. Hamilton on 8/27/19. (kcS, COURT STAFF) (Filed on 8/27/2019) (Entered: 08/27/2019)
21 NOTICE of Appearance by Raphael N. Rajendra (Rajendra, Raphael) (Filed on 8/27/2019) (Entered: 08/27/2019)
22 MOTION for Preliminary Injunction and Memorandum of Points and Authorities filed by City and County of San Francisco. Motion Hearing set for 10/2/2019 09:00 AM in Oakland, Courtroom 3, 3rd Floor before Judge Phyllis J. Hamilton. Responses due by 9/11/2019. Replies due by 9/18/2019. (Eisenberg, Sara) (Filed on 8/28/2019) Modified on 8/29/2019 (ajsS, COURT STAFF). (Entered: 08/28/2019)

08/28/2019 08/28/2019 08/28/2019 08/28/2019 08/28/2019 08/28/2019

23 Declaration of Tom Wong in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Tom Wong In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
24 Declaration of Adrienne Pon in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Adrienne Pon In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
25 Declaration of Trent Rhorer Declaration of Trent Rhorer In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
26 Declaration of Susie Smith in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Susie Smith In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
27 Declaration of Peri Weisberg in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Peri Weisberg In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
28 Declaration of Krista Blyth-Gaeta in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Krista Blyth-Gaeta In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered:

08/28/2019 08/28/2019 08/28/2019 08/28/2019 08/28/2019 08/28/2019

08/28/2019)
29 Declaration of Greg Wagner in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Greg Wagner In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
30 Declaration of Tomas Aragon in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Tomas Aragon In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
31 Declaration of Gretchen Paule in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Gretchen Paule In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
32 Declaration of Hali Hammer in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Hali Hammer In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
33 Declaration of Susan Ehrlich in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Susan Ehrlich In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
34 Declaration of Irene Sung in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's

08/28/2019 08/28/2019 08/28/2019 08/28/2019 08/28/2019

Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Irene Sung In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
35 Declaration of Priti Rane in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Priti Rane In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
36 Declaration of Liliana Sandoval in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Liliana Sandoval In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
37 Declaration of Jennifer LeBarre in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Jennifer LeBarre In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
38 Declaration of Mohan Kanungo in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Mohan Kanungo In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
39 Declaration of Lisa M. Newstrom in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Lisa M. Newstrom In Support of City and County of San Francisco and County of Santa Clara's Motion for

08/28/2019 08/28/2019 08/28/2019 08/28/2019 08/28/2019

Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
40 Declaration of Paul E. Lorenz in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Paul E. Lorenz In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
41 Declaration of Reymundo Espinoza in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Reymundo Espinoza In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
42 Declaration of Angela Shing in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Angela Shing In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
43 Declaration of Sara Cody in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Sara Cody In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
44 Request for Judicial Notice re 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Request for Judicial Notice in Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit

08/28/2019
08/28/2019
08/28/2019 08/29/2019
08/29/2019 08/29/2019 08/30/2019 09/05/2019

J)(Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
45 Declaration of Miguel Marquez in Support of 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities Declaration of Miguel Marquez In Support of City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction filed byCity and County of San Francisco. (Related document(s) 22 ) (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
46 Proposed Order re 22 MOTION for Preliminary Injunction City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction and Memorandum of Points and Authorities [Proposed] Order Granting City and County of San Francisco and County of Santa Clara's Motion for Preliminary Injunction by City and County of San Francisco. (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
47 CERTIFICATE OF SERVICE by City and County of San Francisco (Eisenberg, Sara) (Filed on 8/28/2019) (Entered: 08/28/2019)
48 RESPONSE re 19 Judicial Referral for Purpose of Determining Relationship of Cases by La Clinica De La Raza, California Primary Care Association, Maternal and Child Health Access, Farmworker Justice, Counsel on American Islamic Relations-California, AFRICAN COMMUNITIES TOGETHER, Legal Aid Society of San Mateo County, Central American Resource Center, Korean Resource Center. (Attachments: # 1 Exhibit Referral for Purpose of Determining Relationship, # 2 Exhibit Order Directing Parties to File Response, # 3 Exhibit As filed Response iso Judicial Referral for Purposes of Determ Relationship of Cases)(Espiritu, Nicholas) (Filed on 8/29/2019) (Entered: 08/29/2019)
49 NOTICE of Appearance by Joshua Michael Kolsky (Kolsky, Joshua) (Filed on 8/29/2019) (Entered: 08/29/2019)
50 RESPONSE re 19 Judicial Referral for Purpose of Determining Relationship of Cases by Kenneth T. Cuccinelli, Department of Homeland Security, Kevin McAleenen, U.S. Citizenship and Immigration Services. (Kolsky, Joshua) (Filed on 8/29/2019) (Entered: 08/29/2019)
51 ORDER RELATING CASE. Case C-19-4717 is related to case C-194980-PJH. Signed by Judge Phyllis J. Hamilton on 8/30/19. (kcS, COURT STAFF) (Filed on 8/30/2019) (Entered: 08/30/2019)
52 STIPULATED REQUEST and Proposed Order for Order Setting Briefing Schedule filed by Kenneth T. Cuccinelli, Department of Homeland

09/05/2019 09/05/2019 09/09/2019 09/09/2019
09/09/2019
09/09/2019 09/09/2019 09/09/2019

Security, Kevin McAleenen, U.S. Citizenship and Immigration Services, County of Santa Clara, City and County of San Francisco. (Attachments: # 1 Declaration, # 2 Proposed Order)(Kolsky, Joshua) (Filed on 9/5/2019) Modified on 9/6/2019 (ajsS, COURT STAFF). (Entered: 09/05/2019)
53 ORDER SETTING BRIEFING SCHEDULE by Judge Phyllis J. Hamilton granting 52 Stipulation. (kcS, COURT STAFF) (Filed on 9/5/2019) (Entered: 09/05/2019)
Reset Deadlines as to 22 MOTION for Preliminary Injunction. Opposition due by 9/13/2019. Reply due by 9/20/2019. (kcS, COURT STAFF) (Filed on 9/5/2019) (Entered: 09/05/2019)
54 NOTICE of Appearance by Christina Maria Assi (Assi, Christina) (Filed on 9/9/2019) (Entered: 09/09/2019)
55 MOTION for leave to appear in Pro Hac Vice by Russell Hirschhorn ( Filing fee $ 310, receipt number 0971-13686975.) filed by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. (Hirschhorn, Russell) (Filed on 9/9/2019) (Entered: 09/09/2019)
56 MOTION for Leave to File Brief of Amici Curiae in Support of Plaintiffs' Motion for Preliminary Injunction filed by The Cities of Los Angeles and Oakland, California; Harris County, Texas; and 26 Additional Cities, Counties, and Local Government Agencies. (Attachments: # 1 Appendix Proposed Brief of Amici Curiae, # 2 Proposed Order Proposed Order Granting Motion for Leave to File)(Goldstein, Danielle) (Filed on 9/9/2019) (Entered: 09/09/2019)
57 MOTION for leave to appear in Pro Hac Vice by Owen Masters ( Filing fee $ 310, receipt number 0971-13687116.) filed by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. (Masters, Owen) (Filed on 9/9/2019) (Entered: 09/09/2019)
58 MOTION for leave to appear in Pro Hac Vice by Denny Chan ( Filing fee $ 310, receipt number 0971-13687476.) filed by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. (Chan, Denny) (Filed on 9/9/2019) (Entered: 09/09/2019)
59 MOTION for leave to appear in Pro Hac Vice by Regan Bailey ( Filing fee $ 310, receipt number 0971-13687617.) filed by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles,

09/09/2019
09/09/2019
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Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. (Bailey, Regan) (Filed on 9/9/2019) (Entered: 09/09/2019)
60 MOTION for leave to appear in Pro Hac Vice by Natalie Kean ( Filing fee $ 310, receipt number 0971-13687766.) filed by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. (Kean, Natalie) (Filed on 9/9/2019) (Entered: 09/09/2019)
61 MOTION for Leave to File Brief of Amici Curiae filed by American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Justice in Aging, MAZON, National Council on Aging, National Hispanic Council on Aging, PHI, The National Asian Pacific Center on Aging. (Attachments: # 1 Proposed Order, # 2 Proposed Amicus Curiae Brief)(Assi, Christina) (Filed on 9/9/2019) (Entered: 09/09/2019)
62 ORDER by Judge Phyllis J. Hamilton granting 55 Motion for Pro Hac Vice as to Russell L. Hirshhorn. (kcS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
63 ORDER by Judge Phyllis J. Hamilton granting 57 Motion for Pro Hac Vice as to Owen T. Masters. (kcS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
64 ORDER by Judge Phyllis J. Hamilton granting 58 Motion for Pro Hac Vice as to Denny Chan. (kcS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
65 ORDER by Judge Phyllis J. Hamilton granting 59 Motion for Pro Hac Vice as to Regan Bailey. (kcS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
66 ORDER by Judge Phyllis J. Hamilton granting 60 Motion for Pro Hac Vice as to Natalie Kean. (kcS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
67 ORDER GRANTING MOTIONS FOR LEAVE TO FILE AMICI BRIEFS. (pjhlc1S, COURT STAFF) (Filed on 9/11/2019) (Entered: 09/11/2019)
68 NOTICE of Appearance by Kelly M. Dermody (Dermody, Kelly) (Filed on 9/11/2019) (Entered: 09/11/2019)
69 NOTICE of Appearance by Michael Ian Levin-Gesundheit (LevinGesundheit, Michael) (Filed on 9/11/2019) (Entered: 09/11/2019)
70 MOTION for Leave to File Amici Curiae Brief filed by American Hospital Association, America's Essential Hospitals, Association of American Medical Colleges, Catholic Health Association of the United States, The

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

Children's Hospital Association, The Federation of American Hospitals. (Attachments: # 1 [Proposed] Amici Curiae Brief, # 2 [Proposed] Order)(Gonzales, Michelle) (Filed on 9/11/2019) Modified on 9/12/2019 (kcS, COURT STAFF). (Entered: 09/11/2019)
71 MOTION for leave to appear in Pro Hac Vice re: Sean Marotta ( Filing fee $ 310, receipt number 0971-13694870.) filed by America's Essential Hospitals, American Hospital Association, Association of American Medical Colleges, Catholic Health Association of the United States, The Children's Hospital Association, The Federation of American Hospitals. (Marotta, Sean) (Filed on 9/11/2019) Modified on 9/12/2019 (ajsS, COURT STAFF). (Entered: 09/11/2019)
72 NOTICE of Appearance by Justin Jonathan Lowe (Lowe, Justin) (Filed on 9/11/2019) (Entered: 09/11/2019)
73 MOTION for leave to appear in Pro Hac Vice of Andrew Cohen ( Filing fee $ 310, receipt number 0971-13695285.) filed by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Inc., Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (Lowe, Justin) (Filed on 9/11/2019) (Entered: 09/11/2019)
74 MOTION for leave to appear in Pro Hac Vice of Wendy Parmet ( Filing fee $ 310, receipt number 0971-13695310.) filed by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Inc., Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (Lowe, Justin) (Filed on 9/11/2019) (Entered: 09/11/2019)
75 MOTION for leave to appear in Pro Hac Vice re: Christian Springer ( Filing fee $ 310, receipt number 0971-13696112.) filed by Health Law

09/11/2019 09/11/2019 09/12/2019

Advocates, Inc.. (Springer, Christian) (Filed on 9/11/2019) Modified on 9/12/2019 (ajsS, COURT STAFF). (Entered: 09/11/2019)
76 MOTION for leave to appear in Pro Hac Vice re: Kristyn DeFilipp ( Filing fee $ 310, receipt number 0971-13696271.) filed by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Inc., Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern Universitys Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (DeFilipp, Kristyn) (Filed on 9/11/2019) Modified on 9/12/2019 (ajsS, COURT STAFF). (Entered: 09/11/2019)
77 MOTION for Leave to File Brief of Amici Curiae Health Law Advocates, Inc. and 23 Other Organizations Interested in Public Health in Support of Plaintiffs' Motion for Preliminary Injunction filed by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Inc., Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Lowe, Justin) (Filed on 9/11/2019) (Entered: 09/11/2019)
78 MOTION for leave to appear in Pro Hac Vicere: Andrew London ( Filing fee $ 310, receipt number 0971-13696640.) filed by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Inc., Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University Center for Health Policy

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

and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (London, Andrew) (Filed on 9/12/2019) Modified on 9/13/2019 (ajsS, COURT STAFF). (Entered: 09/12/2019)
79 MOTION for leave to appear in Pro Hac Vice re: Emily Nash ( Filing fee $ 310, receipt number 0971-13696653.) filed by Arab Community Center for Economic and Social Services, California Immigrant Policy Center, California Pan-Ethnic Health Network, Charlotte Center for Legal Advocacy, Community Catalyst, Community Healthcare Network, Families USA, Florida Health Justice Project, Health Care For All, Health Law Advocates, Inc., Health in Justice Action Lab, Kentucky Equal Justice Center, Korean Community Center of the East Bay, Latino Coalition for a Healthy California, Maine Immigrant Rights Coalition, Massachusetts Law Reform Institute, Michigan Immigrant Rights Center, New York Immigration Coalition, Northeastern University Center for Health Policy and Law, Northwest Health Law Advocates, Public Health Law Watch, Treatment Action Group, UMass Memorial Health Care, Inc., Welcome Project. (Nash, Emily) (Filed on 9/12/2019) Modified on 9/13/2019 (ajsS, COURT STAFF). (Entered: 09/12/2019)
80 Notice of Additional Parties: the following parties are listed on 56 MOTION for Leave to File Brief of Amici Curiae in Support of Plaintiffs' Motion for Preliminary Injunction and have been added to this case: City of Los Angeles, City Of Oakland, County of Harris, Texas, City of Albuquerque, New Mexico, City of Austin, Texas, City of Baltimore, Maryland, City of Chicago, Illinois, City of Dallas, Texas, City of Detroit, Michigan, City of Holyoke, Massachusetts, City of Houston, Texas, City of Minneapolis, Minnesota, City of Philadelphia, Pennsylvania, City of Sacramento, California, City of Santa Fe, New Mexico, City of Santa Monica, California, City of Seattle, Washington, City of Somerville, Massachusetts, City of South Bend, Indiana, City of Stockton, California, City of West Hollywood, California, City and County of Denver, Colorado, County of Marin, California, County of Monterey, California, County of San Mateo, California, County of Santa Cruz, California, County of King, Washington, County of Travis, Texas and Housing Authority of the City of Los Angeles, California (This is a text-only entry.) (Goldstein, Danielle) (Filed on 9/12/2019) Modified on 9/12/2019 (ddkS, COURT STAFF). Modified on 9/13/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)
81 NOTICE of Appearance by Christopher John Frisina for Kathryn E. Doi (Frisina, Christopher) (Filed on 9/12/2019) (Entered: 09/12/2019)
82 MOTION for leave to appear in Pro Hac Vice re: Christopher J. Frisina ( Filing fee $ 310, receipt number 0971-13687023.) Filing fee previously paid on 9/09/2019 filed by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars. (Frisina,

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

Christopher) (Filed on 9/12/2019) Modified on 9/13/2019 (ajsS, COURT STAFF). (Entered: 09/12/2019)
83 MOTION for leave to appear in Pro Hac Vice re: Phillip A. Escoriaza ( Filing fee $ 310, receipt number 0971-13687099.) Filing fee previously paid on 9/9/2019 filed by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars. (Escoriaza, Phillip) (Filed on 9/12/2019) Modified on 9/13/2019 (ajsS, COURT STAFF). (Entered: 09/12/2019)
84 MOTION for leave to appear in Pro Hac Vice re: Edward T. Waters ( Filing fee $ 310, receipt number 0971-13687118.) Filing fee previously paid on 9/9/2019 filed by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars. (Waters, Edward) (Filed on 9/12/2019) Modified on 9/13/2019 (ajsS, COURT STAFF). (Entered: 09/12/2019)
85 Certificate of Interested Entities by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars (Waters, Edward) (Filed on 9/12/2019) (Entered: 09/12/2019)
86 MOTION to File Amicus Curiae Brief filed by American Academy of Nursing, American Public Health Association, Deans - Ayman ElMohandes, MBBCh, MD, MPH, Barbara K. Rimer, DrPH, MPH, Boris Lushniak, MD, MPH, David B. Allison, PhD, Edith A. Parker, MPH, DrPH, G. Thomas Chandler, MS, PhD, Hilary Godwin, PhD, Karen Drenkard, PhD, RN, NEA-BC, FAAN, Laura A. Siminoff, PhD, Linda P. Fried, MD, MPH, Lynn R. Goldman, MD, MPH, MS, Mark A. Schuster, MD, PhD, Michael C. Lu, MD, MS, MPH, Pamela R. Jeffries, PhD, RN, FAAN, ANEF, FSSH, Paula Lantz, PhD, Sandro Galea, MD, DrPH, Sherry Glied, PhD, MA, Sten H. Vermund, MD, PhD, Thomas E. Burroughs, PhD, MS, MA; Chairs - Alan G. Wasserman, MD, MACP, Becky Slifkin, PhD, Claire D. Brindis, DrPH, David M. Keepnews, PhD, JD, RN, NEA-BC, FAAN, Jane Thorpe, JD, Karen A. McDonnell, PhD; and Scholars - Alan B. Cohen, Sc.D., Allison K. Hoffman, JD, Amita N. Vyas, PhD, MHS, Andy Schneider, JD, Benjamin D. Sommers, MD, PhD, Colleen M. Grogan, PhD, Daniel Skinner, PhD, David M. Frankford, JD, David Michaels, PhD, MPH, Diana J. Mason, RN, PhD, FAAN, Dora L. Hughes, MD, MPH, Harold Pollark, PhD, Janet Heinrich, DrPH, RN, FAAN, Jeffrey Levi, PhD, Jillian Catalanotti, MD, MPH, FACP, Joan Alker, Jonathan Oberlander, PhD, Julia Zoe Beckerman, JD, MPH, Katherine Horton, RN, MPH, JD, Katherine Swartz, PhD, Krista M. Perreira, PhD, Lynn A. Blewett, PhD, MA, Mark A. Peterson, PhD, Maureen Byrnes, MPA, Melissa M. Goldstein, JD, Michael K. Gusmano, PhD, Naomi Seiler, JD, Neal Halfon, MD, MPH, Nicole Huberfeld, JD, Pam Silberman, JD, DrPH, Rand E. Rosenblatt, JD, Sara Rosenbaum, JD, Sylvia A. Law, JD, Timothy Stoltzfus Jost, JD, Timothy M. Westmoreland, JD, Wendy K. Mariner, JD, LLM, MPH, William B.

09/12/2019 09/12/2019 09/12/2019 09/12/2019
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Borden, MD, FACC, FAHA. Responses due by 9/26/2019. Replies due by 10/3/2019. (Attachments: # 1 Exhibit Proposed Amici Brief, # 2 Proposed Order)(Waters, Edward) (Filed on 9/12/2019) Modified on 9/26/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)
87 ORDER by Judge Phyllis J. Hamilton granting 71 Motion for Pro Hac Vice as to Sean Marotta. (kcS, COURT STAFF) (Filed on 9/12/2019) (Entered: 09/12/2019)
88 ORDER by Judge Phyllis J. Hamilton granting 75 Motion for Pro Hac Vice as to Christian Springer. (kcS, COURT STAFF) (Filed on 9/12/2019) (Entered: 09/12/2019)
89 ORDER by Judge Phyllis J. Hamilton granting 76 Motion for Pro Hac Vice as to Kristyn DeFilipp. (kcS, COURT STAFF) (Filed on 9/12/2019) (Entered: 09/12/2019)
90 MOTION to File Amicus Curiae Brief filed by NHLP; FRAC; CLASP, California Food Policy Advocates, California League of United Latin American Citizens, Center for the Study of Social Policy, Childrens Defense Fund-New York, Childrens HealthWatch, The Childrens Partnership, Citizens Committee for Children of New York, Comunidades Unidas, First Focus on Children, Kansas Appleseed, Center for Law and Justice, Inc., Los Angeles Regional Food Bank, Michigan Immigrant Rights Center, Mississippi Center for Justice, National Law Center on Homelessness & Poverty, National Low Income Housing Coalition, National WIC Association, Oregon Food Bank, Prevention Institute, Sant La, Haitian Neighborhood Center, Inc., South Carolina Appleseed Legal Justice Center, Utahns Against Hunger, Virginia Poverty Law Center. Responses due by 9/26/2019. Replies due by 10/3/2019. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Thacher, Frances Cheston) (Filed on 9/12/2019) Modified on 9/26/2019 (kcS, COURT STAFF). (Entered: 09/12/2019)
91 ORDER by Judge Phyllis J. Hamilton granting 73 Motion for Pro Hac Vice as to Andrew Cohen. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
92 ORDER by Judge Phyllis J. Hamilton granting 74 Motion for Pro Hac Vice as to Wendy Parmet. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
93 ORDER by Judge Phyllis J. Hamilton granting 78 Motion for Pro Hac Vice as to Andrew London. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
94 ORDER by Judge Phyllis J. Hamilton granting 79 Motion for Pro Hac Vice as to Emily Nash. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)

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09/16/2019 09/20/2019

95 ORDER by Judge Phyllis J. Hamilton granting 82 Motion for Pro Hac Vice as to Christopher J. Frisina. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
96 ORDER by Judge Phyllis J. Hamilton granting 83 Motion for Pro Hac Vice as to Phillip A. Escoriaza. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
97 ORDER by Judge Phyllis J. Hamilton granting 84 Motion for Pro Hac Vice as to Edward T. Waters. (kcS, COURT STAFF) (Filed on 9/13/2019) (Entered: 09/13/2019)
98 OPPOSITION/RESPONSE (re 22 MOTION for Preliminary Injunction ) filed byKenneth T. Cuccinelli, Department of Homeland Security, Kevin McAleenen, U.S. Citizenship and Immigration Services. (Kolsky, Joshua) (Filed on 9/13/2019) (Entered: 09/13/2019)
99 MOTION for Leave to File Brief of Amici Curiae filed by American Academy of Pediatrics, American Medical Association, American College of Physicians, American Academy of Pediatrics, California. (Attachments: # 1 Proposed Order, # 2 Proposed Amicus Curiae Brief)(Krumplitsch, Susan) (Filed on 9/13/2019) (Entered: 09/13/2019)
100 MOTION to File Amicus Curiae Brief filed by California Immigrant Policy Center, Fiscal Policy Institute, Presidents' Alliance on Higher Education and Immigration, Economic Progress Institute, Oasis Legal Services, Community Action Marin, Child Care Law Center, Boundless Immigration, National Center for Law and Economic Justice, Virginia Interfaith Center for Public Policy, Kids Forward. Responses due by 9/27/2019. Replies due by 10/4/2019. (Attachments: # 1 Declaration of Brittany N. Lovejoy, # 2 [Proposed] Brief of Amici Curiae, # 3 Proposed Order)(Huseny, Sadik) (Filed on 9/13/2019) (Entered: 09/14/2019)
101 Appendix to 100 Proposed Brief of Amici Curiae the Fiscal Policy Institute, Presidents' Alliance on Higher Education, et al. in Support of Plaintiffs' Motion for Preliminary Injunction 100 filed by Boundless Immigration, California Immigrant Policy Center, Child Care Law Center, Community Action Marin, Economic Progress Institute, Fiscal Policy Institute, Kids Forward, National Center for Law and Economic Justice, Oasis Legal Services, Presidents' Alliance on Higher Education and Immigration, Virginia Interfaith Center for Public Policy. (Huseny, Sadik) (Filed on 9/14/2019) Modified on 9/16/2019 (ajsS, COURT STAFF). Modified on 9/16/2019 (ajsS, COURT STAFF). (Entered: 09/14/2019)
102 ORDER DENYING MOTIONS FOR LEAVE TO FILE AMICI BRIEFS (pjhlc1S, COURT STAFF) (Filed on 9/16/2019) (Entered: 09/16/2019)
103 City and County of San Francisco and County of Santa Clara's Reply in

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10/04/2019

Support of Motion for Preliminary Injunction filed by County of Santa Clara. (Rajendra, Raphael) (Filed on 9/20/2019) Modified on 9/23/2019 (cjlS, COURT STAFF). (Entered: 09/20/2019)
104 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 73.d filed byCity and County of San Francisco, County of Santa Clara. (Related document(s) 22 ) (Rajendra, Raphael) (Filed on 9/25/2019) (Entered: 09/25/2019)
105 NOTICE of Appearance by Ethan Price Davis (Attachments: # 1 Certificate/Proof of Service)(Davis, Ethan) (Filed on 9/28/2019) (Entered: 09/28/2019)
106 NOTICE by Kenneth T. Cuccinelli, Department of Homeland Security, U.S. Citizenship and Immigration Services (Attachments: # 1 Exhibit (Correction))(Kolsky, Joshua) (Filed on 10/1/2019) (Entered: 10/01/2019)
107 Minute Entry for proceedings held before Judge Phyllis J. Hamilton: Preliminary Injunction Hearing held on 10/2/2019. Court Reporter: Pamela Batalo Hebel. (kcS, COURT STAFF) (Date Filed: 10/2/2019) (Entered: 10/02/2019)
108 TRANSCRIPT ORDER for proceedings held on 10/2/2019 before Judge Phyllis J. Hamilton for Court Reporter Pam Batalo. (oh, COURT STAFF) (Filed on 10/3/2019) (Entered: 10/03/2019)
109 TRANSCRIPT ORDER for proceedings held on 10/02/2019 before Judge Phyllis J. Hamilton by City and County of San Francisco, for Court Reporter Pam Batalo. (Eisenberg, Sara) (Filed on 10/3/2019) (Entered: 10/03/2019)
110 Transcript of Proceedings held on 10/02/19, before Judge Hamilton. Court Reporter Pamela Batalo Hebel, telephone number 626-688-7509; pamela_batalo-hebel@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (111 in 4:19-cv-04975-PJH, 124 in 4:19-cv-04980-PJH, 108 in 4:19-cv-04717-PJH) Transcript Order, (110 in 4:19-cv-04975-PJH) Transcript Order, (109 in 4:19-cv-04717-PJH) Transcript Order ) Redaction Request due 10/24/2019. Redacted Transcript Deadline set for 11/4/2019. Release of Transcript Restriction set for 1/2/2020. (Batalo, Pam) (Filed on 10/3/2019) (Entered: 10/03/2019)
111 NOTICE of City and County of San Francisco and County of Santa Clara's Record Citation of Evidence of Harms (Refer to Dkt. No. 107 ) by City and County of San Francisco (Eisenberg, Sara) (Filed on 10/4/2019) Modified

10/07/2019 10/07/2019 10/10/2019 10/11/2019 10/16/2019 10/17/2019
10/17/2019 10/23/2019 10/25/2019 10/25/2019

on 10/7/2019 (ajsS, COURT STAFF). (Entered: 10/04/2019)
112 Letter from CCSF and all Plaintiffs and [Proposed] Order Granting Plaintiffs' Motions for Preliminary Injunction. (Attachments: # 1 Proposed Order)(Eisenberg, Sara) (Filed on 10/7/2019) (Entered: 10/07/2019)
113 NOTICE of Draft Injunction by Kenneth T. Cuccinelli, Department of Homeland Security, Kevin McAleenen, U.S. Citizenship and Immigration Services (Kolsky, Joshua) (Filed on 10/7/2019) Modified on 10/8/2019 (ajsS, COURT STAFF). (Entered: 10/07/2019)
114 NOTICE of Attorney Withdrawal by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars (Frisina, Christopher) (Filed on 10/10/2019) Modified on 10/11/2019 (ajsS, COURT STAFF). (Entered: 10/10/2019)
115 PRELIMINARY INJUNCTIONAssociated Cases: 4:19-cv-04717-PJH, 4:19-cv-04975-PJH, 4:19-cv-04980-PJH(pjhlc1S, COURT STAFF) (Filed on 10/11/2019) (Entered: 10/11/2019)
116 MOTION to Withdraw as Attorney filed by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars. Responses due by 10/30/2019. Replies due by 11/6/2019. (Frisina, Christopher) (Filed on 10/16/2019) (Entered: 10/16/2019)
Electronic filing error. Missing Proposed Order Re: 116 MOTION to Withdraw as Attorney . A proposed order required in accordance with L.R. 5-1(g). Please file a p roposed order ONLY and link it to the Motion. The event is: Civil Events > Other Filings > Other Documents > Proposed Order (ajsS, COURT STAFF) (Filed on 10/17/2019) (Entered: 10/17/2019)
117 MOTION to Withdraw 116 MOTION to Withdraw as Attorney filed by American Academy of Nursing, American Public Health Association, Deans, Chairs, and Scholars. Responses due by 10/31/2019. Replies due by 11/7/2019. (Frisina, Christopher) (Filed on 10/17/2019) (Entered: 10/17/2019)
118 JOINT ADMINISTRATIVE MOTION for Relief from Automatic Referral to the ADR Multi-Option Program filed by City and County of San Francisco. (Attachments: # 1 Proposed Order)(Eisenberg, Sara) (Filed on 10/23/2019) Modified on 10/24/2019 (ajsS, COURT STAFF). (Entered: 10/23/2019)
119 Order by Judge Phyllis J. Hamilton granting 118 Joint Motion for Relief from Referral to ADR Multi-Option Program.(dtmS, COURT STAFF) (Filed on 10/25/2019) (Entered: 10/25/2019)
120 MOTION to Stay Preliminary Injunction filed by Kenneth T. Cuccinelli, Kevin McAleenen, U.S. Citizenship and Immigration Services. Motion

10/25/2019 10/25/2019 10/28/2019

Hearing set for 12/4/2019 09:00 AM in Oakland, Courtroom 3, 3rd Floor before Judge Phyllis J. Hamilton. Responses due by 11/8/2019. Replies due by 11/15/2019. (Kolsky, Joshua) (Filed on 10/25/2019) (Entered: 10/25/2019)
121 Declaration of Daniel Renaud in Support of 120 MOTION to Stay Preliminary Injunction filed byKenneth T. Cuccinelli, Kevin McAleenen, U.S. Citizenship and Immigration Services. (Related document(s) 120 ) (Kolsky, Joshua) (Filed on 10/25/2019) (Entered: 10/25/2019)
122 Proposed Order re 120 MOTION to Stay Preliminary Injunction by Kenneth T. Cuccinelli, Kevin McAleenen, U.S. Citizenship and Immigration Services. (Kolsky, Joshua) (Filed on 10/25/2019) (Entered: 10/25/2019)
Electronic filing error. No Title Page Re: 121 Declaration in Support, filed by Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services, Kevin McAleenen. Decl arations e-filed separately and not as an attachment, requires a title page. Please refer to Civil Local Rules 3-4 regarding first page requirement.

10/28/2019 10/30/2019 10/31/2019 11/01/2019

This filing will not be processed by the clerks office. Please re-file in its entirety. (ajsS, COURT STAFF) (Filed on 10/28/2019) (Entered: 10/28/2019)
123 Declaration of Daniel Renaud in Support of 120 MOTION to Stay Preliminary Injunction filed byKenneth T. Cuccinelli, Department of Homeland Security, Kevin McAleenen, U.S. Citizenship and Immigration Services. (Related document(s) 120 ) (Kolsky, Joshua) (Filed on 10/28/2019) (Entered: 10/28/2019)
124 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Kenneth T. Cuccinelli, Department of Homeland Security, Kevin McAleenen, U.S. Citizenship and Immigration Services. Appeal of Order on Motion for Preliminary Injunction 115 (Appeal fee FEE WAIVED.) (Kolsky, Joshua) (Filed on 10/30/2019) (Entered: 10/30/2019)
125 USCA Case Number 19-17213 Ninth Circuit Court of Appeals for 124 Notice of Appeal, filed by Department of Homeland Security, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services, Kevin McAleenen. (cjlS, COURT STAFF) (Filed on 10/31/2019) (Entered: 10/31/2019)
126 ORDER of USCA as to 124 Notice of Appeal, filed by Department of Homeland Security, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services, Kevin McAleenen (ajsS, COURT STAFF) (Filed on 11/1/2019) (Entered: 11/01/2019)

11/07/2019 11/08/2019 11/08/2019 11/14/2019 11/14/2019 11/14/2019 11/15/2019 11/22/2019

127 JOINT CASE MANAGEMENT STATEMENT filed by City and County of San Francisco, U.S. Citizenship and Immigration Services, Department of Homeland Security, Kevin McAleenen, and Kenneth T. Cuccinelli. (Eisenberg, Sara) (Filed on 11/7/2019) Modified on 11/8/2019 (ajsS, COURT STAFF). (Entered: 11/07/2019)
128 OPPOSITION/RESPONSE (re 120 MOTION to Stay of Injunction Pending Appeal filed by County of Santa Clara. (Edwards, Hannah) (Filed on 11/8/2019) Modified on 11/12/2019 (ajsS, COURT STAFF). (Entered: 11/08/2019)
129 NOTICE of Waiver of Reply and Hearing by Kenneth T. Cuccinelli, Department of Homeland Security, Kevin McAleenen, U.S. Citizenship and Immigration Services re 120 MOTION to Stay Preliminary Injunction (Kolsky, Joshua) (Filed on 11/8/2019) Modified on 11/12/2019 (ajsS, COURT STAFF). (Entered: 11/08/2019)
130 CLERK'S NOTICE VACATING MOTION HEARING. YOU ARE HEREBY NOTIFIED that the hearing on 120 MOTION to Stay Preliminary Injunction set for 12/4/2019 at 9:00 a.m. is VACATED. (This is a text-only entry generated by the court. There is no document associated with this entry.) (kcS, COURT STAFF) (Filed on 11/14/2019) (Entered: 11/14/2019)
131 Minute Entry for proceedings held before Judge Phyllis J. Hamilton: Initial Case Management Conference held on 11/14/2019. Dispositive Motion due by 1/16/2020. Cross Motions due by 2/19/2020. Court Reporter: Pamela Batalo Hebel. (kcS, COURT STAFF) (Date Filed: 11/14/2019) (Entered: 11/14/2019)
133 Amended Minute Entry for proceedings held before Judge Phyllis J. Hamilton: Initial Case Management Conference held on 11/14/2019. ***Correction of hearing date.*** Court Reporter: Pamela Batalo Hebel. (kcS, COURT STAFF) (Date Filed: 11/14/2019) (Entered: 11/18/2019)
132 TRANSCRIPT ORDER for proceedings held on 11/14/2019 before Judge Phyllis J. Hamilton by City and County of San Francisco, for Court Reporter Pam Batalo. (Eisenberg, Sara) (Filed on 11/15/2019) (Entered: 11/15/2019)
134 Transcript of Proceedings held on 11/14/19, before Judge Hamilton. Court Reporter Pamela Batalo Hebel, telephone number 626-688-7509; pamela_batalo-hebel@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5

12/05/2019 12/06/2019 12/20/2019 12/30/2019 01/02/2020
01/08/2020
01/10/2020 01/10/2020

business days from date of this filing. (Re (132 in 4:19-cv-04717-PJH) Transcript Order ) Redaction Request due 12/13/2019. Redacted Transcript Deadline set for 12/23/2019. Release of Transcript Restriction set for 2/20/2020. (Batalo, Pam) (Filed on 11/22/2019) (Entered: 11/22/2019)
136 ORDER of USCA as to 124 Notice of Appeal, filed by Department of Homeland Security, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services, Kevin McAleenen (ajsS, COURT STAFF) (Filed on 12/5/2019) (Entered: 12/06/2019)
135 Order by Judge Phyllis J. Hamilton terminating (120) Motion to Stay in case 19-cv-04717-PJH and (125) Motion to Stay in case 19-cv-04975PJH Associated Cases: 4:19-cv-04717-PJH, 4:19-cv-04975PJH(pjhlc1S, COURT STAFF) (Filed on 12/6/2019) (Entered: 12/06/2019)
137 ORDER of USCA as to 124 Notice of Appeal, filed by Department of Homeland Security, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services, Kevin McAleenen (ajsS, COURT STAFF) (Filed on 12/20/2019) (Entered: 12/23/2019)
138 ORDER of USCA: Appellees Motion for Reconsideration En Banc, filed December 27, 2019, is hereby GRANTED as to 124 Notice of Appeal, filed by Department of Homeland Security, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services, Kevin McAleenen (cpS, COURT STAFF) (Filed on 12/30/2019) (Entered: 12/30/2019)
139 ADMINISTRATIVE MOTION Leave to Manually File Administrative Record filed by Kenneth T. Cuccinelli, Department of Homeland Security, Kevin McAleenen, U.S. Citizenship and Immigration Services. Responses due by 1/6/2020. (Attachments: # 1 Declaration (Kolsky Declaration), # 2 Proposed Order)(Kolsky, Joshua) (Filed on 1/2/2020) (Entered: 01/02/2020)
140 Stipulation and [Proposed] Order to Stay Proceedings Pending Appeal filed by City and County of San Francisco, County of Santa Clara, U.S. Citizenship and Immigration Services, Department of Homeland Security and Kevin McAleen, and Kenneth T. Cuccinelli (Eisenberg, Sara) (Filed on 1/8/2020) Modified on 1/9/2020 (ajsS, COURT STAFF). (Entered: 01/08/2020)
141 STIPULATION AND ORDER TO STAY PROCEEDINGS PENDING APPEAL by Judge Phyllis J. Hamilton granting 140 Stipulation. (kcS, COURT STAFF) (Filed on 1/10/2020) (Entered: 01/10/2020)
142 Order by Judge Phyllis J. Hamilton regarding Administrative Motions to Manually File Administrative Record.Associated Cases: 4:19-cv04717-PJH, 4:19-cv-04975-PJH, 4:19-cv-04980-PJH(pjhlc1S, COURT STAFF) (Filed on 1/10/2020) (Entered: 01/10/2020)

02/18/2020 05/29/2020 05/29/2020 05/29/2020 09/04/2020 12/02/2020
12/16/2020
12/17/2020
12/21/2020 01/20/2021

143 ORDER of USCA as to 124 Notice of Appeal, filed by Department of Homeland Security, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services, Kevin McAleenen (ajsS, COURT STAFF) (Filed on 2/18/2020) (Entered: 02/20/2020)
144 NOTICE of Change In Counsel by Owen Masters (Masters, Owen) (Filed on 5/29/2020) (Entered: 05/29/2020)
145 NOTICE of Appearance by Priyamvada Arora (Arora, Priyamvada) (Filed on 5/29/2020) (Entered: 05/29/2020)
146 NOTICE of Change In Counsel by Priyamvada Arora (Arora, Priyamvada) (Filed on 5/29/2020) (Entered: 05/29/2020)
147 NOTICE of Change In Counsel by Ethan Price Davis (Davis, Ethan) (Filed on 9/4/2020) (Entered: 09/04/2020)
148 USCA Memorandum: Affirming the decision of the district court. Costs are awarded to the plaintiffs as to (124 in 4:19-cv-04717-PJH) Notice of Appeal; USCA No. 19-17213 and (129 in 4:19-cv-04975-PJH) Notice of Appeal; USCA No. 19-17214 (jlmS, COURT STAFF) (Filed on 12/2/2020) (Entered: 12/02/2020)
149 JOINT STATUS REPORT by Kenneth T. Cuccinelli, Department of Homeland Security, Kevin McAleenen, U.S. Citizenship and Immigration Services, City and County of San Francisco, City and County of Santa Clara. (Kolsky, Joshua) (Filed on 12/16/2020) Modified on 12/17/2020 (jlmS, COURT STAFF). (Entered: 12/16/2020)
150 ORDER that this matter shall remain stayed pending issuance of the mandate by the Court of Appeals. The parties shall file a joint status report within 7 days following issuance of the mandate re 149 Status Report filed by Department of Homeland Security, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services, Kevin McAleenen. Signed by Judge Phyllis J. Hamilton on 12/17/2020. (kcS, COURT STAFF) (Filed on 12/17/2020) (Entered: 12/17/2020)
151 NOTICE of Substitution of Counsel, filed by NHLP; FRAC; CLASP, et al. (Thacher, Frances Cheston) (Filed on 12/21/2020) Modified on 12/22/2020 (jlmS, COURT STAFF). (Entered: 12/21/2020)
152 ORDER of USCA: That appellant's motion to stay mandate is granted. The mandate is stayed pending the Supreme Court's final disposition of Wolf v. Cook County, Illinois, petition for cert. pending, No. 20-450 (filed Oct. 7, 2020) and Department of Homeland Security v. New York, petition for cert. pending, No. 20-449 (filed Oct. 7, 2020). Fed. R. App.P.41., as to (124 in 4:19-cv-04717-PJH) Notice of Appeal to the Ninth Circuit, (129 in 4:19-cv-04975-PJH) Notice of Appeal to the Ninth Circuit. (jlmS, COURT STAFF) (Filed on 1/20/2021) (Entered: 01/21/2021)

01/22/2021 153 USCA Case Number 20-962 U.S. Supreme Court. (cjlS, COURT STAFF) (Filed on 1/22/2021) (Entered: 01/22/2021)

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 Case 4:19-cv-04717-PJH Document 1 Filed 08/13/19 Page 1 of 23

OFFICE OF THE CITY ATTORNEY

OFFICE OF THE COUNTY COUNSEL

1 CITY AND COUNTY OF SAN FRANCISCO COUNTY OF SANTA CLARA

DENNIS J. HERRERA, State Bar #139669 2 City Attorney

JAMES R. WILLIAMS, State Bar #271253 County Counsel

JESSE C. SMITH, State Bar #122517

GRETA S. HANSEN, State Bar #251471

3 Chief Assistant City Attorney

Chief Assistant County Counsel

RONALD P. FLYNN, State Bar #184186

LAURA TRICE, State Bar #284837

4 Chief Deputy City Attorney

Lead Deputy County Counsel

YVONNE R. MERÉ, State Bar #173594 5 Chief of Complex and Affirmative Litigation

RAPHAEL N. RAJENDRA, State Bar #255096 Deputy County Counsel

SARA J. EISENBERG, State Bar #269303

JULIA B. SPIEGEL, State Bar #292469

6 Chief of Strategic Advocacy

Deputy County Counsel

MATTHEW D. GOLDBERG, State Bar #240776

H. LUKE EDWARDS, State Bar #313756

7 Deputy City Attorney

Deputy County Counsel

City Hall, Room 234

70 West Hedding Street

8 1 Dr. Carlton B. Goodlett Place

East Wing, Ninth Floor

San Francisco, California 94102-4602

San Jose, CA 95110-1770

9 Telephone: (415) 554-4748

Telephone: (408) 299-5900

Facsimile: (415) 554-4715

Facsimile: (408) 292-7240

10 E-Mail:

matthew.goldberg@sfcityatty.org E-Mail:

luke.edwards@cco.sccgov.org

11 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
12

Attorneys for Plaintiff COUNTY OF SANTA CLARA

13

UNITED STATES DISTRICT COURT 14

NORTHERN DISTRICT OF CALIFORNIA 15

CITY AND COUNTY OF SAN FRANCISCO Case No. 3:19-cv-4717 16 and COUNTY OF SANTA CLARA,

17

Plaintiffs,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

18

vs.

19 U.S. CITIZENSHIP AND IMMIGRATION SERVICES; DEPARTMENT OF
20 HOMELAND SECURITY; KEVIN McALEENEN, Acting Secretary of Homeland
21 Security; and KENNETH T. CUCCINELLI, in his official capacity as Acting Director of U.S.
22 Citizenship and Immigration Services,

23

Defendants.

24

25

26

27

28

Complaint; Case No. 3:19-cv-4717

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1

INTRODUCTION

2

1. Plaintiffs the City and County of San Francisco (“San Francisco”) and the County of

3 Santa Clara (“Santa Clara,” and together with San Francisco, the “Counties”) challenge the U.S.

4 Department of Homeland Security’s (“DHS” or the “Department”) final rule on Inadmissibility on

5 Public Charge Grounds, submitted for publication in the Federal Register on August 12, 2019 (the

6 “Final Rule”). See Rule on Inadmissibility on Public Charge Grounds, Federal Register,

7 https://www.federalregister.gov/documents/2019/08/14/2019-17142/inadmissibility-on-public-charge-

8 grounds (Aug. 12, 2019).

9

2. By statute, the federal government may deny admission or adjustment of status to

10 noncitizens who are “likely at any time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A). The

11 federal government has long applied this provision only to individuals who receive significant public

12 cash assistance or who are institutionalized for long-term care at government expense—i.e., those who

13 are primarily dependent on the government for support. The Final Rule rejects the longstanding,

14 existing definition of public charge, and attempts to redefine it to include even minimal use of a much

15 wider range of non-cash benefits—including non-emergency Medicaid, food stamps (now known as the

16 Supplemental Nutritional Assistance Program or “SNAP”), Medicare Part D subsidies, and various

17 federal housing assistance programs. It also expands the factors considered in public charge

18 determinations by adding elements such as family size, credit score, and a noncitizen’s mere application

19 for benefits, each of which has a dubious relationship to the public charge inquiry. This abrupt shift in

20 policy undermines the Counties’ critical public health and safety-net systems, is arbitrary and capricious,

21 flouts federal law, and seeks to usurp Congress’ authority by administratively repealing its longstanding

22 family-based immigration system.

23

3. According to the Department’s own assessment, the Final Rule will dramatically increase

24 the number of people denied admission to the United States or adjustment of status on public charge

25 grounds. By design, it will also coerce thousands of immigrants and their family members to forgo or

26 disenroll from critical federally funded, county-administered programs—even benefits not technically

27 covered by the Final Rule—to reduce the risk that they or their family members will be denied

28 admission or permanent residency. Evidence indicates that residents of the Counties have already

Complaint; Case No. 3:19-cv-4717

1

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1 disenrolled from such benefits out of fear of the potential immigration consequences of the new public

2 charge rule. Indeed, nationwide, even adults in households in which all foreign-born family members

3 are naturalized citizens have reported avoiding non-cash public benefits.

4

4. As a result, the Final Rule will worsen the health and well-being of the Counties’

5 residents, increase risks to the public health, undermine the Counties’ health and safety-net systems, and

6 inflict significant financial harm on the Counties.

7

5. Although noncitizens use public benefits at lower rates, lower per-capita amounts, and

8 total amounts far below those of citizens, the Final Rule specifically targets public benefits usage by

9 noncitizens and their families. As the Final Rule causes residents to forgo or disenroll from benefit

10 programs, the Counties will continue to suffer directly. What the Department characterizes as a cost

11 savings that will result from the Final Rule is in truth a cost shift from the federal government to state

12 and local governments. Like local governments across the country, the Counties provide and pay for

13 health care and other critical services, often regardless of immigration status. Affected residents once

14 covered by federally funded health insurance, supported by federal cash assistance, and nourished by

15 federal food assistance programs will instead turn to health and other safety-net services paid for and

16 administered by the Counties. And as the Final Rule forces the Counties’ locally funded health and

17 safety-net systems to carry responsibilities once borne by the federal government, it will also harm our

18 broader communities’ public health, since many individuals forgoing the benefits covered by the Final

19 Rule will also forgo the preventive and routine care and immunizations that ensure overall community

20 health. Thus, not only will the Counties have to provide support previously furnished by the federal

21 government, without any corresponding allocation of federal funds, they will face the new, increased

22 costs of dealing with harms to public health.

23

6. The Counties must also reorganize their programs and services to account for reduced

24 enrollment in federal benefit programs and increased public health risks. And on top of these other

25 burdens, the Counties will suffer the economic harm of fewer federal benefit dollars circulating in their

26 economies. Every dollar issued to a SNAP recipient results in $1.79 in economic activity, so the

27 Counties’ economies will suffer harm even beyond the dollar value of benefits the Final Rule causes

28 individuals to forgo. The Final Rule will thus overburden the Counties’ health and safety-net programs

Complaint; Case No. 3:19-cv-4717

2

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1 at the very same time that it starves the Counties of the resources needed to protect their residents’

2 health and well-being.

3

7. The Final Rule is not only harmful; it is also unlawful. It conflicts with the language and

4 intent of the statutory provision it purports to interpret, the broader congressional framework of U.S.

5 immigration law, and federal statutes governing the public benefits enumerated in the Final Rule. It also

6 falls well short of the basic procedural requirements of administrative rulemaking under federal law.

7 The Department’s proffered rationales and data do not support the Final Rule or justify its costs, which

8 outweigh whatever benefits the Department believes are gained. Core aspects of the Final Rule are

9 arbitrary and untethered to the purpose of the Immigration and Nationality Act (“INA”), and the

10 Department has not explained why it has so dramatically changed a longstanding policy that local

11 governments and immigrant communities have relied upon.

12

8. The Counties and other members of the public identified these and other infirmities in

13 response to the Department’s proposed rulemaking on this topic. The Department failed to account for

14 these responses, violating its obligations in the rulemaking process.

15

9. In short, the Final Rule is contrary to law, is arbitrary and capricious, and should be

16 declared unlawful and enjoined.

17

JURISDICTION AND VENUE

18

10. This Court has jurisdiction under 28 U.S.C. Section 1331 because this is a civil action

19 arising under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706.

20

11. This Court has the authority to issue declaratory and injunctive relief under the

21 Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, and the APA, 5 U.S.C. § 706.

22

12. Venue properly lies within the Northern District of California because the Counties are

23 located in this judicial district, no real property is involved in this action, and a substantial part of the

24 events or omissions giving rise to this action occur in this District. 28 U.S.C. § 1391(e)(1).

25

INTRADISTRICT ASSIGNMENT

26

13. Assignment to the San Francisco or Oakland Division of this District is proper pursuant

27 to Civil Local Rule 3-2(c)-(d) because a substantial part of the acts or omissions that give rise to this

28 action are occurring in the City and County of San Francisco.

Complaint; Case No. 3:19-cv-4717

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1

PARTIES

2

14. San Francisco is a municipal corporation located in the Northern District of California,

3 organized and existing under and by virtue of the laws of the State of California. It is also a charter city

4 and county. It is home to over 850,000 people, approximately thirty-seven percent of whom are foreign-

5 born—the second highest percentage of any county in California. More than 80,000 noncitizens in San

6 Francisco live in families in which at least one person receives a public benefit included in the Final

7 Rule.

8

15. Santa Clara is a charter county and political subdivision of the State of California located

9 in the Northern District of California. It is home to almost two million people and is more populous

10 than 14 states. Thirty-eight percent of Santa Clara’s residents are foreign-born—the highest percentage

11 of any county in California. And more than 117,600 noncitizens in Santa Clara live in families in which

12 at least one person receives a public benefit included in the Final Rule.

13

16. DHS is the agency of the United States government that promulgated the Final Rule and

14 that bears responsibility for implementing, administering, and enforcing the nation’s immigration laws

15 and policies, including conducting public charge assessments under INA Section 212(a)(4) in

16 connection with applications for admission and adjustment of status.

17

17. U.S. Immigration and Citizenship Services (“USCIS”) is an agency of the United States.

18 It is a component within DHS and is responsible for implementing, administering, and enforcing the

19 nation’s immigration laws and policies, including conducting public charge assessments under INA

20 Section 212(a)(4) in connection with applications for admission and adjustment of status. The Final

21 Rule identifies USCIS as the entity that will implement the Final Rule.

22

18. Kevin McAleenan is the Acting Secretary of Homeland Security. He is sued in his

23 official capacity, in which he has direction, authority, and control over DHS and its component parts,

24 including USCIS.

25

19. Kenneth T. Cuccinelli is the Acting Director of USCIS. He is sued in his official

26 capacity, in which he is responsible for establishing national immigration policies and priorities and

27 oversees USCIS’s performance of its responsibilities to implement, administer, and enforce the nation’s

28 immigration laws and policies.

Complaint; Case No. 3:19-cv-4717

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1

FACTUAL ALLEGATIONS

2 I. Background on the “Public Charge” Ground for Inadmissibility.

3

20. Under the INA, the federal government may deny admission or adjustment of status to

4 noncitizens who are “likely at any time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A).

5

21. By the plain terms of the statute, the public charge assessment is a prediction about how a

6 noncitizen might respond to their circumstances in the future. USCIS typically conducts its Section

7 212(a)(4) public charge assessments in one of three situations: (1) when a noncitizen applies to

8 physically and lawfully enter the United States (admission), (2) when a noncitizen applies for

9 adjustment of status, also known as becoming a lawful permanent resident (“LPR”) or getting a green

10 card (adjustment of status), and (3) when an LPR returns to the country after a 180-day absence (also

11 admission). Accordingly, both LPRs and noncitizens eligible to apply for LPR status may be subject to

12 the Final Rule, as are most other noncitizens seeking entry to the United States. The Final Rule also

13 claims for the Department the power to require noncitizens applying for changes or extensions of visas

14 to prove that they have not received enumerated public benefits and are unlikely to receive them in the

15 future, even though Section 212(a)(4) does not apply in those circumstances.

16

22. The INA does not expressly define “public charge,” but since Congress first used the

17 term “public charge” in the late 19th Century, it has referred consistently to an individual who primarily

18 depends on the government for subsistence. In 1999, USCIS’s predecessor agency, the Immigration and

19 Naturalization Service (“INS”), formalized this longstanding definition in administrative

20 guidance. Specifically, INS defined “public charge” to mean a noncitizen who is “primarily dependent

21 on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for

22 income maintenance or (ii) institutionalization for long-term care at government expense.” Field

23 Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689

24 (May 26, 1999) (“1999 Field Guidance”); accord Inadmissibility and Deportability on Public Charge

25 Grounds, 64 Fed. Reg. 28,676 (proposed May 26, 1999). As INS explained, this definition is based

26 upon the plain statutory meaning, historical usage, and case law, and extensive consultation with

27 benefit-granting agencies. See 1999 Field Guidance at 28,692.

28
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1

23. Moreover, since 1996 Congress has provided that noncitizens generally should not be

2 considered likely to become public charges if they are sponsored by a person in the United States who

3 has executed a legally enforceable and facially adequate affidavit of support. Congress made such

4 affidavits enforceable and authorized the Department to consider them in public charge assessments,

5 particularly for those seeking admission on the basis of family ties. See 8 U.S.C. §§ 1182(a)(4)(B)(ii),

6 (C), 1183a.

7

24. For decades, USCIS has assessed an individual’s likelihood of being “primarily

8 dependent on government support” based on use of two discrete sets of benefits: (1) cash benefits under

9 Supplemental Security Income (“SSI”), Temporary Assistance to Needy Families (“TANF”), or state or

10 local cash assistance programs (also known as “General Assistance”), and (2) long-term, government-

11 funded institutionalization—such as in a nursing home or mental health institution. The Final Rule

12 upends this longstanding precedent.

13 II. The Final Rule Represents a Dramatic Shift in Policy.

14

25. On October 10, 2018, DHS published a notice of proposed rulemaking in the Federal

15 Register titled Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (Oct. 10, 2018)

16 (“Proposed Rule”).

17

26. In response to the Proposed Rule, DHS received over 266,000 comments. A wide range

18 of commenters urged DHS to rescind or significantly alter the Proposed Rule. San Francisco and Santa

19 Clara were among those commenters expressing significant concerns about the Proposed Rule and

20 urging DHS to withdraw it from consideration.

21

27. Despite the significant concerns raised during the comment period, DHS submitted the

22 Final Rule for publication in the Federal Register on August 12, 2019.

23

28. The Final Rule abruptly changes decades of prior federal practice in at least five critical

24 ways.

25

29. First, the Final Rule significantly expands the meaning of the term “public charge.”

26 Instead of retaining the longstanding definition of a noncitizen who is “primarily dependent” on public

27 assistance to meet basic living requirements—as formalized in the 1999 Field Guidance—the Final Rule

28 defines public charge to include a noncitizen who simply “receives one or more public benefit” for a

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1 relatively brief duration. 8 C.F.R. § 212.21(a). Mere use of a public benefit, not primary dependence, is

2 now sufficient for a noncitizen to fall within the meaning of public charge.

3

30. Second, the Final Rule broadens the scope of benefits whose use can make a person a

4 public charge, most notably by sweeping in for the first time several non-cash benefits: non-emergency

5 Medicaid, SNAP, subsidies for Medicare Part D, and public housing and Section 8 housing assistance. 8

6 C.F.R. § 212.21(b)(2), (6).

7

31. Third, the Final Rule sets the threshold for use of benefits unreasonably low at 12

8 months of use within a 36-month period (with receipt of two benefits in one month counting as two

9 months of use). 8 C.F.R. § 212.21(a). It also authorizes immigration officials to consider receipt of

10 benefits even below that already-low threshold as part of the “totality of the circumstances.” Final Rule

11 Part I(C); see also 8 C.F.R. § 212.22(b)(4). In so doing, the Final Rule makes receipt of any amount of

12 benefit at all relevant to the public charge determination.

13

32. Fourth, the Final Rule broadens the factors considered during the public charge

14 assessment. See 8 C.F.R. § 212.22. INA Section 212 already directs DHS to consider a noncitizen’s age;

15 health; family status; assets, resources, and financial status; and education and skills. 8 U.S.C.

16 § 1182(a)(4)(B)(i). The Final Rule adds several, more specific criteria—including family size, household

17 size, the mere application for certain benefits, and credit score—that do not help to rationally predict whether

18 a noncitizen is likely to receive more than the threshold amount of public benefits, if any at all.

19

33. Fifth, as to the “assets, resources, and financial status” factor, the Final Rule disregards

20 the value of the resources that a noncitizen’s sponsor has legally committed to providing to support the

21 noncitizen except to the extent the sponsor (i) lives in the noncitizen’s household, (ii) is “already

22 providing 50 percent or more of [the noncitizen’s] financial support,” or (iii) is “otherwise providing

23 income [to the noncitizen] on a monthly or annual basis.” Final Rule Part III(G)(4); see also 8 C.F.R.

24 § 212.22(b)(4)(ii)(A), (B). Similarly, the Final Rule discounts the value of affidavits of support unless

25 the sponsor has a close relationship with the noncitizen (including whether the sponsor lives with the

26 noncitizen) and unless the sponsor has executed only one such affidavit—even though all affidavits of

27 support are equally legally enforceable. 8 C.F.R. § 212.22(b)(7)(A)(2). Thus, the Final Rule disregards

28 Congress’s direction that all such affidavits are legally enforceable and Congress’s intent that such

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1 affidavits carry significant weight for noncitizens applying for admission or to adjust status on the basis

2 of family ties.

3

34. Taken together, these changes dramatically expand the circumstances under which

4 noncitizens will be denied entry and adjustments of status on public charge grounds.

5 III. The Final Rule Inflicts Significant Harms on the Counties and Our Residents.

6

A. The Final Rule Coerces Noncitizens and Their Families to Forgo Public Benefits.

7

35. The Final Rule coerces individuals to forgo and disenroll from critical benefits and care.

8 Noncitizens who seek—or envision seeking—admission or adjustment of status will face an insoluble

9 dilemma: access any of a wide-range of public benefits and jeopardize the chance for admission or

10 adjustment of status, or forgo such benefits and suffer the resulting harms. Many of these individuals

11 have chosen, and will continue to choose, the latter, forgoing critical public benefits as a direct result of

12 the Final Rule.

13

36. DHS itself projects that the Final Rule will cause a reduction in enrollment in federal

14 public benefits equal to 2.5 percent of the number of noncitizens participating in those programs. But

15 this projection grossly underestimates the number of individuals and households that will withdraw from

16 participation in public benefit programs.

17

37. Other people, unclear about the impact of the Final Rule, will also forgo benefits out of

18 fear of the immigration consequences to themselves or their loved ones. Indeed, in response to the

19 Proposed Rule and related press accounts, many already have.

20

38. One recent study found that about one in seven adults in immigrant families (13.7

21 percent) reported “chilling effects” from the Proposed Rule, in which the respondent or a family member

22 did not participate in a non-cash government benefit program in 2018 for fear of risking future green

23 card status. Hamutal Bernstein, Dulce Gonzalez, Michael Karpman, and Stephen Zuckerman, One in

24 Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018, Urban

25 Institute (May 2019). This chilling was observed in families with various mixes of immigration and

26 citizenship statuses, including 14.7 percent of adults in families where all noncitizen members had green

27 cards and 9.3 percent of those in families where all foreign-born members were naturalized citizens. Id.

28
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1

39. This national trend is also evident in San Francisco and Santa Clara. For example,

2 although participation in Medicaid and SNAP by noncitizens and households with at least one

3 noncitizen has been declining since President Trump took office in January 2017, SNAP participation

4 dropped most precipitously in fall of 2018 when the Proposed Rule was announced and issued.

5 Participation will undoubtedly drop further following issuance and publication of the Final Rule.

6

40. Given the technical and complex nature of the Final Rule, it is unsurprising that this

7 “chilling effect” extends beyond those likely to be subject to a public charge review. The Final Rule has

8 deterred and will continue to deter: (1) the use of benefits by individuals who are not subject to the Final

9 Rule (such as refugees, asylees, and citizens with a noncitizen family member), and (2) participation in

10 health and safety-net programs that are not covered by the Final Rule, including the Special

11 Supplemental Nutrition Program for Women, Infants, and Children (“WIC”) as well as some programs

12 that are entirely state and locally funded. This chilling effect is hardly surprising; as the Department

13 itself has observed, enactment of welfare and immigration reform laws in 1996 caused dramatic

14 reductions in benefit enrollment, even among populations and benefit programs not directly implicated

15 by the reforms. See Proposed Rule, 83 Fed. Reg. at 51,266.

16

41. For example, a comprehensive review of studies of the impact of the Personal

17 Responsibility and Work Opportunity Reconciliation Act of 1996 demonstrated immigrant populations

18 whose eligibility was unchanged by the law still withdrew at high levels from benefits. For example, the

19 United States Department of Agriculture found that between 1994 and 1998, food stamps usage fell by

20 53 percent among eligible U.S. citizen children in families with a noncitizen parent—and by 60 percent

21 among refugees—even though the law did not restrict either group’s eligibility. For Medicaid, the drop

22 was 17 percent among citizen children in families with a noncitizen parent and 39 percent among

23 refugees.

24

42. Accordingly, even though the Final Rule excludes consideration of the receipt of

25 Medicaid benefits by individuals under the age of 21 and by pregnant women, these particularly

26 vulnerable residents will likely be among those forgoing or disenrolling from these critical programs.

27 And the consequences for these populations will be severe. Children enrolled in Medicaid in their early

28 years are not only healthier in childhood than children without health insurance, but they also have

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1 better health, income, and employment outcomes in adulthood. When pregnant women forgo Medicaid,

2 they often lose the critical prenatal care that protects the health of both mother and unborn child.

3 Similarly, the loss of SNAP benefits is particularly harmful to children. Research demonstrates that

4 access to nutrition is crucial to a child’s physical and intellectual development. Sufficient nutritious

5 food of the type available through SNAP is associated with improved reading and math skills in

6 elementary school, especially for young girls, and increases the likelihood of high school graduation.

7 Indeed, food assistance for girls has been linked to improved economic self-sufficiency later in life.

8

43. The Final Rule’s harms will extend even beyond these benefits because access to certain

9 state and local benefits depends on individuals applying for federally funded Medicaid. For example,

10 the California Children’s Services program (“CCS”), which is administered by Santa Clara in

11 partnership with the California Department of Health Care Services, coordinates and pays for the cost of

12 treatment of certain serious medical conditions for children and young adults, such as cystic fibrosis and

13 cerebral palsy. But to qualify for CCS, an individual must apply for Medicaid if CCS believes the

14 individual may be Medicaid-eligible. Similarly, some of the funding sources for Santa Clara’s HIV-

15 related health services is conditioned upon patient enrollment in other programs, including Medicaid.

16 As such, when individuals forgo or disenroll from Medicaid, they will be prohibited from accessing

17 these Medicaid-contingent services.

18

44. In addition to these programs, the Final Rule’s inclusion of housing-related subsidies and

19 assistance in the public charge analysis will have devastating consequences for immigrants and their

20 families who need even moderate assistance to achieve housing security. These programs reduce

21 homelessness and expand opportunities for healthy and safe housing, benefiting the entire community.

22 The Final Rule will deter participation in those programs among households that include noncitizen

23 family members. Because these programs offer some of the most affordable housing in San Francisco

24 and Santa Clara, where housing insecurity and homelessness rates are already alarmingly high, families

25 that are deterred from participation may find themselves in substandard conditions or homeless.

26

45. The Department notes in the Final Rule that “numerous” comments raised concerns about

27 these serious chilling effects. Indeed, over ten pages of the Final Rule are devoted to summarizing these

28 comments. See Final Rule Part III(D)(5). But the Department disregards these concerns—stating that it

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1 would be “unwarranted” for individuals who are not subject to a public charge determination to disenroll

2 from benefits and that it “will not alter this rule to account for such unwarranted choices.” Id.

3

B. By Coercing Residents to Forgo Public Benefits, the Final Rule Increases

Programmatic and Administrative Costs to the Counties’ Health and Safety-Net

4

Systems.

5

46. San Francisco and Santa Clara operate sophisticated and extensive safety-net health care

6 systems that serve as providers of last resort, offering care to low-income and other vulnerable residents

7 regardless of their ability to pay. Each of the Counties owns and operates a Level I trauma center

8 hospital, additional hospitals, and many clinics that together provide our residents with a range of

9 emergency services as well as specialized, preventive, primary, and routine care.

10

47. The San Francisco Health Network includes two hospitals. Zuckerberg San Francisco

11 General Hospital (“ZSFG”) is a licensed general acute care hospital and Level I trauma center owned

12 and operated by San Francisco. ZSFG is San Francisco’s safety-net hospital. It provides care for

13 approximately one in eight San Franciscans a year, regardless of their ability to pay. Laguna Honda

14 Hospital provides a full range of skilled nursing services to adult residents of San Francisco who are

15 disabled or chronically ill, including specialized care for those with chronic wounds, head trauma,

16 stroke, spinal cord and orthopedic injuries, HIV/AIDS, and dementia.

17

48. Santa Clara is the only public safety-net health care provider in Santa Clara County, and

18 the second largest such provider in California. Its County of Santa Clara Health System (“CSCHS”)

19 provides the vast majority of the health care services available to low-income and underserved patients

20 in Santa Clara, including through Santa Clara Valley Medical Center (a Level I trauma center),

21 O’Connor Hospital, and St. Louise Regional Medical Center. In addition to its hospitals, CSCHS

22 provides essential preventive and other outpatient services to underserved patients through ambulatory

23 care clinics. CSCHS also administers and provides a number of programs to promote preventive care

24 and avoid more costly hospital visits.

25

49. Both Counties have a duty to provide emergency care to all persons in need of medical

26 care, regardless of their insurance status or ability to pay. And together, the Counties invest billions of

27 dollars to operate these systems, including tens of millions of dollars each year to provide “charity care,”

28
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1 discounted care, and other uncompensated care to patients who are not covered by insurance and cannot

2 pay for their care.

3

50. As the Final Rule compels eligible noncitizens to forgo or drop Medicaid coverage, the

4 Counties’ Emergency Department costs will likely rise. Some individuals chilled by the Final Rule will

5 lose access to primary care and turn to Emergency Departments instead, presenting conditions not well-

6 suited to Emergency Department treatment. Others will delay care, including important preventative

7 care. This will lead to medical conditions that could have been caught and managed much earlier

8 instead presenting as emergencies—which are both much more dangerous to the patient and

9 significantly more costly to treat, particularly in an emergency care setting. Because in many of these

10 instances the Counties will be providing charity, discounted, or otherwise uncompensated care, the

11 Counties will bear additional costs. Ultimately, the Counties will incur millions of additional dollars in

12 uncompensated health care costs. Increased use of County Emergency Departments will also result in

13 rising wait times for all patients who require emergency medical attention.

14

51. Moreover, due to the anticipated increase in the use of the Emergency Department, the

15 Counties may need to reorganize their staff and administrative structures to address overcrowding and

16 emergency treatment of conditions that ordinarily would be addressed in primary and ambulatory care

17 settings. Other hospital divisions, such as Gynecology and Obstetrics, the Neo-Natal Intensive Care

18 Unit, and Primary Care, may need to make staffing and programmatic adjustments, with some divisions

19 likely facing higher demand and others expecting drop-offs.

20

52. Other County programs could face higher utilization and attendant costs as well. These

21 programs include the Healthy Kids program, which provides heavily subsidized services to 3,000 Santa

22 Clara children whose family income is between 250 and 300 percent of the Federal Poverty Guidelines

23 (“FPG”), and the Primary Care Access Program, which provides primary care services to adults who are

24 not eligible for state subsidies, employer health insurance, or full benefits under Medicaid.

25

53. Finally, if the Final Rule goes into effect, it will create new administrative challenges for

26 the Counties’ agencies administering health care and other safety-net programs and will result in

27 additional work, including: answering consumer questions related to the Final Rule, building new

28 systems to respond to the Final Rule, and modifying existing communications and forms related to the

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1 Final Rule. The Counties have already had to invest significant resources in educating relevant

2 employees about public charge assessments in anticipation of the Final Rule, and will be forced to invest

3 additional resources in education and training if the Final Rule goes into effect.

4

54. To manage the administrative challenges described above, San Francisco’s Human

5 Services Agency (“HSA”) will have to provide training to hundreds of employees, including several

6 hundred certified bilingual HSA workers. The San Francisco Department of Public Health (“SFDPH”)

7 anticipates that it will have to provide training to over 300 staff who perform Medicaid screening and

8 eligibility, 150 staff conducting other patient-facing activities, and about 80 managers and supervisors.

9 In addition, SFDPH expects that if the Final Rule were to go into effect it would have to provide basic

10 education on the Final Rule to all staff that interact with patients. This encompasses about 5,000 staff

11 across SFDPH-run clinics and hospitals, and community-based behavioral health clinics contracted out

12 by San Francisco.

13

55. Indeed, San Francisco staff have already spent considerable time addressing issues that

14 have been prompted by the Proposed Rule. At SFDPH, staff have already spent more than 800 hours

15 answering questions from noncitizens about the impact of the Proposed Rule, processing requests for

16 disenrollment, and analyzing the impact of the Proposed Rule on its patients and administrative

17 functions.

18

56. Santa Clara’s agencies have also expended significant resources training its employees in

19 anticipation of the Final Rule, including Santa Clara’s Social Services Agency, whose hundreds of

20 affected staff has already dedicated more than 1,000 hours to answering questions about the Proposed

21 Rule, processing requests for disenrollment from benefits, analyzing the impact of the Proposed Rule,

22 holding discussions with community-based organizations and other partners, and attending public

23 charge-related trainings. And these agencies will have to expend even more staff time if the Final Rule

24 goes into effect.

25

C. By Coercing Residents to Forgo Public Benefits, the Final Rule Harms the Counties’

Public Health.

26

27

57. The reduction in access to health care wrought by the Final Rule hurts not only individual

28 health, but also broader public health. Reduced access to health care services increases the risk of

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1 communicable diseases and microbial threats, and reduced access to diagnosis and treatment of

2 infectious diseases results in increased transmission in the community. The Counties will confront these

3 harms firsthand, as they exclusively run the public health departments within their jurisdictions.

4

58. As a result of the Final Rule and the associated reduction in resident access to health care,

5 the Counties will face a greatly increased likelihood of outbreaks of communicable or infectious disease

6 like measles, tuberculosis (“TB”), and the Zika virus.

7

59. TB, for example, can infect anyone who lives, works, or breathes in close proximity to

8 someone with infectious TB. Since March 2018, the majority of patients seen at the S.F. Tuberculosis

9 Clinic are foreign-born, from Asian and Latin American countries. Similarly, the vast majority of

10 people in Santa Clara with TB were born outside of the U.S. If patients delay medical care when they

11 develop symptoms, large community outbreaks could occur—at great risk to public health and enormous

12 cost to the Counties in providing treatment and containing the outbreaks.

13

60. Similarly, the Zika virus infection is endemic in all of Latin America and is spread by

14 mosquito bites and sex. Zika virus infection causes Congenital Zika Syndrome, which includes

15 microcephaly and other birth defects. Because of the frequent travels between the United States and

16 Latin America, travelers need to have access to information on how to prevent infection and access to

17 health care services for diagnosis and counseling. Prevention is critical, as there is no vaccine or

18 treatment for Zika virus infections. As individuals chilled by the Final Rule lose access to primary care,

19 fewer will be educated about these health risks, and the risk of infection rates will increase.

20

61. These Final Rule’s public health consequences will also impose increased costs on the

21 Counties and our public health departments. First, the Counties’ public health departments will need to

22 make adjustments to their programs to compensate for the increased risk of outbreak. Second, when

23 people avoid non-emergency medical treatment for infectious diseases—such as treatment for latent TB,

24 which is not yet infectious but can easily progress to full-blown and highly contagious TB—the

25 Counties will ultimately face the costs of treating those infections when they become emergencies, at a

26 significantly higher cost. For example, although treating latent TB is relatively cheap, it can cost many

27 tens of thousands of dollars to treat a single case of full-blown TB. Further, the Counties will bear the

28
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1 costs of treating the spread of disease to additional individuals due to lack of timely preventative

2 treatment, in the first instance. These costs can easily rise into the millions of dollars.

3

62. The Final Rule scarcely mentions these significant risks.

4

D. By Coercing Residents to Forgo Public Benefits, the Final Rule Reduces Economic

Activity in the Counties.

5

6

63. On top of all these increased costs and harms to the public health, the Counties also face a

7 drop in economic activity, and therefore revenue, due to the loss of federal benefits dollars circulating in

8 our economies. These harmful economic impacts will exceed the mere dollar amount of the benefits

9 that noncitizens and others forgo in response to the Final Rule because benefits dollars have beneficial

10 economic ripple effects as they circulate in the economy. For example, United States Department of

11 Agriculture economists have determined that SNAP benefits have a high multiplier effect as they

12 circulate through the local economy—every dollar issued to a SNAP recipient results in $1.79 in

13 economic activity. The Counties’ economies can therefore expect to lose out on hundreds of thousands

14 of dollars per year as the Final Rule pressures noncitizens and households that include noncitizens to

15 drop off federal benefits. This will negatively impact the Counties’ economic growth and budgets.

16 IV. The Final Rule is Unlawful.

17

A. The Final Rule Is Contrary To Law.

18

64. The Final Rule is contrary to law in at least four respects.

19

65. First, The Final Rule’s definition of “public charge” is unlawful because it contradicts

20 the term’s plain and longstanding meaning as used in Section 212(a)(4) of the INA: a person “primarily”

21 dependent on public assistance for survival.

22

66. Second, the Final Rule undermines the broader system of immigration laws enacted by

23 Congress as part of the INA. For over half a century, the nation has had an immigration system that

24 prioritizes family unification. However, the Final Rule attempts to undercut this system by dramatically

25 restricting the ability of noncitizens to reunite with their families by gaining admission or LPR status.

26 Under the Final Rule, applicants for admission and adjustment of status based on family ties are far less

27 likely to pass a public charge test than under the longstanding rules that the Final Rule displaces. The

28 Final Rule therefore directly undermines the family-based immigration system established and

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1 maintained by Congress. It may well be the current Administration’s policy goal to replace the family-

2 based immigration system embedded in the INA with a so-called “merit”- or “skills”-based system, but

3 no administrative agency may impose by regulation what is reserved for Congress to do by legislation.

4

67. Third, the Final Rule reflects a misunderstanding and misapplication of the self-

5 sufficiency precept that Congress described in 8 U.S.C. Section 1601 and that the Final Rule purports to

6 implement. The Final Rule’s basic assumption is that any receipt of the enumerated benefits conflicts

7 with self-sufficiency principles, but Congress plainly intended otherwise. In Congress’s view, self-

8 sufficiency is best achieved by extending eligibility to certain noncitizens for many federal means-tested

9 benefit programs, including those enumerated in the Final Rule, and making other noncitizens ineligible

10 for those programs. Yet the Final Rule disregards this view. It also undervalues the legally enforceable

11 promises, known as affidavits of support, that U.S. residents make to “sponsor” (financially support)

12 noncitizens applying for admission or adjustment of status. Under the regime enacted by Congress,

13 sponsorship advances self-sufficiency principles by allowing benefit-granting agencies to recoup from

14 sponsors the cost of benefits paid to noncitizens and preventing sponsored noncitizens from burdening

15 taxpayers. Even though agencies and noncitizens themselves can enforce all affidavits of support in

16 court, the Final Rule discounts their weight unless the sponsor lives in the noncitizen’s household, has a

17 close relationship with the noncitizen, or provides “continuing monthly or yearly” payments to the

18 noncitizen that the noncitizen relies on as income. 8 C.F.R. § 212.22(b)(4)(ii)(A), (B); id. at

19 § 212.22(b)(7)(A)(2). By discounting affidavits of support except in these limited circumstances and

20 misconstruing Congress’s view of “self-sufficiency,” the Final Rule undermines Congress’s intent.

21

68. Fourth, the Final Rule’s inclusion of SNAP is contrary to the statutes governing those

22 federal programs. Specifically, the Final Rule’s consideration of a noncitizen’s receipt of SNAP

23 benefits violates a statute that prohibits consideration of those benefits “[as] income or resources for any

24 purpose under any Federal, State, or local laws.” 7 U.S.C. § 2017(b).

25

B. The Final Rule Is Arbitrary, Capricious, and an Abuse of Discretion.

26

69. The Final Rule does not comply with the basic requirements of administrative

27 rulemaking. A rule is invalid if the agency has not given adequate reasons for its decisions, examined

28
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1 the relevant data, or offered a rational connection between the facts found and the choice made. This

2 failure is especially grave where, as here, an agency is changing its existing policy.

3

70. The following allegations are just a few of the myriad ways the Department has subverted

4 or ignored the statutory framework, neglected to account for the harms that its departure from

5 longstanding laws would cause, and failed to offer a reasoned explanation for its policy reversals.

6

71. First, the Department has failed to account for (much less adequately consider and

7 address) the wide extent and variety of costs and harms the Final Rule will impose on local governments

8 and residents, including serious harm to public health, local economies, and vulnerable communities

9 (e.g., children, pregnant women, and individuals confronting housing insecurity)..

10

72. Second, the Department offers no “reasonable explanation” for disregarding the federal

11 government’s prior longstanding and persuasive rationale for excluding non-cash public benefit

12 programs when making a public charge determination: as a practical matter, neither alone nor together

13 can non-cash programs be a person’s primary support. Indeed, receipt of the non-cash public benefits

14 covered under the Final Rule is not a good indicator of self-sufficiency. As the Department

15 acknowledges, noncitizens may be eligible for Medicaid and housing assistance at incomes that would

16 not suggest dependence on the government. The Department’s alternative basis for choosing which

17 programs to include—its “preference to prioritize those programs that impose the greatest cost on the

18 Federal government”—is irrelevant to the statutorily directed inquiry of whether a specific individual is

19 likely to become a public charge.

20

73. Third, the Final Rule’s benefits use threshold—12 months within a 36-month period

21 (with any two benefits used in one month counting as two months of use)—is irrational. Such short-

22 term receipt of benefits does not mean that an individual is not self-sufficient or is likely to become a

23 public charge in the future. And the Final Rule goes even further than this. By authorizing immigration

24 officials to consider and penalize a noncitizen based on receipt of benefits below the 12-month

25 threshold, the Final Rule effectively eliminates the concept of a minimum threshold altogether. See

26 Final Rule Part I(C); see also 8 C.F.R. § 212.22(b)(4). This is not what Congress envisioned in enacting

27 the public charge ground of inadmissibility.

28
Complaint; Case No. 3:19-cv-4717

17

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1

74. Fourth, the Final Rule’s framework for weighing factors considered in the “totality of

2 the circumstances” analysis is irrational, vague, and entirely unpredictable. The Final Rule requires

3 consideration of a plethora of factors in the public charge analysis, but it does not meaningfully quantify

4 the weight each factor should carry or explain how an immigration officer should conduct this analysis.

5 Some are “heavily” negative, some are “heavily” positive, and others are simply factors that could be

6 either negative or positive. The Department claims this weighing scheme will “formaliz[e] and

7 standardiz[e] the criteria and process for public charge determinations.” But it does neither. This failure

8 is particularly grave given that, via the Final Rule, the Department has created a sprawling definition of

9 public charge, encompassing a much broader range of benefits and factors to be considered (including

10 wholly arbitrary ones), that could capture large portions of the Counties’ populations. This extremely

11 broad definition, coupled with a lack of direction, grants individual immigration officers practically

12 standard-less discretion and makes it impossible for noncitizens anticipating a public charge review to

13 predict whether they will pass it. The Department provides no reason, data, or logic from which to

14 conclude that its proposed weighing framework produces a rational, consistent, or accurate answer to

15 whether a given a noncitizen is likely to fall within the Final Rule’s definition of a public charge.

16

75. Fifth, it is irrational for the Final Rule to consider the mere application for benefits

17 (independent of receipt of such benefits) in the public charge determination. The fact of an application

18 for benefits, without any consideration of whether the application for benefits was denied or withdrawn

19 or whether the applicant was financially or otherwise eligible, has no bearing on whether a noncitizen

20 will receive enough of the benefits to exceed the Final Rule’s durational threshold.

21

76. Sixth, it is irrational for the Final Rule to make larger family size, considered as part of a

22 noncitizen’s “family status,” a negative factor when determining whether a noncitizen will become a

23 public charge. As justification for this factor, the Proposed Rule explained that “the receipt of non-cash

24 benefits generally increased as family size increased.” 83 Fed. Reg. 51,184. But DHS’s own data did

25 not support this sweeping statement or the Department’s use of family size as a negative factor. To the

26 contrary, data cited in the Proposed Rule indicated that non-cash benefit usage is higher among families

27 of three (22.3 percent) than families of four (20.7 percent), and that noncitizens’ usage of cash benefits

28 actually decreases as family size grows. The Final Rule notes that this issue was raised in a comment,

Complaint; Case No. 3:19-cv-4717

18

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1 but fails to adequately address it—stating without any explanation or analysis that the data contradicting

2 its position is “not statistically significant.” Final Rule Part III(G)(4).

3

77. Seventh, the Final Rule’s consideration of a noncitizen’s credit history and credit score

4 as factors in the public charge determination is arbitrary and unreasonable as these factors are poor

5 proxies for such a determination. Credit history and credit score do not relate to a noncitizen’s

6 likelihood to become a public charge, the noncitizen’s current or future self-sufficiency, or any other

7 consideration that is permissible under the applicable statutory scheme. Furthermore, credit scores are

8 generally unreliable, especially so for people in immigrant and other vulnerable communities. Once

9 again, the Final Rule notes that several commenters raised these concerns, but fails to adequately

10 address the issue. For example, the Final Rule states simply that “DHS disagrees that consideration of

11 credit scores will disparately affect certain groups of aliens.” It provides no support or basis for this

12 bald statement of disagreement. See Part III(L)(5).

13

78. Eighth, in propounding the Final Rule, the department also failed to adequately address

14 several other comments submitted during the rulemaking process and offered inadequate explanations to

15 justify its decisions implemented in the Final Rule.

16

CAUSES OF ACTION

17

COUNT ONE

Violation of APA (5 U.S.C. § 706(2)(A))

18

Not in Accordance with Law

19

79. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if

20 fully set forth herein.

21

80. The APA requires courts to “hold unlawful and set aside” agency action that is “not in

22 accordance with law.” 5 U.S.C. § 706(2)(A).

23

81. The Final Rule is not in accordance with law in at least the following respects:

24

(A) The Final Rule’s definition of “public charge” for purposes of Section 212(a)(4)

25

of the INA conflicts with the term’s plain meaning, longstanding administrative

26

interpretation, legislative history, statutory context, and case law.

27 //

28 //
Complaint; Case No. 3:19-cv-4717

19

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1

(B) The Final Rule’s definition of “public charge” and weighing framework for

2

conducting public charge assessments conflicts with and undermines the family-

3

based framework of immigration law.

4

(C) The Final Rule undermines Congress’s understanding of self-sufficiency, by

5

chilling noncitizen use of benefits (despite Congress’s decision to extend benefits

6

to certain noncitizens) and undervaluing the congressionally mandated affidavit of

7

support scheme. See 8 U.S.C. §§ 1601, 1182(a)(4)(B)(ii), (C), 1183a.

8

(D) The Final Rule’s inclusion of SNAP in the definition of “public benefit” (which,

9

in turn, is used in the definition of “public charge”) contravenes the statutes

10

governing this program.

11

82. Accordingly, the Final Rule is “not in accordance with law” and is invalid.

12

COUNT TWO

Violation of APA (5 U.S.C. § 706(2)(A))

13

Arbitrary, Capricious, and Abuse of Discretion

14

83. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if

15 fully set forth herein.

16

84. The APA requires courts to “hold unlawful and set aside” agency action that is “arbitrary,

17 capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2)(A). Agency action should be overturned

18 when, among other things, the agency: (i) relied on factors Congress did not intend for it to consider;

19 (ii) failed to consider important aspects of the problem it is addressing; or (iii) explained its decision

20 counter to the evidence before it.

21

85. The Final Rule is “arbitrary, capricious, [and] an abuse of discretion” in at least the

22 following respects:

23

(A) The Department failed to account for (much less, adequately consider and

24

address) the wide extent and variety of costs and harms the Final Rule will impose

25

on the Counties and their residents.

26

(B) The Final Rule introduces non-cash benefit programs in the public charge

27

determination, yet the Department offers no “reasonable explanation” for

28
Complaint; Case No. 3:19-cv-4717

20

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1

disregarding the longstanding and persuasive rationale for excluding such

2

programs.

3

(C) The Final Rule’s benefits use threshold is irrational.

4

(D) The Final Rule’s factor-weighing framework is irrational and vague.

5

(E) The Final Rule irrationally considers the mere application for benefits in the

6

public charge determination.

7

(F) The Final Rule improperly makes larger family size a negative factor when

8

considering “family status” in determining whether a noncitizen is likely to

9

become a public charge.

10

(G) The Final Rule arbitrarily includes consideration of a noncitizen’s credit history

11

and credit score as factors in the public charge determination.

12

(H) The Department has failed to consider, account for, or respond to critical, relevant

13

public comments regarding the Final Rule.

14

86. Accordingly, Defendants’ actions were arbitrary, capricious, and an abuse of discretion,

15 and the Final Rule is therefore invalid.

16

PRAYER FOR RELIEF

17

Wherefore, Plaintiffs pray that the Court grant the following relief:

18

1. A declaratory judgment that the Final Rule is unlawful;

19

2. An order postponing the effective date of the Final Rule pending judicial review;

20

3. An order and judgment holding unlawful, setting aside, and vacating the Final Rule;

21

4. A preliminary injunction against implementation and enforcement of the Final Rule;

22

5. A permanent injunction against implementation and enforcement of the Final Rule;

23 //

24 //

25 //

26 //

27 //

28 //
Complaint; Case No. 3:19-cv-4717

21

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1

6. An award of reasonable costs, attorneys’ fees and expenses, other fees and costs; and

2

7. Any other further relief that the Court deems fit and proper.

3

4 Dated: August 13, 2019

Respectfully submitted,

5 DENNIS J. HERRERA

6

City Attorney JESSE C. SMITH

7

RONALD P. FLYNN YVONNE R. MERÉ

8

SARA J. EISENBERG MATTHEW D. GOLDBERG

9 By: /s/ Dennis J. Herrera

10

DENNIS J. HERRERA City Attorney

11 Attorneys for Plaintiff 12 City and County of San Francisco

JAMES R. WILLIAMS County Counsel GRETA S. HANSEN LAURA TRICE RAPHAEL N. RAJENDRA JULIA B. SPIEGEL H. LUKE EDWARDS
By: /s/ James R. Williams JAMES R. WILLIAMS County Counsel
Attorneys for Plaintiff County of Santa Clara

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
Complaint; Case No. 3:19-cv-4717

22

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 Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 1 of 93

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

8 CITY AND COUNTY OF SAN FRANCISCO, et al.,
9
Plaintiffs, 10
v. 11

Case No. 19-cv-04717-PJH Case No. 19-cv-04975-PJH Case No. 19-cv-04980-PJH
Related Cases

U.S. CITIZENSHIP AND IMMIGRATION PRELIMINARY INJUNCTION 12 SERVICES, et al.,

13

Defendants.

14 STATE OF CALIFORNIA, et al.,

15

Plaintiffs,

16

v.

17 U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,
18 Defendants.
19
LA CLINICA DE LA RAZA, et al., 20
Plaintiffs, 21
v. 22
DONALD J. TRUMP, et al., 23
Defendants. 24

25

This order concerns three motions for a preliminary injunction filed in three related

26 actions. Each of the plaintiffs in those actions moved for preliminary injunctive relief. The

27 motions came on for hearing before this court on October 2, 2019.

28

Plaintiff the City and County of San Francisco (“San Francisco”) appeared through

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 2 of 93

United States District Court Northern District of California

1 its counsel, Matthew Goldberg, Sara Eisenberg, and Yvonne Mere. Plaintiff the County

2 of Santa Clara (“Santa Clara” and together with San Francisco, the “Counties”) appeared

3 through its counsel, Ravi Rajendra, Laura Trice, and Luke Edwards. Plaintiffs the State

4 of California, District of Columbia, State of Maine, Commonwealth of Pennsylvania, and

5 State of Oregon (together, including D.C., the “States”) appeared through their counsel,

6 Anna Rich, Lisa Cisneros, and Brenda Ayon Verduzco. Plaintiffs La Clinica De La Raza

7 and California Primary Care Association (the two together are the “Healthcare

8 Organizations”), Maternal and Child Health Access, Farmworker Justice, Council on

9 American Islamic Relations-California, African Communities Together, Legal Aid Society

10 of San Mateo County, Central American Resource Center, and Korean Resource Center

11 (the “Legal Organizations”) (the Legal Organizations and the Healthcare Organizations

12 together are the “Organizations”) appeared through their counsel, Alvaro Huerta,

13 Nicholas Espiritu, Joanna Cuevas Ingram, Kevin Herrera, Tanya Broder, Max Wolsen,

14 and Mayra Joachin.

15

Defendants U.S. Citizenship and Immigration Services (“USCIS”), Department of

16 Homeland Security (“DHS”), Kevin McAleenen as Acting Secretary of DHS, Kenneth T.

17 Cuccinelli as Acting Director of USCIS, and Donald J. Trump, as President of the United

18 States appeared through their counsel, Ethan Davis, Eric Soskin, and Kuntal Cholera.

19

Additionally, papers submitted by numerous amici curiae were before the court.

20 Prior to the hearing, the court granted motions to file amicus briefs on behalf of the

21 following non-parties, all of which the court considered in its analysis: American Public

22 Health Association, et al.; Asian Americans Advancing Justice, et al.; City of Los Angeles,

23 et al.; Justice in Aging, et al.; and Members of Congress. A number of other requests to

24 file amici briefs were denied due to the court’s insufficient time to consider them on this

25 particular motion, given the already-voluminous filings from the parties, the briefing

26 schedule, and the time-sensitive nature of plaintiffs’ request for preliminary relief.

27

Having read the papers filed by the parties and carefully considered their

28 arguments and the relevant legal authority, and good cause appearing, the court hereby

2

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United States District Court Northern District of California

1 GRANTS CERTAIN PLAINTIFFS’ MOTIONS AND ISSUES A PRELIMINARILY

2 INJUNCTION, the scope of which is discussed below, for the following reasons.

3

EXECUTIVE SUMMARY

4

In 1883, Emma Lazarus penned the now-famous sonnet, The New Colossus.

5 Later affixed to the Statue of Liberty in New York Harbor, the poem has been

6 incorporated into the national consciousness as a representation of the country’s promise

7 to would-be immigrants:

8

Not like the brazen giant of Greek fame,

9

With conquering limbs astride from land to land;

Here at our sea-washed, sunset gates shall stand

10

A mighty woman with a torch, whose flame

11

Is the imprisoned lightning, and her name

Mother of Exiles. From her beacon-hand

12

Glows world-wide welcome; her mild eyes command

13

The air-bridged harbor that twin cities frame.

14

"Keep, ancient lands, your storied pomp!" cries she

15

With silent lips. "Give me your tired, your poor,

Your huddled masses yearning to breathe free,

16

The wretched refuse of your teeming shore.

17

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!" 18

19

But whether one would prefer to see America’s borders opened wide and

20 welcoming, or closed because the nation is full, laws—not poetry—govern who may

21 enter. And the year before Lazarus wrote The New Colossus, Congress had enacted its

22 first comprehensive immigration law, barring entry to “any convict, lunatic, idiot, or any

23 person unable to take care of himself or herself without becoming a public charge,”

24 among others. An Act to Regulate Immigration, 22 Stat. 214, Chap. 376 § 2. (1882).

25 Although various iterations of similar laws have since come and gone (the operative

26 statute no longer refers to “lunatics” or “idiots”), since the very first immigration law in

27 1882, this country has consistently excluded those who are likely to become a “public

28 charge.” 3

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United States District Court Northern District of California

1

Although Congress has never authored an explicit definition of the term, courts

2 and the executive branch have been considering its meaning as used in the statute for

3 over one hundred and twenty years. As interpretations from those two branches

4 accreted toward a consistent understanding, Congress repeatedly enacted statutes

5 adopting the identical phrase.

6

In 1999, the executive branch reviewed its historical application of the term and

7 issued formal guidance to executive employees, explaining that the public charge

8 determination has historically, and should continue to, focus on whether an individual is

9 primarily dependent on the government for subsistence.

10

In 2018, DHS published a new rule (scheduled to take effect October 15, 2019)

11 that proposed to dramatically expand the definition of “public charge.” Rather than

12 include only those who primarily depend on the government for subsistence, DHS now

13 proposes for the first time to categorize as a public charge every person who receives 12

14 months of public benefits (including many in-kind benefits, like Medicaid and SNAP/Food

15 Stamps) over any 36-month period, regardless of how valuable those benefits are, or

16 how much they cost the government to provide (receiving two types of benefits in one

17 month would count as receiving benefits for two months).

18

Today, the court is presented with a challenge to DHS’s new definition. The

19 plaintiffs seek to prevent defendants from implementing it before this court can consider

20 this case on the merits. The plaintiffs argue that the new definition will lead to

21 widespread disenrollment1 from public benefits by those who fear being labeled a public

22 charge (and by those confused that they may be swept up in the rule), which will cause

23 plaintiffs to lose a substantial amount funding (for example, the federal government

24 heavily subsidizes state expenses for those enrolled in Medicaid).

25

The court finds that the plaintiffs are likely to prevail on the merits, for numerous

26

27 1 When plaintiffs refer to harms caused by those who will disenroll from public benefits in

28

addition to those who will forego enrollment. This order considers the two categories together, and refers to them interchangeably.

4

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United States District Court Northern District of California

1 reasons. DHS’s new definition of “public charge” is likely to be outside the bounds of a

2 reasonable interpretation of the statute. Moreover, plaintiffs are likely to prevail on their

3 entirely independent arguments that defendants acted arbitrarily and capriciously during

4 the legally-required process to implement the changes they propose. Because plaintiffs

5 are likely to prevail and will be irreparably harmed if defendants are permitted to

6 implement the rule as planned on October 15, this court will enjoin implementation of the

7 rule in the plaintiff states until this case is resolved on the merits, as discussed in more

8 detail below.

9

BACKGROUND

10

In each of the actions before the court, the plaintiffs challenge and seek to

11 preliminarily enjoin implementation of a proposed rule entitled “Inadmissibility on Public

12 Charge Grounds,” proposed by DHS and published in the Federal Register on August 14,

13 2019. See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (August 14,

14 2019) (“the Rule”). The Rule is scheduled to take effect nationwide on October 15, 2019.

15 A. The Three Actions

16

In City and County of San Francisco v. U.S. Citizenship and Immigration Services,

17 Case No. 19-cv-04717-PJH, San Francisco and Santa Clara (together, the “Counties”)

18 filed a complaint naming as defendants USCIS; DHS; McAleenen as Acting Secretary of

19 DHS; and Cuccinelli as Acting Director of USCIS. The complaint asserts two causes of

20 action under the Administrative Procedure Act (“APA”): (1) Violation of APA, 5 U.S.C.

21 § 706(2)(A)—Not in Accordance with Law; and (2) Violation of APA, 5 U.S.C.

22 § 706(2)(A)—Arbitrary, Capricious, and Abuse of Discretion. The Counties filed the

23 present motion for preliminary injunction on August 28, 2019.

24

In State of California v. U.S. Department of Homeland Security, Case No. 19-cv-

25 04975-PJH, the States filed a complaint naming the same defendants as the Counties:

26 USCIS; DHS; McAleenen as Acting Secretary of DHS; and Cuccinelli as Acting Director

27 of USCIS. The complaint asserts six causes of action: (1) Violation of APA, 5 U.S.C.

28 § 706—Contrary to Law, the Immigration and Nationality Act and the Illegal Immigration

5

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United States District Court Northern District of California

1 Reform and Immigrant Responsibility Act; (2) Violation of APA, 5 U.S.C. § 706—Contrary

2 to Law, Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794 (the

3 “Rehabilitation Act”); (3) Violation of APA, 5 U.S.C. § 706—Contrary to Law, State

4 Healthcare Discretion; (4) Violation of APA, 5 U.S.C. § 706—Arbitrary and Capricious;

5 (5) Violation of the Fifth Amendment’s Due Process clause requiring Equal Protection

6 based on race; (6) Violation of the Fifth Amendment’s Due Process clause, based on a

7 violation of Equal Protection principles based on unconstitutional animus. The States

8 filed the present motion for preliminary injunction on August 26, 2019. On August 27,

9 2019, this court ordered the action brought by the States related to the action brought by

10 the Counties.

11

In La Clinica De La Raza v. Trump, Case No. 19-cv-04980-PJH, the Organizations

12 filed a complaint naming the same defendants as the Counties, and also added Donald J.

13 Trump: USCIS; DHS; McAleenen as Acting Secretary of DHS; and Cuccinelli as Acting

14 Director of USCIS; and Donald J. Trump, as President of the United States. The

15 complaint asserts four causes of action: (1) Violation of APA, 5 U.S.C. § 706—Contrary

16 to the Statutory Scheme; (2) Violation of APA, 5 U.S.C. § 706—Arbitrary, Capricious, or

17 otherwise not in accordance with law; (3) Violation of the Fifth Amendment based on

18 Equal Protection for discriminating against non-white immigrants; (4) under the

19 Declaratory Judgment Act, seeking a determination that the Rule is invalid because it

20 was issued by an unlawfully-appointed agency director. On August 30, 2019, this court

21 ordered the action brought by the Organizations related to the action brought by the

22 Counties. The Organizations filed the present motion for preliminary injunction on

23 September 4, 2019.

24 B. The Dispute

25

The Immigration and Nationality Act, 8 U.S.C. §§ 1101, et seq. (“INA”), requires

26 that all noncitizens seeking to be lawfully admitted into the United States or to become

27 lawful permanent residents (“LPRs”) prove they are not inadmissible. 8 U.S.C. § 1361; 8

28 U.S.C. § 1225(a). A noncitizen may be deemed inadmissible on any number of grounds,

6

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United States District Court Northern District of California

1 including that they are “likely at any time to become a public charge.” 8 U.S.C.

2 § 1182(a)(4)(A).

3

The specific INA provision relating to whether an alien is likely to become a “public

4 charge” at issue in this litigation provides, in relevant part:

5

Except as otherwise provided in this chapter, aliens who are

inadmissible under the following paragraphs are ineligible to

6

receive visas and ineligible to be admitted to the United States:

. . . .

7

(4) Public charge

8

(A) In general

9

Any alien who, in the opinion of the consular

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

10

the opinion of the Attorney General at the time of

application for admission or adjustment of status,

11

is likely at any time to become a public charge is

inadmissible. 12

(B) Factors to be taken into account 13

(i) In determining whether an alien is

14

inadmissible under this paragraph, the

consular officer or the Attorney General

15

shall at a minimum consider the alien’s—

(I) age;

16

(II) health;

(III) family status;

17

(IV) assets, resources, and

financial status; and

18

(V) education and skills.

19

(ii) In addition to the factors under clause

(i), the consular officer or the Attorney

20

General may also consider any affidavit of

support under section 1183a[2] of this title

21

for purposes of exclusion under this

paragraph. 22

23 8 U.S.C. § 1182(a)(4).

24

The statute directs a “consular officer” or “the Attorney General” to form an opinion

25 as to whether the applicant “is likely at any time to become a public charge.” Id. In

26

27 2 Section 1183a is titled “Requirements for sponsor’s affidavit of support” and sets forth

28

the requirements of an “affidavit of support . . . to establish that an alien is not excludable as a public charge under section 1182(a)(4) of this title[.]” 8 U.S.C. § 1183a(a)(1).

7

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United States District Court Northern District of California

1 forming that opinion, immigration officers must consider “at a minimum” five statutorily-

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

3 status; (5) education and skills. 8 U.S.C. § 1182(a)(4)(B)(i).

4

An officer may additionally consider an affidavit of support, which is a legally-

5 enforceable contract between the sponsor of the applicant and the Federal Government.

6 See 8 U.S.C. § 1182(a)(4)(B)(ii); 8 U.S.C. § 1183a(a). The sponsor pledges to accept

7 financial responsibility for the applicant and to maintain the applicant at an income of “not

8 less than 125 percent of the Federal poverty line during the period in which the affidavit is

9 enforceable[.]” 8 U.S.C. § 1183a(a)(1)(A).

10

Certain groups of noncitizens, such as asylum seekers and refugees, are not

11 subject to exclusion based on an assessment that they are likely to become a public

12 charge. See 8 U.S.C. § 1157 (refugee); 8 U.S.C. § 1158 (asylum); 8 U.S.C. § 1159(c)

13 (refugee).

14

An alien found to be inadmissible as a public charge may “be admitted in the

15 discretion of the Attorney General . . . upon the giving of a suitable and proper bond or

16 undertaking approved by the Attorney General, in such amount and containing such

17 conditions as he may prescribe . . . holding the United States and all States . . . harmless

18 against such alien becoming a public charge.” 8 U.S.C. § 1183.

19

The public charge ground may arise when, inter alia, an alien seeks LPR status, or

20 when noncitizens apply for visas. 8 U.S.C. § 1182(a); 8 U.S.C. § 1255(a). Aliens “to

21 whom a permit to enter the United States has been issued to enter the United States” are

22 also subject to an inadmissibility determination by DHS at ports of entry when they enter

23 and re-enter the United States. 8 U.S.C. § 1185(d).

24

Immigrants with LPR status may also be subject to the public charge analysis. For

25 example, an LPR is considered to be “seeking admission” under various circumstances,

26 for example when returning to the United States after being “absent from the United

27 States for a continuous period in excess of 180 days” or after engaging in any “illegal

28 activity after having departed the United States[.]” 8 U.S.C. § 1101(a)(13)(C)(ii)–(iii).

8

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United States District Court Northern District of California

1 LPRs can also be denied citizenship and/or placed in removal proceedings if DHS

2 determines retrospectively that they were inadmissible as a public charge at the time of

3 their adjustment. 8 U.S.C. § 1227(a)(1)(A); 84 Fed. Reg. at 41,328 & n.176 (discussing

4 possible impact on naturalizations).

5

Under a separate provision in the INA, an alien can be deported upon a

6 determination that he has in fact become a public charge since his admission, from

7 causes “not affirmatively shown to have arisen since entry[.]” 8 U.S.C. 1227(a)(5).3

8

On October 10, 2018, DHS began the rule-making process to create a new

9 framework for the public charge assessment by publishing a Notice of Proposed

10 Rulemaking. See Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (Oct.

11 10, 2018) (the notice of proposed rulemaking is the “NPRM”). The NPRM provided a 60-

12 day public comment period, during which 266,077 comments were collected. See 84

13 Fed. Reg. at 41,297. On August 14, 2019, DHS published the Rule in the Federal

14 Register. Id. at 41,292. It is set to become effective on October 15, 2019. On October 2,

15 2019—the morning of the hearing on the pending motions for preliminary injunction—

16 DHS published a 25-page list of “corrections” to the proposed final rule.4 See Case No.

17 19-cv-04717-PJH, Dkt. 106, Ex. A. DHS stated that its October 2 amendments to the

18 rule would not delay its planned implementation on October 15.

19

The Rule sets out what the parties have referred to as the “12/36 standard.” That

20 is, the Rule “redefines the term ‘public charge’ to mean an alien who receives one or

21 more designated public benefits for more than 12 months in the aggregate within any 36-

22

23 3 Confusingly, DHS’s Rule would use completely distinct definitions for the term “public

24

charge” when assessing whether an alien “has become a public charge” (8 U.S.C. 1227(a)(5)) and whether an alien “is likely at any time to become a public charge” (8

25 U.S.C. 1182(a)(4)(A).

26

4 Although defendants described the changes as fixes to “technical and typographical errors” (Case No. 19-cv-04717-PJH, Dkt. 106, Ex. A at 2), the States argued at the

27

hearing that upon their limited review of the corrections (a review that was necessarily limited given the eleventh-hour disclosure of DHS’s changes to the rule), the

28

amendments mooted at least one issue underlying the States’ motion, regarding treatment of military families.

9

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1 month period (such that, for instance, receipt of two benefits in one month counts as two

2 months). This Rule defines the term ‘public benefit’ to include cash benefits for income

3 maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the

4 Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance,

5 and certain other forms of subsidized housing.” 84 Fed. Reg. at 41,295.

6

Because the INS directs immigration officers to opine as to whether an alien “is

7 likely at any time to become a public charge,” the Rule’s new definition requires

8 immigration officers to opine as to whether an alien is likely to receive certain public

9 benefits for more than 12 months in the aggregate within any future 36-month period to

10 determine whether he is likely to become a public charge. The rule sets out a number of

11 positive, negative, heavily-weighted, and normally-weighted factors to assist in making

12 that determination, and those factors are considered as part of a “totality of the

13 circumstances” assessment of whether an alien is likely to use more than 12 months’

14 worth of benefits in any future 36-month period.

15

DISCUSSION

16 A. Legal Standard

17

Federal Rule of Civil Procedure 65 provides federal courts with the authority to

18 issue preliminary injunctions. Fed. R. Civ. P. 65(a). Generally, the purpose of a

19 preliminary injunction is to preserve the status quo and the rights of the parties until a

20 final judgment on the merits can be rendered. See U.S. Philips Corp. v. KBC Bank N.V.,

21 590 F.3d 1091, 1094 (9th Cir. 2010).

22

An injunction is a matter of equitable discretion and is “an extraordinary remedy

23 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”

24 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); see also Munaf v. Geren,

25 553 U.S. 674, 689–90 (2008). A preliminary injunction “should not be granted unless the

26 movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong,

27 520 U.S. 968, 972 (1997) (per curiam).

28

“A plaintiff seeking a preliminary injunction must establish that [1] he is likely to

10

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1 succeed on the merits, that [2] he is likely to suffer irreparable harm in the absence of

2 preliminary relief, that [3] the balance of equities tips in his favor, and that [4] an

3 injunction is in the public interest.” Winter, 555 U.S. at 20.

4

Alternatively, “‘serious questions going to the merits’ and a hardship balance that

5 tips sharply toward the plaintiff can support issuance of an injunction, assuming the other

6 two elements of the Winter test are also met.” All. for the Wild Rockies v. Cottrell, 632

7 F.3d 1127, 1132 (9th Cir. 2011). “That is, ‘serious questions going to the merits’ and a

8 balance of hardships that tips sharply towards the plaintiff can support issuance of a

9 preliminary injunction, so long as the plaintiff also shows that there is a likelihood of

10 irreparable injury and that the injunction is in the public interest.” Id. at 1135; see also

11 Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017).

12

If a plaintiff satisfies its burden to demonstrate that a preliminary injunction should

13 issue, “injunctive relief should be no more burdensome to the defendant than necessary

14 to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702

15 (1979).

16

Separately, the APA permits this court to “postpone the effective date of action . . .

17 pending judicial review.” 5 U.S.C. § 705; Bakersfield City Sch. Dist. of Kern Cty. v.

18 Boyer, 610 F.2d 621, 624 (9th Cir. 1979) (“The agency or the court may postpone or stay

19 agency action pending such judicial review.”) (citing 5 U.S.C. § 705). Any such

20 postponement must be made “[o]n such conditions as may be required and to the extent

21 necessary to prevent irreparable injury[.]” 5 U.S.C. § 705. The factors considered when

22 issuing such a stay substantially overlap with the Winter factors for a preliminary

23 injunction. See, e.g., Bauer v. DeVos, 325 F. Supp. 3d 74, 104–07 (D.D.C. 2018).

24 B. Analysis

25

In considering plaintiffs’ motions for preliminary injunction, the court considers the

26 Winter factors (and the alternative All. for the Wild Rockies) factors in turn. First, the

27 court considers whether plaintiffs have demonstrated they are likely to succeed on the

28 merits of their claims, or alternatively whether they have demonstrated serious questions

11

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1 going to the merits. Because a plaintiff must be within a statute’s “zone of interest” to

2 succeed on an APA challenge based on the underlying statute, the court considers

3 whether each plaintiff is within the relevant statute’s zone of interests when assessing its

4 likelihood of success on the merits.

5

Second, the court considers whether plaintiffs have demonstrated they are likely to

6 suffer irreparable harm in the absence of preliminary relief. Because plaintiffs’ alleged

7 irreparable harms are also their alleged bases for standing, the court considers whether

8 each plaintiff has standing to bring a ripe claim when assessing its irreparable harms.

9

Third, the court considers whether plaintiffs have demonstrated that the balance of

10 equities tip in their favor, and whether the balance of hardships tip sharply in their favor.

11

Fourth, the court considers whether plaintiffs have demonstrated that an injunction

12 is in the public interest.

13

Fifth, the court addresses the scope of injunctive relief necessary and capable of

14 providing complete relief to the harms plaintiffs have demonstrated they are likely to

15 suffer prior to a determination on the merits, absent such relief.

16

1. The State and County Plaintiffs Are Likely to Succeed on the Merits

17

and Have Raised Serious Questions

18

Plaintiffs argue that they are likely to succeed on three of their causes of action,

19 each alleging a violation of the APA: (1) that the Rule violates the APA because it is not

20 in accordance with the term “public charge” as used in the INA; (2) that the Rule violates

21 the APA because it is not in accordance with the Rehabilitation Act § 504; and (3) that the

22 Rule violates the APA because it is arbitrary, capricious, and an abuse of discretion.5

23

Under the APA, “the reviewing court shall decide all relevant questions of law,

24 interpret constitutional and statutory provisions, and determine the meaning or

25

26

5 Although some of the arguments supporting these claims are likely to overlap with other claims plaintiffs assert, plaintiffs have made clear that they are not moving for a

27

preliminarily injunction based on any other claim, including, inter alia, the claim that the Rule violates the APA because it is contrary to laws giving the States discretion with

28

respect to the provision of healthcare, the claim under the declaratory judgment act that Cuccinelli was unlawfully appointed, or any of the asserted Constitutional claims.

12

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1 applicability of the terms of an agency action. The reviewing court shall . . . hold unlawful

2 and set aside agency action, findings, and conclusions found to be . . . arbitrary,

3 capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C.

4 § 706.

5

“In the usual course, when an agency is authorized by Congress to issue

6 regulations and promulgates a regulation interpreting a statute it enforces, the

7 interpretation receives deference if the statute is ambiguous and if the agency’s

8 interpretation is reasonable. This principle is implemented by the two-step analysis set

9 forth in Chevron.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124 (2016)

10 (citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)).

11 “At the first step, a court must determine whether Congress has ‘directly spoken to the

12 precise question at issue.’ If so, ‘that is the end of the matter; for the court, as well as the

13 agency, must give effect to the unambiguously expressed intent of Congress.’ If not,

14 then at the second step the court must defer to the agency's interpretation if it is

15 ‘reasonable.’” Encino Motorcars, 136 S. Ct. at 2124–25 (citations omitted) (quoting

16 Chevron, 467 U.S. at 842–44).

17

“[I]f the statute is silent or ambiguous with respect to the specific issue, the

18 question for the court is whether the agency's answer is based on a permissible

19 construction of the statute.” Chevron, 467 U.S. at 843; see also Michigan v. E.P.A., 135

20 S. Ct. 2699, 2707 (2015) (“Even under this deferential standard, however, agencies must

21 operate within the bounds of reasonable interpretation.”) (internal quotation marks

22 omitted).

23

The Chevron analysis calls upon the court to “employ[] traditional tools of statutory

24 construction” to fulfill its role as “the final authority on issues of statutory construction[.]”

25 Chevron, 467 U.S. at 843 n.9; accord Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630

26 (2018).

27

“Chevron deference, however, is not accorded merely because the statute is

28 ambiguous and an administrative official is involved. To begin with, the rule must be

13

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1 promulgated pursuant to authority Congress has delegated to the official.” Gonzales v.

2 Oregon, 546 U.S. 243, 258 (2006). “The starting point for this inquiry is, of course, the

3 language of the delegation provision itself. In many cases authority is clear because the

4 statute gives an agency broad power to enforce all provisions of the statute.” Id. (drawing

5 a distinction between delegation of authority to carry out the act generally, and authority

6 to execute the functions assigned to the agency).

7

First, the court assesses whether plaintiffs are likely to succeed on their claims

8 under the APA that the Rule is not in accordance with law, as provided in 8 U.S.C.

9 § 1182(a)(4). Second, the court assesses whether plaintiffs are likely to succeed on their

10 claims under the APA that the Rule is not in accordance with law, as provided in the

11 Rehabilitation Act § 504. Third, the court assess whether plaintiffs are likely to succeed

12 on their claims under the APA, that the Rule is arbitrary and capricious. Fourth, the court

13 assesses whether each plaintiff is within the relevant zone of interests, which is required

14 to succeed on an APA claim.

15

a. Not in Accordance with Law—8 U.S. Code § 1182(a)(4)

16

Plaintiffs argue that the Rule is not in accordance with the definition of “public

17 charge” as used in 8 U.S. Code § 1182(a)(4) for three reasons: (1) DHS’s interpretation

18 should not be accorded any deference, and the Rule’s definition is inconsistent with the

19 statute; (2) even if the term is accorded deference, the term plainly and unambiguously

20 means “primarily dependent on the government for subsistence,” and the Rule conflicts

21 with that definition; and (3) the Rule’s definition of “public charge” is not reasonable or

22 based on a permissible construction of the statute.

23

The court did not understand plaintiffs to have raised the first argument in their

24 moving papers, although the Counties may have raised it obliquely in their reply. But the

25 court and defendants were surprised to learn at the hearing that plaintiffs were advancing

26 an argument that DHS’s promulgation of the Rule was wholly outside of Congressionally-

27 delegated authority. Cf. Counties’ Reply at 8–9 (“Counties do not contest DHS’s

28 authority to issue rational regulations governing the case-by-case application of the

14

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1 statutory standard, so long as they do not misconstrue the term ‘public charge.’”); States’

2 Reply at 9–10 (“the States have never disputed the commonsense point that Congress in

3 8 U.S.C. § 1182(a)(4)(A) assigned responsibility to Defendants to make individual public

4 charge determinations”); Organizations’ Reply at 9 (“even if Defendants were correct,

5 Congress could delegate to DHS the power only to adopt reasonable interpretations of

6 the statute”). Nevertheless, plaintiffs have not sufficiently supported, or even explained,

7 their argument to satisfy their burden to show likelihood of success on the merits based

8 on it.6 Accordingly, the court analyzes the Rule pursuant to the framework set out by

9 Chevron.

10

The second and third arguments concern a challenge under Chevron’s framework

11 to the meaning of “public charge” as used in § 1182(a)(4). Plaintiffs’ second argument

12 requires the court to determine whether the Rule contravenes the statute’s unambiguous

13 meaning, and their third argument requires the court to determine whether defendants’

14 chosen definition is reasonable and based on a permissible construction of the statute.

15 Both questions require a discussion of the long usage of the term by Congress, as well

16 as the expansive evaluation of the term by courts and executive agencies.

17

As preface to that discussion, a brief outline helps set the stage. The phrase

18 “public charge” was used in this country’s first-ever general immigration statute in 1882.

19 The immigration statutes have been interpreted and modified many time since then, and

20 although many other excluded categories of persons came and went, with each

21 modification through today the phrase “public charge” remained intact. As a result, the

22 meaning that the persistent term had when first used is relevant to understanding the

23 meaning Congress ascribed to it with each subsequent statutory revision, including the

24 now-operative statute, which most recently saw changes to the relevant provisions in

25 1990 and 1996.

26

27 6 However, the court notes that whether DHS’s promulgation of the Rule falls within the

28

rulemaking authority delegated to it by Congress may benefit from more attention in the parties’ future briefing on the merits. See generally 8 U.S.C. § 1103(a).

15

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1

Ultimately, this dispute concerns the meaning of a statutory term passed in 1990—

2 with clarifying language passed in 1996. As such, the court considers the meaning

3 ascribed to the term by Congress at that time, but in doing so it must afford due

4 consideration to Congress’s understanding of the term given the long historical context it

5 was operating within, which the court presently endeavors to describe. See Forest Grove

6 Sch. Dist. v. T.A., 557 U.S. 230, 239–40 (2009) (“Congress is presumed to be aware of

7 an administrative or judicial interpretation of a statute and to adopt that interpretation

8 when it re-enacts a statute without change.”) (quoting Lorillard v. Pons, 434 U.S. 575,

9 580 (1978)); United States v. Argueta-Rosales, 819 F.3d 1149, 1159 (9th Cir. 2016)

10 (same); J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 951 (9th Cir. 2010) (Congress

11 does no “abrogate[] sub silentio the Supreme Court’s decision[s]”); Bob Jones Univ. v.

12 United States, 461 U.S. 574, 600–01 (1983) (interpretation informed by the fact that

13 Congress had a “prolonged and acute awareness” of an established agency

14 interpretation of a statute, considered the precise issue, and rejected bills to overturn the

15 prevailing interpretation); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S.

16 353, 381–82 (1982) (Congress is aware “of the ‘contemporary legal context’ in which” it

17 legislates, and amending a statute while leaving certain statutory provisions intact “is

18 itself evidence that Congress affirmatively intended to preserve that” context); see also

19 I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987) (“Few principles of statutory

20 construction are more compelling than the proposition that Congress does not intend sub

21 silentio to enact statutory language that it has earlier discarded in favor of other

22 language.”); Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975) (rejecting

23 construction of statute that would implement substance of provision that Conference

24 Committee rejected).

25

1. 1882 Act

26

In 1882, Congress enacted the country’s first general immigration statute. See

27 An Act to Regulate Immigration, 22 Stat. 214 (1882) (the “1882 Act”). That statute

28 provided, in part:

16

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1

That the Secretary of the Treasury . . . shall have power to . . .

provide for the support and relief of such immigrants therein

2

landing as may fall into distress or need public aid . . . and it

shall be the duty of such State . . . to examine into the condition

3

of passengers arriving at the ports . . . and if on such

examination there shall be found among such passengers any

4

convict, lunatic, idiot, or any person unable to take care of

himself or herself without becoming a public charge . . . such

5

persons shall not be permitted to land.

6 22 Stat. 214, Chap. 376 § 2.

7

Legislative debate on the 1882 Act shows that at least one member of Congress

8 sought to prevent foreign nations from “‘send[ing] to this country blind, crippled, lunatic,

9 and other infirm paupers, who ultimately become life-long dependents on our public

10 charities.’” 13 Cong. Rec. 5108-10 (June 19, 1882) (statement of Rep. Van Voorhis).

11

The 1882 Act also imposed on each noncitizen who entered the United States a

12 50-cent head tax for the purpose of creating an “immigrant fund”:

13

That there shall be levied, collected, and paid a duty of fifty

14

cents for each and every passenger not a citizen of the United

States who shall come by steam or sail vessel from a foreign

15

port to any port within the United States. . . . The money thus

collected shall . . . constitute a fund to be called the immigrant

16

fund, and shall be used . . . to defray the expense of regulating

immigration under this act, and for the care of immigrants

17

arriving in the United States, for the relief of such as are in

distress[.] 18

19 22 Stat. 214, Chap. 376, § 1; see also Edye v. Robertson, 112 U.S. 580, 590–91 (1884)

20 (“This act of congress is similar, in its essential features, to many statutes enacted by

21 states of the Union for the protection of their own citizens, and for the good of the

22 immigrants who land at sea-ports within their borders. That the purpose of these statutes

23 is humane, is highly beneficial to the poor and helpless immigrant, and is essential to the

24 protection of the people in whose midst they are deposited by the steam-ships, is beyond

25 dispute.”).

26

Nineteenth-century dictionaries defined “charge” as “That which is enjoined,

27 committed, entrusted or delivered to another, implying care, custody, oversight, or duty to

28 be performed by the person entrusted” and “The person or thing committed to anothers 17

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1 [sic] custody, care or management; a trust. Thus the people of a parish are called the

2 ministers charge.” Charge, Webster’s Dictionary (1828 Online Edition),

3 http://webstersdictionary1828.com/Dictionary/charge; Charge, Webster’s Dictionary

4 (1886 Edition), https://archive.org/details/websterscomplete00webs/page/218 (“person or

5 thing committed or intrusted [sic] to the care, custody, or management of another; a trust;

6 as, to abandon a charge”).7

7

Another contemporary source defines charge “In its general sense, a charge is an

8 obligation or liability. Thus we speak of . . . a pauper being chargeable to the parish or

9 town.” Stewart; Lawrence Rapalje, Robert L., Dictionary of American and English Law,

10 with Definitions of the Technical Terms of the Canon and Civil Laws (1888), at 196.

11

Prior to the 1882 Act’s enactment, states had played a larger role in immigration

12 than they do today, and state governments had used and interpreted the term “public

13 charge,” although of course not in relation to any Congressional act.

14

For example, the New Jersey Supreme Court, when interpreting a statute

15 concerning the procedures to remove an individual from a township in New Jersey,

16 considered whether a pauper was “either chargeable, or likely to become chargeable, to

17 the township of Princeton.” Overseers of Princeton Twp. v. Overseers of S. Brunswick

18 Twp., 23 N.J.L. 169, 170 (Sup. Ct. 1851). Although the case does not make clear what

19 precise relief is necessary to qualify as a public charge, it contemplated that one became

20 a public charge upon seeking such relief from “the church wardens or overseers of the

21 poor[.]” Id. at 173. The concurrence clarified that an “application for relief” is distinct from

22 being “chargeable,” although “[t]he probability of his becoming chargeable is sufficiently

23 shown by his application for relief.” Id. at 179 (Carpenter, J. concurring). The case does

24

25

7 Defendants cite Frederic Jesup Stimson, Glossary of Technical Terms, Phrases, and Maxims of the Common Law (1881), but that source does not provide a relevant

26

definition. The first-listed definition is the most plausibly-relevant: “A burden, incumbrance, or lien; as when land is charged with a debt.” Id. at 56. But that definition

27

concerns how the word charge relates to real property, which makes sense because at the time, “[m]ore frequently, however, charge is applied to property” as “a general term[.]”

28

Stewart; Lawrence Rapalje, Robert L., Dictionary of American and English Law, with Definitions of the Technical Terms of the Canon and Civil Laws (1888), at 196.

18

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1 not explain the type or quantum of relief necessary to constitute one’s status as a

2 “charge.”

3

Another state court opinion, People ex rel. Durfee v. Commissioners of Emigration,

4 27 Barb. 562, 1858 WL 7084 (N.Y. Sup. Ct. 1858), addressed a statute which

5 contemplated bonds being paid on behalf of immigrants, and required the commissioners

6 of immigration who held those bonds to “indemnify so far as may be the several cities,

7 towns and counties of the state, for any expense or charge which may be incurred for the

8 maintenance and support of the” immigrants. 27 Barb. at 570. The court held that the

9 statute required indemnification of all expenses made on behalf of the immigrants—

10 whether temporary or permanent—so long as the expenses were lawfully made. Id.

11 However, the case did not draw a clean line holding that any expense spent on an

12 individual makes him a public charge. Rather, an equally-plausible reading of the opinion

13 is that the statute requires immunity of all expenses paid to support immigrants for whom

14 bonds have been paid, regardless of whether they are formally considered public

15 charges.8

16

City of Bos. v. Capen, 61 Mass. 116, 121 (1851) concerned a statute which

17 required a bond for someone likely to become a public charge. The court explained that

18 the statute described various categories of people identified as being at risk of becoming

19 a public charge, and for whom bond may be required. However, what assistance or

20 payment qualified one as a "public charge” was not addressed.9

21

As a whole, the statutory language and authority underlying the 1882 Act provide

22

23

8 The latter reading would be in accordance with the current interpretation of “public charge” as used elsewhere in the INA, which requires an alien to be presented with a bill

24

and prove unable or unwilling to pay it to be deemed a public charge. E.g., Matter of B-, 3 I. & N. Dec. 323 (A.G. 1948); Field Guidance on Deportability and Inadmissibility on

25 Public Charge Grounds, 64 Fed. Reg. 28,689 (May 26, 1999); 84 Fed. Reg. at 41,295.

26

9 The opinion also suggested that those who were “paupers in a foreign land” must have been “a public charge in another country,” and then stated without explanation that “the

27

word ‘paupers’ being used in this connection in its legal, technical sense.” Capen, 61 Mass. at 121. Even looking past the confusion, the court might be interpreted as finding

28

that all paupers have been public charges, but from that the conclusion cannot be drawn that all public charges must have been paupers.

19

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1 some clear guidance as to the definition of public charge. For example, the 1882 Act

2 contemplated that admitted aliens (not excluded on public charge grounds) would receive

3 some assistance from the state. That is made clear by the same statute’s establishment

4 of a fund “for the care of immigrants arriving in the United States, for the relief of such as

5 are in distress[.]” 22 Stat. 214, Chap. 376, § 1. Although the quantum of state support

6 necessary to render one a public charge is less clear, the 1882 Act did not consider an

7 alien a public charge for simply receiving some assistance from the state. Also, it

8 appears that contemporary uses of the term would deem one a public charge after taking

9 on a particular, chargeable debt from the state and failing to repay it.

10

2. 1891

11

In 1891, Congress amended the 1882 Act. That amended statute provided, in

12 part:

13

That the following classes of aliens shall be excluded from

admission into the United States . . . : All idiots, insane persons,

14

paupers or persons likely to become a public charge, persons

suffering from a loathsome or a dangerous contagious disease,

15

persons who have been convicted of a felony or other infamous

crime or misdemeanor involving moral turpitude, polygamists,

16

and . . . .

17 An Act in Amendment to the Various Acts Relative to Immigration and the Importation of

18 Aliens Under Contract or Agreement to Perform Labor, 26 Stat. 1084, Chap. 551 (“1891

19 Act”) § 1 (1891).

20

The 1891 amendment also provided that “any alien who becomes a public charge

21 within one year after his arrival in the United States from causes existing prior to his

22 landing therein shall be deemed to have come in violation of law and shall be returned”

23 pursuant to the procedures outline in the statute regarding aliens entering unlawfully.

24 1891 Act § 11. So, the 1891 Act set out the now-familiar practice of subjecting aliens to

25 two “public charge” assessments—one in which the government is called on to make a

26 forward-looking prediction, and another in which the government is called on to make a

27 backward-looking assessment. The first asks at the time of entry whether the alien is

28 likely to become a public charge. The second asks whether, after some period of time, 20

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1 the alien has in fact become a public charge due to causes existing before he arrived.

2 Although the relevant time periods of the assessments have grown, this scheme

3 generally remains in place today.

4

The 1891 Act made a notable change to the law by adding the category “pauper,”

5 and including the term pauper with “persons likely to become a public charge” to form a

6 single entry in an expanded list of excluded categories of people.

7

An early case interpreting the act considered whether “the act of 1891 confers

8 upon the inspection officer power to detain and send back an alien immigrant as being a

9 person liable to become a public charge, in the absence of any evidence whatever

10 tending to establish that fact.” In re Feinknopf, 47 F. 447, 448 (E.D.N.Y. 1891). Although

11 it did not define the term “public charge” in the abstract, the court provided an explanation

12 given the facts before it that essentially laid out a totality-of-the-circumstances test. It

13 held that “[o]f course” the following facts, “if believed, would not warrant the conclusion

14 that the petitioner was a person likely to become a public charge,” and that the case is

15 “devoid of any evidence whatever of any fact upon which to base a determination that the

16 petitioner is likely to become a public charge”:

17

the petitioner is 40 years old; that he is a native of Austria; that

he is a cabinet-maker by trade, and has exercised that trade for

18

25 years; that he has no family; that he has baggage with him,

worth $20, and 50 cents in cash; that he is a man who can find

19

employment in his trade, and is willing to exercise the same. . . .

[I]n addition, that the immigrant has not been an inmate of an

20

almshouse, and has not received public aid or support, and has

not been convicted of crime.

21

22 Id. at 447–48. A fair reading suggests that each of the enumerated facts could be

23 relevant to predicting whether someone is likely to become a public charge.

24

A subsequent court provided even more guidance. In United States v. Lipkis, 56

25 F. 427 (S.D.N.Y. 1893), a man had arrived in America before his wife and child. The wife

26 and child were required to pay a bond because the superintendent of immigration

27 deemed them “likely to become a public charge” based on “the poverty and character of

28 the husband,” whose residence gave the appearance of “extreme poverty.” Id. at 427. 21

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1 However, that poverty alone did not mean he or the family was a public charge—rather, it

2 meant the family was likely to become a public charge. “About six months after the

3 arrival of the mother she became insane, and was sent to the public insane asylum of the

4 city under the direction of the commissioners of charities and correction, where only poor

5 persons unable to pay for treatment are received, and she was there attended to for a

6 considerable period at the expense of the municipality.” Id. at 428. Thus, the mother

7 became a public charge only when she was committed to the public insane asylum with

8 “no effort to provide for her at his [the husband’s] own expense[.]” Id.

9

But the court did not require commitment to an institution to make one a public

10 charge. It reasoned in dicta that the family’s financial condition generally subjected the

11 family to the risk of becoming “a public charge under the ordinary liabilities to sickness, or

12 as soon as any other additional charges arose beyond the barest needs of existence. . . .

13 The liability of his family to become a public charge through any of the ordinary

14 contingencies of life existed when the bond was taken, because of his poverty and

15 inefficiency.” Id. So, a number of different financial shocks could have rendered the

16 family a public charge.

17

The court’s analysis drew a distinction between being a public charge (in this case,

18 someone committed to an insane asylum with no effort to cover the expense), and

19 someone likely to become a public charge (in this case, someone who can pay for “the

20 barest needs of existence,” yet whom an extreme illness could ruin).

21

The parties cite to state court decisions published during this time using the term

22 public charge, which are informative of what the term generally meant at the time. Those

23 opinions address the duration of benefits that render one a public charge rather than the

24 quantum, and they tend to suggest that temporary relief did not make one a public charge

25 as the term was understood at the time. However, they do not address whether longer-

26 term receipt of a small amount of public benefits qualifies one as a public charge (as the

27 Rule would do). See Yeatman v. King, 2 N.D. 421 (1892) (state loaning seed grain to

28 farmer using the general tax fund, with obligation of repayment, is designed to prevent

22

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1 farmers “from becoming a public charge by affording them temporary relief”); Cicero v.

2 Falconberry, 14 Ind. App. 237 (1895) (“The mere fact that a person may occasionally

3 obtain assistance from the county does not necessarily make such person a pauper or a

4 public charge.”).10

5

Following the 1891 Act, two points are relatively clear. First, reaffirming the best

6 interpretation of the 1882 Act, the term was not used at the time to include short-term or

7 temporary relief from the state, as the case law continued to demonstrate. Second,

8 Lipkis could be read to support either of two non-controversial points: either state-funded

9 institutionalization constitutes becoming a public charge, or state-funded

10 institutionalization with “no effort” to pay the expense after being billed does so. Simply

11 being able to pay for the barest needs of existence and nothing more does not render

12 one a public charge (although it may make one likely to become a public charge). A third

13 point begins to materialize in the case law, which is that absent some particularly-

14 identified negative factor, an employable individual is not a public charge. E.g., In re

15 Feinknopf, 47 F. at 447–48 (40-year-old man willing to exercise his trade); Lipkis, 56 F. at

16 428 (notwithstanding poverty, working man’s family is not a public charge until financial

17 calamity strikes); Yeatman, 2 N.D. at 421 (public aid to working farmer).

18

3. 1903

19

In 1903, Congress passed a revised version of the act. That amended statute

20 provided, in part:

21

That the following classes of aliens shall be excluded from

admission into the United States: All idiots, insane persons,

22

epileptics, and persons who have been insane within five years

previous; persons who have had two or more attacks of insanity

23

at any time previously; paupers; persons likely to become a

public charge; professional beggars; persons afflicted with a

24

loathsome or with a dangerous contagious disease; persons

who have been convicted of a felony or other crime or

25

26 10 The parties also cite Edenburg Borough Poor Dist. v. Strattanville Borough Poor Dist.,

27

5 Pa. Super. 516, 528 (1897), but that case concerns an individual who appears to have formally registered as a pauper by seeking public assistance under state or local law. It

28

does not concern any immigration statutes, nor does the opinion use the word “charge” or the phrase “public charge.”

23

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misdemeanor involving moral turpitude; polygamists;

1

anarchists, or . . . .”

2 An Act to Regulate the Immigration of Aliens Into the United States, 32 Stat. 1213,

3 Chap. 1012 § 2 (1903).

4

This change separated out “paupers” from “persons likely to become a public

5 charge,” which the previous act had grouped together as a single item in the list.

6

The 1903 amendment also provided that any alien who “shall be found a public

7 charge . . . from causes existing prior to landing, shall be deported . . . at any time within

8 two years after arrival[.]” Id. § 20.

9

4. 1907

10

In 1907, Congress passed a revised version of the act. That amended statute

11 provided, in part:

12

That the following classes of aliens shall be excluded from

admission into the United States: All idiots, imbeciles, feeble-

13

minded persons, epileptics, insane persons, and persons who

have been insane within five years previous; persons who have

14

had two or more attacks of insanity at any time previously;

paupers; persons likely to become a public charge;

15

professional beggars; persons afflicted with tuberculosis or with

a loathsome or dangerous contagious disease; persons not

16

comprehended within any of the foregoing excluded classes

who are . . . mentally or physically defective, such mental or

17

physical defect being of a nature which may affect the ability of

such alien to earn a living; persons who have been convicted

18

of or admit having committed a felony or other crime or

misdemeanor involving moral turpitude; polygamists, or . . . .” 19

An Act to Regulate the Immigration of Aliens Into the United States, 34 Stat. 898, Chap.

20

1134 § 2 (1907).

21

Nothing relevant to the present action appears to have been changed by this

22

revision.11

23

5. 1910

24

In 1910, Congress amended the 1907 act. The new statute provided, in part:

25

26

27

11 The only notable change is the introduction of an exclusion for individuals not otherwise captured by the categories who cannot earn a living based on mental or physical defect.

28

That suggests that earlier-listed categories also include such people, but not all such people.

24

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That the following classes of aliens shall be excluded from

1

admission into the United States: All idiots, imbeciles, feeble-

minded persons, epileptics, insane persons, and persons who

2

have been insane within five years previous; persons who have

had two or more attacks of insanity at any time previously;

3

paupers; persons likely to become a public charge;

professional beggars; persons afflicted with tuberculosis or with

4

a loathsome or dangerous contagious disease; persons not

comprehended within any of the foregoing excluded classes

5

who are . . . mentally or physically defective, such mental or

physical defect being of a nature which may affect the ability of

6

such alien to earn a living; persons who have been convicted

of or admit having committed a felony or other crime or

7

misdemeanor involving moral turpitude; polygamists, or . . . .”

8 An Act to Amend an Act entitled An Act to Regulate the Immigration of Aliens Into the

9 United States, 36 Stat. 263, Chap. 128 § 2 (1910).

10

Nothing relevant to the present action appears to have been changed by this

11 revision.

12

In 1915, the Supreme Court addressed the 1910 act in Gegiow v. Uhl, 239 U.S. 3

13 (1915). “The single question” in that case was “whether an alien can be declared likely to

14 become a public charge on the ground that the labor market in the city of his

15 immediate destination is overstocked.” Id. at 9–10. The immigration commissioners in

16 that action determined that the immigrants were “bound for Portland, Oregon, where the

17 reports of industrial conditions show that it would be impossible for these aliens to obtain

18 employment[.]” Id. at 8.

19

The court held that “[t]he statute deals with admission to the United States, not to

20 Portland . . . . It would be an amazing claim of power if commissioners decided not to

21 admit aliens because the labor market of the United States was overstocked.” Id. at 10.

22 Because the immigration authorities could not consider labor conditions in a single

23 location to determine whether immigrants would be able to obtain employment, the

24 factual findings that the immigrants could not find work in Portland was insufficient to

25 support a determination that they were likely to become public charges.

26

The court also reasoned that, because the “public charge” ground for exclusion

27 was “mentioned between paupers and professional beggars, and along with idiots,

28 persons dangerously diseased, persons certified by the examining surgeon to have a

25

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1 mental or physical defect of a nature to affect their ability to earn a living,” the term should

2 be construed as similar with the rest. Id. Under that construction, the court held that

3 those likely to become public charges “are to be excluded on the ground of permanent

4 personal objections accompanying them irrespective of local conditions[.]” Id.12 That

5 is, the court focused on an alien’s general ability and willingness to work and earn a

6 living, rather than the particular wages or labor conditions that existed in the alien’s

7 destination.

8

A court in 1916 considered “whether the fact that petitioner entered the United

9 States as a gambler, and as one having no other permanent means of support, actual or

10 contemplated, makes him a person ‘likely to become a public charge’ within the meaning

11 of the Immigration Act.” Lam Fung Yen v. Frick, 233 F. 393, 396 (6th Cir. 1916):

12

It seems clear that the term ‘persons likely to become a public

charge’ is not limited to paupers or those liable to become such;

13

‘paupers‘ are mentioned as in a separate class. In United

States v. Williams (D.C.) 175 Fed. 274, 275, the term ‘persons

14

likely to become a public charge‘ is construed as including, ‘not

only those persons who through misfortune cannot be

15

self-supporting, but also those who will not undertake

honest pursuits, and who are likely to become periodically

16

the inmates of prisons.’ We think this a reasonable

construction. . . . Inmates of jails and prisons are for the time

17

being public charges, and we think it open to conclusion by

reasonable minds that those who will not work for a living, but

18

rely for that purpose upon gambling, are more likely than

citizens following the ordinary pursuits of industry to become,

19

at least intermittently, public charges.

20 Id. at 396–97 (emphasis added).

21

The court reasoned that because the alien was a gambler and gambling is

22 regarded “within the domain of police supervision and public security,” the petitioner is

23 reasonably likely to become periodically an inmate of a prison. Id. at 397. Under the

24 court’s reasoning, someone in a prison is a public charge, akin to someone in an

25 almshouse or insane asylum. Id.; see also United States v. Williams, 175 F. 274, 275

26

27

12 The Gegiow opinion was subject to some skepticism following a later amendment to the statute, but the Ninth Circuit subsequently held that its reasoning remained

28

controlling. See Ex parte Hosaye Sakaguchi, 277 F. 913 (9th Cir. 1922); see also Ex parte Mitchell, 256 F. 229 (N.D.N.Y. 1919).

26

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1 (S.D.N.Y. 1910) (“They are surely public charges, at least during the term of their

2 incarceration.”).

3

In 1917, the Second Circuit relied on Gegiow’s statutory analysis when deciding a

4 case under the 1910 statute. Howe v. United States, 247 F. 292 (2d Cir. 1917). In

5 Howe, a Canadian who had allegedly “drawn a check . . . which proved bad,” among

6 other things, entered the United States, and an immigration inspector “believed him guilty

7 of dishonest practice in Canada.” Id. at 293–94. Because the plaintiff had not admitted

8 to or been convicted of a felony, the provision excluding criminals did not apply to him.

9 The court reasoned that (1) the term “public charge” needed to be read in context of its

10 position in the statute’s list, and (2) it cannot be interpreted to overlap with other items in

11 the list (e.g., idiots, imbeciles, insane persons, criminals). As such, “[i]f the words

12 covered jails, hospitals, and insane asylums, several of the other categories of exclusion

13 would seem to be unnecessary.” Id. at 294. Instead, “Congress meant the act to exclude

14 persons who were likely to become occupants of almshouses for want of means with

15 which to support themselves in the future.” Id. The Howe court provided a very specific,

16 restrictive, and clear definition of the term. This also demonstrates an early split in the

17 case law as to whether prison inmates are considered public charges.

18

By 1917, the Supreme Court, the Second Circuit, and the Sixth Circuit had all

19 published opinions construing the term as used in the 1910 act. These are precisely the

20 sorts of constructions Congress is presumed knowledgeable of when reenacting statutory

21 language. See Forest Grove, 557 U.S. at 239–40. The Supreme Court held that

22 predicting whether someone will become a public charge requires consideration of

23 “permanent personal objections accompanying them irrespective of local conditions[.]”

24 Gegiow, 239 U.S. at 10. The two Circuit decisions are more difficult to reconcile. First,

25 they directly contradicted one another with respect to whether jail inmates were public

26 charges. Second, Howe broke with the weight of prior authority in holding that the term

27 was limited to those occupying almshouses for want of a means of support.

28

6. 1917

27

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1

In 1917, Congress amended the Act. That amended statute provided, in part:

2

That the following classes of aliens shall be excluded from

admission into the United States: All idiots, imbeciles, feeble-

3

minded persons, epileptics, insane persons; persons who have

had one or more attacks of insanity at any time previously;

4

persons of constitutional psychopathic inferiority; persons with

chronic alcoholism; paupers; professional beggars; vagrants;

5

persons afflicted with tuberculosis in any form or with a

loathsome or dangerous contagious disease; persons not

6

comprehended within any of the foregoing excluded classes

who are . . . mentally or physically defective, such physical

7

defect being of a nature which may affect the ability of such

alien to earn a living; persons who have been convicted of or

8

admit having committed a felony or other crime or

misdemeanor involving moral turpitude; polygamists, or . . . . ;

9

persons likely to become a public charge . . . .”

10 An Act to Regulate the Immigration of Aliens to, and the Residence of Aliens in, the

11 United States, 39 Stat. 874, Chap. 29 § 3 (1917).

12

The statute also provided for the deportability of “any alien who within five years

13 after entry becomes a public charge from causes not affirmatively shown to have arisen

14 subsequent to landing[.]” Id. § 19.

15

The “public charge” language remains unchanged, although moved within the list.

16 The Congressional Record suggests that Congress intentionally moved the category of

17 “persons likely to become a public charge” later in the list in response to Gegiow. See 70

18 Cong. Rec. 3560 (1929) (“persons likely to become a public charge (this clause excluding

19 aliens on the ground likely to become a public charge has been shifted from its position in

20 section 2 of the immigration act of 1907 to its present position in section 3 of this act in

21 order to indicate the intention of Congress that aliens shall be excluded upon said ground

22 for economic as well as other reasons and with a view to overcoming the decision of the

23 Supreme Court in Gegiow v. Uhl, 239 U. S. 3”); see also 80 Cong. Rec. 5829 (1936)

24 (same).

25

A district court in 1919 reasoned that although the exact same phrase was shifted

26 within the list, “I am unable to see that this change of location of these words in the act

27 changes the meaning that is to be given them. A ‘person likely to become a public

28 charge’ is one who for some cause or reason appears to be about to become a charge 28

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1 on the public, one who is to be supported at public expense, by reason of poverty,

2 insanity and poverty, disease and poverty, idiocy and poverty, or, it might be, by reason

3 of having committed a crime which, on conviction, would be followed by imprisonment.”

4 Ex parte Mitchell, 256 F. 229, 230 (N.D.N.Y. 1919). In that case, there was “no evidence

5 whatever that the alien at any time has relied in any degree on the charity of others,” but

6 rather the alien “is able to earn her own living and always has done so[.]” Id.

7

The court then stated that mere speculation about the possibility of becoming a

8 public charge does not make one likely to become a public charge: “The alien may

9 become sick; she may lose her house by fire; she may lose her personal property by bad

10 investments. All this is possible, but not probable. There is no claim that this alien is

11 suffering, or that she has suffered at any time, from any mental or physical defect. It is

12 not claimed this alien has been convicted, or even charged with the commission, of any

13 crime, or that she came to the United States, or is in the United States, for any immoral or

14 improper purpose.” Id. at 231.

15

The Ninth Circuit agreed in 1922, holding that the 1917 Amendment’s movement

16 of the “public charge” exclusion “does not change the meaning that should be given” the

17 exclusion. Ex parte Hosaye Sakaguchi, 277 F. 913, 916 (9th Cir. 1922). The court

18 recognized the legislative change and that Gegiow’s reliance on the phrase’s relative

19 position in the statute was compromised, yet it held:

20

Although in the act of February 5, 1917, under which the

present case is to be determined, the location of the words

21

‘persons likely to become a public charge‘ is changed, we agree

with Judge Ray in Ex parte Mitchell (D.C.) 256 Fed. 229, that

22

this change of location of the words does not change the

meaning that should be given them, and that it is still to be held

23

that a person ‘likely to become a public charge’ is one who,

by reason of poverty, insanity, or disease or disability, will

24

probably become a charge on the public.

25 Id. (emphasis added).13

26

27

13 In 1923 a district court in Washington state did not cite these precedents and held instead that Congress’s shift was an effective modification in response to Gegiow. Ex

28

parte Horn, 292 F. 455 (W.D. Wash. 1923). Interpreting the phrase anew based on its plain meaning, the court reasoned that “a public charge” is “a person committed to the

29

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1

A 1921 Second Circuit opinion relying on Howe and Ex parte Mitchell held that “A

2 person likely to become a public charge is one whom it may be necessary to support at

3 public expense by reason of poverty, insanity and poverty, disease and poverty, idiocy

4 and poverty. We think that the finding by the administrative authorities, showing a

5 physical defect of a nature that may affect the ability of the relator and appellee to earn a

6 living, is sufficient ground for exclusion. His physical condition, together with his financial

7 condition, having but $100 with him, justified the conclusion of the administrative

8 authorities in finding that he and his children were aliens likely to become public

9 charges.” Wallis v. U.S. ex rel. Mannara, 273 F. 509, 511 (2d Cir. 1921) (citation

10 omitted).

11

A number of courts around this time also held that imprisonment was one way to

12 become a public charge. E.g., Ex parte Fragoso, 11 F.2d 988, 989 (S.D. Cal. 1926)

13 (“The fact is this petitioner did become a public charge. He was confined in a jail for a

14 period of nine months.”); U.S. ex rel. Lehtola v. Magie, 47 F.2d 768, 770 (D. Minn. 1931)

15 (noting a circuit split as to whether “dependency rather than imprisonment” is grounds for

16 finding a public charge); Ex parte Horn, 292 F. 455, 458 (W.D. Wash. 1923).

17

In 1933, the third edition of Black’s Law Dictionary was the first to define “public

18 charge.” The definition relied upon many of the above-cited cases, so for that reason it is

19 derivative of and less probative than those cases themselves. Nevertheless, the

20 definition is instructive. It defined the term as: “A person whom it is necessary to support

21 at public expense by reason of poverty, insanity and poverty, disease and poverty, or

22 idiocy and poverty. . . . As used in [the 1917 Act], one who produces a money charge on,

23 or an expense to, the public for support and care.” See Black’s Law Dictionary 311 (3d

24 Ed. 1933). The term includes paupers as well as those who will not undertake honest

25 pursuits or who are likely to go to prison.

26

In 1948, the Board of Immigration Appeals (“BIA”) issued an order, which the

27

28

custody of a department of the government by due course of law,” and that committing someone to prison makes him a public charge. Id. at 457.

30

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1 acting Attorney General thereafter issued an order approving. The order set out a very

2 explicit test for the term “public charge” as used elsewhere in the act, which concerned

3 deportation proceedings of aliens who are later determined to have actually become a

4 public charge during their time in the country. Matter of B-, 3 I. & N. Dec. 323 (A.G.

5 1948).

6

When interpreting the term as used in the deportation context, the BIA set out a 3-

7 part test requiring (1) an individualized bill for charges incurred, that is (2) presented to

8 the alien (or a family member) by the government, and (3) which the alien (or family

9 member) fails to pay.

10

the following test must be applied to determine whether an alien

has become a public charge within the reach of the 1917 act:

11

(1) The State or other governing body must, by appropriate law,

impose a charge for the services rendered to the alien. In other

12

words, the State must have a cause of action in contract against

either the person taking advantage of the State services or

13

other designated relatives or friends. If there is no charge

made, and if the State does not have a cause of action, the

14

alien cannot be said to be a public charge. (2) The authorities

must make demand for payment of the charges upon those

15

persons made liable under State law. And (3) there must be a

failure to pay for the charges. If there is a failure to pay either

16

because of lack of demand or because the State authorities do

not perform their duty to collect the charges, the alien cannot

17

be said to have become a public charge.

18 Id. at 326 (footnote omitted).

19

The BIA also reasoned that the same definition would apply to the identical term

20 used earlier in the statute with respect to predicting whether an alien is likely to become a

21 public charge—i.e., the provision at issue in the present action:

22

First, we wish to make the following preliminary observation for

the purpose of clarifying the issue. The acceptance by an alien

23

of services provided by a State or by a subdivision of a State to

its residents, services for which no specific charge is made,

24

does not in and of itself make the alien a public charge within

the meaning of the 1917 act. To illustrate, an alien who

25

participates, without cost to him, in an adult education program

sponsored by the State does not become a public charge.

26

Similiarly [sic] with respect to an alien child who attends public

school, or alien child who takes advantage of the free-lunch

27

program offered by schools. We could go on ad

infinitum setting forth the countless municipal and State

28

services which are provided to all residents, alien and citizen

31

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alike, without specific charge of the municipality or the State,

1

and which are paid out of the general tax fund. The fact that

the State or the municipality pays for the services accepted by

2

the alien is not, then, by itself, the test of whether the alien has

become a public charge. . . . [I]f it were to be held that all aliens

3

became public charges by accepting such services, such a

holding would necessarily result in making aliens seeking

4

admission to the United States excludable under that clause of

section 3 of the act of February 5, 1917, which bars aliens likely

5

to become public charges from entering the United States,

provided it were shown the alien would accept the free

6

municipal and State services.

7 Id. at 324–25 & n.1.

8

District courts had independently adopted the same meaning under the 1917 Act.

9 E.g., Ex parte Orzechowska, 23 F. Supp. 428, 429 (D. Or. 1938) (individual not a public

10 charge so long as they will “pay the full amount of the cost of keeping the girl at the

11 Oregon State Hospital”); Ex parte Kichmiriantz, 283 F. 697, 698 (N.D. Cal. 1922) (same).

12

This three-part test is still used for determining whether to deport those who in fact

13 become public charges currently, and DHS proposes to continue doing is in the Rule.

14

Prior to the 1952 Act’s passage, at least one principle had seemingly coalesced in

15 the case law. The reasoning in Gegiow was reaffirmed, and multiple circuits (also

16 recognized by Black’s Law Dictionary) agreed that someone likely to become a public

17 charge is one whom it may be necessary to support at public expense by reason of

18 poverty, insanity and poverty, disease and poverty, or idiocy and poverty. Although that

19 oft-used definition (or a close derivative) is not particularly descriptive as to what quantum

20 of support qualifies as “necessary to support” someone at public expense, it reaffirms the

21 principle expressed in Gegiow and prior cases that the inquiry is focused on the

22 individual’s inherent ability to support himself. This definition also accords with prior

23 interpretations generally finding that, absent some particularly-identified negative factor,

24 those who appear generally capable and willing to work are not likely to become public

25 charges. And unlike the Howe case, it allows reading the definition of public charge in

26 light of the surrounding categories of excluded persons, such that someone who is

27 excluded due to his disease alone may also be excluded because his disease, in

28 combination with another factor like poverty, is likely to render him a public charge. This

32

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1 remains in line with other historically-supported, consistent principles described above,

2 namely that temporary assistance does not render one a public charge and that actual

3 incursion of debt to the state and refusal to pay could render one a public charge.

4

The Attorney General’s order in 1948 for the first time offered a single, clear

5 definition of the term “public charge” to be applied consistently throughout the Act. And it

6 also specifically ruled that acceptance of publicly-funded services “for which no specific

7 charge is made” does not make one a public charge. The three-part test requiring

8 presentation of a bill and inability or refusal to pay was certainly in accordance with a line

9 of precedential caselaw, but it was by no means the only or even dominant line at that

10 time. Nevertheless, this Attorney-General-issued order was controlling as administrative

11 law between its issuance in 1948 and at least Congress’s next codification of the

12 immigration statutes in 1952.

13

7. 1952

14

In 1952, Congress again revised the laws relating to immigration. That revised

15 statute provided, in part:

16

Except as otherwise provided in this Act, the following classes

of aliens shall be ineligible to receive visas and shall be

17

excluded from admission into the United States:

(1) Aliens who are feeble-minded;

18

(2) Aliens who are insane;

(3) Aliens who have had one or more attacks of insanity;

19

. . .

(7) Aliens not comprehended within any of the foregoing

20

classes . . . having a physical defect, disease, or disability . . .

to be of such a nature that it may affect the ability of the alien

21

to earn a living, unless the alien affirmatively establishes that

he will not have to earn a living;

22

(8) Aliens who are paupers, professional beggars, or vagrants;

. . .

23

(15) Aliens who, in the opinion of the consular officer at the time

of application for a visa, or in the opinion of the Attorney

24

General at the time of application for admission, are likely at

any time to become public charges”

25

26 An Act to Revise the Laws Relating to Immigration, Naturalization, and Nationality; and

27 for Other Purposes, 66 Stat. 163, 183, Title 2, Chap. 2 (“1952 Act”) § 212 (1952).

28

The 1952 Act also provided for deportation of any alien who, “in the opinion of the

33

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1 Attorney General, has within five years after entry become a public charge from causes

2 not affirmatively shown to have arisen after entry[.]” Id., Chap. 5 § 241(a)(8).

3

The changes appear to be relatively minor for the purposes of this dispute.

4 Notably, Congress added the phrase “at any time” to specify the scope of time the public

5 charge determination is meant to consider. But no alteration to the phrase “public

6 charge” appears in the statute.

7

The 1951 edition of Black’s Law Dictionary, like the 3rd edition in 1933, assembled

8 its definition based on precedent discussed above:

9

A person whom it is necessary to support at public expense by

reason of poverty, insanity and poverty, or idiocy and poverty.

10

As used in [the 1917 Act] . . ., one who produces a money

charge on, or an expense to, the public for support and care.

11

As so used, the term is not limited to paupers or those liable to

become such, but includes those who will not undertake honest

12

pursuits, or who are likely to become periodically the inmates

of prison.

13

14 Charge, Public Charge, Black’s Law Dictionary (4th ed. 1951) (citations omitted).

15

BIA dispositions following the passage of the 1952 Act addressed the term. One

16 such disposition surveyed caselaw interpreting the term and held “the statute requires

17 more than a showing of a possibility that the alien will require public support. Some

18 specific circumstance, such as mental or physical disability, advanced age, or other fact

19 reasonably tending to show that the burden of supporting the alien is likely to be cast on

20 the public, must be present. A healthy person in the prime of life cannot ordinarily

21 be considered likely to become a public charge, especially where he has friends or

22 relatives in the United States who have indicated their ability and willingness to

23 come to his assistance in case of emergency.” Matter of Martinez-Lopez, 10 I. & N.

24 Dec. 409, 421–22 (BIA 1962) (emphasis added) (collecting cases).

25

In that case, the agency held that the individual at issue was not likely to become a

26 public charge given his characteristics, which essentially showed he was able to perform

27 honest work:

28

When respondent applied for a visa he was 22 years of age.

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He was sound of body and had about ten years of farming

1

experience. He had no specialized training, but had five years

of schooling and apparently planned to seek work for which he

2

was qualified. He spoke no English, but this was no handicap

for he would work among people who spoke Spanish. He had

3

about $50 in assets. He had a brother gainfully employed in the

United States and he had other close relations who were

4

interested in his welfare and who worked to bring him to the

United States. The brother was making $85 a week in

5

permanent employment; he was unmarried; he had been

sending money to his family in Mexico, and he was interested

6

in helping his brother. Respondent had previous experience in

the United States, having spent about three months here as a

7

contract worker. At that time he worked both in the fields and in

a cannery. His services appear to have been satisfactory for he

8

was retained here until his contract was completed.

Respondent had no criminal record.

9

10 Id. at 411.

11

A 1974 BIA decision emphasized that the public charge determination must

12 consider the totality of the circumstances, and that prior welfare use alone cannot be

13 determinative. Matter of Perez, 15 I. & N. Dec. 136, 137 (BIA 1974) (“The respondent's

14 reliance on welfare for support is a condition which she herself can remedy.”).

15

Another 1974 BIA decision confused matters. Matter of Harutunian, 14 I. & N.

16 Dec. 583, 584 (BIA 1974). The decision outlined “[t]he stages in decisional

17 interpretations of the deportation statute, culminating in Matter of B-":

18

1. The words “public charge” had their ordinary meaning, that

is to say, a money charge upon or an expense to the public for

19

support and care, the alien being destitute.

20

2. The alien had not yet become a public charge, even though

he personally was destitute and his care and support were

21

being paid for by public funds, if there existed close relatives,

ready, willing and able to pay the bill, but the appropriate

22

government agency had failed to submit any bill.

23

3. The alien had not become a public charge where the alien's

mother had offered to make reimbursement, but under state

24

law payment could not be accepted for maintenance and

treatment of the institutionalized alien. 25

4. The alien had not become a public charge where the

26

circumstances were like those described in 3, above, except

that no one had offered reimbursement. 27

28 Id. at 586 (citations omitted). 35

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1

However, it reasoned that the Attorney General’s opinion in Matter of B- “is not

2 necessarily controlling in relation to the provisions for exclusion.” Id. at 585. The BIA

3 reasoned that “[w]hile it may normally be assumed that identical words used in different

4 parts of the same statute are intended to have an identical meaning, this assumption

5 readily yields when the legislative intent requires variant meanings in different contexts.”

6 Id. at 586. The BIA then discussed legislative history in search of congressional intent.

7 Id. The decision notes that the Senate Judiciary Committee discussed that courts had

8 given different definitions to the term, and ultimately it decided not to define the term, “but

9 rather [decided] to establish the specific qualification that the determination of whether an

10 alien falls into that category rests within the discretion of the consular officers or the

11 Commissioner.” Id. at 588 (citing S. Rep. 1515, 81st Cong., 2d Sess., April 20, 1950, p.

12 349).

13

The BIA stated that the phrase “public charge” must be “strictly construed” in the

14 deportation context, but not in the exclusion context. Id. It then reasoned that the old-

15 age benefits at issue in the case were “individualized public support to the needy, as

16 distinguished from essentially supplementary benefits, directed to the general welfare of

17 the public as a whole.” Id. at 589. Even though the state would never ask for repayment

18 of those old-age benefits—and therefore they could not constitute assistance qualifying

19 one as a public charge under the Matter of B- test—the court reasoned that it would not

20 consider “the element of reimbursement” when determining whether someone is likely to

21 become a public charge. Id.

22

So, the BIA rejected the Matter of B- test and constructed alternate definitions for

23 the same term depending on whether the executive is predicting whether someone is

24 likely to become a public charge or deciding whether someone has already become a

25 public charge. “Therefore, in our opinion any alien who is incapable of earning a

26 livelihood, who does not have sufficient funds in the United States for his support, and

27 has no person in the United States willing and able to assure that he will not need public

28 support is excludable as likely to become a public charge whether or not the public

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1 support which will be available to him is reimbursable to the state.” Id. at 589–90.

2

These BIA decisions are useful to understand the administrative practices and

3 interpretations operating when Congress reenacted the same language. Although this

4 period saw confusion within the agency about the proper way to interpret the phrase as

5 used in different contexts, each of the discussed decisions support the now-consistent

6 theme that a healthy person in the prime of life who can work cannot be considered likely

7 to become a public charge, absent some particularly-identified circumstance evaluated

8 under a totality of the circumstances. E.g., Matter of Martinez-Lopez, 10 I. & N. Dec. at

9 422 (collecting cases); Matter of Harutunian, 14 I. & N. Dec. at 589 (“alien who is

10 incapable of earning a livelihood”); Matter of Perez, 15 I. & N. Dec. at 137 (totality of

11 circumstances).

12

8. 1987

13

In 1987, the INS issued a final rule, effective May 1, 1987, following notice and

14 comment. See Adjustment of Status for Certain Aliens, 52 Fed. Reg. 16,205 (May 1,

15 1987). The rule implemented section 245A of the Immigration and Nationality Act as

16 amended by section 201 of the Immigration Reform and Control Act of 1986. Id. at

17 16,205. So, the 1987 rule concerned the term “public charge” as used elsewhere in the

18 INA, specifically for aliens adjusting their status to that of aliens lawfully admitted for

19 temporary residence. The “key issues” subject to comments “were the public charge and

20 special rule for determination of public charge[.]” 52 Fed. Reg. at 16,206.

21

That rule provided: “An applicant . . . is subject to the provisions of section

22 212(a)(15) of the Act relating to excludability of aliens likely to become public charges

23 unless the applicant demonstrates a history of employment in the United States

24 evidencing self-support without receipt of public cash assistance. . . . If the alien's

25 period(s) of residence in the United States include significant gaps in employment or if

26 there is reason to believe that the alien may have received public assistance while

27 employed, the alien may be required to provide proof that he or she has not received

28 public cash assistance.” 52 Fed. Reg. at 16,211.

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1

Essentially, this provision exempted aliens who had been working domestically

2 from the normal public charge analysis, so long as they could prove a work history and

3 that they had not relied on public cash assistance. The rule defined cash assistance to

4 exclude in-kind benefits. 52 Fed. Reg. at 16,209 (“‘Public cash assistance’ means

5 income or needs-based monetary assistance, to include but not limited to supplemental

6 security income, received by the alien or his or her immediate family members through

7 federal, state, or local programs designed to meet subsistence levels. It does not include

8 assistance in kind, such as food stamps, public housing, or other non-cash benefits, nor

9 does it include work-related compensation or certain types of medical assistance

10 (Medicare, Medicaid, emergency treatment, services to pregnant women or children

11 under 18 years of age, or treatment in the interest of public health).”).

12

This use of the term is somewhat of an aberration given that it essentially

13 concerned an exception to the statute at issue here—and it did not define the term.

14 However, it did reinforce the long-standing principle underlying the construction of the

15 term that, when considering whether someone should be admitted to the country, the

16 concept of “public charge” concerns primarily the prospect of gainful employment or

17 some other private source of support.

18

9. 1990

19

In 1990, Congress revised the laws relating to immigration. That revised statute

20 provided, in part:

21

Except as otherwise provided in this Act, the following

describes classes of excludable aliens who are ineligible to

22

receive visas and who shall be excluded from admission into

the United States: 23

(1) Health-Related Grounds

24

. . .

(2) Criminal and Related Grounds

25

. . .

(3) Security and Related Grounds

26

. . .

(4) Public Charge.—Any alien who, in the opinion of the

27

consular officer at the time of application for a visa, or in the

opinion of the Attorney General at the time of application for

28

admission or adjustment of status, is likely at any time to

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become a public charge is excludable. 1

2 Immigration Act of 1990, 104 Stat. 4978, Title 6 § 601 (1990).

3

This version of the bill removed language referring to the feeble-minded, paupers,

4 professional beggars, and vagrants. There is a suggestion in the Congressional Record

5 that the removed terms were meant to be consolidated within the public charge category:

6

The bill removes some of the antiquated and unused

exclusions that have been in our law since the early 1900's,

7

such as the exclusions based on illiteracy, and the exclusions

for aliens who are "paupers, professional beggars, or

8

vagrants." These relics have been replaced by one generic

standard which exclude aliens who are "likely to become a

9

public charge."

10 136 Cong. Rec. 36797, 36844 (1990).

11

In 1990, Black’s Law Dictionary defined “public charge” as “an indigent. A person

12 whom it is necessary to support at public expense by reason of poverty alone or illness

13 and poverty.” Charge, Public Charge, Black’s Law Dictionary (6th ed. 1990).

14

Although a statutory term is not defined by reference to one preferred

15 interpretation memorialized in the Congressional Record, that interpretation is consistent

16 with the courts’ and executive’s general treatment of the term since Gegiow. That is,

17 following Gegiow and later cases applying it to the 1917 Act, courts had read the term

18 public charge in context of those surrounding terms rather than in exclusion of them, and

19 focused on the alien’s ability to work or otherwise provide for himself, which each of the

20 omitted surrounding terms also ultimately spoke to. But see Howe, 247 F. at 294.

21

10. 1996

22

In 1996, Congress again revised the laws relating to immigration. That revised

23 statute provided, in part:

24

(4) PUBLIC CHARGE.—

25

(A) IN GENERAL.—Any alien who, in the opinion of the

consular officer at the time of application for a visa, or in

26

the opinion of the Attorney General at the time of

application for admission or adjustment of status, is

27

likely at any time to become a public charge is

excludable.

28

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(B) FACTORS TO BE TAKEN INTO ACCOUNT.— 1

(i) In determining whether an alien is excludable

2

under this paragraph, the consular officer or the

Attorney General shall at a minimum consider the

3

alien's—

4

(I) age;

(II) health;

5

(III) family status;

(IV) assets, resources, and financial

6

status; and

(V) education and skills. 7

(ii) In addition to the factors under clause (i), the

8

consular officer or the Attorney General may also

consider any affidavit of support under section

9

213A for purposes of exclusion under this

paragraph. 10

11 Omnibus Consolidated Appropriations Act, 110 Stat. 3009, Title 5 § 531 (1996). This act

12 is often referred to as the Illegal Immigration Reform and Immigrant Responsibility Act

13 (“IIRIRA”). Elsewhere, the Act provided that “Any alien who, within five years after the

14 date of entry, has become a public charge from causes not affirmatively shown to have

15 arisen since entry is deportable.” 8 U.S.C. § 1251(a)(5) (effective April 24, 1996).

16

The revised law used the same relevant language as all previous versions—public

17 charge. However, the statute then listed five factors that Congress instructed must be

18 considered when determining whether an alien is likely to become a public charge, and it

19 identified another factor that “may also” be considered.

20

Contemporaneously, the Personal Responsibility and Work Opportunity

21 Reconciliation Act (“PRWORA”), Pub. L. 104-193, restricted most aliens from accessing

22 many public support programs for a period of time.

23

During legislative efforts that ultimately resulted in the IIRIRA, a group of

24 legislators proposed to define “public charge” with particularity in the statute to include

25 “any alien who receives benefits described in subparagraph (D) for an aggregate period

26 of at least 12 months” (or 36 months in the case of a battered spouse or child). 142

27 Cong. Rec. 24313, 24425 (1996). The benefits listed in subparagraph D (that would

28 qualify an alien as a public charge) included “means-tested public benefits,” but it’s not

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1 entirely clear what specific benefits that section refers to.14 That definition was not

2 enacted into law.

3

11. 1999

4

The INS attempted in 1999 to engage in rulemaking to guide immigration officers,

5 aliens, and the public in understanding the public charge determinations. No final rule

6 was ever issued. Instead, the agency published Field Guidance addressing the issue.

7 See Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64

8 Fed. Reg. 28,689 (May 26, 1999) (the “1999 Field Guidance”).

9

The notice was published prior to final rulemaking because it was deemed

10 “necessary to help alleviate public confusion over the meaning of the term ‘public charge’

11 in immigration law and its relationship to the receipt of Federal, State, and local public

12 benefits.” 64 Fed. Reg. at 28,689. “The Department decided to publish a proposed rule

13 defining ‘public charge’ in order to reduce the negative public health consequences

14 generated by the existing confusion and to provide aliens with better guidance as to the

15 types of public benefits that will and will not be considered in public charge

16 determinations.” Id. The notice “both summarizes longstanding law with respect to

17 public charge and provides new guidance on public charge determinations in light of the

18 recent changes in law,” notably the “Illegal Immigration Reform and Immigrant

19 Responsibility Act of 1996 (IIRIRA) and welfare reform laws.” Id.

20

The notice proposed “that ‘public charge’ means an alien who has become (for

21 deportation purposes) or who is likely to become (for admission/adjustment purposes)

22 ‘primarily dependent on the government for subsistence, as demonstrated by either (i) the

23 receipt of public cash assistance for income maintenance or (ii) institutionalization for

24 long-term care at government expense.’ Institutionalization for short periods of

25 rehabilitation does not constitute such primary dependence.” Id.

26

27

14 The record refers to Section 213A(e)(1), which appears to have been codified at 8 U.S.C § 1183a(e), but that does not describe means-tested benefits. The currently-

28

operative version of 8 U.S. Code § 1183a(a)(1)(B) also appears to errantly refer to subsection (e) for a list of means-tested benefits, so this error is not unique.

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1

Following the implementation of that interpretation, “officers should not place any

2 weight on the receipt of non-cash public benefits (other than institutionalization) or the

3 receipt of cash benefits for purposes other than for income maintenance with respect to

4 determinations of admissibility or eligibility for adjustment on public charge grounds.” Id.

5

Summarizing current agency practice, the memo explained:

6

The standard for adjudicating inadmissibility under section

212(a)(4) has been developed in several Service, BIA, and

7

Attorney General decisions and has been codified in the

Service regulations implementing the legalization provisions of

8

the Immigration Reform and Control Act of 1986. These

decisions and regulations, and section 212(a)(4) itself, create a

9

“totality of the circumstances” test.

10

In determining whether an alien is likely to become a public

charge, Service officers should assess the financial

11

responsibility of the alien by examining the “totality of the alien's

circumstances at the time of his or her application * * * The

12

existence or absence of a particular factor should never be the

sole criterion for determining if an alien is likely to become a

13

public charge. The determination of financial responsibility

should be a prospective evaluation based on the alien's age,

14

health, family status, assets, resources and financial status,

education, and skills, among other factors. An alien may be

15

considered likely to become a public charge even if there is no

legal obligation to reimburse the benefit-granting agency for the

16

benefits or services received, in contrast to the standards for

deportation, discussed below.

17

18 Id. at 28,690 (footnotes omitted).

19

The 1999 Field Guidance then explained that the three-part test for paying back

20 public debt continues to apply, but only as an additional test on top of the totality of the

21 circumstances test for deportation decisions:

22

Repayment is relevant to the public charge inadmissibility

determination only in very limited circumstances. If at the time

23

of application for admission or adjustment of status the alien is

deportable on public charge grounds under section 237(a)(5)

24

of the INA due to an outstanding public debt for a cash benefit

or the costs of institutionalization, then the alien is inadmissible.

25

Only a debt that satisfies the three-part [Matter of B-] test under

section 237(a)(5), described below, will render an alien

26

deportable as a public charge and therefore ineligible for

admission or adjustment. If the debt is paid, then the alien will

27

no longer be inadmissible based on the debt, and the usual

totality of the circumstances test would apply.

28

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1 Id.

2

The Feld Guidance explained that a compelling reason to limit the public charge

3 definition to those receiving cash is that “certain federal, state, and local benefits are

4 increasingly being made available to families with incomes far above the poverty level,

5 reflecting broad public policy decisions about improving general public health and

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

7 becoming self-sufficient. Thus, participation in such non-cash programs is not evidence

8 of poverty or dependence.” Id. at 28,692

9

12. 2013

10

In 2013, the Senate voted down two amendments to a never-passed bill regarding

11 immigration. The first amendment proposed “expanding the criteria for ‘public charge,’

12 such that applicants would have to show they were not likely to qualify even for non-cash

13 employment supports such as Medicaid, the SNAP program, or the Children's Health

14 Insurance Program (CHIP). . . . [T]he amendment was rejected by voice vote.” S. Rep.

15 No. 113-40, at 42 (2013).

16

The second amendment “would have expanded the definition of ‘public charge’

17 such that people who received non-cash health benefits could not become legal

18 permanent residents. This amendment would also have denied entry to individuals

19 whom the Department of Homeland Security determines are likely to receive these types

20 of benefits in the future. The amendment was not agreed to by a voice vote.” S. Rep.

21 No. 113-40, at 63 (2013).

22

13. 2019—The Rule

23

On October 10, 2018, DHS published a Notice of Proposed Rulemaking in the

24 Federal Register. See 83 Fed. Reg. 51,114. The NPRM provided a 60-day public

25 comment period, during which 266,077 comments were collected. See 84 Fed. Reg. at

26 41,297. On August 14, 2019, DHS published the Rule in the Federal Register.

27

The Rule supersedes the 1999 Field Guidance’s definition of “public charge,”

28 establishing a new definition based on a minimum time threshold for the receipt of public

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1 benefits. Under the newly-proposed “12/36 standard,” a public charge is defined as an

2 individual who receives designated public benefits for more than 12 months in the

3 aggregate within a 36-month period, although a single month where multiple types of

4 benefits are received is counted as multiple months of receiving aid. 84 Fed. Reg. at

5 41,295. The “public benefits” included are extended by the Rule to include many non-

6 cash benefits, for example Supplemental Nutrition Assistance Program (“SNAP”), Section

7 8 Housing Programs, Medicaid, and Public Housing. Id. at 41,501. Receipt of two

8 categories of benefits in the same months counts as two months of receipt for benefits,

9 so some will qualify as public charges without receiving benefits for 12 months.

10 Moreover, the rule is agnostic to the value (or cost to the government) of the benefits. To

11 take a plausible example, someone receiving $182 over 36 months—or an average of

12 less than 17 cents a day—in SNAP benefits is a public charge under the Rule. See

13 Shing Decl. ¶ 17.

14

The Rule does not change the definition of public charge in the context of

15 deportability, described elsewhere in the INA. 84 Fed. Reg. at 41,295 (“This rule does

16 not interpret or change DHS’s implementation of the public charge ground of

17 deportability.”). Rather, DHS will continue to enforce the 1999 Field Guidance in the

18 deportation context. Id. at 41,304 (“DHS currently makes public charge determinations in

19 accordance with the 1999 Interim Field Guidance. . . . This guidance explains how the

20 agency determines . . . whether a person has become a public charge within five years of

21 entry”). The 1999 Field Guidance, which will continue to govern, provided that “the

22 definition of public charge is the same for both admission/adjustment and deportation,”

23 although “the standards applied to public charge adjudications in each context are

24 significantly different” because one is forward-looking and one is backward-looking. 64

25 Fed. Reg. at 28,689. As such, following the implementation of the Rule, “public charge”

26 will continue to be defined in the deportation context as “an alien who has become . . .

27 ‘primarily dependent on the government for subsistence, as demonstrated by either (i) the

28 receipt of public cash assistance for income maintenance or (ii) institutionalization for

44

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1 long-term care at government expense.’” Id. To assess whether an alien qualifies under

2 that definition in the deportability context, the 1999 Field Guidance prescribes the 3-part

3 test established in Matter of B-, 3 I. & N. Dec. 323.

4

So, the Rule proposes to simultaneously apply multiple definitions for the term

5 public charge. First, its new definition will be used to predict whether an alien is likely at

6 any time to become a public charge. Second, the 1999 Field Guidance’s “primary

7 dependence” definition is left unaltered in the deportation context, and it is evaluated

8 pursuant to the well-known 3-part Matter of B- test.

9

Each step in the Chevron analysis requires the court to consider the terms of the

10 statute in context. The court first looks to the statutory text, in light of prior agency and

11 judicial interpretation—as explained at length above, although the court notes that judicial

12 and agency interpretation following the most-recent 1996 revision is not particularly

13 relevant to understanding the meaning of the text as enacted in 1996. Cf. Sec'y of the

14 Interior v. California, 464 U.S. 312, 375 n.36 (1984) (the “view of a subsequent Congress

15 . . . is not without persuasive value”).

16

The analysis is also informed to some degree by what Congress decided not to

17 pass, in addition to what it specifically rejected. “Congress does not intend sub silentio to

18 enact statutory language that it has earlier discarded in favor of other language.”

19 Cardoza-Fonseca, 480 U.S. at 442–43; Albemarle Paper Co., 422 U.S. at 414 n.8

20 (rejecting construction of statute that would implement provision Conference Committee

21 rejected); Bob Jones Univ., 461 U.S. at 600–01 (interpretation of statute informed by the

22 fact that Congress had a “prolonged and acute awareness” of an established agency

23 interpretation of a statute, considered the precise issue, and rejected bills to overturn the

24 prevailing interpretation); see also Merrill Lynch, 456 U.S. at 381–82 (interpretation of

25 statute informed by the fact that Congress amended large portions of statute, but not

26 provision at issue).

27

Of particular relevance here, parts of Congress have explicitly and repeatedly

28 rejected efforts to define “public charge” to include those who receive certain in-kind

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1 benefits for a period of 12 months—efforts that are strikingly similar to the definition now

2 adopted for the first time by the executive in the Rule. E.g., 142 Cong. Rec. 24313,

3 24425 (1996); S. Rep. No. 113-40, at 42 (2013); S. Rep. No. 113-40, at 63 (2013).

4 Congress’s rejection in 1996 is particularly instructive. As described above, Congress at

5 that time considered a scheme similar to the Rule, wherein use of means-tested benefits

6 for 12 months would qualify one as a public charge. On September 24, 1996, the

7 conference committee recommended passage of a version of the bill with that definition.

8 See 142 Cong. Rec. 24389 (conference committee recommendation), 24425 (public

9 charge definition). President Clinton had previously praised the legislation generally, but

10 specifically criticized that bill’s disincentive to obtain public benefits. He called for

11 revision of the statute. He said “it still goes too far in denying legal immigrants access to

12 vital safety net programs which could jeopardize public health and safety. Some work

13 still needs to be done. I urge the Congress to move quickly to finalize and send me this

14 key legislation.” Statement on Senate Action on the “Immigration Control and Financial

15 Responsibility Act of 1996”, President William J. Clinton, Weekly Compilation of

16 Presidential Documents Volume 32, Issue 18 (May 6, 1996) at p. 783. On September 30,

17 1996, the bill was signed into law, following the removal of the definition of public charge

18 that included use of means-tested public benefits. This exchange, which deals with the

19 precise issue presented by this litigation, is particularly instructive not because of the

20 president’s words but because of Congress’s response to those words—it intentionally

21 considered and rejected a definition similar to what the Rule now proposes. Afterall it is

22 Congress, not the President, who is responsible for writing legislation.

23

Given the term’s long-standing focus on the individual’s ability and willingness to

24 work or otherwise support himself, and its longstanding allowance for short-term aid, and

25 the legislative history of the 1996 revision, it is likely that the Rule’s interpretation defining

26 anyone who receives any quantity of benefits for 12 months (or fewer) out of a floating

27 36-month window as a public charge is not a permissible or reasonable construction of

28 the statute. For example, defendants do not contest that someone receiving less than 50

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1 cents per day—which is a standard SNAP benefit amount for recipients at the higher end

2 of income eligibility, Shing Decl. ¶ 17—would be deemed a public charge under the Rule.

3 That could also be calculated as $182 over 36 months—or an average of less than 17

4 cents a day. At no point over the long history described above could that have qualified

5 one as a public charge, unless the bill for those charges was presented to the recipient

6 and he refused to pay. Moreover, the Rule’s double-counting of months where multiple

7 benefits are received raises serious questions with respect to whether the Rule

8 impermissibly considers temporary or short-term relief, receipt of which has never been

9 sufficient to qualify someone as a public charge (absent repayment, following

10 presentation of an invoice).

11

Deciding otherwise would put this court at odds with persuasive Supreme Court

12 and Ninth Circuit precedent. The Supreme Court has defined the term to allow exclusion

13 only “on the ground of permanent personal objections accompanying them [the excluded

14 aliens] irrespective of local conditions[.]” Gegiow, 239 U.S. at 10. In that case, “the

15 aliens came from a remote province of Russia. They knew no trade. They knew no

16 language but their own. Only one could read or write in his own language. They had

17 sums aggregating slightly more than $25 each. They were not employed, and had no

18 promise of employment. They were ticketed through to Portland, Or., where, owing to

19 depressed labor conditions, the prospect of their obtaining work ‘was most unfavorable.’”

20 Ex parte Hosaye Sakaguchi, 277 F. at 916 (citing Gegiow, 239 U.S. at 10). Still, they

21 were not likely to become public charges within the meaning of the statute. The Ninth

22 Circuit reaffirmed that definition following reorganization of the statute. Id. (“change of

23 location of the words does not change the meaning that should be given them”). Since

24 Gegiow and Ex parte Hosaye Sakaguchi, Congress has not altered the term “public

25 charge,” which the Ninth Circuit has defined standing alone, irrespective of its placement

26 or context within the list of excluded persons in the statute. The court therefore sees no

27 good reason to depart from those precedential opinions, which suggest that an able-

28 bodied, working-age individual who is willing to engage in honest work is not excludable

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1 based on a prediction that he will become a public charge unless a particular reason can

2 be articulated to exclude him. This reasoning does not allow for exclusion based on the

3 increasing generosity of society’s public assistance to provide for more than the barest

4 requirements of subsistence. Gegiow, in fact, explicitly precludes consideration of local

5 labor conditions.

6

The likely unreasonableness of the rule is further demonstrated by just how

7 expansive the definition is. The history of the term, evidenced by its repeated verbatim

8 reenactment, excluded those who were likely to become public charges based on

9 poverty, or idiocy and poverty, or disease and poverty, etc. But plaintiffs demonstrate

10 that in a single year, roughly a quarter U.S.-born citizens receive one or more benefits

11 used to define who is a public charge under the Rule. And plaintiffs demonstrate that,

12 over the course of their lifetimes, about 40% of U.S.-born citizens are expected to receive

13 one or more of those benefits. Although these figures do not indicate what percent of

14 U.S.-born citizens would actually be deemed public charges under the Rule (that would

15 require determining how many individuals receive multiple benefits per month, in addition

16 to how many months benefits are received over any 3-year period), it suggests that the

17 Rule is substantially outside the bounds of a reasonable interpretation of the statute.

18

With regard to plaintiffs’ claim that the Rule is not in accordance with law, for the

19 foregoing reasons, and given the above discussion of the term’s long-standing use and

20 evolution in the immigration statutes, this court finds that plaintiffs are likely to succeed on

21 the merits with respect to their claim that the Rule’s definition of public charge is

22 unreasonable and not based on a permissible construction of the statute, under the

23 second prong of the Chevron analysis.15 Alternatively, plaintiffs have raised at least

24 serious questions with respect to whether “the statute, read in context, unambiguously

25 forecloses” the precise question at issue, namely DHS’s expansive interpretation of the

26 term to include individuals willing and able work productively in the national economy,

27

28

15 For the same reasons that plaintiffs are likely to succeed on this question, they have undoubtedly raised serious questions with respect to it.

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1 under the first prong of the Chevron analysis. See Esquivel-Quintana v. Sessions, 137 S.

2 Ct. 1562, 1572 (2017); see also Whitman v. Am. Trucking Associations, 531 U.S. 457,

3 471 (2001) (finding a particular construction “unambiguously bar[red]” when “interpreted

4 in its statutory and historical context”).

5

b. Not in Accordance with Law—Rehabilitation Act

6

The Rehabilitation Act prohibits “any program or activity receiving federal financial

7 assistance” or “any program or activity conducted by any Executive agency,” from

8 excluding, denying benefits to, or discriminating against persons with disabilities. 29

9 U.S.C. § 794(a).

10

“To establish a violation of § 504 of the RA [Rehabilitation Act], a plaintiff must

11 show that (1) she is handicapped within the meaning of the RA; (2) she is otherwise

12 qualified for the benefit or services sought; (3) she was denied the benefit or services

13 solely by reason of her handicap; and (4) the program providing the benefit or services

14 receives federal financial assistance.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir.

15 2002); 29 U.S.C. § 794(a) (“[n]o otherwise qualified individual with a disability . . . shall,

16 solely by reason of her or his disability, be . . . subjected to discrimination under . . . any

17 program or activity conducted by any Executive agency”).

18

The States argue that the Rule will exclude some individuals solely based on

19 disability because a disability will predictably be responsible for a number of negative

20 factors in some individuals: (1) a negative health factor because the Rule adopts a

21 definition of “health” that strongly overlaps with disability; (2) a negative factor if the

22 applicant lacks private insurance; and (3) a negative factor if the applicant has received

23 Medicaid for 12 of the last 36 months, even though use of Medicaid is common for the

24 disabled because it covers services that no other insurer provides.

25

Defendants first argue that the Rule’s multi-factor test means the Rehabilitation

26 Act is not violated because disability cannot be the “sole” determinative factor. Second,

27 they argue that even if the statutes are in conflict, a specific, later statutory command—

28 such as the INA’s requirement that the agency consider health—supersedes section

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1 504’s general proscription.

2

First, the Rehabilitation Act requires that a plaintiff show that a disabled person

3 was denied services “solely” by reason of her disability. The Rule does not deny any

4 alien admission into the United States, or adjustment of status, “solely by reason of”

5 disability. All covered aliens, disabled or not, are subject to the same inquiry: whether

6 they are likely to use one or more covered federal benefits for the specified period of

7 time. Even though a disability is likely to be an underlying cause of some individuals

8 qualifying for additional negative factors, it will not be the sole cause. As such, disability

9 is one non-dispositive factor.16

10

Second, the INA explicitly lists “health” as a factor that an officer “shall . . .

11 consider” in making a public charge determination. 8 U.S.C. § 1182(a)(4)(B)(i). “Health”

12 includes an alien’s disability and whatever impact the disability may have on the alien’s

13 expenses and ability to work. Congress, not the Rule, requires DHS to take this factor

14 into account, and the caselaw has long considered this factor. See, e.g., Knutzen v.

15 Eben Ezer Lutheran Hous. Ctr., 815 F.2d 1343, 1353 (10th Cir. 1987) (section 504 may

16 not “revoke or repeal . . . a much more specific statute . . . absent express language by

17 Congress”).

18

As such, plaintiffs have not demonstrated even serious questions going the merits

19 with respect to this claim.

20

c. Arbitrary and Capricious

21

Section 4 of the APA, 5 U.S.C. § 553, prescribes a three-step

procedure for so-called “notice-and-comment rulemaking.”

22

First, the agency must issue a “[g]eneral notice of proposed rule

making,” ordinarily by publication in the Federal

23

Register. § 553(b). Second, if “notice [is] required,” the agency

must “give interested persons an opportunity to participate in

24

25 16 Plaintiffs’ citation to Lovell is unavailing. They claim the case found a multi-factor test

26

violated the Act, “notwithstanding other factors” unrelated to disability. But in Lovell, defendants asked the court to look at a multifactored system, but the court declined and

27

instead looked at treatment of the disabled under a single program. It was “undisputed that disabled people who, but for their disability, were eligible for healthcare benefits from

28

the State under” that single program “were denied coverage because of the categorical exclusion of the disabled from” that program. Lovell, 303 F.3d at 1053.

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the rule making through submission of written data, views, or

1

arguments.” § 553(c). An agency must consider and respond

to significant comments received during the period for public

2

comment. Third, when the agency promulgates the final rule,

it must include in the rule's text “a concise general statement of

3

[its] basis and purpose.” § 553(c). Rules issued through the

notice-and-comment process are often referred to as

4

“legislative rules” because they have the “force and effect of

law.” Chrysler Corp. v. Brown, 441 U.S. 281 (1979). 5

Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1203 (2015) (citations omitted).

6

“‘[A]rbitrary and capricious’ review under the APA focuses on the reasonableness

7

of an agency’s decision-making processes.” CHW W. Bay v. Thompson, 246 F.3d 1218,

8

1223 (9th Cir. 2001). Agency action is invalid if the agency fails to give adequate

9

reasons for its decisions, fails to examine the relevant data, or offers no “rational

10

connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of

11

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also Encino

12

Motorcars, 136 S. Ct. at 2125. A rule is arbitrary and capricious if the agency has

13

“entirely failed to consider an important aspect of the problem, offered an explanation for

14

its decision that runs counter to the evidence before the agency, or is so implausible that

15

it could not be ascribed to a difference in view or the product of agency expertise.” Id.

16

Agencies are required to “reflect upon the information contained in the record and

17

grapple with contrary evidence.” Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630, 638

18

(D.C. Cir. 2017). Where “the agency has failed to ‘examine the relevant data’ or failed to

19

‘articulate a rational explanation for its actions,’” its decision is arbitrary and capricious.

20

Genuine Parts Co. v. EPA, 890 F.3d 304, 311–12 (D.C. Cir. 2018). And where an

21

agency is uncertain about the effects of agency action, it may not rely on “‘substantial

22

uncertainty’ as a justification for its actions.” Greater Yellowstone Coal., Inc. v. Servheen,

23

665 F.3d 1015, 1028 (9th Cir. 2011). Instead, it must “rationally explain why the

24

uncertainty” supports the chosen approach. Id. (“Otherwise, we might as well be

25

deferring to a coin flip.”). “[A]n internally inconsistent analysis is arbitrary and capricious.”

26

Nat'l Parks Conservation Ass'n v. E.P.A., 788 F.3d 1134, 1141 (9th Cir. 2015).

27

But “[t]he scope of review under the ‘arbitrary and capricious’ standard is narrow

28

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1 and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs.

2 Ass’n, 463 U.S. at 43; San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581,

3 601 (9th Cir. 2014) (“Although our inquiry must be thorough, the standard of review is

4 highly deferential; the agency's decision is ‘entitled to a presumption of regularity,’ and

5 we may not substitute our judgment for that of the agency.”). An agency’s obligation to

6 respond to comments on a proposed rulemaking is “not ‘particularly demanding.’” Ass’n

7 of Private Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 441–42 (D.C. Cir. 2012).

8 “[T]he agency’s response to public comments need only ‘enable [courts] to see what

9 major issues of policy were ventilated . . . and why the agency reacted to them as it did.’”

10 Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993).

11

Rule changes face a higher burden when departing from prior policy:

12

Agencies are free to change their existing policies as long as

they provide a reasoned explanation for the change. When an

13

agency changes its existing position, it need not always provide

a more detailed justification than what would suffice for a new

14

policy created on a blank slate. But the agency must at least

display awareness that it is changing position and show that

15

there are good reasons for the new policy. In explaining its

changed position, an agency must also be cognizant that

16

longstanding policies may have engendered serious reliance

interests that must be taken into account. In such cases it is

17

not that further justification is demanded by the mere fact of

policy change; but that a reasoned explanation is needed for

18

disregarding facts and circumstances that underlay or were

engendered by the prior policy. It follows that an unexplained

19

inconsistency in agency policy is a reason for holding an

interpretation to be an arbitrary and capricious change from

20

agency practice. An arbitrary and capricious regulation of this

sort is itself unlawful and receives no Chevron deference.

21

22 Encino Motorcars, 136 S. Ct. at 2125–26 (internal quotation marks and citations omitted);

23 accord F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (agency must

24 “provide a more detailed justification than what would suffice for a new policy created on

25 a blank slate . . . when, for example, its new policy rests upon factual findings that

26 contradict those which underlay its prior policy; or when its prior policy has engendered

27 serious reliance interests that must be taken into account”).

28

Plaintiffs raise numerous procedural challenges to the Rule. The court addresses

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1 them in two general categories. First, the court considers plaintiffs arguments that DHS

2 failed to adequately consider and address the Rule’s costs and benefits. Second, the

3 court considers plaintiffs’ remaining procedural challenges.

4

i. DHS Failed to Adequately Consider Costs and Benefits

5

Plaintiffs argue that DHS failed to consider costs and benefits in three ways. First,

6 DHS failed to adequately consider significant costs to local and state governments raised

7 in comments, as well as the related issue of DHS’s failure to consider evidence when

8 estimating disenrollment figures. Second, DHS failed to consider concerns about health

9 effects like disease outbreaks. Third, DHS acted impermissibly with respect to the

10 burden the I-944 form would impose.

11

Based on plaintiffs’ first and second arguments, discussed presently, this court

12 finds that they are likely to succeed on the merits with respect to their claim that the Rule

13 is arbitrary and capricious.17

14

A. Local and State Government Costs and

15

Disenrollment Rates

16

Plaintiffs argue that commenters documented the dangers to individuals and public

17 health generally that stem from disenrollment in public benefits, and explained that local

18 and state governments will face higher costs because of this disenrollment. See 84 Fed.

19 Reg. at 41,310-12 (explaining that “[m]any commenters particularly emphasized that

20 disenrollment or foregoing enrollment would be detrimental to the financial stability and

21 economy of communities, States, local organizations, hospitals, safety net providers,

22 foundations, and healthcare centers”); id. at 41,469–70; Case No. 19-cv-04717-PJH,

23 Dkt. 44, Exs. C–E (letters submitted in response to NPRM). Numerous comments

24 included specific cost calculations. See, e.g., 84 Fed. Reg. at 41,475 (citing specific cost

25 estimates from comments); Cho Decl., Ex. C at 22–23 (estimating losses to California at

26 $1.76 billion in revenue from federal government and 17,700 jobs), Ex. J at 11

27

28

17 For the same reasons that plaintiffs are likely to succeed on this claim, they have undoubtedly raised serious questions with respect to it.

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1 (estimating that the Rule would cost hospitals more than $17 billion in uncompensated

2 care), Ex. K at 5–7 (detailing expected costs to hospitals).

3

Plaintiffs relatedly argue that DHS under-estimated disenrollment figures and the

4 accompanying effects, including the effects on state and local governments.18 For

5 example, despite its concession that the Rule will cause members of mixed-status

6 households (i.e., those including U.S. citizens) to disenroll from benefits, 84 Fed. Reg. at

7 41,300, DHS refused to consider the costs associated with such disenrollment, stating:

8 “DHS believes that it would be unwarranted for U.S. citizens and aliens exempt from

9 public charge inadmissibility to disenroll from a public benefit program or forego

10 enrollment in response to this rule when such individuals are not subject to this rule.

11 DHS will not alter this rule to account for such unwarranted choices.” Id. at 41,313.

12

Defendants correctly argue that they are not required to quantify every potential

13 cost and benefit and precisely weigh them out. They respond to these challenges both in

14 the Rule and before the court with three essential points. First, DHS read the comments,

15 but the forward-looking economic impact to states, cities, hospitals, and others was too

16 difficult to assess. Second, with respect to the disenrollment of those who will not be

17 subject to a public charge assessment in the future, the Rule’s effect was too difficult to

18 assess. Third, even if DHS had assessed those costs, they would be outweighed by the

19 benefits of excluding aliens who would rely on public assistance, and of promoting self-

20 sufficiency of aliens already in the United States. Those benefits are in line with

21 Congressional statements of policy.

22

DHS was required to a certain extent to grapple with estimates and credible data

23

24 18 DHS argues that it’s 2.5% figure is not part of the regulatory analysis and cannot be

25

challenged because it was calculated pursuant to an executive order. The court disagrees. See Council of Parent Attorneys & Advocates, Inc. v. DeVos, 365 F. Supp. 3d

26

28, 54 n.11 (D.D.C. 2019) (“The government contended . . . that because its regulatory impact analysis was conducted pursuant to Executive Orders, it is not subject to judicial

27

review. . . . These arguments are contrary to D.C. Circuit precedent. Because the government relied on its cost-benefit analysis . . . a flaw in that analysis can render the

28 regulation arbitrary and capricious.”).

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1 explained in the comments, and in turn explain why DHS chose not to credit them. See

2 Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053, 1068–69 (9th Cir. 2018) (finding

3 agency action arbitrary and capricious where the agency did not explain why it did not

4 credit available data that did not support its action). Defendants are correct that DHS

5 was not required to parse costs and benefits precisely. But to the extent the exact harms

6 are unknown or difficult to predict, that does not justify “disregarding the effect entirely.”

7 Pub. Citizen v. Fed. Motor Carrier Safety Admin., 374 F.3d 1209, 1219 (D.C. Cir. 2004).

8

Here, even under the deferential APA analysis, DHS appears to have wholly failed

9 to engage with this entire category of comments. DHS failed to grapple with the Rule’s

10 predictable effects on local governments, and instead concluded that the harms—

11 whatever they may be—are an acceptable price to pay. At minimum, the APA requires

12 more than reading public comments and responding with a general statement that,

13 however correct the comments may be, the agency declines to consider the issues and

14 costs identified because doing so would contravene the government’s favored policy.

15

For example, under the heading “Increased Costs to Health Care Providers,

16 States, and Localities,” the government summarized the comments it was responding to:

17

Many commenters particularly emphasized that disenrollment

or foregoing enrollment would be detrimental to the financial

18

stability and economy of communities, States, local

organizations, hospitals, safety net providers, foundations, and

19

healthcare centers. Commenters offering estimates on the

number of people who would disenroll from Medicaid under the

20

proposed rule warned that the costs associated with the

resultant rise in uncompensated care would be borne by health

21

systems, hospitals, and insured patients.

22 84 Fed. Reg. at 41,312.

23 The government’s response, in part, was:

24

Response: With respect to the rule's potential “chilling effects”

or disenrollment impacts, DHS notes that (1) the rule's

25

overriding consideration, i.e., the Government's interest as set

forth in PRWORA, is a sufficient basis to move forward; (2) it is

26

difficult to predict the rule's disenrollment impacts with respect

to the regulated population, although DHS has attempted to do

27

so in the accompanying Final Regulatory Impact Analysis; and

(3) it is also difficult to predict the rule's disenrollment impacts

28

with respect to people who are not regulated by this rule,

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although, again, DHS has attempted to do so in the

1

accompanying Final Regulatory Impact Analysis.

2

First, as discussed above, this rule is rationally related to the

Government's interest, as set forth in PRWORA, to: (1)

3

Minimize the incentive of aliens who attempt to immigrate to, or

adjust status in the United States due to the availability of public

4

benefits; and (2) Promote the self-sufficiency of aliens within

the United States. DHS has defined public benefits by focusing

5

on cash assistance programs for income maintenance, and an

exhaustive list of non-cash food, housing, and healthcare,

6

designed to meet basic living needs. This definition does not

include benefits related exclusively to emergency response,

7

immunization, education, or social services, nor does it include

exclusively state and local non-cash aid programs. DHS

8

acknowledges that individuals subject to this rule may decline

to enroll in, or may choose to disenroll from, public benefits for

9

which they may be eligible under PRWORA, in order to avoid

negative consequences as a result of this final rule. However,

10

DHS has authority to take past, current, and likely future receipt

of public benefits into account, even where it may ultimately

11

result in discouraging aliens from receiving public benefits.

12

Although individuals may reconsider their receipt of public

benefits as defined by this rule in light of future immigration

13

consequences, this rule does not prohibit an alien from

obtaining a public benefit for which he or she is eligible. DHS

14

expects that aliens seeking lawful permanent resident status or

nonimmigrant status in the United States will make purposeful

15

and well-informed decisions commensurate with the

immigration status they are seeking. But regardless, DHS

16

declines to limit the effect of the rulemaking to avoid the

possibility that individuals subject to this rule may disenroll or

17

choose not to enroll, as self-sufficiency is the rule's ultimate

aim. 18

Second, DHS finds it difficult to predict how this rule will affect

19

aliens subject to the public charge ground of inadmissibility,

because data limitations provide neither a precise count nor

20

reasonable estimate of the number of aliens who are both

subject to the public charge ground of inadmissibility and are

21

eligible for public benefits in the United States. This difficulty is

compounded by the fact that most applicants subject to the

22

public charge ground of inadmissibility and therefore this rule

are generally unlikely to suffer negative consequences

23

resulting from past receipt of public benefits because they will

have been residing outside of the United States and therefore,

24

ineligible to have ever received public benefits.

25

. . . .

26

Third, DHS finds it difficult to predict the rule's disenrollment

impacts with respect to people who are not regulated by this

27

rule, such as people who erroneously believe themselves to be

affected. . . . This rule does not prohibit or otherwise discourage

28

individuals who are not subject to the public charge

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inadmissibility from receiving any public benefits for which they

1

are eligible.

2

. . . .

3

Because DHS will not consider the receipt of public benefits by

U.S. citizens and aliens not subject to public charge

4

inadmissibility, the receipt of public benefits by these

individuals will not be counted against or made attributable to

5

immigrant family members who are subject to this rule.

Accordingly, DHS believes that it would be unwarranted for

6

U.S. citizens and aliens exempt from public charge

inadmissibility to disenroll from a public benefit program or

7

forego enrollment in response to this rule when such individuals

are not subject to this rule. DHS will not alter this rule to account

8

for such unwarranted choices.

9

DHS appreciates the potential effects of confusion regarding

the rule's scope and effect, as well as the potential nexus

10

between public benefit enrollment reduction and food

insecurity, housing scarcity, public health and vaccinations,

11

education health-based services, reimbursement to health

providers, and increased costs to states and localities. In

12

response to comments, DHS will also issue clear guidance that

identifies the groups of individuals who are not subject to this

13

rule, including, but not limited to, U.S. citizens, lawful

permanent residents returning from a trip abroad who are not

14

considered applicants for admission, and refugees.

15

. . . .

16

In sum, DHS does not believe that it is sound policy to ignore

the longstanding self-sufficiency goals set forth by Congress or

17

to admit or grant adjustment of status applications of aliens who

are likely to receive public benefits designated in this rule to

18

meet their basic living needs in an [sic] the hope that doing so

might alleviate food and housing insecurity, improve public

19

health, decrease costs to states and localities, or better

guarantee health care provider reimbursements. . . . DHS

20

believes that it will ultimately strengthen public safety, health,

and nutrition through this rule by denying admission or

21

adjustment of status to aliens who are not likely to be self-

sufficient.

22

23 84 Fed. Reg. at 41,312–14 (footnotes omitted).

24

That answer entirely fails to discuss costs being borne by the states, hospitals, or

25 others, other than to say DHS will issue guidance in an effort to mitigate confusion. The

26 answer discusses disenrollment rates being difficult to measure, but flatly refuses to

27 account for certain types of disenrollment (for example those who “erroneously believe

28 themselves to be affected” and make “unwarranted choices”). DHS’s response

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1 constitutes a thinly-veiled abdication of the responsibility to consider the issue. Rather

2 than engage, the response simply elides the issue that the APA requires consideration of.

3

Ending the analysis with the conclusion that “DHS believes that it will ultimately

4 strengthen public safety, health, and nutrition through this rule” fails to show that DHS

5 “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action

6 including a rational connection between the facts found and the choice made.” Encino

7 Motorcars, 136 S. Ct. at 2125 (quoting Motor Vehicle Mfrs. Assn., 463 U.S. at 43);

8 Sorenson Commc’ns Inc. v. F.C.C., 755 F.3d 702, 708 (D.C. Cir. 2014) (“Though an

9 agency’s predictive judgments about the likely economic effects of a rule are entitled to

10 deference, deference to such judgments must be based on some logic and evidence, not

11 sheer speculation.”) (internal quotation marks and citations omitted). DHS fails to explain

12 how those benefits will come about with any evidentiary support. In fact, ample evidence

13 cited in the comments shows exactly the opposite—that use of public benefits improves

14 public health and welfare. DHS’s bare assertion to the contrary simply is not enough to

15 satisfy its obligations. Even ignoring the fact that the conclusion lacks a reasoned

16 explanation of how it was reached, DHS also fails to address why the supposed benefits

17 will outweigh the likely costs (DHS had at this point already declined to discuss what the

18 likely costs are in fact are). Plaintiffs have shown it is likely that, with respect to

19 consideration of costs imposed on states and localities by the Rule, DHS offers no “path

20 [that] may reasonably be discerned” in its reasoning. Motor Vehicle Mfrs. Ass'n, 463 U.S.

21 at 43.

22

Moreover, DHS may not discount an undisputed impact of the Rule simply

23 because DHS believes it is “unwarranted.” See Michigan, 135 S. Ct. at 2707

24 (“reasonable regulation ordinarily requires paying attention to the advantages and the

25 disadvantages of agency decisions”). DHS flatly refused to consider the costs associated

26 with predicted, likely disenrollment of those not subject to the public charge determination

27 by stating: “DHS believes that it would be unwarranted for U.S. citizens and aliens

28 exempt from public charge inadmissibility to disenroll from a public benefit program or

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1 forgo enrollment in response to this rule when such individuals are not subject to this rule.

2 DHS will not alter this rule to account for such unwarranted choices.” 84 Fed. Reg. at

3 41,313. But DHS’s disagreement with the source of a cost does not make it go away,

4 and it does not discharge DHS’s obligation to consider it. DHS must consider the costs

5 of widespread disenrollment that it anticipates—it cannot ignore costs by calling their

6 causes “unwarranted.” Plaintiffs have shown it is likely that DHS understood that

7 individuals would disenroll even though they are not subject to the public charge

8 determination, yet DHS refused to consider that cost entirely. Doing so would have been

9 arbitrary and capricious. Michigan, 135 S. Ct. at 2707 (“‘cost’ includes more than the

10 expense of complying with regulations; any disadvantage could be termed a cost. . . .

11 Consideration of cost reflects the understanding that reasonable regulation ordinarily

12 requires paying attention to the advantages and the disadvantages of agency

13 decisions.”); accord Metlife, Inc. v. Fin. Stability Oversight Council, 177 F. Supp. 3d 219,

14 223 (D.D.C. 2016) (“focus[ing] exclusively on the presumed benefits . . . and ignor[ing]

15 the attendant costs . . . is itself unreasonable under the teachings of Michigan v.

16 Environmental Protection Agency”); Regents of Univ. of California v. United States Dep't

17 of Homeland Sec., 279 F. Supp. 3d 1011, 1046 (N.D. Cal.), aff'd sub nom. Regents of the

18 Univ. of California v. U.S. Dep't of Homeland Sec., 908 F.3d 476 (9th Cir. 2018), cert.

19 granted sub nom. Dep't of Homeland Sec. v. Regents of the Univ. of California, 139 S.

20 Ct. 2779 (2019) (same).

21

B. Health Effects

22

Plaintiffs argue that DHS ignored comments describing how loss of benefits would

23 trigger negative health consequences, including the spread of disease and aggravation of

24 chronic illness. DHS received ample commentary regarding this issue. See, e.g., 84

25 Fed. Reg. at 41,384 (summarizing certain comments); Cho Decl., Ex. M at 4 (Kaiser

26 Permanente comment linking the rule’s impacts on prescription adherence with increased

27 chance of outbreaks of communicable disease), Ex. N at 9 (Pub. Health Inst. Comment:

28 “We cannot achieve universally agreed upon public health goals, such as reducing

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1 chronic diseases throughout the U.S., when we directly or indirectly deny large segments

2 of our population the very building blocks they need for good health”), Ex. O at 4 (Nat’l

3 Assoc. Ped. Nurse Practitioners comment discussing “worse health outcomes”), P at 7

4 (Children’s HealthWatch comment warning of “increased prevalence of communicable

5 diseases”).

6

Defendants offer the same general defenses in response. First, DHS read the

7 comments, but the forward-looking impact to health was too difficult to assess. Second,

8 even if DHS had assessed those costs, they would be outweighed by the benefits of

9 excluding aliens who would rely on public benefits and promoting self-sufficiency of aliens

10 already in the United States. Those benefits are in line with Congressional statements of

11 policy.

12

Relevantly here, similar negative health outcomes were a key rationale for prior

13 agency action. When issuing the 1999 guidance, INS described its primary motivation “to

14 reduce the negative public health consequences generated by the existing confusion.”

15 64 Fed. Reg. at 28,689; see also id. at 28,692 (adopting regulation on an interim basis

16 because “confusion . . . has deterred eligible [immigrants] and their families, including

17 U.S. citizen children, from seeking important health and nutrition benefits,” and that

18 “reluctance to access benefits has an adverse impact not just on the potential recipients,

19 but on public health and the general welfare”). In reversing the 1999 guidance,

20 defendants must “‘display awareness that it is changing position’ and ‘show that there are

21 good reasons for the new policy.’” Encino Motorcars, 136 S. Ct. at 2126 (quoting FCC v.

22 Fox, 556 U.S. at 515). Moreover, where the prior policy engendered reliance, “a

23 reasoned explanation is needed for disregarding facts and circumstances that underlay

24 or were engendered by the prior policy.” Id.

25

Under the heading “Vaccinations,” the government summarized the comments it

26 was responding to:

27

Commenters indicated that the public charge rule would make

immigrant families afraid to seek health-care, including

28

vaccinations against communicable diseases, and therefore,

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endanger the U.S. population. . . . . The commenter indicated

1

that engaging with the public health system was critical to

ensuring robust immunization to protect the population overall;

2

if a subset of the community were fearful to access government

healthcare services, regardless of whether a specific type of

3

service qualified for a narrow exception, it would have a

significant impact on the country's ability to protect and promote

4

the public health. Another commenter indicated that its health

department anticipated that promulgation of the rule, as written

5

in the NPRM, will result in decreased utilization of children's

healthcare, including vaccinations, which will increase the risk

6

for vaccine preventable diseases . . . increasing the likelihood

of an outbreak. 7

Some commenters stated that since many immigrants live in

8

communities alongside people of the same national origin,

reduced vaccinations could result in unvaccinated or under-

9

vaccinated clusters of individuals. Commenters warned that

research shows that uninsured individuals are much less likely

10

to be vaccinated. One commenter stated that a recent study

found that even a five percent reduction in vaccine coverage

11

could trigger a significant measles outbreak. . . . Another

commenter stated that the rule would increase the incidence of

12

childhood diseases like chickenpox, measles, mumps and

rubella and deter parents from vaccinating their children. 13

14 84 Fed. Reg. at 41,384.

15 The government’s response was:

16

With this rulemaking, DHS does not intend to restrict the access

of vaccines for children or adults or intend to discourage

17

individuals from obtaining the necessary vaccines to prevent

vaccine-preventable diseases. The purpose of this rulemaking

18

is to ensure that those seeking admission to the United States

are self-sufficient and rely on themselves or family and friends

19

for support instead of relying on the government for

subsistence. As noted above, this final rule does not consider

20

receipt of Medicaid by a child under age 21, or during a person's

pregnancy, to constitute receipt of public benefits. This should

21

address a substantial portion, though not all, of the vaccinations

issue. 22

Vaccinations obtained through public benefits programs are not

23

considered public benefits under 8 CFR 212.21(b), although if

an alien enrolls in Medicaid for the purpose of obtaining

24

vaccines, the Medicaid itself qualifies as a public benefit. DHS

also notes that free or low cost vaccines are available to

25

children who are not insured or underinsured through the

Vaccines for Children (VFC) Program. In addition, local health

26

centers and state health departments provide preventive

services that include vaccines that may be offered on a sliding

27

scale fee based on income. Therefore, DHS believes that

vaccines would still be available for children and adults even if

28

they disenroll from Medicaid.

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1 84 Fed. Reg. at 41,384–85 (footnotes omitted).

2

DHS’s response to the comments was essentially that it understood that fewer

3 people would get vaccines following the Rule, which would present a risk, but there are

4 ways to get vaccines without Medicaid. As a result, DHS acknowledged that fewer

5 people will get vaccines, but it failed engage at all in the consequences of that fact.

6

Plaintiffs have demonstrated a likelihood of success based upon this argument.

7 This change departs from a longstanding prior policy, as explained in the 1999 Field

8 Guidance, that is likely to have engendered reliance. That guide explained that certain

9 rules were needed because uncertainty had “deterred eligible aliens and their families,

10 including U.S. citizen children, from seeking important health and nutrition benefits[,

11 which] . . . has an adverse impact not just on the potential recipients, but on public

12 health and the general welfare.” 64 Fed. Reg. at 28,692 (emphasis added). Given that

13 the 1999 Field Guidance was both longstanding precedent and specifically concerned

14 benefits supporting general public health (not simple health of the aliens—e.g., vaccines),

15 DHS must provide “a reasoned explanation . . . for disregarding facts and circumstances

16 that underlay or were engendered by the prior policy.” FCC v. Fox, 556 U.S. at 515–16;

17 accord Encino Motorcars, 136 S. Ct. at 2126 (“an unexplained inconsistency in agency

18 policy is a reason for holding an interpretation to be an arbitrary and capricious change

19 from agency practice”) (internal quotation marks omitted).

20

Although DHS acknowledged departure from the 1999 Field Guidance as a

21 general matter (e.g., 84 Fed. Reg. at 41,307–08), DHS simply declined to engage with

22 certain, identified public-health consequences of the Rule. It made no attempt,

23 whatsoever, to investigate the type or magnitude of harm that would flow from the reality

24 which it admittedly recognized would result—fewer people would be vaccinated. Instead,

25 and just as with its refusal to consider “unwarranted” choices to disenroll from Medicaid

26 discussed above, DHS responded only that it “believes that vaccines would still be

27 available” through some other channels. The response is devoid of rationale, but

28 additionally it fails entirely to provide a reasoned explanation for disregarding the facts

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1 and circumstances underlying the prior policy.

2

C. Form I-944

3

Plaintiffs argue that defendants’ estimate of the time and cost burden that the new

4 Form I-944, entitled Declaration of Self Sufficiency, will have on applicants is implausible.

5 They argue that the Rule provides too-low of an estimate for the time required to fill out

6 the form, based on its estimate about the time it takes to fill out another related form.

7 They argue that DHS did not adequately consider the differences between the forms

8 when arriving at their estimate. Yet DHS considered and responded to comments

9 regarding the time commitment required by Form I-944. In response DHS modified the

10 form, removed some duplicative questions, and explained that it is important to be filed

11 separately because it is filed by the immigrant himself. 84 Fed. Reg. at 41,484. Plaintiffs

12 have not demonstrated a likelihood of success or serious questions with respect to this

13 argument.

14

ii. Other Challenges

15

Plaintiffs raise a number of other procedural challenges under the APA. The court

16 finds that plaintiffs have not demonstrated a likelihood of success on the merits or serious

17 questions with respect to any, and it will address some of them briefly.

18

Plaintiffs argue that the Rule stops treating sponsors’ affidavits of support as

19 sufficient assurance that immigrant applicants will not become overly dependent on

20 public benefits, yet Congress specified in 8 U.S.C. § 1182(a)(4)(B)(ii) that the executive

21 simply “may also” consider such affidavits. Although plaintiffs argue that in practice

22 USCIS has accepted affidavits of support as conclusive, the controlling statute and 1999

23 Field Guidance make clear that this is not a change in policy. See 64 Fed. Reg. at

24 28,690 (“Where such an AOS has been filed on an alien's behalf, it should be considered

25 along with the statutory factors in the public charge determination.”).

26

Plaintiffs argue the Rule is inconsistent because DHS included an exemption for

27 individuals under the age of 21 who receive Medicaid benefits, but did not include a

28 similar exemption for individuals under the age of 21 who receive SNAP benefits. DHS

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1 considered this issue and provided a reasoned explanation for providing Medicaid to

2 children, including that it can provide funding for “in-school health services and serve as

3 an important way to ensure that children receive the vaccines needed to protect public

4 health and welfare.” 84 Fed. Reg. at 41,380.

5

Plaintiffs argue the Rule is inconsistent because the statute requires consideration

6 of “education and skills” and “health,” but the Rule requires a much more searching

7 inquiry into health than education and skills. For example, the Rule considers details

8 about an individual’s health insurance, benefits receipt, and financial status of household

9 members, but inconsistently fails to take into account admission or attendance in a

10 college or trade school. But the Rule in fact allows for consideration of admission or

11 attendance in a college or trade school, and DHS adequately addressed these issues in

12 response to comments. See 84 Fed. Reg. at 41,436 (“the exact nature of the education

13 (or lack thereof) and employment would have to be considered”).

14

Plaintiffs argue the Rule is inconsistent because it considers past immigration-

15 related fee waivers, which may be submitted before a noncitizen is legally eligible to work

16 and as a result punish that individual for applying to work legally. DHS adequately

17 responded, noting that “[s]ince fee waivers are based on an inability to pay, seeking or

18 obtaining a fee waiver for an immigration benefit suggests an inability to be self-

19 sufficient.” 84 Fed. Reg. at 41,424–25.

20

Plaintiffs argue the Rule is inconsistent because Medicaid use by pregnant women

21 or children (who are not penalized for using Medicaid under the rule) is counted against

22 them, because Medicaid is not counted as an asset that could offset the negative factor

23 of their illness that Medicaid is paying to treat. Plaintiffs argue that is not consistent,

24 because private insurance is considered an asset. Defendants argue that the Rule does

25 not count a severe medical condition as a heavily weighed negative factor if the alien has

26 “the financial resources to pay for reasonably foreseeable medical costs related to such

27 medical condition,” and such “financial resources” can include Medicaid benefits for those

28 pregnant or under 21. See 84 Fed. Reg. at 41,504 (“resources . . . to pay for reasonably

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1 foreseeable medical costs” includes “health insurance not designated as a public benefit

2 under 8 CFR 212.21(b)”).

3

Plaintiffs argue the Rule is irrational because an income of 125% of the federal

4 poverty guideline rate counts as a positive factor, yet individuals whose incomes exceed

5 that qualify for non-cash benefits considered under the Rule. But not all factors in a

6 multifactor test are required to align in outcome to be rational.

7

Plaintiffs argue the Rule is irrational because while it considers large family size as

8 a negative factor in a public charge assessment, DHS’s own data indicates that non-cash

9 benefit is higher among families of three than families of four, and that noncitizens’ use of

10 cash benefits decreases as family size grows. 84 Fed. Reg. at 41,395. The parties

11 appear to disagree about which studies are “good studies” here, but DHS’s response

12 explained its interpretation of the studies and concluded that “the data properly reflects

13 that receipt of noncash benefits generally increases with an increase in family size.” Id.

14

Plaintiffs argue the Rule is irrational because it considers the mere application for

15 benefits in the public charge determination. Plaintiffs argue that an application for

16 benefits does not indicate a noncitizen is actually financially and otherwise eligible for the

17 benefit or will decide to use the benefit. DHS reasonably explained that an “application

18 for a public benefit is not the same as receipt but is indicative of an alien's intent to

19 receive such a benefit.” 84 Fed. Reg. at 41,422.

20

Plaintiffs argue the Rule is irrational because it is ultimately a vague and entirely

21 unpredictable framework for weighing the statutorily-authorized and newly-added factors,

22 which results in limitless discretion. The precise nature of the procedural challenge is

23 unclear here, but the underlying statute requires consideration of “at minimum” five

24 factors, and then specifically mentions another factor that “may” be considered.

25 Moreover, the statute specifically targets those who are likely to be a public charge “in the

26 opinion of the Attorney General,” who as DHS recognized has long been given discretion

27 to make such determinations under the statute. 84 Fed. Reg. at 41,398 (“DHS notes that

28 officer discretion is not a new concept in USCIS immigration benefits adjudications.”).

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1

Plaintiffs argue the Rule is irrational because some factors are actually

2 determinative, and impossible to overcome because the factors significantly overlap. As

3 a result, the Rule funnels officials’ decision-making towards favoring high-income

4 individuals at the expense of the poor and other marginalized groups. To the extent

5 plaintiffs challenge the Rule favoring admission of the wealthy over the poor, the plaintiffs’

6 appropriate target is the underlying statute rather than the Rule implementing it. The

7 statute itself calls for consideration of a number of factors, ultimately aimed at excluding

8 from the country a group comprised of those who are more likely to be poor than rich.

9

d. Zone of Interests

10

In order to succeed on the merits, plaintiffs must be within the zone of interests of

11 the statute that forms the basis of their challenge. The zone of interests analysis asks

12 “whether Congress created a private cause of action in legislation” (Organized Vill. of

13 Kake v. U.S. Dep't of Agric., 795 F.3d 956, 964 (9th Cir. 2015)), such that “this particular

14 class of persons has a right to sue under this substantive statute” (Lexmark Int'l, Inc. v.

15 Static Control Components, Inc., 572 U.S. 118, 127 (2014)). It is “not a question of

16 Article III standing” (Organized Vill. of Kake, 795 F.3d at 964), but rather is more

17 appropriately assessed with plaintiffs’ likelihood of success.19

18

“[A] person suing under the APA must satisfy not only Article III's standing

19 requirements, but an additional test: The interest he asserts must be ‘arguably within the

20 zone of interests to be protected or regulated by the statute’ that he says was

21 violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567

22 U.S. 209, 224 (2012) (quoting Ass'n of Data Processing Serv. Organizations, Inc. v.

23 Camp, 397 U.S. 150, 153 (1970)). In the APA context, “[t]he ‘zone of interest’ test is a

24 guide for deciding whether, in view of Congress’ evident intent [when enacting the APA]

25 to make agency action presumptively reviewable, a particular plaintiff should be heard to

26

27

19 The “zone of interests” requirement was formerly referred to as an assessment of “prudential standing,” but “prudential standing is a misnomer as applied to the zone-of-

28

interests analysis[.]” Lexmark, 572 U.S. at 127 (internal quotation marks omitted); accord Organized Vill. of Kake, 795 F.3d at 964 (9th Cir. 2015).

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1 complain of a particular agency decision. In cases where the plaintiff is not itself the

2 subject of the contested regulatory action, the test denies a right of review if the plaintiff’s

3 interests are so marginally related to or inconsistent with the purposes implicit in the

4 statute that it cannot reasonably be assumed that Congress intended to permit the suit.

5 The test is not meant to be especially demanding; in particular, there need be no

6 indication of congressional purpose to benefit the would-be plaintiff.” Clarke v. Sec.

7 Indus. Ass'n, 479 U.S. 388, 399–400 (1987) (footnote omitted); see also Pottawatomi

8 Indians, 567 U.S. at 225–26 (2012).

9

“Whether a plaintiff comes within the ‘zone of interests’ is an issue that requires us

10 to determine, using traditional tools of statutory interpretation, whether a legislatively

11 conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark, 572 U.S.

12 at 127. “In answering this question, we recognize that ‘the breadth of the [applicable]

13 zone of interests varies according to the provisions of law at issue.’” Sierra Club v.

14 Trump, 929 F.3d 670, 700 (9th Cir. 2019) (quoting Lexmark, 572 U.S. at 130). “When the

15 [Supreme] Court has applied the zone of interests test in APA actions, however, it has

16 analyzed the zone of interests of the statute the agency is alleged to have violated, not

17 any zone of interests of the APA itself.” Id. at 702; accord Mendoza v. Perez, 754 F.3d

18 1002, 1016 (D.C. Cir. 2014). Nevertheless, “when analyzing whether a plaintiff falls

19 within the zone of interests of a particular statute, courts should be particularly lenient if a

20 violation of that statute is being asserted through an APA claim.” Id. at 703 n.26; accord

21 Pottawatomi Indians, 567 U.S. at 225 (“we have always conspicuously included the word

22 ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff”); Pit

23 River Tribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1155–56 (9th Cir. 2015) (“The

24 zone-of-interests test should be applied consistent with Congress's intent ‘to make

25 agency action presumptively reviewable’ under the APA.”).

26

Procedural and substantive challenges under the APA are subject to the same

27 analysis, because “a party within the zone of interests of any substantive authority

28 generally will be within the zone of interests of any procedural requirement governing

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1 exercise of that authority[.]” Int'l Bhd. of Teamsters v. Pena, 17 F.3d 1478, 1484 (D.C.

2 Cir. 1994).

3

“Whether a plaintiff's interest is ‘arguably ... protected ... by the statute’ within the

4 meaning of the zone-of-interests test is to be determined not by reference to the overall

5 purpose of the Act in question (here [in the context of the Endangered Species Act],

6 species preservation), but by reference to the particular provision of law upon which the

7 plaintiff relies.” Bennett v. Spear, 520 U.S. 154, 175–76 (1997). Put differently, “the

8 plaintiff must establish that the injury he complains of ... falls within the ‘zone of interests'

9 sought to be protected by the statutory provision whose violation forms the legal basis for

10 his complaint.” Id. at 176 (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 883 (1990))

11 (citing Air Courier Conference v. Postal Workers, 498 U.S. 517, 523–24 (1991)). For

12 example, an allegation that § 4 of the Bank Service Corporation Act was violated

13 considers whether plaintiffs are within the zone of interests of § 4 itself, not “the overall

14 purpose of the Bank Service Corporation Act of 1962[.]” Id. (citing Data Processing, 397

15 U.S. at 155–156); accord Air Courier Conference, 498 U.S. at 529–30 (The “relevant

16 statute” is generally not the entire act, because “to accept this level of generality in

17 defining the ‘relevant statute’ could deprive the zone-of-interests test of virtually all

18 meaning.”); Pit River Tribe, 793 F.3d at 1157 (“ability to challenge . . . cannot be

19 determined by looking to the broad objectives of the” act); but see E. Bay Sanctuary

20 Covenant v. Trump, 932 F.3d 742, 768 n.9 (9th Cir. 2018) (“E. Bay Sanctuary I”) (“‘[W]e

21 are not limited to considering the [specific] statute under which [plaintiffs] sued, but may

22 consider any provision that helps us to understand Congress' overall purposes in the

23 [INA].’”) (quoting Clarke, 479 U.S. at 401).

24

Although the relevant statute “is the statute whose violation is the gravamen of the

25 complaint” and not the entire act, the court may also look to provisions that “have any

26 integral relationship” with the relevant statute. Air Courier Conference, 498 U.S. at 529–

27 30 (quoting Lujan, 497 U.S. at 886) (citing Clarke, 479 U.S. at 388). For example, when

28 the challenged statutory section operates as an enumerated exception to another

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1 section, the court may consider both sections when determining whether a plaintiff falls

2 within the zone of interests of the challenged section. Clarke, 479 U.S. at 401

3 (considering related statutory section to which challenged statute was an exception);

4 accord Air Courier Conference, 498 U.S. at 529 (recognizing the exception in Clarke as

5 limited: “This statement [that the court may look beyond the specific challenged section],

6 like all others in our opinions, must be taken in the context in which it was made. In the

7 next paragraph of the opinion, the Court pointed out that 12 U.S.C. § 36, which the

8 plaintiffs in that case claimed had been misinterpreted by the Comptroller, was itself ‘a

9 limited exception to the otherwise applicable requirement of [12 U.S.C.] § 81,’ . . . . Thus

10 the zone-of-interests test was to be applied not merely in the light of § 36, which was the

11 basis of the plaintiffs' claim on the merits, but also in the light of § 81, to which § 36 was

12 an exception.”).

13

i. The County and State Plaintiffs

14

The County and State plaintiffs’ interests are squarely within the challenged

15 statute’s zone of interests. For example, that statute allows the Attorney General to

16 consider an affidavit of support under 8 U.S. Code § 1183a when determining whether to

17 exclude an alien as a likely public charge. See 8 U.S.C. §§ 1182(a)(4)(B)(ii). Although

18 distinct, Section 1183a is specifically referred to and incorporated into the public charge

19 analysis set out in the challenged statute. As a result, § 1183a has an integral

20 relationship with § 1182(a)(4), such that it should be considered when determining

21 whether plaintiffs are within the zone of interests of the challenged statute.

22

Section 1183a explains that someone can sponsor an alien by guaranteeing to

23 financially support him, and thereby alleviate the concern that he may become a public

24 charge. That statute also provides that any such sponsorship can only be considered in

25 the public charge analysis if it is supported by an affidavit that is “legally enforceable

26 against the sponsor by . . . any State (or any political subdivision of such State), or by any

27 other entity that provides any means-tested public benefit[.]” § 1183a(a)(1)(B); see also

28 § 1183a(b)(1)(A) (“Upon notification that a sponsored alien has received any means-

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1 tested public benefit, the . . . appropriate entity of the Federal Government, a State, or

2 any political subdivision of a State shall request reimbursement by the sponsor in an

3 amount which is equal to the unreimbursed costs of such benefit.”). Moreover, the

4 sponsor must agree to submit to jurisdiction in state courts for actions to compel

5 reimbursement of benefits those states paid to the alien. §§ 1183a(a)(1)(C), (e)(2).

6

By recognizing that states (and political subdivisions of states) would be paying

7 means-tested public benefits to those subject to a public charge analysis, requiring that

8 states and their subdivisions have legally-enforceable rights to recover those expenses

9 when an alien is admitted based on consideration of an affidavit of support, and

10 guaranteeing state-court jurisdiction for such enforcement actions, Congress clearly

11 intended to protect states and their political subdivisions with the challenged statute.

12

Moreover, given the attention paid to states’ rights to recover payment of “any

13 means-tested public benefit” from affiants in § 1183a, it is also more than arguable that

14 Congress intended to protect states and their political subdivisions’ coffers when

15 providing for the exclusion of any alien “likely at any time to become a public charge” in

16 the first place. 8 U.S.C. §§ 1182(a)(4)(A). So, the State and County plaintiffs’ financial

17 interests are also at least arguably protected by the statute for this independent reason.

18

Therefore, the States’ and Counties’ interests are more than arguably related to

19 the challenged statute’s purpose, and they satisfy the zone-of-interests requirement.

20

ii. The Organizations

21

The Organizations move for an injunction based on one claim that the Rule

22 violates the APA because it is substantively contrary to the term “public charge” as used

23 in 8 U.S.C. § 1182(a)(4), and a related procedural APA claim based on the same

24 underlying statute. As such, the Organizations must be within that statute’s zone of

25 interest.

26

Their papers argue that they are within the statute’s zone of interests for three

27 reasons. First, the Rule itself counts health care providers and nonprofit organizations

28 among those who will be affected by it. Second, plaintiffs’ interests in serving low-

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1 income, immigrant communities by providing medical or legal services and advice are

2 related to and consistent with the statute’s purpose to provide procedures and policies for

3 immigration relief. Third, and relatedly, the Ninth Circuit has recently held that similar

4 plaintiffs are within the INA’s zone of interests.

5

First, the Organizations argue the Rule itself contemplates that organizations like

6 them will be adversely affected by it. But being negatively affected by a rule

7 implementing a statute is not sufficient to establish that the statute conferred a cause of

8 action encompassing that plaintiff’s claim. The Organizations’ argument that they will be

9 hurt by the Rule speaks to their standing to challenge it, rather than whether they are

10 within the statute’s zone of interest. See Air Courier Conference, 498 U.S. at 524 (“injury

11 in fact does not necessarily mean one is within the zone of interests to be protected by a

12 given statute”); see also Lujan, 497 U.S. at 883 (“for example, the failure of an agency to

13 comply with a statutory provision requiring ‘on the record’ hearings would assuredly have

14 an adverse effect upon the company that has the contract to record and transcribe the

15 agency's proceedings; but since the provision was obviously enacted to protect the

16 interests of the parties to the proceedings and not those of the reporters, that company

17 would not be ‘adversely affected within the meaning’ of the statute”).

18

Second, the Organizations argue that their interests align with the statute. Yet

19 their briefing failed to identify or explain what statutory provisions support their argument.

20 That failure is fatal given the Supreme Court’s direction that the zone of interests analysis

21 “requires us to determine, using traditional tools of statutory interpretation, whether a

22 legislatively conferred cause of action encompasses a particular plaintiff’s claim.”

23 Lexmark, 572 U.S. at 127. When asked at the hearing what specific statutory provisions

24 they are relying upon, the Organizations for the first time identified 8 U.S.C. § 1611. That

25 section outlines the federal public benefits for which aliens are eligible. But the

26 Organizations do not assert a challenge based on a violation of § 1611, and it is not at all

27 clear that § 1611 has “any integral relationship with” 8 U.S.C. § 1182(a)(4) such that it is

28 proper for the court to consider it in the zone of interests inquiry. See Air Courier

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1 Conference, 498 U.S. at 529 (without a particular reason to suggest otherwise, sections

2 within the same act are not sufficiently related); cf. Clarke, 479 U.S. at 401 (considering

3 related statutory section to which challenged statute was an exception).

4

Even if the court were to consider § 1611, the Organizations leave the court to

5 guess at what connection those statutory provisions share, much less how 8 U.S.C.

6 § 1182(a)(4) is related to the Organizations’ purposes in light of § 1611. Finally, the

7 Organizations do not even explain how their interests are more than marginally related to

8 § 1611 itself—which does not even “give institutions like the Organizations a role[.]” E.

9 Bay Sanctuary I, 932 F.3d at 769.

10

At this stage of litigation, the Organizations have not met their burden to

11 demonstrate that there are serious questions concerning whether they are within the

12 challenged statute’s zone of interest, and certainly they have failed to demonstrate a

13 likelihood that they are able to bring the APA actions underlying their present motion.

14

Taking a step back, the Organizations simply fail to explain how their interests

15 relate to § 1182(a)(4)’s purpose of excluding immigrants likely to become public charges.

16 This may be because the Organizations identify, without explanation, the statute’s

17 purpose as providing “procedures and policies for immigration relief.” That may be based

18 on an argument about the INA’s overall statutory purpose, untethered to the statutory

19 challenge underlying this motion. In support of that argument, the Organizations rely on

20 E. Bay Sanctuary I, 932 F.3d at 771. But the statute at issue in that action concerned

21 asylum seekers, and the very statute underlying that challenge contained a provision

22 requiring the Attorney General to refer asylum seekers to pro bono legal aid

23 organizations, such as the plaintiff entities in that action. The court identified specific

24 references to the role of pro bono legal organizations within the challenged statute itself,

25 and it found that was sufficient. That is very different from the facts presented here. See

26 E. Bay Sanctuary I, 932 F.3d at 768 (“Within the asylum statute [underlying the

27 preliminary injunction, 8 U.S.C. § 1158(a)(1)], Congress took steps to ensure that pro

28 bono legal services of the type that the Organizations provide are available to asylum

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1 seekers. See 8 U.S.C. § 1158(d)(4)(A)–(B)”).20

2

2. Plaintiffs are Likely to Suffer Irreparable Harm

3

The three distinct issues of (i) standing, (ii) ripeness, and (iii) irreparable harm in

4 the absence of an injunction are supported by the same factual analysis for each plaintiff.

5 Although each of the three requirements is independent for plaintiffs to succeed on this

6 motion, a finding that plaintiffs are likely to suffer irreparable harm in the absence of an

7 injunction here is sufficient to establish standing and ripeness. For the Organizations, the

8 court assesses only standing and ripeness.

9

The court first addresses the legal standards, and then assesses each plaintiff’s

10 demonstrated harms.

11

a. Legal Standards

12

i. Standing

13

Federal courts may adjudicate only actual cases or controversies, see U.S. Const.

14 Art. III, § 2, and may not render advisory opinions as to what the law ought to be or

15 affecting a dispute that has not yet arisen. Aetna Life Ins. Co. of Hartford, Conn. v.

16 Haworth, 300 U.S. 227, 240 (1937). Article III's “standing” requirements limit the court’s

17 subject matter jurisdiction. See Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir.

18 2004). The burden of establishing standing rests on the party asserting the claim.

19 Renne v. Geary, 501 U.S. 312, 316 (1991).

20

The “irreducible constitutional minimum of standing contains three elements. First,

21 the plaintiff must have suffered an injury in fact—an invasion of a legally protected

22 interest which is (a) concrete and particularized, and (b) actual or imminent, not

23 conjectural or hypothetical. Second, there must be a causal connection between the

24 injury and the conduct complained of—the injury has to be fairly traceable to the

25

26

20 To the extent the Organizations argue that E. Bay Sanctuary I, 932 F.3d at 771 allows this court to look to unrelated provisions in the INA for a section justifying their interest in

27

the action, the court is at a loss as how to how reconcile that interpretation with Bennett, 520 U.S. at 175–76, Air Courier Conference, 498 U.S. at 529, and Pit River Tribe, 793

28

F.3d at 1157. Absent clarity from an en banc determination of this issue, the court hews to Supreme Court and prior panel authority on the question.

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1 challenged action of the defendant, and not the result of the independent action of some

2 third party not before the court. Third, it must be likely, as opposed to merely speculative,

3 that the injury will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504

4 U.S. 555, 560–61 (1992) (citations and internal quotation marks omitted); see also

5 Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

6

“At least one plaintiff must have standing to seek each form of relief

7 requested, and that party bears the burden of establishing the elements of standing with

8 the manner and degree of evidence required at the successive stages of the litigation.”

9 E. Bay Sanctuary I, 932 F.3d at 763–64 (internal quotation marks and citations omitted).

10 At this preliminary stage, plaintiffs “may rely on the allegations in their Complaint and

11 whatever other evidence they submitted in support of their” motion to meet their

12 burden. Id. at 764. They “need only establish a risk or threat of injury to satisfy the

13 actual injury requirement.” Id.

14

Organizations can establish standing two different ways.

15

First, “Organizations can demonstrate organizational standing by showing that the

16 challenged ‘practices have perceptibly impaired [their] ability to provide the services [they

17 were] formed to provide.’” Id. at 765. “[A] diversion-of-resources injury is sufficient to

18 establish organizational standing for purposes of Article III if the organization shows that,

19 independent of the litigation, the challenged policy frustrates the organization's goals and

20 requires the organization to expend resources in representing clients they otherwise

21 would spend in other ways.” Id. (internal quotation marks and citations omitted) (citing

22 inter alia, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d

23 936, 943 (9th Cir. 2011) (en banc) (advocacy groups had organizational standing to

24 challenge an anti-solicitation ordinance that targeted day laborers based on the

25 resources spent by the groups in assisting day laborers during their arrests and meetings

26 with workers about the status of the ordinance); Nat'l Council of La Raza v. Cegavske,

27 800 F.3d 1032, 1039–40 (9th Cir. 2015) (civil rights groups had organizational standing to

28 challenge alleged voter registration violations where the groups had to “expend additional

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1 resources” to counteract those violations that “they would have spent on some other

2 aspect of their organizational purpose”); El Rescate Legal Servs., Inc. v. Exec. Office of

3 Immigration Review, 959 F.2d 742, 748 (9th Cir. 1991) (legal services groups had

4 organizational standing to challenge a policy of providing only partial interpretation of

5 immigration court proceedings, noting that the policy “frustrate[d]” the group's “efforts to

6 obtain asylum and withholding of deportation in immigration court proceedings” and

7 required them “to expend resources in representing clients they otherwise would spend in

8 other ways.”); Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013) (finding

9 organizational standing where the plaintiffs “had to divert resources to educational

10 programs to address its members’ and volunteers’ concerns about the [challenged] law's

11 effect”)).

12

In E. Bay Sanctuary I, the Ninth Circuit held that plaintiffs established

13 organizational standing by declaring that enforcement of a regulation “frustrated their

14 mission of providing legal aid” to asylum applicants by “significantly discourage[ing] a

15 large number of those individuals from seeking asylum given their ineligibility.” 932 F.3d

16 at 766. That regulation would require plaintiffs “to partially convert their affirmative

17 asylum practice into a removal defense program, an overhaul that would require

18 ‘developing new training materials’ and ‘significant training of existing staff.’” Id. “Finally,

19 the [plaintiff] Organizations have each undertaken, and will continue to undertake,

20 education and outreach initiatives regarding the new rule, efforts that require the

21 diversion of resources away from other efforts to provide legal services to their local

22 immigrant communities.” Id.

23

Second, “Organizations can demonstrate organizational standing by showing that

24 the Rule will cause them to lose a substantial amount of funding. For standing purposes,

25 a loss of even a small amount of money is ordinarily an ‘injury.’ We have held that an

26 organization that suffers a decreased amount of business and lost revenues due to a

27 government policy easily satisfies the ‘injury in fact’ standing requirement.” Id. at 766–67

28 (internal quotation marks and citations omitted).

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1

In E. Bay Sanctuary I, the Ninth Circuit held that plaintiffs established

2 organizational standing by declaring that they received a large portion of their funding

3 based on the number of asylum applications they pursue, and that if their prospective

4 clients “became categorically ineligible for asylum, East Bay would lose a significant

5 amount of business and suffer a concomitant loss of funding.” Id. at 767.

6

ii. Ripeness

7

“Ripeness is an Article III doctrine designed to ensure that courts adjudicate live

8 cases or controversies and do not ‘issue advisory opinions [or] declare rights in

9 hypothetical cases.’ A proper ripeness inquiry contains a constitutional and a prudential

10 component.” Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1153 (9th Cir. 2017)

11 (citations omitted).

12

“For a case to be ripe, it must present issues that are definite and concrete, not

13 hypothetical or abstract. Constitutional ripeness is often treated under the rubric of

14 standing because ripeness coincides squarely with standing’s injury in fact prong.” Id.

15 (internal quotation marks and citations omitted); Thomas v. Anchorage Equal Rights

16 Comm'n, 220 F.3d 1134, 1138–39 (9th Cir. 2000) (“Sorting out where standing ends and

17 ripeness begins is not an easy task. . . . . [I]n ‘measuring whether the litigant has

18 asserted an injury that is real and concrete rather than speculative and hypothetical, the

19 ripeness inquiry merges almost completely with standing.’”). Allegations that a “threat” to

20 a “concrete interest is actual and imminent” are sufficient to allege “an injury in fact that

21 meets the requirements of constitutional ripeness.” Bishop Paiute Tribe, 863 F.3d at

22 1154. Therefore, if plaintiffs satisfy the Article III standing requirements under Lujan v.

23 Defs. of Wildlife, addressed above, the action here is ripe. In this case, the analysis for

24 both requirements is the same. See, e.g., Thomas, 220 F.3d at 1139 (“Whether the

25 question is viewed as one of standing or ripeness, the Constitution mandates that prior to

26 our exercise of jurisdiction there exist a constitutional ‘case or controversy,’ that the

27 issues presented are ‘definite and concrete, not hypothetical or abstract.’ . . . We need

28 not delve into the nuances of the distinction between the injury in fact prong of standing

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1 and the constitutional component of ripeness: in this case, the analysis is the same.”).

2

“In evaluating the prudential aspects of ripeness, our analysis is guided by two

3 overarching considerations: ‘the fitness of the issues for judicial decision and the

4 hardship to the parties of withholding court consideration.’” Thomas, 220 F.3d at 1141.

5 When the question presented “is ‘a purely legal one’” that “constitutes ‘final agency

6 action’ within the meaning of § 10 of the APA,” that suggests the issue is fit for judicial

7 decision. Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 812 (2003). However,

8 an issue may not be ripe for review if “further factual development would ‘significantly

9 advance our ability to deal with the legal issues presented.’” Id.

10

iii. Irreparable Harm

11

“A plaintiff seeking preliminary relief must ‘demonstrate that irreparable injury is

12 likely in the absence of an injunction.’” California v. Azar, 911 F.3d 558, 581 (9th Cir.

13 2018) (quoting Winter, 555 U.S. at 22); Boardman v. Pac. Seafood Grp., 822 F.3d 1011,

14 1023 (9th Cir. 2016) (“A threat of irreparable harm is sufficiently immediate to warrant

15 preliminary injunctive relief if the plaintiff ‘is likely to suffer irreparable harm before a

16 decision on the merits can be rendered.’”) (quoting Winter, 555 U.S. at 22)).

17

“There must be a ‘sufficient causal connection’ between the alleged irreparable

18 harm and the activity to be enjoined, and showing that ‘the requested injunction would

19 forestall’ the irreparable harm qualifies as such a connection.” Nat'l Wildlife Fed'n v. Nat'l

20 Marine Fisheries Serv., 886 F.3d 803, 819 (9th Cir. 2018) (citing Perfect 10, Inc. v.

21 Google, Inc., 653 F.3d 976, 981–82 (9th Cir. 2011)). “However, a plaintiff ‘need not

22 further show that the action sought to be enjoined is the exclusive cause of the injury.’” Id.

23 (quoting M.R. v. Dreyfus, 697 F.3d 706, 728 (9th Cir. 2012)).

24

The irreparable harm “analysis focuses on irreparability, ‘irrespective of the

25 magnitude of the injury.’” Azar, 911 F.3d at 581 (quoting Simula, Inc. v. Autoliv, Inc., 175

26 F.3d 716, 725 (9th Cir. 1999)). “[T]he temporary loss of income, ultimately to be

27 recovered, does not usually constitute irreparable injury.” Sampson v. Murray, 415 U.S.

28 61, 90 (1974). But the general rule that “[e]conomic harm is not normally considered

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1 irreparable” does not apply where there is no adequate remedy to recover those

2 damages, such as in APA cases. Azar, 911 F.3d at 581 (citing 5 U.S.C. § 702).

3

b. The Plaintiffs’ Harms

4

First, the court assesses the Counties’ and States’ standing, the ripeness of their

5 claims, and whether they have demonstrated irreparable harm in absence of an

6 injunction. Second, the court assesses the Organizations’ standing and the ripeness of

7 their claims.

8

i. The States and Counties

9

The States and Counties argue that they will suffer five categories of irreparable

10 harm: (A) loss of federal funds, mostly in Medicaid reimbursement; (B) increased

11 operational costs; (C) increased costs to their own healthcare operations (D) public

12 health problems and resulting increased costs; and (E) reduced economic activity due to

13 a decrease in federal funds in the community.

14

A. Loss of Federal Funds

15

The Counties argue that they will lose millions of dollars in federal Medicaid

16 reimbursement funds. Each provides a broad array of health services to low-income

17 residents, many of which are at least partially reimbursed with federal Medicaid dollars.

18 DHS itself estimates that 2.5% of individuals in households with a noncitizen will disenroll

19 from Medicaid, which would translate to a roughly $7.5 million loss in Medicaid

20 reimbursement funds.

21

The States similarly argue that DHS itself estimates that the Rule will cause a

22 reduction in payments from the federal government due to disenrollment or foregone

23 enrollment by eligible individuals to be over $1.5 billion, nationwide. 83 Fed. Reg. at

24 51,267–69.

25

Defendants argue the harm is too speculative, caused only by third-party actions,

26 and not imminent because the merits can be resolved quickly on summary judgment.

27 Defendants argue that even assuming a 2.5% rate of disenrollment, plaintiffs fail to show

28 that the States and Counties will be harmed, rather than individuals residing within their

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1 boundaries. Defendants argue that harm individual citizens will suffer cannot support the

2 States and Counties claims of irreparable harm. Finally, defendants argue that any

3 financial harms the States and Counties identify are not sufficiently large to establish

4 irreparable harm.

5

First, regarding the speculative nature of the harm, defendants themselves predict

6 a 2.5% disenrollment rate when assessing the Rule, subject to the procedural

7 requirements of the APA. 84 Fed. Reg. at 41,463. The Rule itself also estimated that it

8 will cause a reduction in payments from the federal government due to disenrollment or

9 foregone enrollment by eligible individuals of over $1.5 billion. 83 Fed. Reg. at 51,267–

10 69; see also Cisneros Decl. A at 98-99, Table 18 (annual estimates of $1.46 billion to

11 $4.37 billion in reduced payments). Those figures, which underlie DHS’s analysis in

12 support of the Rule pursuant to the APA’s requirements, are not speculative conjectures

13 as to what might possibly occur. They are meant to be serious efforts by an agency to

14 assess the impact of a proposed rule, and it is difficult to fathom how defendants can

15 argue otherwise. And plaintiffs offer sufficient evidence to demonstrate that disenrollment

16 or non-enrollments will reach at least that level. See 84 Fed. Reg. at 41,463; Wong Decl.

17 ¶¶ 18-45; Shing Decl. ¶ 30; Weisberg Decl. ¶12; Ponce Decl. ¶¶ 4–11, 25. This type of

18 predictable result from a broad policy, although not precise to the level of the individual

19 actor, is sufficiently-specific to allege irreparable harm. See Dep’t of Commerce v. New

20 York, 139 S. Ct. 2551, 2565 (2019). Moreover, plaintiffs offer evidence showing that

21 disenrollment due to the public charge rulemaking has already begun. See, e.g., Cody

22 Decl. ¶ 8; Newstrom Decl. ¶ 43; Weisberg Decl. ¶¶ 12–14; Shing Decl. ¶¶ 23–24; Chawla

23 Decl. ¶ 13; Fanelli Decl. ¶ 38; Neville-Morgan Decl. ¶ 16; Ruiz Decl. ¶¶ 10, 12; Kofman

24 Decl. ¶ 6; Medina Decl. ¶¶ 18–22. Plaintiffs offer strong evidence that disenrollment is

25 likely to continue between now and the resolution of this issue on the merits, absent an

26 injunction.

27

Plaintiffs also adequately demonstrate that the loss of Medicaid reimbursement is

28 sure to be immediate, once individuals disenroll. That is apparent from the very

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1 mechanics of the harm. Today, the States and Counties are partially reimbursed by the

2 federal government for care provided to Medicaid enrollees. As individuals disenroll, the

3 plaintiffs will no longer be reimbursed for treating them. This will have obvious adverse

4 budgetary consequences. For one, there will indisputably be fewer individuals covered

5 by Medicaid seeking treatment. So, the States and Counties will not be reimbursed for

6 treating those disenrolled individuals (whether they treat them or not). The States and

7 Counties would experience this terminated revenue stream even if they turned away

8 patients without medical insurance (which they will not). Put differently, there will be

9 fewer people on Medicaid to treat and get reimbursed for.

10

To the extent defendants argue that the mechanics will work out as a budgetary

11 boon to plaintiffs, the argument is not plausible in the context of this preliminary injunction

12 motion. Although it could potentially work out as a total budgetary savings for the plaintiff

13 entities if they reconfigured their operations, reduced staff, reduced provision of services,

14 and undertook other cost-savings measures, such savings could not plausibly be realized

15 prior to the determination of this action’s merits. See, e.g., Lorenz Decl. ¶¶ 19–22.

16 Instead, the plaintiffs will be continuing to operate with most of the costs and expectations

17 associated with the status quo, with one change—no reimbursements.

18

Second, the States and Counties’ argument regarding loss of Medicaid funding

19 does not rely on harms to their citizens. Rather, the arguments concern the plaintiffs’

20 own loss of funds.

21

Third, plaintiffs must demonstrate that they are likely to suffer irreparable harm, but

22 they need not establish a particular quantum of harm to satisfy the requirement. Azar,

23 911 F.3d at 581 (irreparable harm “analysis focuses on irreparability, ‘irrespective of the

24 magnitude of the injury’”). Nor do defendants explain why San Francisco’s likely loss of

25 $7.5 million in Medicaid reimbursements (based on a 2.5% disenrollment rate) is not

26 sufficiently large even under their theory of the requirement. See Wagner Decl. ¶ 5.

27 Santa Clara similarly estimates $4.6 million in foregone Medicaid funds due to more

28 conservative 1.9% decline in enrollment. Shing Decl. ¶ 32 (estimating $4.6 million in

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1 Medicaid fund losses due to 1.9% decline in enrollment). The States similarly

2 demonstrate the harms they are likely to suffer from the loss of Medicaid

3 reimbursements. See Cantwell Decl. ¶¶ 6, 14 (2.5 million noncitizen Medicaid

4 beneficiaries in California); Ferrer Decl. ¶ 19 (predicted disenrollment figures in L.A.

5 County); Lucia Decl. ¶ 23 (estimates of $957 million in lost funding in California,

6 assuming 15% disenrollment rate); Buhrig I Decl. ¶¶ 4, 8, 10, 27 (330,000 Pennsylvania

7 Medicaid beneficiaries are part of a household with a noncitizen); Allen Decl. ¶¶ 10, 18,

8 36-40 (63,000 noncitizens participate in the Oregon Health Plan system, a federal/state

9 partnership program; other participants are citizen children part of a household with a

10 noncitizen); Byrd Decl. ¶¶ 18–20 & Ex. A at 2, 4 (16,000 children in the District of

11 Columbia receive Medicaid assistance, and 28% of the District’s children are part of a

12 household with a noncitizen; 9,800 immigrants enrolled in Medicaid reside in the District);

13 Probert Decl. ¶¶ 4–8, 15 (13,918 noncitizens enrolled in Medicaid in Maine).

14

B. Increased Operational Costs

15

The States argue that the Rule will impose burdens on their ongoing operations.

16 Defendants argue that such costs are self-imposed and not cognizable.

17

Governmental administrative costs caused by changes in federal policy are

18 cognizable injuries. See Cal. v. Trump, 267 F. Supp. 3d 1119, 1126 (N.D. Cal. 2017)

19 (states’ “administrative costs” caused by a disruption to healthcare exchanges they

20 administer were sufficient to demonstrate standing) (collecting cases); see also Azar, 911

21 F.3d at 573–74.21

22

The Counties have submitted evidence of cognizable, irreparable costs. Santa

23 Clara explains that they have already spent over 1,000 hours answering questions about

24 the Rule, processing disenrollment, analyzing the impact of the rule on their services and

25 undertaking community education and outreach—and these activities are likely to

26

27

21 The government relies on inapposite case law, most notably Crane v. Johnson, 783 F.3d 244, 253-54 (5th Cir. 2015), which addressed individual public employee claims (not

28

claims by the public entity itself) that they might have to change their job practices because of a policy change.

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1 continue to be necessary. E.g., Shing Decl. ¶¶ 8, 11–12; see also Lorenz Decl. ¶ 19;

2 Márquez Decl. ¶¶ 9–10. San Francisco has submitted evidence of similar measures it

3 has already taken and will continue to take in direct response to the Rule. See Pon Decl.

4 ¶¶ 13–16; Rhorer Decl. ¶ 11; Smith Decl. ¶¶ 4–9. California and Oregon have submitted

5 evidence showing they are likely to imminently suffer similar harms absent an injunction.

6 Ruiz Decl. ¶ 19 (California); Fernandez Decl. ¶¶ 34–36 (California); Fanelli Decl. ¶ 40

7 (California); Salazar Decl. ¶ 37 (Oregon). Other states submit declarations regarding

8 these issues, but they are too vague or speculative to support issuance of an injunction.

9 E.g., Byrd Decl. ¶¶ 22–23 (discussing past efforts in D.C., and stating the District will

10 generally “need to train staff” on the issue); Probert Decl. ¶ 16 (speculation concerning

11 costs Maine may face).

12

Additionally, certain plaintiff states use Medicaid and SNAP enrollment to

13 automatically certify children into school lunch programs, meaning that those states

14 would face higher administrative costs to certify student eligibility for free lunch following

15 disenrollment caused by the Rule. To the extent states’ administrative costs increase to

16 assess eligibility for free lunch as children disenroll from the federal programs (as

17 opposed to merely an increased burden on the applicants), that administrative cost

18 increase is cognizable harm. California and D.C. submit competent evidence

19 demonstrating that their costs in administering school lunch programs will increase. See

20 Palmer Decl. ¶ 16 (declaring D.C.’s costs would go up to process school lunch

21 applications); Fernandez Decl. ¶ 30 (declaring California’s “administrative streamlining

22 and efficiency” will suffer when enrolling students for free lunch); see generally Neville-

23 Morgan Decl. ¶ 22 (in California, “paperwork is more burdensome for those without an

24 automatic qualification through Medi-Cal or SNAP, and immigrant eligible families are

25 less likely to obtain school lunch benefits in this way”).

26

These costs that the States and Counties have identified are predictable, likely,

27 and imminent. In fact, DHS specifically contemplated certain of these costs when

28 formulating the Rule. E.g., 83 Fed. Reg. at 51,260 (“The primary sources of the

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1 consequences and indirect impacts of the proposed rule would be costs to various

2 entities that the rule does not directly regulate, such as hospital systems, state agencies,

3 and other organizations that provide public assistance to aliens and their households.

4 Indirect costs associated with this rule include familiarization with the rule for those

5 entities that are not directly regulated but still want to understand the changes in federal

6 and state transfer payments due to this rule.”) (emphasis added); see also 84 Fed. Reg.

7 at 41,389 (“DHS agrees that some entities, such as State and local governments or other

8 businesses and organizations would incur costs related to the changes commenters

9 identify.”).

10

Because the States and Counties have each demonstrated sufficient likely

11 irreparable injury in the form of loss of federal funds to support a preliminary injunction,

12 and the Counties, California, D.C., and Oregon have demonstrated additional irreparable

13 injury in the form of operational costs, the court need not address the remaining three

14 categories of irreparable harm plaintiffs argue they will imminently suffer.

15

ii. The Organizations

16

“[C]ourts have an ‘independent obligation’ to police their own subject matter

17 jurisdiction, including the parties' standing. Accordingly, we must assure ourselves that

18 Plaintiffs have alleged an injury in fact, fairly traceable to the defendant's conduct, and

19 likely to be redressed by a favorable judicial decision.” Animal Legal Def. Fund v. United

20 States Dep't of Agric., 935 F.3d 858, 866 (9th Cir. 2019) (citations omitted).

21

“[A] diversion-of-resources injury is sufficient to establish organizational standing

22 for purposes of Article III if the organization shows that, independent of the litigation, the

23 challenged policy frustrates the organization's goals and requires the organization to

24 expend resources in representing clients they otherwise would spend in other ways.” E.

25 Bay Sanctuary I, 932 F.3d at 765 (internal quotation marks and citations omitted).

26

Defendants argue that the Organizations fail to identify any injury they will suffer if

27 they do not divert resources towards addressing their concerns, apart from harm to the

28 health care they are able to provide to low income communities. For example, if they

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1 failed to divert resources, they would not face staff shortages or provide worse health

2 services.

3

In E. Bay Sanctuary I, the court found standing based on an organization partially

4 converting an asylum practice into a removal defense program, a prediction that

5 applications filed on behalf of the organizations’ clients would become more difficult and

6 reduce available funds for other activities, and education and outreach initiatives

7 regarding the new rule. 932 F.3d at 766; see also, e.g., El Rescate Legal Services, 959

8 F.2d at 748 (standing where legal services groups had expended “resources in

9 representing clients they otherwise would spend in other ways”); Fair Hous. Council of

10 San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012)

11 (finding organizational standing where the plaintiff responded to allegations of

12 discrimination by “start[ing] new education and outreach campaigns targeted at

13 discriminatory roommate advertising”).

14

The Healthcare Organizations’ missions are to provide high quality health care to

15 low-income and immigrant communities. Castellano-García Decl. ¶ 5; García Decl. ¶ 3,

16 7–10. La Clínica and California-Primary-Care-Association-member-organization Asian

17 Health Services have diverted resources from their core missions to address community

18 and individual patient concerns about the public charge determination. García Decl.

19 ¶¶ 13, 16, 21; Quach Decl. ¶¶ 26–29 (evidence of $1 million diversion to education

20 campaigns about the Rule). These education efforts take away from their ability to serve

21 their core organizational purposes. Moreover, they will have to lay off employees and

22 change or cancel programs in response to the Rule. García Decl. ¶ 18; see also Ku

23 Decl. ¶ 65 (estimating nationwide community health center staffing losses of 3,400 to

24 6,100 employees).

25

The Legal Organizations’ missions are to provide advocacy and/or legal services

26 to their clients and members, including obtaining immigration relief and helping to secure

27 public benefits. Kassa Decl. ¶¶ 3–7; Ayloush Decl. ¶¶ 4–7; Sharp Decl. ¶¶ 4–7;

28 Goldstein Decl. ¶¶ 4–5; Seon Decl. ¶¶ 3– 7; Nakamura Decl. ¶¶ 3–8; Kersey Decl. ¶¶ 6–

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1 7, 14–20.

2

Plaintiffs have adequately alleged frustration of their purpose because many of

3 their clients will no longer be eligible for immigration relief, or will choose to not enroll or

4 to disenroll from benefits to remain eligible for immigration relief. The Rule plainly

5 hinders their clients’ ability to obtain immigration relief and/or public benefits.

6

Plaintiffs have also adequately alleged that they will have to divert funding

7 because those who may still be eligible for relief or choose to apply for benefits will

8 require additional time and resources from plaintiffs to address the effects of the Rule,

9 and this additional time and rising ineligibility or disenrollment means that plaintiffs will be

10 able to file fewer cases and help fewer clients. See Kassa Decl. ¶¶ 10–13, 16; Ayloush

11 Decl. ¶¶ 11–14; Sharp Decl. ¶¶ 12–15, 18; Goldstein Decl. ¶ 8; Seon Decl. ¶¶ 10–14;

12 Nakamura Decl. ¶¶ 12, 14–15; Kersey Decl. ¶¶ 23–30. Kassa Decl. ¶¶ 10, 12–13;

13 Ayloush Decl. ¶¶ 11–12; Sharp Decl. ¶ 13; Seon Decl. ¶¶ 10–14; Nakamura Decl. ¶¶ 14–

14 16; Kersey Decl. ¶¶ 34, 36.

15

Some plaintiffs also have increased operational costs as they address the impact

16 of the Rule on their services, such as by hiring additional staff or adding new programs or

17 services. Ayloush Decl. ¶ 14; Seon Decl. ¶ 14; Nakamura Decl. ¶¶ 13–14, 16–17;

18 Kersey Decl. ¶¶ 21, 26–30, 35. Some plaintiffs have had to divert resources from other

19 core services and priorities to staffing, training, education, and public outreach

20 addressing the Rule. Kassa Decl. ¶¶ 11, 14–17; Ayloush Decl. ¶¶ 13, 15–16; Sharp

21 Decl. ¶¶ 14–16; Goldstein Decl. ¶ 7–12; Seon Decl. ¶ 16–19, 21; Nakamura Decl. ¶¶ 13–

22 14, 16–17; Kersey Decl. ¶¶ 26–29, 35–36.

23

Defendants would have this court require more than the Ninth Circuit does for

24 standing. Here, it is enough for plaintiffs to allege that their goals of providing healthcare

25 and legal services to low-income immigrants are frustrated, and that the challenged

26 policy has stimulated the organizations into spending money on things they would not

27 otherwise have spent money on. Plaintiffs’ public education efforts, changes to their

28 programs, increased costs of assisting clients, and other diversions of resources qualify

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1 under the Ninth Circuit’s requirements.22

2

3. The Balance of Equities and Hardships Tip Sharply in Plaintiffs’ Favor

3

“A court must ‘balance the interests of all parties and weigh the damage to each’ in

4 determining the balance of the equities.” CTIA - The Wireless Ass'n v. City of Berkeley,

5 928 F.3d 832, 852 (9th Cir. 2019) (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109,

6 1138 (9th Cir. 2009)).

7

There is little question that the balance of equities and hardships tip sharply in

8 favor of the States and Counties. Defendants have been operating under a consistent

9 definition of “public charge” since at least 1999, when the INS issued Field Guidance

10 specifying “that ‘public charge’ means an alien . . . who is likely to become (for

11 admission/adjustment purposes) ‘primarily dependent on the government for subsistence,

12 as demonstrated by either (i) the receipt of public cash assistance for income

13 maintenance or (ii) institutionalization for long-term care at government expense.’” 64

14 Fed. Reg. at 28,689. That standard is specific and workable, and defendants have been

15 administering it for decades. In fact, defendants conceded that do not argue that they

16 would suffer any hardship in the face of an injunction prohibiting them from replacing

17 those standards with the new Rule until resolution of this case on the merits. Defendants’

18 only argument with respect to the balance of equities or hardships and the public interest

19 is that Congress has made a policy judgment that aliens should be self-sufficient, and the

20 executive should not be prevented from implementing a rule that advances that policy.

21

On the other hand, implementing the change defendants propose would upend

22 state and local governments’ operations as they support immigrants while determining

23 how to adjust to the new Rule and provide services that the federal government once

24 predictably assisted with. To the extent this factor is merged with the public interest and

25 considers the effects on non-parties, the most severely affected individuals are the aliens

26

27 22 As the issue was not meaningfully addressed by the parties, the court does not decide

28

at this time whether California Primary Care Association satisfies the requirements for associational standing.

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1 seeking LPR status themselves, who would face uncertainty regarding their access to

2 healthcare and subsidized nutrition as they learn to adapt to and attempt to navigate the

3 Rule’s deterrents.

4

In short, implementing the Rule after decades of a consistent policy prior to a

5 determination of this action on the merits—which defendants argue will be accomplished

6 in short order—does little to advance the defendants’ interests, and it would entirely

7 upend the plaintiffs’ (and the non-party aliens’) interests.

8

4. An Injunction Is in the Public’s Interest

9

“When the government is a party, the last two factors merge.” Azar, 911 F.3d at

10 575. Therefore, the public interest analysis is subsumed in the balance of equities and

11 hardships, addressed above, and the public interest therefore favors and injunction.

12

Even though the public’s interest generally merges with the balance of equities, it

13 can be “appropriate to consider the factors separately,” for example when intervenors

14 present distinct interests. League of Wilderness Defs./Blue Mountains Biodiversity

15 Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014). In those instances, “[t]he

16 public interest inquiry primarily addresses impact on non-parties rather than parties.” Id.

17

Here, the public interest cuts sharply in favor of an injunction. Specifically, the

18 public interest supports continuing the provision of medical services through Medicaid to

19 those who would predictably disenroll absent an injunction, for numerous reasons.

20 Although the court has not reached the issue as to whether plaintiffs’ arguments

21 regarding the impacts on public health support their argument for imminent harm, the

22 parties and numerous amici have explained that the predictable disenrollment from

23 Medicaid absent an injunction would have adverse health consequences not only to

24 those who disenroll, but to the entire populations of the plaintiff states, for example, in the

25 form of decreased vaccination rates. The public certainly has an interest in decreasing

26 the risk of preventable contagion.

27

As such, the public interest supports preserving the long-standing status quo

28 pending final, coherent resolution on the merits.

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1

5. Scope of the Injunction Necessary to Redress Plaintiffs’ Imminent

2

Harms

3

a. Legal Standard

4

When a plaintiff satisfies its burden to demonstrate that a preliminary injunction

5 should issue, “injunctive relief should be no more burdensome to the defendant than

6 necessary to provide complete relief to the plaintiffs.” Califano, 442 U.S. at 702; accord

7 L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (injunction

8 “should be no more burdensome to the defendant than necessary to provide complete

9 relief to the plaintiffs before the court”) (internal quotation mark omitted); Lamb-Weston,

10 Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991) (“Injunctive relief . . . must

11 be tailored to remedy the specific harm alleged.”). “‘The purpose of such interim

12 equitable relief is not to conclusively determine the rights of the parties but to balance the

13 equities as the litigation moves forward.’” Azar, 911 F.3d at 582.

14

But “[t]here is no general requirement that an injunction affect only the parties in

15 the suit.” Bresgal v. Brock, 843 F.2d 1163, 1169 (9th Cir. 1987). “[A]n injunction is not

16 necessarily made over-broad by extending benefit or protection to persons other than

17 prevailing parties in the lawsuit—even if it is not a class action—if such breadth is

18 necessary to give prevailing parties the relief to which they are entitled.” Id. at 1170;

19 accord Regents of the Univ. of California v. U.S. Dep't of Homeland Sec., 908 F.3d 476,

20 511 (9th Cir. 2018), cert. granted sub nom. Dep't of Homeland Sec. v. Regents of the

21 Univ. of California, 139 S. Ct. 2779 (2019).

22

With respect to immigration matters in particular, the Ninth Circuit has “consistently

23 recognized the authority of district courts to enjoin unlawful policies on a universal basis.”

24 E. Bay Sanctuary I, 932 F.3d at 779 (citing Regents of the Univ. of Cal., 908 F.3d at

25 511; Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev'd on other grounds and

26 remanded, 138 S. Ct. 2392 (2018); Washington v. Trump, 847 F.3d 1151, 1166–67 (9th

27 Cir.), reconsideration en banc denied, 853 F.3d 933 & 858 F.3d 1168 (9th Cir. 2017), and

28 cert. denied sub nom. Golden v. Washington, 138 S. Ct. 448 (2017)). “These are,

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1 however, ‘exceptional cases.’” E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029

2 (9th Cir. 2019) (“E. Bay Sanctuary II”) (quoting City & Cty. of San Francisco v. Trump,

3 897 F.3d 1225, 1244 (9th Cir. 2018)). That is because, even though courts have the

4 authority to issue nationwide preliminarily injunctions, doing so still requires “an

5 articulated connection to a plaintiff’s particular harm[.]” Id. (“nationwide injunction is [not]

6 appropriate simply because this case presents a rule that applies nationwide”); see also

7 Azar, 911 F.3d at 582–84. That requirement is not lifted in the immigration context. E.g.,

8 E. Bay Sanctuary II, 934 F.3d at 1029 (“Under our case law, however, all injunctions—

9 even ones involving national policies—must be ‘narrowly tailored to remedy the specific

10 harm shown.’”); E. Bay Sanctuary I, 932 F.3d at 779 (nationwide scope appropriate

11 where it “is necessary to provide the plaintiffs here with complete redress” and district

12 court could not “have crafted a narrower remedy that would have provided complete relief

13 to the [plaintiffs]”) (quoting Regents of the Univ. of Cal., 908 F.3d at 512) (internal

14 quotation mark omitted).23

15

The Ninth Circuit has emphasized that any preliminary injunction must be

16 supported by evidence in the record identifying the likely effect the enjoined conduct

17 would have on the particular plaintiffs. E.g., San Francisco v. Trump, 897 F.3d at 1244

18 (the “record is not sufficient to support a nationwide injunction” where “the Counties'

19 tendered evidence is limited to the effect of the Order on their governments and the State

20 of California. . . . However, the record is not sufficiently developed on the nationwide

21 impact of the Executive Order.”); Azar, 911 F.3d at 584 (“On the present record, an

22

23

23 The Ninth Circuit requires an articulated connection to a plaintiff’s particular harms notwithstanding “the need for uniformity in immigration policy.” See Regents of the Univ.

24

of Cal., 908 F.3d at 511 (“Allowing uneven application of nationwide immigration policy flies in the face of these requirements.”); Hawaii v. Trump, 878 F.3d at 701 (“Because this

25

case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.”); see also San Francisco v. Trump, 897 F.3d at

26

1244 (“These exceptional cases are consistent with our general rule that ‘[w]here relief can be structured on an individual basis, it must be narrowly tailored to remedy the

27

specific harm shown’—'an injunction is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit ... if such

28

breadth is necessary to give prevailing parties the relief to which they are entitled.’”) (quoting Bresgal, 843 F.2d at 1170–71).

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1 injunction that applies only to the plaintiff states would provide complete relief to them. It

2 would prevent the economic harm extensively detailed in the record. Indeed, while the

3 record before the district court was voluminous on the harm to the plaintiffs, it was not

4 developed as to the economic impact on other states.”). “District judges must require a

5 showing of nationwide impact or sufficient similarity to the plaintiff states to foreclose

6 litigation in other districts, from Alaska to Puerto Rico to Maine to Guam.” Azar, 911 F.3d

7 at 584.

8

Finally, although the scope of the injunction in this action is governed by the

9 controlling Ninth Circuit law explained above, the court notes that the Ninth Circuit and

10 the Supreme Court have both credited prudential considerations supporting their

11 admonition that nationwide preliminary injunctions are appropriate only in “exceptional

12 cases.” See San Francisco v. Trump, 897 F.3d at 1244; E. Bay Sanctuary II, 934 F.3d at

13 1029. First, nationwide injunctions unconnected to a plaintiff’s particular harm

14 “unnecessarily ‘stymie novel legal challenges and robust debate’ arising in different

15 judicial districts.” E. Bay Sanctuary II, 934 F.3d at 1029; see also Azar, 911 F.3d at 583

16 (“The Supreme Court has repeatedly emphasized that nationwide injunctions have

17 detrimental consequences to the development of law and deprive appellate courts of a

18 wider range of perspectives.”). That consideration is relevant here, where actions raising

19 similar changes are also currently pending in district courts in New York, Maryland, and

20 Washington, and perhaps more. Second, nationwide injunctions may fail to adequately

21 recognize “the equities of non-parties who are deprived the right to litigate in other

22 forums,” who “are essentially deprived of their ability to participate[.]” Azar, 911 F.3d at

23 583. Third, “[n]ationwide injunctions are also associated with forum shopping, which

24 hinders the equitable administration of laws.” Id.

25

b. Analysis

26

Here, the Counties and the States have demonstrated a likelihood of irreparable

27 harm based on their loss of Medicaid funding from the federal government and increased

28 90

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1 operational costs they are likely to carry.24 Those harms stem directly from disenrollment

2 of individuals seeking medical care in their jurisdictions, residing in their jurisdictions, and

3 enrolling in certain other public benefits in their jurisdictions (for example, school lunch

4 programs). Those harms, and the supporting record, are discussed in detail above. In

5 order to preserve the status quo pending resolution on the merits and to prevent certain

6 of these irreparable harms, it is necessary to enjoin implementation of the Rule with

7 respect to those who reside in the States and Counties any time following the date of this

8 order, until this action is resolved on the merits. Moreover, defendants must be

9 additionally enjoined from applying the Rule to any individual who is part of a household

10 (as defined in the Rule, 8 C.F.R. § 212.21(d)) that includes a person who has resided in a

11 plaintiff State or County any time following the date of this order, until this action is

12 resolved on the merits.

13

Defendants may, of course, continue to process applications and otherwise

14 operate pursuant to the standards employed prior to October 15, 2019—that is, pursuant

15 to the status quo.

16

The plaintiffs request a nationwide injunction based primarily on what they argue

17 would be the inadministrability of an immigration policy that is not administered uniformly

18 nationally. But a nationwide injunction is not “appropriate simply because this case

19 presents a rule that applies nationwide.” E. Bay Sanctuary II, 934 F.3d at 1029; accord

20 San Francisco v. Trump, 897 F.3d at 1244 (record must also be independently

21 “developed on the nationwide impact” and the statewide impact).

22

Plaintiffs also argue that a nationwide injunction is necessary to provide certainty

23 to the public and quell confusion about the implementation of the Rule. They argue that

24 general, nationwide confusion will cause disenrollment even in the States and Counties,

25

26 24 Because the Organizations have not demonstrated a likelihood of success on—or

27

serious questions going to—the merits of their APA causes of action (the only claims underlying their motion for preliminary injunction), they have not demonstrated that an

28

injunction should issue to prevent the harms they are likely to suffer, so the court does not consider their alleged harms in determining the scope of the injunction.

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1 causing the above-discussed harms. Plaintiffs have certainly demonstrated that

2 confusion about the nation’s immigration policies is a cause of disenrollment, even for

3 those who will not be subject to the public charge assessment. However, plaintiffs have

4 not demonstrated the marginal effect a nationwide injunction would have on curing that

5 confusion for their residents over and above an injunction limited to their own borders.

6 Although it is conceivable that a nationwide injunction pending resolution on the merits

7 would lead to less disenrollment due to confusion within California than this injunction

8 covering all of California (and the other States), it is plaintiffs’ obligation to demonstrate

9 the necessity of such relief. This court does not suggest that no evidence could support

10 such an injunction. Nor does the court suggest that the record evidence is necessarily

11 insufficient. Rather plaintiffs, by devoting only a few cursory paragraphs in their briefs to

12 the scope the injunction, have failed to sufficiently tie that evidence to the need for an

13 injunction beyond their borders in order to remedy the specific harms alleged and

14 accepted by the court as likely, imminent, and irreparable.

15

CONCLUSION

16

For the foregoing reasons, the States and Counties’ motion for a preliminary

17 injunction is GRANTED, as explained above. The Organizations’ motion is DENIED,

18 because they do not fall within the zone of interests of the statute forming the basis of

19 their APA claims.

20

PRELIMINARY INJUNCTION

21

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

22 Security, Kevin McAleenen as Acting Secretary of DHS, Kenneth T. Cuccinelli as Acting

23 Director of USCIS, and Donald J. Trump, as President of the United States, are hereby

24 enjoined from applying the Rule, in any manner, to any person residing (now or at any

25 time following the issuance of this order) in San Francisco City or County, Santa Clara

26 County, California, Oregon, the District of Columbia, Maine, or Pennsylvania, or to

27 anyone who is part of a household (as defined by the Rule, 8 C.F.R. § 212.21(d)) that

28 includes such a person. The injunction will remain in effect until a resolution of this action

92

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1 on the merits.

2

IT IS SO ORDERED.

3 Dated: October 11, 2019

4

5

6

7

8

9

10

11

12

13

14

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16

17

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20

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/s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON United States District Judge
93

 
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CITY AND COUNTY OF SAN FRANCISCO; COUNTY OF SANTA CLARA,
Plaintiffs-Appellees,
v.

No. 19-17213
D.C. No. 4:19-cv-04717-
PJH

UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services,
Defendants-Appellants.

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2

CITY & CTY. OF SAN FRANCISCO V. USCIS

STATE OF CALIFORNIA; DISTRICT OF COLUMBIA; STATE OF MAINE; COMMONWEALTH OF PENNSYLVANIA; STATE OF OREGON,
Plaintiffs-Appellees,

No. 19-17214
D.C. No. 4:19-cv-04975-
PJH

v.

U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services,
Defendants-Appellants.

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CITY & CTY. OF SAN FRANCISCO V. USCIS

3

STATE OF WASHINGTON; COMMONWEALTH OF VIRGINIA; STATE OF COLORADO; STATE OF DELAWARE; STATE OF ILLINOIS; STATE OF MARYLAND; COMMONWEALTH OF MASSACHUSETTS; DANA NESSEL, Attorney General on behalf of the People of Michigan; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF RHODE ISLAND; STATE OF HAWAI‘I,
Plaintiffs-Appellees,

No. 19-35914 D.C. No.
4:19-cv-05210RMP
ORDER

v.

U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services,
Defendants-Appellants.

Filed December 5, 2019

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4

CITY & CTY. OF SAN FRANCISCO V. USCIS

Before: Jay S. Bybee, Sandra S. Ikuta, and John B. Owens, Circuit Judges.

Order; Concurrence by Judge Bybee; Partial Concurrence and Partial Dissent by Judge Owens

SUMMARY*

Immigration
The panel granted the Department of Homeland Security’s petitions for stays of two district court preliminary injunctions against the implementation of the Department of Homeland Security’s redefinition of the term, “public charge.”
Under the Immigration and Nationality Act (“INA”), any alien who, in the opinion of a relevant immigration officer, at the time of application for admission or adjustment of status, is likely at any time to become a public charge, is inadmissible. In 1999, the Immigration and Naturalization Service defined “public charge” as an “alien . . . who is likely to become . . . primarily dependent on the government for subsistence” as demonstrated by either “institutionalization for long-term care at government expense” or “receipt of public cash assistance.” In August 2019, the Department of Homeland Security (“DHS”) adopted a new rule, redefining the term “public charge” to also require consideration of
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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CITY & CTY. OF SAN FRANCISCO V. USCIS

5

certain non-cash benefits. Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (“Final Rule”).

Various states, municipalities and organizations brought suits in California and Washington seeking a preliminary injunction against the Final Rule’s implementation. The California and Washington district courts issued preliminary injunctions based on plaintiffs’ claims under the Administrative Procedure Act (“APA”). DHS then sought stays of both preliminary injunctions before this court.

The panel first concluded that the injuries plaintiffs (“the States”) alleged – loss of federal funds and increase in operational costs related to individuals disenrolling from benefits – were sufficient for Article III standing. The panel also addressed mootness because district courts in Maryland and New York had issued nationwide injunctions of the Final Rule. The court concluded that, even if an injunction from another court has a fully nationwide scope, this court nevertheless retains jurisdiction under the exception to mootness for cases capable of repetition, yet evading review.

The panel next concluded that DHS had demonstrated a strong likelihood of success on the merits, explaining that the Rule’s definition of “public charge” is consistent with the relevant statutes, and DHS’s action was not arbitrary or capricious. In rejecting the States’ argument that the Final Rule is contrary to the INA, the panel concluded that the new definition of “public charge” was entitled to deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). At Chevron step one, the panel explained that the statute is ambiguous, noting that Congress chose not to define “public charge” and, instead, described various factors

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to be considered “at a minimum.” The panel also concluded that the history of the use of the term demonstrated that the term does not have an unambiguous meaning. Addressing the fact that Congress twice considered, but failed to enact, a definition of “public charge” that is similar to the definition adopted in the Final Rule, the panel explained that the failure of Congress to compel DHS to adopt a particular rule is not the logical equivalent of forbidding DHS from adopting that rule. The panel also rejected the States’ contention that DHS exceeded its authority by determining what makes a person “self-sufficient.”

At Chevron step two, the panel concluded that DHS’s interpretation of “public charge” is a permissible construction of the statute, explaining that: 1) the INA grants DHS considerable discretion to determine if an alien is likely to become a public charge; 2) there is no statutory basis from which to conclude that addition of certain categories of inkind benefits makes DHS’s interpretation untenable; and 3) the receipt of non-cash public assistance is relevant to the self-sufficiency principle underlying U.S. immigration law. The panel also rejected the States’ argument that the Final Rule is inconsistent with the Rehabilitation Act, which provides that a qualified individual with a disability cannot, solely by reason of that disability, be excluded from participation in Executive agency programs.

In rejecting the States’ argument that the Final Rule is arbitrary and capricious, the panel concluded that DHS had adequately explained the reasons for the rule because it was sufficient for DHS to consider whether, in the long term, the overall benefits of its policy change would outweigh the costs of retaining the current policy and because DHS addressed public health concerns.

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7

The panel noted that, were it reviewing the preliminary injunctions on direct review, its determination on the likelihood of success on the merits would be sufficient to reverse the district court’s orders. But because the panel was addressing DHS’s motion for a stay, it went on to consider the additional factors of irreparable injury, balance of the equities and the public interest. Addressing irreparable injury, the panel concluded that DHS had shown that it would be irreparably injured absent a stay, explaining that the preliminary injunctions would force DHS to irrevocably grant status to those who are not legally entitled to it.

Next, the panel explained that balancing the harms was particularly difficult in this case because the harms are not comparable and are also, to a degree, speculative. The panel concluded that it could not state with any confidence which set of harms was greater. The panel explained that the public interest in this case was likewise difficult to calculate with precision. In the end, the panel concluded that the “critical” factors were that DHS had mustered a strong showing of likelihood of success on the merits and some irreparable harm, and that those factors weighed in favor of granting a stay, despite the potential harms to the States. For that reason, the panel concluded that the stay was in the public interest.

Concurring, perplexed and perturbed, Judge Bybee wrote separately to note that: 1) even as the courts are embroiled in recent immigration controversies, no one should mistake the court’s judgments for its policy preferences; 2) given the fact that the courts may only review policy decisions for arbitrariness and caprice, the courts are not the proper foil to this or any other administration as it crafts immigration policies; and 3) because Congress is no place to be found in

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CITY & CTY. OF SAN FRANCISCO V. USCIS

recent immigration debates, it is time for a feckless Congress to come to the table and grapple with these issues, instead of leaving the table and expecting the court to clean up.

Concurring in part and dissenting in part, Judge Owens concurred with the majority’s jurisdiction analysis, but otherwise dissented. In light of the: (1) government’s heavy burden due to the standard of review, 2) opaqueness of the legal questions before the court, (3) lack of irreparable harm to the government at this early stage, (4) likelihood of substantial injury to the plaintiffs, and (5) equities involved, Judge Owens would deny the government’s motions to stay and let these cases proceed in the ordinary course.

COUNSEL
Joseph H. Hunt, Assistant Attorney General; David L. Anderson, United States Attorney; Daniel Tenny, Gerard Sinzdak, and Joshua Dos Santos, Appellate Staff; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
Dennis J. Herrera, City Attorney; Jesse C. Smith, Chief Assistant City Attorney; Ronald P. Flynn, Chief Deputy City Attorney; Yvonne R. Mere, Chief, Complex & Affirmative Litigation; Sara J. Eisenberg, Chief of Strategic Advocacy; Matthew D. Goldberg, Deputy City Attorney; City Attorney’s Office, City and County of San Francisco, San Francisco, California; James R. Williams, County Counsel; Greta S. Hansen, Chief Assistant County Counsel; Laura S. Trice, Lead Deputy County Counsel; Raphael N. Rajendra, Julia B. Spiegel, and H. Luke Edwards, Deputy County Counsel; Office of the County Counsel, County of Santa Clara, San

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Jose, California; for Plaintiffs-Appellees City and County of San Francisco, and County of Santa Clara.

Xavier Becerra, Attorney General; Matthew Rodriguez, Chief Assistant Attorney General; Michael L. Newman, Senior Assistant Attorney General; Cherokee DM Melton, Supervising Deputy Attorney General; Jennifer C. Bonilla, Lisa Cisneros, Rebekah Fretz, Katherine Lehe, Julia Harumi Mass, Anita Garcia Velasco, Brenda Ayon Verduzco, and Anna Rich, Deputy Attorneys General; Office of the Attorney General, Oakland, California; for Plaintiff-Appellee State of California.

Karl A. Racine, Attorney General; Kathleen Konopka, Deputy Attorney General, Public Advocacy Division; Alacoque Hinga Nevitt, Assistant Attorney General; Office of the Attorney General, Washington, D.C.; for PlaintiffAppellee District of Columbia.

Aaron M. Frey, Attorney General; Susan P. Herman, Chief Deputy Attorney General; Office of the Attorney General, Augusta, Maine; for Plaintiff-Appellee State of Maine..

Ellen Rosenblum, Attorney General; Benjamin Gutman, Solicitor General; Nicole DeFever and Patricia Garcia Rincon, Assistant Attorneys General; Oregon Department of Justice, Salem, Oregon; for Plaintiff-Appellee State of Oregon.

Josh Shapiro, Attorney General; Michael J. Fischer, Chief Deputy Attorney General; Aimee D. Thomson, Deputy Attorney General; Office of the Attorney General, Philadelphia, Pennsylvania; for Plaintiff-Appellee Commonwealth of Pennsylvania.

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Robert W. Ferguson, Attorney General; Jeffrey T. Sprung, Assistant Attorney General; Rene D. Tomisser, Senior Counsel; Zachary P. Jones, Joshua Weissman, Paul M. Crisalli, Nathan K. Bays, and Bryan M.S. Ovens, Assistant Attorneys General; Office of the Attorney General, Kennewick, Washington; for Plaintiff-Appellee State of Washington.

Mark R. Herring, Attorney General; Michelle S. Kallen, Deputy Solicitor General; Ryan Spreague Hardy, Alice Anne Lloyd, and Mamoona H. Siddiqui, Assistant Attorneys General; Office of the Attorney General, Richmond, Virginia; for Plaintiff-Appellee Commonwealth of Virginia.

Phil Weiser, Attorney General; Eric R. Olson, Solicitor General; Office of the Attorney General, Denver, Colorado; for Plaintiff-Appellee State of Colorado.

Kathleen Jennings, Attorney General; Aaron R. Goldstein, State Solicitor; Ilona Kirshon, Deputy State Solicitor; Monica A. Horton, Deputy Attorney General; Office of the Attorney General, Wilmington, Delaware; for Plaintiff-Appellee State of Delaware.

Kwame Raoul, Attorney General; Liza Roberson-Young, Public Interest Counsel; Office of the Attorney General, Chicago, Illinois; for Plaintiff-Appellee State of Illinois.

Clare E. Connors, Attorney General; Lili A. Young, Deputy Attorney General; Department of the Attorney General, Honolulu, Hawai‘i; for Plaintiff-Appellee State of Hawai‘i.

Brian E. Frosh, Attorney General; Jeffrey P. Dunlap, Assistant Attorney General; Office of the Attorney General,

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Baltimore, Maryland; for Plaintiff-Appellee State of Maryland.

Maura Healey, Attorney General; Abigail B. Taylor, Chief, Civil Rights Division; David Urena, Special Assistant Attorney General; Angela Brooks, Assistant Attorney General; Office of the Attorney General, Boston, Massachusetts; for Plaintiff-Appellee Commonwealth of Massachusetts.

Dana Nessel, Attorney General; Fadwa A. Hammoud, Solicitor General; Toni L. Harris, First Assistant Attorney General; Michigan Department of Attorney General, Lansing, Michigan; for Plaintiff-Appellee Dana Nessel on behalf of the People of Michigan.

Keith Ellison, Attorney General; R.J. Detrick, Assistant Attorney General; Attorney General’s Office, St. Paul, Minnesota; for Plaintiff-Appellee State of Minnesota.

Aaron D. Ford, Attorney General; Heidi Parry Stern, Solicitor General; Office of the Attorney General, Las Vegas, Nevada; for Plaintiff-Appellee State of Nevada.

Gurbir Singh Grewal, Attorney General; Glenn J. Moramarco, Assistant Attorney General; Office of the Attorney General, Trenton, New Jersey; for PlaintiffAppellee State of New Jersey

Hector Balderas, Attorney General; Tania Maestas, Chief Deputy Attorney General; Office of the Attorney General, Santa Fe, New Mexico; for Plaintiff-Appellee State of New Mexico.

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Peter F. Neronha, Attorney General; Lauren E. Hill, Special Assistant Attorney General; Office of the Attorney General, Providence, Rhode Island; for Plaintiff-Appellee State of Rhode Island.

Edward T. Waters, Phillip A. Escoriaza, and Amanda N. Pervine, Feldesman Tucker Leifer Fidell LLP, Washington, D.C., for Amici Curiae Public Health, Health Policy, Medicine, and Nursing Deans, Chairs, and Scholars; The American Public Health Association; and The American Academy of Nursing.

R. Adam Lauridsen, Chessie Thacher, Victor H. Yu, and Nicholas R. Green, Keker Van Nest & Peters LLP, San Francisco, California, for Amici Curiae National Housing Law Project, Food Research & Action Center, and Center for Law & Social Policy.

ORDER
BYBEE, Circuit Judge:
Since 1882, when the Congress enacted the first comprehensive immigration statute, U.S. law has prohibited the admission to the United States of “any person unable to take care of himself or herself without becoming a public charge.” Act of Aug. 3, 1882, ch. 376, § 2, 22 Stat. 214 (1882). Although the precise formulation of this provision has been amended regularly in the succeeding century and a quarter, the basic prohibition and the phrase “public charge” remains. Most recently, in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress amended the Immigration and Nationality Act

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(INA) to provide that “[a]ny alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” 8 U.S.C. § 1182(a)(4)(A). In making this determination, “the consular officer or the Attorney General shall at a minimum” take five factors into account: age; health; family status; assets, resources, and financial status; and education and skills. Id. § 1182(a)(4)(B)(i). Under long-standing practice, consular officers and the Attorney General consider these factors under a “totality of the circumstances” test.

In 1999, the Immigration and Naturalization Service (INS), providing guidance to the public and INS field officers, defined “public charge” as an “alien . . . who is likely to become . . . primarily dependent on the government for subsistence” as demonstrated by either “institutionalization for long-term care at government expense” or “receipt of public cash assistance for income maintenance.” Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689 (May 26, 1999) (1999 Field Guidance) (internal quotation marks omitted). Although INS determined that the receipt of cash benefits received under a public program would be considered a factor in determining whether an alien was likely to become a public charge, it stated that non-cash benefits would not be taken into account for publiccharge purposes. Id.

In August 2019, following notice and comment, the Department of Homeland Security adopted a new rule, redefining the term “public charge” to require a consideration of not only cash benefits, but also certain non-cash benefits.

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Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,292 (Aug. 14, 2019) (Final Rule). Under DHS’s Final Rule a public charge is “an alien who receives one or more public benefits . . . for more than 12 months in the aggregate within any 36-month period.” Id. at 41,501. In turn, DHS defined “public benefits.” Consistent with the 1999 Field Guidance, DHS still considers receipt of cash assistance from Supplemental Security Income (SSI); Temporary Assistance for Needy Families (TANF); and federal, state, or local general assistance programs to be public benefits. To that list, DHS added non-cash assistance received through the Supplemental Nutrition Assistance Program (SNAP), Section 8 housing assistance, Section 8 project-based rental assistance, Medicaid (with certain exceptions), and Section 9 public housing. Id. DHS’s rule exempts public benefits received for emergency medical conditions, benefits received under the Individuals with Disabilities Education Act, and school-based services or benefits. Id. It also exempts those benefits received by aliens under 21 years of age, women during pregnancy, and members of the armed forces and their families. Id. DHS repeated that “[t]he determination of an alien’s likelihood of becoming a public charge at any time in the future must be based on the totality of the alien’s circumstances.” Id. at 41,502.

Prior to the Final Rule taking effect in October 2019, various states, municipalities, and organizations brought suits in California and Washington seeking a preliminary injunction against the implementation of the rule. In Nos. 19-17213 and 19-17214, California, Maine, Oregon, Pennsylvania, and the District of Columbia; the City and County of San Francisco and the County of Santa Clara; and various organizations brought suit in the Northern District of

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California against the United States under the Due Process Clause of the Fifth Amendment; the Administrative Procedure Act (APA), 5 U.S.C. § 706; and the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02. The district court granted a preliminary injunction on the basis of the APA, effective against implementation of the rule in the plaintiff states. City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., 2019 WL 5100718 (N.D. Cal. Oct. 11, 2019). In No. 19-35914, thirteen states—Washington, Virginia, Colorado, Delaware, Hawai‘i, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island—filed suit in the Eastern District of Washington against DHS under the Due Process Clause of the Fifth Amendment and the APA. The district court granted a preliminary injunction on the basis of the APA claims and issued a nationwide injunction. Washington v. U.S. Dep’t of Homeland Sec., 2019 WL 5100717 (E.D. Wash. Oct. 11, 2019).

DHS seeks a stay of both preliminary injunctions.1 Our authority to issue a stay of a preliminary injunction is circumscribed. Nevertheless, for the reasons explained below, we will grant the stay. DHS has shown a strong likelihood of success on the merits, that it will suffer irreparable harm, and that the balance of the equities and public interest favor a stay. See Nken v. Holder, 556 U.S. 418, 434 (2009).

1 For clarity, we will refer to the plaintiffs below as “the States” and the defendants as “DHS.”

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I. BACKGROUND AND PROCEDURE

We begin with the governing statutory framework, the proposed change to this framework, and the proceedings below.

A. Statutory Framework

The INA requires all aliens who seek lawful admission to the United States, or those already present but seeking to become lawful permanent residents (LPRs), to prove that they are “not inadmissible.” 8 U.S.C. § 1361; see also id. §§ 1225(a), 1255(a). Section 212 of the INA lists the grounds on which an alien may be adjudged inadmissible. Id. § 1182(a)(1)–(10). One of the grounds for inadmissibility is a determination that the alien is likely to become a “public charge.” Id. § 1182(a)(4). Section 212(a)(4) of the INA reads as follows:

(4) PUBLIC CHARGE. —

(A) IN GENERAL.—Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

(B) FACTORS TO BE TAKEN INTO ACCOUNT.—

(i) In determining whether an alien is inadmissible under this paragraph, the

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consular officer or the Attorney General[2] shall at a minimum consider the alien’s—

(I) age;

(II) health;

(III) family status;

(IV) assets, resources, and financial status; and

(V) education and skills.

(ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any affidavit of support[3] under section 1183a of this title for purposes of exclusion under this paragraph.

Id.

2 The Homeland Security Act of 2002 transferred much of the Attorney General’s immigration authority to the newly created office of the Secretary of Homeland Security. See In re D-J-, 23 I. & N. Dec. 572, 573–74 & n.2 (Op. Att’y Gen. 2003) (citing Homeland Security Act of 2002, Pub. L. No. 108-7, 117 Stat. 531 (2003)). Though the Attorney General retains authority over the Executive Office for Immigration Review, id. n.3, the Secretary of Homeland Security is now responsible with the general administration and enforcement of immigration law, id. n.2.
3 An affidavit of support is a binding pledge, often made by an employer or family member of the alien, to financially support the alien at 125 percent of the Federal poverty line. 8 U.S.C. § 1183.

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This provision is applied at different times by different government agencies. When an alien seeks a visa to travel to the United States, a Department of State (DOS) consular officer must make an admissibility determination. See 84 Fed. Reg. at 41,294 n.3. When an alien arrives at a port of entry without a visa, DHS makes that determination. Id. An alien may also be deemed “inadmissible” even when the alien is already in the country. For example, when an alien seeks an adjustment of status from non-immigrant to LPR, DHS must determine that the alien is not inadmissible. See id. And when an alien is processed in immigration court, the Department of Justice (DOJ) through immigration judges and the Board of Immigration Appeals (BIA) must determine whether that alien is inadmissible. Id.

Though § 212 of the INA lays out the factors an immigration official must consider “at a minimum” when making a public-charge determination, the INA does not define the term “public charge,” or restrict how officials are to consider age, health, family status, financial resources, and education. Indeed, as explained in more detail below, in the context of immigration law, the term “public charge” has had several meanings. Since 1999, however, the term has been defined according to guidelines issued by the INS Field Guidance on the matter. See 1999 Field Guidance, 64 Fed. Reg. at 28,689. The 1999 Field Guidance defined a public charge as an alien who “is likely to become (for admission/adjustment purposes) primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” Id. (internal quotation marks omitted). The 1999 Field Guidance did not permit immigration officers to “place any weight on the receipt of non-cash public benefits,” id.,

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and allowed consideration of only cash-benefit programs like SSI, TANF, and “[s]tate and local cash assistance programs that provide benefits for income maintenance,” id. at 28,692.

B. The Proposed Rule

On October 10, 2018, DHS published a Notice of Proposed Rulemaking (NPRM) indicating its intent to abandon the 1999 Field Guidance and redefine the term “public charge.” See Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (proposed Oct. 10, 2018).4 It did so acting under the authority vested in the Secretary of Homeland Security to establish immigration regulations and enforce immigration law. See 8 U.S.C. § 1103(a)(3) (“[The Secretary of Homeland Security] shall establish such regulations . . . as he deems necessary for carrying out his authority under the provisions of this chapter.”). The proposed rule redefined the term “public charge” in two ways.

First, the proposed rule for the first time established a required length of time for which the alien would have to rely on public benefits before being labeled a public charge. Under the 1999 Field Guidance, a public charge was defined as an individual “primarily dependent” on government benefits, but the 1999 Field Guidance prescribed no specific time period for which this determination should be made. See

4 The proposed rule would not change the definition of public charge for removability determinations, only for determinations of inadmissibility. 83 Fed. Reg. at 51,134. And though the rule only applies to DHS, DHS is currently working with DOS and DOJ to ensure that all three agencies apply a consistent definition of the term in their admissibility inquiries. 84 Fed. Reg. at 41,294 n.3.

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64 Fed. Reg. at 28,689, 28,692. Under the new rule, an alien would be considered a public charge if he or she “receives one or more [designated] public benefits . . . for more than 12 months in the aggregate within a 36-month period.” 83 Fed. Reg. at 51,157–58. Moreover, the proposed rule counts each public benefit received, so that “receipt of two different non-monetizable benefits in one month counts as two months.” Id. at 51,166.

Second, the proposed rule expanded which benefits contributed to a public-charge determination. The proposed rule still included those cash-benefit programs that were listed in the 1999 Field Guidance, but now also includes various in-kind programs, such as:

(A) Supplemental Nutrition Assistance Program (SNAP, formerly called ‘‘Food Stamps’’), 7 U.S.C. 2011 to 2036c;

(B) Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD under 24 CFR part 984; 42 U.S.C. 1437f and 1437u;

(C) Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under 24 CFR parts 5, 402, 880 through 884 and 886; and

. . .

(i) Medicaid, 42 U.S.C. 1396 et seq., [with several exceptions, discussed below]

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. . .

(iv) Subsidized Housing under the Housing Act of 1937, 42 U.S.C. 1437 et seq.

Id. at 51,290 (to be codified at 8 C.F.R. § 212.21).5

Additionally, the proposed rule added other factors for immigration officers to consider when making a publiccharge determination. The rule still required consideration of the alien’s age, health, family status, financial status, education, and skills, as well as any affidavits of support the alien presents. See 83 Fed Reg. 51,178 (to be codified at 8 C.F.R. § 212.22). But the proposed rule also laid out new factors to be afforded extra weight. Four factors weigh heavily against the alien in a public-charge determination: (1) a finding that the alien “is not a full-time student and is authorized to work,” but cannot demonstrate “current employment, employment history, or [a] reasonable prospect of future employment”; (2) a previous finding of inadmissibility on public-charge grounds; (3) a medical

5 DHS altered the Final Rule to make clear that certain benefits were exempt from consideration, including “Medicaid [collected] by aliens under the age of 21[, Medicaid collected by] pregnant women during pregnancy and during the 60-day period after pregnancy,” school-based services, Individuals with Disabilities Education Act (IDEA) services, Medicare Part D Low-Income Subsidies, and emergency medical care. 84 Fed. Reg. at 41,296–97 (codified at 8 C.F.R. § 212.21). Further, in certain circumstances, the proposed rule excuses receipt of covered public benefits. See id. (codified at 8 C.F.R. § 212.21) (exempting public benefits from consideration when the recipient has received certain humanitarian relief, the recipient or his spouse was in the Armed Forces, or the recipient received a waiver).

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diagnosis that would likely require extensive medical treatment or interfere with the alien’s ability to be selfsufficient; and (4) receipt of benefits for more than twelve months within a thirty-six month period. Id. at 51,198–201 (to be codified at 8 C.F.R. § 212.22). Conversely, two factors would weigh heavily in favor of the alien in a public-charge determination: (1) assets or household income over 250 percent of the Federal poverty line, and (2) individual income over 250 percent of the Federal poverty line.6 Id. at 51,292 (to be codified at 8 C.F.R. § 212.22(c)(2)).

During the sixty-day public comment period that followed the NPRM, DHS collected 266,077 comments, “the vast majority of which opposed the rule.” 84 Fed. Reg. at 41,297. On August 14, 2019, DHS published the Final Rule in the Federal Register. Id. at 41,292. In its 216-page Final Rule, DHS made some changes to the proposed rule (which are not relevant here) and addressed the comments it received. The Final Rule was scheduled to take effect on October 15, 2019, and would apply to anyone applying for admission or adjustment of status after that date. Id.

C. The Proceedings

1. The Northern District of California Case

On August 13, 2019, the City and County of San Francisco and the County of Santa Clara sued several government agencies and officials, including U.S. Citizenship and Immigration Services (USCIS), the Acting Director of USCIS Kenneth T. Cuccinelli, DHS, and the then Acting

6 The Final Rule added a third factor: private health insurance not subsidized under the Affordable Care Act. 84 Fed. Reg. at 41,504.

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Director of DHS Kevin McAleenan. They brought suit in the United States District Court for the Northern District of California, claiming that the proposed rule violated the APA on two grounds: (1) the rule was not made in accordance with the law, and (2) the rule was arbitrary, capricious, and an abuse of discretion. See 5 U.S.C. § 706(2). Three days later, on August 16, 2019, California, Maine, Oregon, Pennsylvania, and the District of Columbia, sued the same defendants in the same court. They claimed that (1) the proposed rule violated § 706 of the APA because (a) it was not made in accordance with the INA, the IIRIRA, the Rehabilitation Act, or state healthcare discretion, (b) it was arbitrary, capricious, and an abuse of discretion, and (2) the proposed rule violated the Fifth Amendment’s Due Process Clause because it denied equal protection based on race and unconstitutional animus.

Each set of plaintiffs filed a motion to preliminarily
enjoin enforcement of the proposed rule. On August 27, 2019, the district court ordered the two cases consolidated.7

The district court heard oral argument on October 2, 2019, and on October 11, granted the preliminary injunction. See City & Cty. of San Francisco, 2019 WL 5100718 at *1, 53. The court first held that both the Counties and the States had standing to sue because they showed imminent financial injury. Id. at *46–47. It held that they were in the statute’s zone of interests because, in enacting the public-charge

7 Several legal and health-care organizations were also parties to the motion for a preliminary injunction below. The district court found that they failed to establish that they were within the zone of interests. City & Cty. of San Francisco, 2019 WL 5100718, at *53. They are not parties to this appeal.

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provision of the INA, “Congress intended to protect states and their political subdivisions’ coffers.” Id. at *41. On the merits, the district court found that the States satisfied the four-factor test for a preliminary injunction. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The court held that the States had a likelihood of success on the merits for at least some of their claims. It found the States were likely to successfully show that the proposed rule was contrary to law because it unreasonably defined the term “public charge,” and thus failed the second step of the Chevron analysis. City & Cty. of San Francisco, 2019 WL 5100718, at *28. Alternatively, the court found that the States had shown a serious question as to whether the INA unambiguously foreclosed the proposed change to the definition of public charge, thus causing the Final Rule to fail at Chevron step one. Id. The court also concluded that the States had demonstrated a likelihood of success on the arbitrary-and-capricious claim because DHS failed to adequately consider the adverse economic and public healthrelated costs of the proposed rule. Id. at *34, *37.

Further, the court found that the rule’s implementation would irreparably harm the Counties and States by causing them to lose millions of dollars in federal reimbursements and face increased operational costs. Id. at *46–49. Focusing on the public’s interest in the continued provision of medical services and the prevention of communicable diseases, the district court found both the balance of the equities and the public interest weighed in favor of granting an injunction. Id. at *50–51. However, because the court found that the States had failed to show why a nationwide injunction would be necessary, the court granted an injunction that applied only to those persons living in plaintiff states or counties. Id. at *53.

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On October 25, 2019, DHS sought a stay of the preliminary injunction. DHS informed the court that it would seek appellate relief if the court did not act by November 14.

2. The Eastern District of Washington Case

On August 14, 2019, Washington, Virginia, Colorado, Delaware, Hawai‘i, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, Rhode Island, and the state attorney general on behalf of Michigan sued USCIS, Cuccinelli, DHS, and McAleenan in the United States District Court for the Eastern District of Washington. They alleged claims similar to those presented in the California cases: (1) the proposed rule violated the APA because (a) it was not in accordance with immigration law or the Rehabilitation Act, (b) it exceeded DHS’s statutory jurisdiction or authority, and (c) it was arbitrary, capricious, and an abuse of discretion, and (2) the proposed rule violated the Fifth Amendment’s Due Process Clause because it denied equal protection based on race and unconstitutional animus.

The district court heard oral argument on October 3, 2019, and on October 11, granted the preliminary injunction. See Washington, 2019 WL 5100717, at *23. The court’s conclusions largely mirrored those of the Northern District of California, though there were some differences. Citing the States’ anticipated economic, administrative, and publichealth costs, the court held that the States had standing and that the matter was ripe. Id. at *11. Finding that the INA was enacted “to protect states from having to spend state money to provide for immigrants who could not provide for themselves,” the court concluded that the States were within the INA’s zone of interests. Id.

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On the merits, the court held that the States had shown a likelihood of success on the arbitrary-and-capriciousness claim and the Chevron claim, though the Washington court was less clear than the California court had been about at which step of the Chevron analysis the proposed rule would fail. Id. at *13–17. Unlike the California court, the Washington court also found that the States were likely to succeed in proving that DHS had violated the Rehabilitation Act, and that DHS acted beyond its congressionally delegated authority in defining self-sufficiency. Id. at *17–18. Noting that “the Plaintiff States provide a strong basis for finding that disenrollment from non-cash benefits programs is predictable, not speculative,” and that such disenrollment would financially harm the States, the court found that the States would suffer irreparable harm if the injunction were not issued. Id. at *20–21. On these same grounds, the court found that the balance of the equities and public interest both “tip[ped] in favor” of granting a preliminary injunction. Id. at *21. However, unlike the California court, the Washington court found a geographically limited injunction untenable, in part because a limited injunction might give immigrants an incentive to move from unprotected states to protected states. Accordingly, the Washington court granted the States a nationwide injunction. Id. at *22–23.

On October 25, 2019, DHS sought a stay of the preliminary injunction. DHS informed the court that it would seek appellate relief if the court did not act by November 14.

* * *

By November 14, neither district court responded to the respective motions to stay. On November 15, 2019, DHS

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filed a motion in this court for an emergency stay of the injunction.

II. JURISDICTION

DHS contends that the plaintiffs do not have Article III standing to sue and that their claims do not fall within the zone of interests protected by the INA. We have an obligation to ensure that jurisdiction exists before proceeding to the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–95 (1998).8 Additionally, although no party has raised the issue, we must address whether DHS’s request for a stay pending appeal is moot in light of the fact that two courts outside our circuit have also issued nationwide injunctions, and any decision we issue here would not directly affect those orders. We conclude that, at this preliminary stage of the proceedings, the States have sufficiently alleged grounds for Article III standing and that DHS’s petition for a stay is not moot.

A. Article III Standing

Article III of the Constitution limits the federal judicial power to the adjudication of “Cases” and “Controversies.” U.S. CONST. art. III, § 2, cl. 1. This fundamental limitation “is founded in concern about the proper—and properly limited—role of the courts in a democratic society.”

8 Both district courts also held that the States’ claims fall within the INA’s “zone of interests.” See City & Cty. of San Francisco, 2019 WL 5100718, at *41; Washington, 2019 WL 5100717, at *11. For present purposes, because the issue is close and raises a prudential rather than jurisdictional concern, see Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1302 (2017), we will assume that the States’ claims satisfy the requirement.

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Summers v. Earth Island Inst., 555 U.S. 488, 492–93 (2009) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). “One of the essential elements of a legal case or controversy is that the plaintiff have standing to sue.” Trump v. Hawai‘i, 138 S. Ct. 2392, 2416 (2018). “[B]uilt on separation-of-powers principles,” standing ensures that litigants have “a personal stake in the outcome of the controversy as to justify the exercise of the court’s remedial powers on their behalf.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (internal citations and alterations omitted).

To demonstrate Article III standing, a plaintiff must show a “concrete and particularized” injury that is “fairly traceable” to the defendant’s conduct and “that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547–48 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). “At least one plaintiff must have standing to seek each form of relief requested,” Town of Chester, 137 S. Ct. at 1651, and that party “bears the burden of establishing” the elements of standing “with the manner and degree of evidence required at the successive stages of the litigation,” Lujan, 504 U.S. at 561. “At this very preliminary stage,” plaintiffs “may rely on the allegations in their Complaint and whatever other evidence they submitted in support of their [preliminaryinjunction] motion to meet their burden.” Washington v. Trump, 847 F.3d 1151, 1159 (9th Cir. 2017) (per curiam). And they “need only establish a risk or threat of injury to satisfy the actual injury requirement.” Harris v. Bd. of Supervisors, 366 F.3d 754, 762 (9th Cir. 2004); see Spokeo, 136 S. Ct. at 1548 (noting that the injury must be “actual or imminent, not conjectural or hypothetical” (quoting Lujan, 504 U.S. at 560)).

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The district courts concluded that the States had standing based on their alleged loss of federal funds and increase in operational costs related to individuals disenrolling from the non-cash public benefits at issue. DHS challenges this finding, arguing that predictions of future financial harm are based on an “‘attenuated chain of possibilities’ that does not show ‘certainly impending’ injury.”9 DHS’s argument is unavailing for several reasons.

First, the injuries alleged are not entirely speculative—at least for standing purposes. DHS acknowledges that one result of the Final Rule will be to encourage aliens to disenroll from public benefits. It predicted a 2.5 percent disenrollment rate when proposing the rule. 84 Fed. Reg. at 41,463. This disenrollment, DHS predicted, would result in a reduction in Medicaid reimbursement payments to the States of about $1.01 billion. Id. at 41,301. DHS also acknowledged increased administrative costs that would result from the Final Rule. Id. at 41,389. To be sure, the predicted result is premised on the actions of third parties, but this type of “predictable effect of Government action on the decisions of third parties” is sufficient to establish injury in fact. Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2566 (2019).

Moreover, according to evidence supplied by the States, the predicted results have already started. As more individuals disenroll from Medicaid, the States will no longer receive reimbursements from the federal government for treating them. Similarly, the States have sufficiently alleged that they are facing new and ongoing operational costs

9 DHS raises no argument about the second and third elements of the standing analysis.

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resulting from the Final Rule. See City & Cty. of San Francisco, 2019 WL 5100718, at *48. These costs are predictable, likely, and imminent. It is disingenuous for DHS to claim that they are too attenuated at this point when it acknowledged these costs in its own rulemaking process.

Finally, DHS’s reliance on Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013), is unfounded. There, the Court found that various human rights, labor, legal, and media organizations did not have standing to challenge the constitutionality of a law authorizing governmental electronic surveillance of communications for foreign intelligence purposes. Id. at 414. The alleged injury was that the threat of surveillance would compel them to travel abroad to have in-person conversations with sources and witnesses, in addition to other costs related to protecting the confidentiality of sensitive communications. Id. at 406–07. The Court found that the injury was not “certainly impending” because it was highly speculative whether the government would imminently target communications between the plaintiffs and foreign individuals. Id. at 410–11. The assumption that their communications would be targeted was not enough to demonstrate injury in fact. Id. at 411–14. Here, the States are not making assumptions about their claimed injuries. Unlike in Clapper, the States present evidence that the predicted disenrollment and rising administrative costs are currently happening.

Thus, based on the available evidence at this early stage of the proceedings, we conclude that the States have shown that they have suffered and will suffer direct injuries traceable to the Final Rule and thus have standing to challenge its validity.

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B. Mootness

Finally, we raise on our own the question of whether we can consider DHS’s request for a stay of the district court’s preliminary injunctions. See Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004) (“[W]e have an independent duty to consider sua sponte whether a case is moot.”). The stay would, presumably, allow the Final Rule to go into effect pending further proceedings in the district court and this court. The question of mootness arises because, contemporaneous with the district courts’ orders here, district courts in Maryland and New York also issued nationwide injunctions. Casa de Md., Inc. v. Trump, 2019 WL 5190689 (D. Md. Oct. 14, 2019); New York v. U.S. Dep’t of Homeland Sec., 2019 WL 5100372 (S.D.N.Y. Oct. 11, 2019).10 Thus, unless a stay also issues in those cases, any stay we might issue would not allow the Final Rule to go into effect; the Final Rule would still be barred by those injunctions.

We recently addressed this precise question in California v. U.S. Department of Health & Human Services, 941 F.3d 410, 423 (9th Cir. 2019), and we concluded that even if an injunction from another court “has a fully nationwide scope, we nevertheless retain jurisdiction under the exception to mootness for cases capable of repetition, yet evading review.” Similarly, we conclude that DHS’s petition is not moot, and we proceed to the merits of its petition.

10 In a third case out of the Northern District of Illinois, the district court issued an order enjoining enforcement of the Final Rule in Illinois only. Cook Cty. v. McAleenan, 2019 WL 5110267 (N.D. Ill. Oct. 14, 2019).

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III. STANDARD OF REVIEW

DHS requests that we stay the district courts’ preliminary injunctions pending resolution of the consideration of the merits of DHS’s appeals. We have authority to do so under the All Writs Act, 28 U.S.C. § 1651, which provides that the courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” See Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 9–10 (1942) (finding that a federal court may stay judgments pending appeal “as part of its traditional equipment for the administration of justice”); In re McKenzie, 180 U.S. 536, 551 (1901) (noting the “inherent power of the appellate court to stay . . . proceedings on appeal”); see also Fed. R. Civ. P. 62(g).

Two standards affect our determination, the standard applicable to district courts for preliminary injunctions, and the standard for appellate courts for stays pending appeal. The district court must apply a four-factor standard:

A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.

Winter, 555 U.S. at 20.

Alternatively, “‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as

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the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

Generally, the purpose of a preliminary injunction is to “preserve the status quo and the rights of the parties until a final judgment issues in the cause.” U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984)). An injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. It “should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (citation omitted).

The standard we apply to DHS’s request for a stay is similar, although the burden of proof is reversed. “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion,” and our analysis is guided by four factors:

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

Nken, 556 U.S. at 433–34 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “The first two factors . . . are the

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most critical,” and the “mere possibility” of success or irreparable injury is insufficient to satisfy them. Id. at 434 (internal quotation marks omitted). At this stage of the proceedings, it is now DHS’s burden to make “a strong showing that [it] is likely to” prevail against the States’ claims. Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken, 556 U.S. at 426). We consider the final two factors “[o]nce an applicant satisfies the first two.” Nken, 556 U.S. at 435.

“A stay is an ‘intrusion into the ordinary process of administration and judicial review,’ and accordingly ‘is not a matter of right, even if irreparable injury might otherwise result to the appellant.’” Id. at 427 (citations omitted). “It is instead ‘an exercise of judicial discretion,’ and ‘the propriety of its issue is dependent upon the circumstances of the particular case.’” Id. at 433 (alteration omitted) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672–73 (1926)).

There is significant overlap in these standards. The first prong in both tests—likelihood of success on the merits—is the same. And the Supreme Court has made clear that satisfaction of this factor is the irreducible minimum requirement to granting any equitable and extraordinary relief. Trump v. Hawai‘i, 138 S. Ct. at 2423. The analysis ends if the moving party fails to show a likelihood of success on the merits of its claims. Id.

IV. LIKELIHOOD OF SUCCESS ON THE MERITS

Any “person suffering legal wrong . . . or adversely affected or aggrieved” by an agency’s final action may seek judicial review. 5 U.S.C. § 702. The scope of our review is

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determined by the APA. As a reviewing court, we must “set aside” a final rule if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). In making this determination, we may “decide all relevant questions of law, interpret . . . statutory provisions, and determine the meaning or applicability of the terms of an agency action.” Id. § 706.

DHS argues that it is likely to succeed on the merits of its appeal because, contrary to the conclusions of the district courts, the Final Rule is neither contrary to law nor arbitrary and capricious. We agree. The Final Rule’s definition of “public charge” is consistent with the relevant statutes, and DHS’s action was not arbitrary or capricious.

A. Contrary to Law

The States argue that the Final Rule is invalid under the APA because the Final Rule’s definition of “public charge” is contrary to (1) the INA and (2) the Rehabilitation Act. We disagree and find that DHS is likely to succeed in its argument that the Final Rule is not contrary to law.11

1. The INA and “Public Charge”

When confronted with an argument that an agency’s interpretation of a statute that it administers is wrong, we

11 The States also brought claims in both courts under the equal protection component of the Due Process Clause. U.S. CONST. art. V. Neither district court reached this issue. We also decline to reach this issue. We will consider the likelihood of success on the merits only as to those issues that formed the bases for the district courts’ injunctions. In any further proceedings, the district courts are free to consider any issues fairly before them.

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employ the familiar Chevron two-step test. First, we ask “whether Congress has directly spoken to the precise question at issue.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). If it has, “that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842–43. But if Congress has not spoken directly to the issue at hand, we proceed to the second step and ask “whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843.

We must keep in mind why Chevron is an important rule of construction:

Chevron is rooted in a background presumption of congressional intent: namely, that Congress, when it left ambiguity in a statute administered by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows. Chevron thus provides a stable background rule against which Congress can legislate: Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency. Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.

Arlington v. FCC, 569 U.S. 290, 296 (2013) (quotation marks and citations omitted).

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The district courts found that the Final Rule failed the Chevron test at one or both steps because the Final Rule’s definition of “public charge” was an impermissible reading of that phrase in the INA. We will consider each step in turn.

a. Chevron Step 1

At Chevron’s first step, we determine whether Congress has directly spoken to the issue at hand by “employing traditional tools of statutory construction.” Chevron, 467 U.S. at 843 n.9. That means we start with the text. Afewerki v. Anaya Law Grp., 868 F.3d 771, 778 (9th Cir. 2017). We will then examine the history of interpretation to see if there has been a judicial construction of the term “public charge” that “follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). Finally, we will consider other factors raised by the district courts and the States.

(1) Text. Under § 212 of the INA, an alien is inadmissible if, “in the opinion of” the immigration official, the alien “is likely at any time to become a public charge.” In making that determination, the immigration official must consider “at a minimum” the alien’s age, health, family status, financial resources, education, and skills. 8 U.S.C. § 1182(a)(4)(A). Congress did not define these terms and placed no further restrictions on what these officers may consider in the publiccharge assessment. Nor did Congress prescribe how the officers are to regard the five enumerated factors.

We have four quick observations. First, the determination is entrusted to the “opinion” of the consular or immigration

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officer.12 That is the language of discretion, and the officials are given broad leeway. Depending on the context in which the “opinion” is given, the decision may be nonreviewable. Under the rule of consular nonreviewability, only the most egregious abuses of discretion may be reviewed. See Kerry v. Din, 135 S. Ct. 2128, 2140–41 (2015) (Kennedy, J., concurring); see also Cardenas v. United States, 826 F.3d 1164, 1171–72 (9th Cir. 2016) (holding that Justice Kennedy’s concurring opinion in Din is the controlling opinion and summarizing the consular nonreviewability rule). Indeed, we have previously held that the phrase “in the opinion of the Attorney General” in a now-repealed immigration statute conferred “unreviewable” discretion to the Executive Branch. See Kalaw v. I.N.S., 133 F.3d 1147, 1151–52 (9th Cir. 1997), superseded by statute on other grounds. And to the extent the federal courts may review such determinations, our review is narrow. See MonteroMartinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002) (holding that judicial review of discretionary acts by the BIA is limited to “the purely legal and hence non-discretionary” aspects of the BIA’s action); see also Allen v. Milas, 896 F.3d 1094, 1106–07 (9th Cir. 2018) (noting that judicial review of visa denials is “limited . . . to constitutional challenges” and does not extend to APA-based challenges (emphasis omitted)).

Second, the critical term “public charge” is not a term of art. It is not self-defining. That does not mean that officials

12 The text of the INA does not mention immigration officers. Rather, it commits the public-charge determination to the “opinion of the Attorney General.” 8 U.S.C. § 1182(a)(4)(A). As we explained above, Congress has since transferred the authority granted by the INA to DHS’s immigration officers.

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may pour any meaning into the term, but it does mean that there is room for discretion as to what, precisely, being a “public charge” encompasses. In a word, the phrase is “ambiguous” under Chevron; it is capable of a range of meanings. So long as the agency has defined the term within that range of meanings, we have no grounds for secondguessing the agency, “even if the agency’s reading differs from what [we] believe[] is the best statutory interpretation.” Brand X, 545 U.S. at 980 (citing Chevron, 467 U.S. at 843–44 & n.11). It also means that an agency “must consider varying interpretations and the wisdom of its policy on a continuing basis,” including “in response to changed factual circumstances, or a change in administrations.” Id. at 981 (quotations marks and citations omitted).

Third, Congress set out five factors to be taken into account by immigration officials, but expressly did not limit the discretion of officials to those factors. Rather the factors are to be considered “at a minimum.” Other factors may be considered as well, giving officials considerable discretion in their decisions.

Fourth, Congress granted DHS the power to adopt regulations to enforce the provisions of the INA. When Congress created DHS, Congress vested the Secretary of Homeland Security “with the administration and enforcement of . . . all [] laws relating to the immigration and naturalization of aliens” and authorized the Secretary to “establish such regulations . . . as he deems necessary.” 8 U.S.C. § 1103(a)(1) & (3); see also 6 U.S.C. § 112(b)(1) (authorizing the Secretary to “delegate any of the Secretary’s functions to any [DHS] officer, employee, or organizational unit”); Matter of D-J-, 23 I. & N. Dec. at 573–74. By granting regulatory authority to DHS, Congress intended that

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DHS would resolve any ambiguities in the INA. See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (“A premise of Chevron is that when Congress grants an agency the authority to administer a statute by issuing regulations with the force of law, it presumes the agency will use that authority to resolve ambiguities in the statutory scheme.”). As we have already noted, the INA’s text is ambiguous. DHS has attempted to elucidate that ambiguity in the Final Rule. In short, we do not read the text of the INA to unambiguously foreclose DHS’s action.

(2) Historical Understanding. Although the foregoing would ordinarily be sufficient to end our inquiry, the current provision, which was most recently rewritten in 1996 in IIRIRA, is merely the most recent iteration of federal immigration law to deem an alien inadmissible if he or she is likely to become a “public charge.” There is a long history of judicial and administrative interpretations of this phrase in the immigration context that predates the enactment of the INA. Because “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change,” Lorillard v. Pons, 434 U.S. 575, 580 (1978), we must examine this history to determine if “public charge” has a well-defined and congressionally understood meaning that limits DHS’s discretion.

The history of the term “public charge” confirms that its definition has changed over time to adapt to the way in which federal, state, and local governments have cared for our most vulnerable populations. “Public charge” first appeared in this country’s immigration law in 1882. That statute excluded a would-be immigrant from the United States if the person was a “convict, lunatic, idiot, or a[] person unable to take care of

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himself or herself without becoming a public charge.” Act of Aug. 3, 1882 ch. 376, § 2, 22 Stat. 214.

Congress did not define “public charge” in the 1882 act. We thus ascribe to that phrase its commonly understood meaning at the time, as evidenced by contemporary sources. See Freeman v. Quicken Loans, Inc., 566 U.S. 624, 633–34 & nn.6–8 (2012) (citing contemporary dictionary definitions to interpret statutory phrases). An 1828 dictionary defined “charge” as “[t]hat which is enjoined, committed, entrusted or delivered to another, implying care, custody, oversight, or duty to be performed by the person entrusted,” or a “person or thing committed to anothers [sic] custody, care or management.” Charge, WEBSTER’S DICTIONARY (1828 Online Edition), http://webstersdictionary1828.com/Diction ary/charge; see also Stewart Rapaljb & Robert L. Lawrence, DICTIONARY OF AMERICAN AND ENGLISH LAW, WITH DEFINITIONS OF THE TECHNICAL TERMS OF THE CANON AND CIVIL LAWS 196 (Frederick D. Linn & Co. 1888) (defining “charge” as “an obligation or liability. Thus we speak . . . of a pauper being chargeable to the parish or town”). That is a broad, common-sense definition, which was reflected in Nineteenth-Century judicial opinions using the phrase. See, e.g., In re Day, 27 F. 678, 681 (C.C.S.D.N.Y. 1886) (defining a “public charge” as a person who “can neither take care of themselves, nor are under the charge or protection of any other person”); State v. The S.S. “Constitution”, 42 Cal. 578, 584–85 (1872) (noting that those who are “liable to become a public charge” are “paupers, vagabonds, and criminals, or sick, diseased, infirm, and disabled persons”); City of Alton v. Madison Cty., 21 Ill. 115, 117 (1859) (noting that a person is not a “public charge” if the person has “ample means” of support).

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The 1882 act did not consider an alien a “public charge” if the alien received merely some form of public assistance. The act itself established an “immigrant fund” that was designed to provide “for the care of immigrants arriving in the United States.” Act of Mar. 26, 1910 ch. 376, § 1, 22 Stat. 214. Congress thus accepted that providing some assistance to recent immigrants would not make those immigrants public charges. But Congress did not draw that line with any precision. Instead, we read “public charge” in the 1882 act to refer generally to those who were unwilling or unable to care for themselves. In context that often meant that they were housed in a government or charitable institution, such as an almshouse, asylum, or penitentiary.

The term “public charge” endured through subsequent amendments to the 1882 act. In 1910, Congress enacted a statute that deemed “paupers; persons likely to become a public charge; professional beggars;” and similar people inadmissible. ch. 128, § 2, 36 Stat. 263 (1910). Relying on the placement of “public charge” between “paupers” and “professional beggars,” the Supreme Court held that a person is likely to become a public charge if that person has “permanent personal objections” to finding employment. Gegiow v. Uhl, 239 U.S. 3, 10 (1915). In that case, the petitioners, Russian emigrees, arrived in the United States with little cash and the intention of going to Portland, Oregon. The immigration officials considered them likely to become public charges because Portland had a high unemployment rate. In a spare, three-page opinion by Justice Holmes, the Court noted that the “single question” before the Court was “whether an alien can be declared likely to become a public charge on the ground that the labor market in the city of his immediate destination is overstocked.” Id. at 9–10. The Court answered in the negative. In making the public-charge

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determination, immigration officers must consider an alien’s “personal” characteristics, not a localized job shortage. Id. at 10. The Court observed that “public charge” should be “read as generically similar to the other[] [statutory terms] mentioned before and after” that phrase. Id. Five years later, we followed the Supreme Court’s lead, holding that “the words ‘likely to become a public charge’ are meant to exclude only those persons who are likely to become occupants of almshouses for want of means with which to support themselves in the future.” Ng Fung Ho v. White, 266 F. 765, 769 (9th Cir. 1920) (citing Howe v. United States, 247 F. 292, 294 (2d Cir. 1917)), aff’d in part and rev’d in part on other grounds, 259 U.S. 276 (1922).13 Thus, as of 1920, we considered the likelihood of being housed in a state institution to be the primary factor in the public-charge analysis.

By the mid-Twentieth Century, the United States had largely abandoned the poorhouse in favor of direct payments through social welfare legislation. At the federal level, the government had created Social Security and Aid to Families With Dependent Children (AFDC). At the state level,

13 In Ng Fung Ho, the petitioner had been admitted to the United States, based partly on his holding a “certificate” that allowed him to be a “merchant.” Id. at 768. Several years after his admission, he pleaded guilty to gambling. Id. at 769. It was then determined that the petitioner was no longer a merchant. The government argued that the petitioner was deportable because he had been likely to become a public charge at the time of his admission. Because there was no evidence that the certificate he had produced prior to admission had been fraudulent, we held that merely pleading guilty to gambling and paying a $25 fine three years after being admitted did not “prove that the alien . . . was likely to become a public charge” at the time of admission. Id. We thus rejected the government’s assertion that the petitioner should be deported on that basis. Id. at 770.

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governments supplemented family income through programs such as unemployment insurance and worker’s compensation. Similar changes were being made in other programs such as mental health care, where we moved from institutionalizing the mentally ill to a program of treatment with the end of releasing them. As Chief Justice Burger observed:

Historically, and for a considerable period of time, subsidized custodial care in private foster homes or boarding houses was the most benign form of care provided incompetent or mentally ill persons for whom the States assumed responsibility. Until well into the 19th century the vast majority of such persons were simply restrained in poorhouses, almshouses, or jails.

O’Connor v. Donaldson, 422 U.S. 563, 582 (1975) (Burger, C.J., concurring). “[T]he idea that States may not confine the mentally ill except for the purpose of providing them with treatment [was] of very recent origin.” Id. (footnote omitted). The way in which we regarded the poor and the mentally infirm not only brought changes in the way we treated them, but major changes in their legal rights as well. See, e.g., McNeil v. Director, Patuxent Inst., 407 U.S. 245, 248–50 (1972) (requiring a hearing before a person who has completed his criminal sentence can be committed to indefinite confinement in a mental institution); cf. Goldberg v. Kelly, 397 U.S. 254, 260–61 (1970) (holding that a recipient of public assistance payments is constitutionally entitled to an evidentiary hearing before those payments are terminated).

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The movement towards social welfare was soon reflected in the definition of “public charge.” In Matter of B-, 3 I. & N. Dec. 323 (BIA 1948), the recently created BIA articulated a new definition of “public charge.” Permanent institutionalization would not be the sole measure of whether an alien was a public charge. The BIA said it would also consider whether an alien received temporary services from the government. At the same time, the BIA recognized that mere “acceptance by an alien of services provided by” the government “does not in and of itself make the alien a public charge.” Id. at 324. Instead, the BIA stated that an alien becomes a public charge if three elements are met: “(1) The State or other governing body must, by appropriate law, impose a charge for the services rendered to the alien. . . . (2) The authorities must make demand for payment of the charges . . . . And (3) there must be a failure to pay for the charges.” Id. at 326. In other words, the government benefit received by the alien must be monetized, a bill must be presented to the alien, and the alien must refuse to pay. Ultimately, in Matter of B-, the BIA held that the petitioner had not become a public charge, even though she had been involuntarily committed to a mental institution, because the state of Illinois had not charged her or demanded payment. Id. at 327. The BIA’s order was subsequently affirmed by the Attorney General. Id. at 337.

Four years later, Congress substantially revised the immigration laws in the Immigration and Nationality Act of 1952. The amended statute retained the term “public charge,” but, for the first time, made clear that the decision was committed to the opinion of a consular officer or the Attorney General. The INA deemed inadmissible “[a]liens who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of

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application for admission, are likely at any time to become public charges.” Title 2, ch. 2, § 212, 66 Stat. 163, 183 (1952). Although Matter of B- was not mentioned in the legislative history accompanying the 1952 act, it is notable that Congress chose to insert this “opinion” language following the BIA’s articulation of a new definition of “public charge” that departed from prior judicial interpretations of the term.

In 1974, the BIA altered course again. The BIA limited Matter of B-’s three-part test to determining whether a person had become a public charge after having been admitted to the United States. See Matter of Harutunian, 14 I. & N. Dec. 583, 585 (BIA 1974). After noting that the phrase “public charge” had been interpreted differently by various courts, the BIA held:

[A]ny alien who is incapable of earning a livelihood, who does not have sufficient funds in the United States for his support, and has no person in the United States willing and able to assure that he will not need public support is excludable as likely to become a public charge whether or not the public support which will be available to him is reimbursable to the state.

Id. at 589–90. The BIA thus pegged the public-charge determination to whether the alien was likely to “need public support,” irrespective of whether the alien was likely to be institutionalized for any length of time and billed for the cost by the state. Id. at 589.

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That definition of “public charge” was subsequently amended by the INS. In 1987, the INS issued a final rule that deemed an applicant for adjustment of status to be a “public charge” if the applicant had “received public cash assistance.” Adjustment of Status for Certain Aliens, 52 Fed. Reg. 16,205, 16,211 (May 1, 1987). INS did not state how much “public cash assistance” an alien had to receive, but left the decision to officers who would judge the totality of the circumstances. See id. at 16,211 (noting that “all [the] evidence produced by the applicant will be judged”), 16,212 (“The weight given in considering applicability of the public charge provisions will depend on many factors . . . .”). INS did make clear that “public cash assistance” would not include the value of “assistance in kind, such as food stamps, public housing, or other non-cash benefits,” including Medicare and Medicaid. Id. at 16,209.

In 1996, through IIRIRA, Congress enacted the current language appearing in § 212 of the INA. Omnibus Consolidated Appropriations Act, Title 5 § 531, 110 Stat. 3009 (1996). As detailed above, Congress added a requirement that an immigration officer consider an alien’s “age;” “health;” “family status;” “assets, resources and financial status;” and “education and skills” when determining if a person is likely to become a public charge. 8 U.S.C. § 1182(a)(4)(B).

Responding to the 1996 act, INS published the 1999 Field Guidance to “establish clear standards governing a determination that an alien is inadmissible or ineligible to adjust status . . . on public charge grounds.” 64 Fed. Reg. at 28,689. In the 1999 Field Guidance, INS defined “public charge” as “an alien . . . who is likely to become (for admission/adjustment purposes) primarily dependent on the

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government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” Id. (internal quotation marks omitted). The 1999 Field Guidance made clear that the public-charge determination remained a “totality of the circumstances test.” Id. at 28,690. Within this totality-of-the-circumstances assessment, only the receipt of “cash public assistance for income maintenance” should be considered; “receipt of noncash benefits or the receipt of special-purpose cash benefits not for income maintenance should not be taken into account.” Id. The 1999 Field Guidance thus largely reaffirmed INS’s 1987 rule. For the past twenty years, the 1999 Field Guidance has governed, until it was replaced by the Final Rule.

So what to make of this history? Unlike the district courts, we are unable to discern one fixed understanding of “public charge” that has endured since 1882. If anything has been consistent, it is the idea that a totality-of-thecircumstances test governs public-charge determinations. But different factors have been weighted more or less heavily at different times, reflecting changes in the way in which we provide assistance to the needy. Initially, the likelihood of being housed in a government or charitable institution was most important. Then, the focus shifted in 1948 to whether public benefits received by an immigrant could be monetized, and the immigrant refused to pay for them. In 1974, it shifted again to whether the immigrant was employable and selfsufficient. That was subsequently narrowed in 1987 to whether the immigrant had received public cash assistance, which excluded in-kind benefits. Congress then codified particular factors immigration officers must consider, which was followed by the 1999 Field Guidance’s definition of

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“public charge.” In short, we find that the history of the use of “public charge” in federal immigration law demonstrates that “public charge” does not have a fixed, unambiguous meaning. Rather, the phrase is subject to multiple interpretations, it in fact has been interpreted differently, and the Executive Branch has been afforded the discretion to interpret it.

Congress simply has not spoken to how “public charge” should be defined. We must presume that when Congress enacted the current version of the INA in 1996, it was aware of the varying historical interpretations of “public charge.” See Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239–40 (2009). Yet Congress chose not to define “public charge” and, instead, described various factors to be considered “at a minimum,” without even defining those factors. It is apparent that Congress left DHS and other agencies enforcing our immigration laws the flexibility to adapt the definition of “public charge” as necessary.

(3) Other Factors. Both district courts found it significant that Congress twice considered, but failed to enact, a definition of “public charge” that is similar to the definition adopted in the Final Rule. City & Cty. of San Francisco, 2019 WL 5100718 at *27; Washington, 2019 WL 5100717, at *17. During the debates over IIRIRA in 1996, Congress considered whether to enact the following definition of “public charge”: “the term ‘public charge’ includes any alien who receives [certain means-tested] benefits . . . for an aggregate period of at least 12 months or 36 months” in some cases. 142 Cong. Rec. 24,313, at 24,425 (1996). Senator Leahy argued that this was “too quick to label people as public charges for utilizing the same public assistance that many Americans need to get on their feet,” and that the

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phrase “means tested” was “unnecessarily uncertain.” S. Rep. No. 104-249, at 63–64 (1996). Nevertheless, the Senate passed the bill containing the definition of “public charge.” Before the House considered the bill, however, President Clinton implicitly threatened to veto it because it went “too far in denying legal immigrants access to vital safety net programs which could jeopardize public health and safety.” Statement on Senate Action on the “Immigration Control and Financial Responsibility Act of 1996,” 32 Weekly Comp. Pres. Doc. 783 (May 6, 1996). Ultimately, Congress chose not to enact this “public charge” definition. In 2013, the Senate rejected an amendment to the INA that “would have expanded the definition of ‘public charge’ such that people who received non-cash health benefits could not become legal permanent residents. This amendment would also have denied entry to individuals whom the Department of Homeland Security determines are likely to receive these types of benefits in the future.” S. Rep. No. 113-40, at 63 (2013).

The district courts viewed these failed legislative efforts as evidence that Congress specifically rejected the interpretation of “public charge” DHS articulated in the Final Rule, and that the Final Rule is thus an impermissible reading of the INA. City & Cty. of San Francisco, 2019 WL 5100718, at *27; Washington, 2019 WL 5100717, at *17. We disagree. If this legislative history is probative of anything, it is probative only of the fact that Congress chose not to codify a particular interpretation of “public charge.”14

14 Sometimes it is appropriate to consider language Congress has rejected, primarily when Congress rejected language in favor of the statute adopted and under review. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 441–42 (1987) (contrasting Congress’s decision to adopt the House

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See Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 184 (1994) (“[F]ailed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute.” (quotation marks and citation omitted)). But the failure of Congress to compel DHS to adopt a particular rule is not the logical equivalent of forbidding DHS from adopting that rule. The failure to adopt a new rule is just that: no new rule.15 And no change to § 212 means that consular officers, the Attorney General, and DHS retain all the discretion granted them in the INA.

A second argument made by the States and relied upon by the Eastern District of Washington is that DHS exceeded its authority by determining what makes a person “selfsufficient.” Washington, 2019 WL 5100717, at *17–18. This argument is refuted by the statute itself. As we have discussed, the INA requires immigration officers to consider an alien’s “health,” “family status,” “assets, resources, [] financial status,” “education and skills.” 8 U.S.C. § 1182(a)(4)(B)(i)(II)–(V) . The concept of self-sufficiency is subsumed within each of these factors. And even if it were

proposal over the Senate version).
15 We can speculate as to the reasons that members of Congress declined to adopt these legislative proposals, but the speculation will not help us. “A bill can be proposed for any number of reasons, and it can be rejected for just as many others.” Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159, 170 (2001). Although some members may have thought the rule too harsh, others may have thought it too lenient, while a third group may have thought the rule should be left flexible and in the hands of the immigration agencies. If anything, this legislative history proves only that Congress decided not to constrain the discretion of agencies in determining who is a public charge. That discretion had long been vested in the agencies, and these failed legislative efforts did not alter that discretion.

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not, the statutory factors are not exhaustive; DHS may add to them. See id. § 1182(a)(4)(B)(i). Because DHS has been “charged with the administration and enforcement” of all “laws relating to the immigration and naturalization of aliens,” Id. § 1103(a)(1); see also 6 U.S.C. § 112(b)(1), determining what constitutes self-sufficiency for purposes of the public-charge assessment is well within DHS’s authority.16

* * *

In short, Congress has not spoken directly to the interpretation of “public charge” in the INA. Nor did it unambiguously foreclose the interpretation articulated in the Final Rule. Instead, the phrase “public charge” is ambiguous under Chevron. DHS has the authority to interpret it and “must consider varying interpretations and the wisdom of its policy on a continuing basis.” Chevron, 467 U.S. at 863–64.

16 The Eastern District of Washington also held that, because the states have a “central role in formulation and administration of health care policy,” DHS “acted beyond its Congressionally delegated authority” when it adopted the Final Rule. Washington, 2019 WL 5100717, at *18; see also id. (“Congress cannot delegate authority that the Constitution does not allocate to the federal government in the first place . . . .”). Congress, of course, has plenary authority to regulate immigration and naturalization. U.S. CONST. art. I, § 8, cl. 4. Pursuant to that authority, Congress adopted the “public charge” rule, which no one has challenged on constitutional grounds. Further, Congress has authorized DHS to adopt regulations. 8 U.S.C. § 1103(a)(3). DHS thus did not overstep its authority by promulgating the Final Rule. Indeed, under the district court’s analysis, even the 1999 Field Guidance might be unconstitutional. But neither the district court nor the States question the lawfulness of the 1999 Field Guidance. We see no meaningful difference between INS’s authority to promulgate the 1999 Field Guidance and DHS’s authority to adopt the Final Rule.

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Indeed, “the fact that the agency has adopted different definitions in different contexts adds force to the argument that the definition itself is flexible, particularly since Congress has never indicated any disapproval of a flexible reading of the statute.” Id. at 864. We thus proceed to the second step of the Chevron analysis.

b. Chevron Step 2

At Chevron’s second step, we ask whether the agency’s interpretation is “reasonable—or ‘rational and consistent with the statute.’” Diaz-Quirazco v. Barr, 931 F.3d 830, 840 (9th Cir. 2019) (quoting Sullivan v. Everhart, 494 U.S. 83, 89 (1990)). If it is, we must defer to it, “even if the agency’s reading differs from what the court believes is the best statutory interpretation.” Perez-Guzman v. Lynch, 835 F.3d 1066, 1073–74 (9th Cir. 2016) (quoting Brand X, 545 U.S. at 980).

The Final Rule easily satisfies this test. As we have explained, the INA grants DHS considerable discretion to determine if an alien is likely to become a public charge. To be sure, under the Final Rule, in-kind benefits (other than institutionalization) will for the first time be relevant to the public-charge determination. We see no statutory basis from which a court could conclude that the addition of certain categories of in-kind benefits makes DHS’s interpretation untenable.17 And whether the change in policy results from

17 Cash benefits and in-kind benefits are often treated under the single rubric of a “direct subsidy.” Witters v. Wash. Dep’t of the Servs. for the Blind, 474 U.S. 481, 487 (1986). In certain contexts, such as settlement, “compensation in kind is worth less than cash of the same nominal value,” In re Mex. Transfer Litig., 267 F.3d 743, 748 (9th Cir. 2001), but the Final

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changing circumstances or a change in administrations, the wisdom of the policy is not a question we can review. See Brand X, 545 U.S. at 981.

Our conclusion is reinforced by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which Congress enacted contemporaneous with IIRIRA. PRWORA set forth our “national policy with respect to welfare and immigration.” 8 U.S.C. § 1601. In relevant part, PRWORA provides, “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.” Id. § 1601(1). As a result, “[i]t continues to be the immigration policy of the United States that . . . aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.” Id. § 1601(2). Receipt of non-cash public assistance is surely relevant to “self-sufficiency” and whether immigrants are “depend[ing] on public resources to meet their needs.” See id. § 1601(1)–(2); see also Korab v. Fink, 797 F.3d 572, 580 (9th Cir. 2014). PRWORA thus lends support to DHS’s interpretation of the INA.

We conclude that DHS’s interpretation of “public charge” is a permissible construction of the INA.

Rule does not deal with the valuation of such services. It deals only with whether in-kind benefits have been received under certain specified programs.

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2. The Rehabilitation Act

The States argue, and the Eastern District of Washington found, that the Final Rule is inconsistent with the Rehabilitation Act. Washington, 2019 WL 5100717, at *18. The Northern District of California rejected that argument. City & Cty. of San Francisco, 2019 WL 5100718, at *29–30. The Rehabilitation Act provides: “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity . . . conducted by any Executive agency.” 29 U.S.C. § 794(a). “Program or activity” is defined as “all of the operations of . . . [an] agency.” Id. § 794(b).

This argument need not detain us long. First, under the INA, immigration officers are obligated to consider an immigrant’s “health” when making the public-charge determination. 8 U.S.C. § 1182(a)(4)(B)(i)(II). To the extent that inquiry may consider an alien’s disability, the officers have been specifically directed by Congress to do so. Indeed, Congress’s express direction that immigration officers consider an alien’s “health” came twenty-three years after the Rehabilitation Act. We cannot see how a general provision in one statute constrains an agency given a specific charge in a subsequent law. The INA does not violate the Rehabilitation Act. Second, nothing in the Final Rule changes DHS’s practice with respect to considering an alien’s health. Nothing in the Final Rule suggests that aliens will be denied admission or adjustment of status “solely by reason of her or his disability.” Throughout the Final Rule, DHS confirms that the public-charge determination is a totality-ofthe-circumstances test. See 84 Fed. Reg. at 41,295, 41,368.

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And DHS specifically addressed this argument in the Final Rule: “it is not the intent, nor is it the effect of this rule to find a person a public charge solely based on his or her disability.” Id. at 41,368. DHS has shown a strong likelihood that the Final Rule does not violate the Rehabilitation Act.

* * *

In sum, DHS is likely to succeed in its argument that the Final Rule should not be set aside as contrary to law. We will not minimize the practical impact of the Final Rule, but we will observe that it is a short leap in logic for DHS to go from considering in-cash public assistance to considering both incash and in-kind public assistance. DHS has shown that there is a strong likelihood that its decision to consider the receipt of in-kind government assistance as part of its totality-of-thecircumstances test is a reasonable interpretation of the INA and does not violate the Rehabilitation Act.

B. Arbitrary and Capricious

Arbitrary and capricious review under the APA addresses the reasonableness of the agency’s decision. The classic statement of our scope of review is Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Automotive Insurance Co., 463 U.S. 29 (1983):

[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. In reviewing that explanation, we must consider whether the decision was based on a

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consideration of the relevant factors and whether there has been a clear error of judgment. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that could not be ascribed to a difference in view of the product of agency expertise.

Id. at 43 (quotation marks and citations omitted); see Org. Vill. of Kake v. Dep’t of Agric., 795 F.3d 956, 966–67 (9th Cir. 2015). An agency’s failure to respond to any particular comment or point put forward by a rule’s opponents is not a ground for finding per se arbitrary-and-capricious action. See Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1150–52 (9th Cir. 2002) (explaining that there is no per se violation of the APA when an agency fails to address comments); Thompson v. Clark, 741 F.2d 401, 408 (D.C. Cir. 1984) (“[The APA] has never been interpreted to require the agency to respond to every comment, or to analyse [sic] every issue or alternative raised by the comments, no matter how insubstantial.”).

The fact that DHS has changed policy does not substantially alter the burden in the challengers’ favor. DHS must, of course, “show that there are good reasons for the new policy,” but, it

need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices

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that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).

The district courts raised two objections to DHS’s consideration that the district courts found made the Final Rule arbitrary and capricious: (1) DHS’s failure to properly weigh the costs to state and local governments and healthcare providers, such as hospitals, resulting from disenrollment from public benefits programs; and (2) DHS’s inadequate consideration of the Final Rule’s impact on public health. City & Cty. of San Francisco, 2019 WL 5100718, at *31–35; Washington, 2019 WL 5100717, at *19. We will consider each in turn.

1. Costs of Disenrollment

The Northern District of California’s principal concern was the higher costs that state and local governments will face as a result of “disenrollment [from] public benefits.” City & Cty. of San Francisco, 2019 WL 5100718, at *31. Specifically, the district court concluded that “DHS appears to have wholly failed to engage with [comments on the costs of the change]. DHS failed to grapple with the [Final] Rule’s predictable effects on local governments, and instead concluded that the harms—whatever they may be—are an acceptable price to pay.” Id. at *32. The court further faulted DHS for “refus[ing] to consider the costs associated with

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predicted, likely disenrollment of those not subject to the public charge determination.” Id.

We begin with the observation that DHS addressed at length the costs and benefits associated with the Final Rule. See 84 Fed. Reg. at 41,300–03 (summarizing costs and benefits); id. at 41,312–14 (estimating costs to health care providers, states, and localities); id. at 41,463–81 (responding to various comments on costs and benefits); id. at 41,485–41,489 (responding to Executive Orders requiring an assessment of the costs and benefits of regulatory alternatives).18 In addition, DHS prepared an “Economic Analysis Supplemental Information for Analysis of Public Benefits Programs,” www.regulations.gov/document?D=U SCIS-2010-0012-63742.

DHS’s analysis began by stating, “This rule will impose new costs on this population applying to adjust status . . . that are subject to the public charge ground of inadmissibility.” 84 Fed. Reg. at 41,300. It estimated the direct costs to the federal government of the rule to be $35,202,698 annually. Some of these direct costs to the federal government would be offset by “individuals who may choose to disenroll from or forego enrollment in a public benefits program.” Id. DHS estimated the reduction in federal transfer payments would be about $2.47 billion annually. Id. at 41,301. It further estimated that there would be a reduction in state transfer

18 Indeed, DHS’s notice is quite comprehensive. In no fewer than 216 pages (which DHS estimated would take sixteen to twenty hours to read), DHS explained the changes proposed, estimated costs and savings, and addressed scores of comments on topics ranging from potential public-health concerns to whether DHS should consider immigrants’ credit scores. See generally 84 Fed. Reg. at 41,292–508.

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payments of about $1.01 billion annually. Id. DHS also acknowledged that the Final Rule would impose direct and indirect costs on individuals and entities. The first of these, it suggested, were “familiarization costs,” which was “a direct cost of the rule.” Id. Organizations that work with immigrant communities would similarly experience indirect costs of familiarization. Id.

Elsewhere, DHS responded to comments claiming that the Final Rule would cause aliens to disenroll from or forego enrollment in public benefit programs and that this “would be detrimental to the financial stability and economy of communities, States, local organizations, hospitals, safety net providers, foundations, and healthcare centers.” Id. at 41,312; see also id. (suggesting that the Final Rule would increase the use of hospital emergency rooms). DHS identified three categories of aliens who might be affected by the Final Rule. First, there are aliens who are entitled to public benefits and seek to immigrate or adjust status. Their receipt of some public benefits are simply not covered by the rule. DHS noted, for example, that “emergency response, immunization, education, or [certain] social services” are not included in its revised definition of “public benefits.” Id. On the other hand, there are public benefits to which such an alien is entitled but which will be considered by DHS in its determination whether such alien is a “public charge.” DHS “acknowledge[d] that individuals subject to this rule may decline to enroll in, or may choose to disenroll from, public benefits for which they may be eligible under PRWORA, in order to avoid negative consequences as a result of this final rule.” Id. DHS could not estimate how many aliens in this category would be affected by the Final Rule “because data limitations provide neither a precise count nor reasonable estimate of the number of aliens who are both subject to the

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public charge ground of inadmissibility and are eligible for public benefits in the United States.” Id. at 41,313.

The second category of aliens are those who are unlawfully in the United States. These are “generally barred from receiving federal public benefits other than emergency assistance.” Id. (footnote omitted). Nevertheless, DHS announced that it will not consider “for purposes of a public charge inadmissibility determination whether applicants for admission or adjustment of status are receiving food assistance through other programs, such as exclusively statefunded programs, food banks, and emergency services, nor will DHS discourage individuals from seeking such assistance.” Id.

Third are those aliens and U.S. citizens who are not subject to the Final Rule, but erroneously think they are and disenroll from public benefits out of an abundance of caution. Id. Disenrollment by this category of persons should not be influenced by the Final Rule because their receipt of public benefits will “not be counted against or made attributable to immigrant family members who are subject to this rule.” Id. DHS understood “the potential effects of confusion” over the scope of the Final Rule that might lead to over-disenrollment. DHS stated that it would “issue clear guidance that identifies the groups of individuals who are not subject to the rule.” Id.

The Northern District of California pointed out that DHS’s response “fails to discuss costs being borne by the states, hospitals, or others, other than to say DHS will issue guidance in an effort to mitigate confusion.” City & Cty. of San Francisco, 2019 WL 5100718, at *34. The court further criticized DHS for “flatly refus[ing] to consider the costs

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associated with predicted, likely disenrollment of those not subject to the public charge determination.” Id. at *35.

We think several points must be considered here. First, the costs that the states, localities, and various entities (such as healthcare providers) may suffer are indirect. Nothing in the Final Rule imposes costs on those governments or entities; the Final Rule does not regulate states, localities, and private entities. Disenrollment will be the consequence of either (1) the free choice of aliens who wish to avoid any negative repercussions for their immigration status that would result from accepting public benefits, or (2) the mistaken disenrollment of aliens or U.S. citizens who can receive public benefits without any consequences for their residency status. DHS addressed both groups. DHS said it did not have data to calculate the size of the first group (and, presumably, the value of the benefits from which they will disenroll), and it had no way to estimate the second. 84 Fed. Reg. at 41,313. DHS stated that it would try to compensate for the latter group’s error by publishing clear guidance, and it also noted that other organizations, public and private, would have an incentive to provide accurate information to persons who might mistakenly disenroll. Id. at 41,486.

Second, DHS did acknowledge the indirect costs the Final Rule might impose

downstream . . . on state and local economics, large and small businesses, and individuals. For example, the rule might result in reduced revenues for healthcare providers participating in Medicaid, companies that manufacture medical supplies or pharmaceuticals, grocery retailers

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participating in SNAP, agricultural producers who grow foods that are eligible for purchase using SNAP benefits, or landlords participating in federally funded housing programs.

Id. It did not attempt to quantify those costs, but it recognized the overall effect of the Final Rule, and that is sufficient. See Irvine Med. Ctr. v. Thompson, 275 F.3d 823, 835 (9th Cir. 2002) (“[T]he Secretary acknowledged that some Medicare beneficiaries would possibly have to shoulder an additional financial burden as a result of the repeal of the carry-forward provision. This acknowledgment did not render the Secretary’s rulemaking statement or reliance upon it arbitrary, however.” (internal citation omitted)) .

Third, DHS is not a regulatory agency like EPA, FCC, or OSHA. Those agencies have broad mandates to regulate directly entire industries or practices, sometimes on no more instruction from Congress than to do so in the “public convenience, interest or necessity,” 47 U.S.C. § 303 (FCC), or as “appropriate and necessary,” 42 U.S.C. § 7412(n)(1)(A) (EPA). When Congress has vested such broad regulatory authority in agencies, the Supreme Court has sometimes insisted that the agencies perform some kind of a cost-benefit analysis. See, e.g., Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015) (EPA cannot “ignore cost when deciding whether to regulate power plants”); Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 644 (1980) (plurality opinion) (OSHA must “undertake some cost-benefit analysis before [it] promulgates any [safety and health] standard”). But see Am. Textile Mfs. Inst. Inc. v. Donovan, 452 U.S. 490, 510–11 (1981) (“Congress uses specific language when intending that an agency engage in cost-benefit analysis.”). By contrast,

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DHS is defining a simple statutory term—“public charge”—to determine whether an alien is admissible. Its only mandate is to regulate immigration and naturalization, not to secure transfer payments to state governments or ensure the stability of the health care industry. Any effects on those entities are indirect and well beyond DHS’s charge and expertise. Even if it could estimate the costs to the states, localities, and healthcare providers, DHS has a mandate from Congress with respect to admitting aliens to the United States. As DHS explained,

DHS does not believe that it is sound policy to ignore the longstanding self-sufficiency goals set forth by Congress or to admit or grant adjustment of status applications of aliens who are likely to receive public benefits designated in this rule to meet their basic living needs in . . . hope that doing so might alleviate food and housing insecurity, improve public health, decrease costs to states and localities, or better guarantee health care provider reimbursements. DHS does not believe that Congress intended for DHS to administer [§ 212] in a manner that fails to account for aliens’ receipt of food, medical, and housing benefits so as to help aliens become self-sufficient.

84 Fed. Reg. at 41,314. Even had DHS been able to calculate the indirect costs that states, localities, and healthcare providers might bear as a result of the Final Rule, it is not clear what DHS was supposed to balance. Rather, it was sufficient—and not arbitrary and capricious—for DHS to consider whether, in the long term, the overall benefits of its

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policy change will outweigh the costs of retaining the current policy.

2. Public-Health Concerns

The Northern District of California also found that DHS did not sufficiently respond to certain public-health concerns. City & Cty. of San Francisco, 2019 WL 5100718, at *35–37. Specifically, the court worried that by disenrolling from public-health benefits like Medicaid, people may forgo vaccinations, which could have serious public-health consequences. Id. The district court also pointed out that the 1999 Field Guidance declined to define “public charge” to include receipt of “health and nutrition benefits” out of fear of possible public-health ramifications. Id. at *37 (citing 64 Fed. Reg. at 28,692).

DHS not only addressed these concerns directly, it changed its Final Rule in response to the comments. 84 Fed. Reg. at 41,297. With respect to vaccines, DHS stated that it “does not intend to restrict the access of vaccines for children or adults or intend to discourage individuals from obtaining the necessary vaccines to prevent vaccine-preventable diseases.” Id. at 41,384. The Final Rule “does not consider receipt of Medicaid by a child under age 21, or during a person’s pregnancy, to constitute receipt of public benefits.” DHS said that would address “a substantial portion, though not all, of the vaccinations issue.” Id. Accordingly, DHS “believes that vaccines would still be available for children and adults even if they disenroll from Medicaid.” Id. at 41,385.

Both the Northern District of California and the Eastern District of Washington expressed concern that the Final Rule

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was a departure from the 1999 Field Guidance, which raised the vaccine issue, and that the 1999 Field Guidance had “engendered reliance.” City & Cty. of San Francisco, 2019 WL 5100718, at *37; see also Washington, 2019 WL 5100717, at *19. The question is not whether an agency can change a policy that people have come to rely on; clearly, it can. The real question is whether the agency has acknowledged the change and explained the reasons for it. DHS knew well that it was adopting a change in policy; that was the whole purpose of this rulemaking exercise. See Encino Motorcars, 136 S. Ct. at 2126 (holding that a Department of Labor regulation was “issued without . . . reasoned explanation” where there was “decades of industry reliance on the Department’s prior policy” and the new rule was “offered [with] barely any explanation”); INS v. YuehShaio Yang, 519 U.S. 26, 32 (1996) (distinguishing “an irrational departure from [established] policy” from “an avowed alteration of it”). “[I]t suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.” Fox Television Stations, 556 U.S. at 515. Because DHS has adequately explained the reasons for the Final Rule, it has demonstrated a strong likelihood of success on the merits.

V. OTHER FACTORS

We have concluded that DHS is likely to succeed on the merits. Were we reviewing the preliminary injunctions on direct review, this would be sufficient to reverse the district courts’ orders. See Trump v. Hawai‘i, 138 S. Ct. at 2423. But because we are here on DHS’s motion for a stay, DHS bears the burden of satisfying three additional factors: that DHS will suffer some irreparable harm, that the balance of

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the hardships favors a stay, and that the stay is in the public interest. Nken, 556 U.S. at 434.

A. Irreparable Harm

We first consider whether DHS has shown that it “will be irreparably injured absent a stay.” Nken, 556 U.S. at 434 (quoting Hilton, 481 U.S. at 776). The claimed irreparable injury must be likely to occur; “simply showing some ‘possibility of irreparable injury’” is insufficient. Id. (citation omitted). DHS has carried its burden on this factor.

DHS contends that as long as the Final Rule is enjoined,

DHS will grant lawful-permanent-resident status to aliens whom the Secretary would otherwise deem likely to become public charges in the exercise of his discretion. DHS currently has no practical means of revisiting public-charge determinations once made, so the injunctions will inevitably result in the grant of LPR status to aliens who, under the Secretary’s interpretation of the statute, are likely to become public charges.

The States do not deny that LPR status might be irrevocably granted to some aliens, but they claim that DHS has “exaggerate[d] the effect of the injunction” because the public-charge exclusion has “never played a significant role in immigration. In contrast, in just 8 of the 14 Plaintiff States [in the Washington case] over 1.8 million lawfully present residents may be driven from federal and state assistance programs if the injunction is lifted.” They argue that preserving the status quo will not harm DHS pending

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adjudication on the merits, especially considering that the Final Rule replaces a policy that had been in place for decades.

Several points emerge from the parties’ claims. First, the States appear to concede that decisions to grant adjustment of status to aliens who could otherwise not be eligible are not reversible. Second, although the States argue that “public charge” exclusions have not been an important component of our immigration scheme in the past, the whole point of DHS’s Final Rule is that “public charge” inadmissibility has been underenforced.

Moreover, to the extent the States are contesting the magnitude of the harm to DHS, the claim is irrelevant here. We have said that this “analysis focuses on irreparability, ‘irrespective of the magnitude of the injury.’” California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018) (quoting Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999)). But even if we look at the magnitude, the States’ own evidence is double-edged. The States claim that they will suffer harm because millions of persons will disenroll to avoid potential immigration consequences. This seems to prove DHS’s point. If millions of “lawfully present residents” are currently receiving public benefits and may choose to disenroll rather than be found to be a “public charge” and inadmissible, the harm cited by DHS is not only irreparable, but significant.

Finally, we think the tenability of DHS’s past practice is of no import here. Congress has granted DHS the authority to enact and alter immigration regulations and DHS has done that, and it has done so in a way that comports with its legal authority. Thus, as of October 15, 2019, DHS had an obligation to deny admission to those likely to become public

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charge, as defined by the Final Rule. This is true regardless of DHS’s prior policy. As a consequence, the preliminary injunctions will force DHS to grant status to those not legally entitled to it. DHS has satisfied its burden to show irreparable harm to the government absent a stay of the injunctions.

B. Balance of Hardships and Public Interest

Since DHS has satisfied the first two factors, we proceed to the final two: balance of equities and the public interest. Nken, 556 U.S. at 435. “Because the government is a party, we consider [these two factors] together.” California v. Azar, 911 F.3d at 581.

To balance the equities, we consider the hardships each party is likely to suffer if the other prevails. N. Cheyenne Tribe v. Norton, 503 F.3d 836, 843–44 (9th Cir. 2007) (citing Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987). We have discussed above the irreparable, nonmonetary harm to the government. On the other hand, the States contend that they face financial, public-health, and administrative harms if the Final Rule takes effect and otherwise eligible individuals disenroll from public benefits. These effects are indirect effects of the Final Rule and they are largely short-term, since they will only result during the pendency of the proceedings in the district courts and any appeals to this court and the Supreme Court.19 Those proceedings are likely to be conducted on an expedited basis, limiting further any potential harm to be considered by this

19 This is not to say that the States will not continue to incur harms after the litigation terminates, but these potential harms are not relevant to the question of a preliminary injunction or a stay.

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court. DHS does not dispute that the States will incur some financial harm if the Final Rule is not stayed. It cannot, because DHS repeatedly addressed the potential costs to the States in its Final Rule. See, e.g., 84 Fed. Reb. at 41,300, 41,312–14, 41,385–85, 41,469–70, 41,474. And while ordinarily, we do not consider purely economic harm irreparable, we have concluded that “such harm is irreparable” when “the states will not be able to recover monetary damages.” California v. Azar, 911 F.3d at 581. Yet the States’ financial concerns will be mitigated to some extent. As DHS explained in the Final Rule, disenrollment from public benefits means a reduction in federal and state transfer payments, so the States will realize some savings in expenditures. 84 Fed. Reg. at 41,485–86. Nevertheless, we consider the harms to the States, even if not readily quantifiable, significant.

Balancing these harms is particularly difficult in this case. First, the harms are not comparable. DHS’s harm is not monetary, but programmatic. The policy behind Congress’s decision not to admit those who are likely to become a public charge may have a fiscal component, but it is not the reason for DHS’s Final Rule, nor has DHS argued financial harm as a reason for seeking a stay. By contrast, the States’ proffered harms are largely financial. Second, both parties’ proffered harms are, to a degree, speculative. We cannot say for certain how many residents of the plaintiff states and counties will disenroll from public benefits programs, nor how much any over-disenrollment will cost the States. Nor can we say for certain how many aliens might be found admissible during the pendency of the preliminary injunction, and would have been found inadmissible under the Final Rule. Given the largely predictive nature of both parties’ alleged harms, we cannot state with any confidence which is greater.

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For the same reasons, the public interest in this case is likewise difficult to calculate with precision. DHS contends it is in the public’s interest not to grant immigration status to persons likely to become public charges. The States contend that it is in the public’s interest to avoid increased administrative and public-health costs. Both of these contentions are likely true. But on balance, we have few standards for announcing which interest is greater.

We recently observed that “balancing the equities is not an exact science.” Azar, 911 F.3d at 582. Indeed, Justice Frankfurter once remarked that the balancing of the equities was merely “lawyers’ jargon for choosing between conflicting public interests.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring). Whether the stay is granted or denied, one party’s costs will be incurred and the other avoided. In the end, the “critical” factors are that DHS has mustered a strong showing of likelihood of success on the merits and some irreparable harm. Nken, 556 U.S. at 434. Those factors weigh in favor of granting a stay, despite the potential harms to the States. And for that reason, the stay is in the public interest.

VI. CONCLUSION

The motion for a stay of the preliminary injunction in Nos. 19-17213 and 19-17214 is GRANTED. The motion for stay of the preliminary injunction in No. 19-35914 is GRANTED. The cases may proceed consistent with this opinion.

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BYBEE, Circuit Judge, concurring, perplexed and perturbed:

I join the majority opinion in full. I write separately to emphasize two points—points that I feel must be made, but are better said in a separate opinion.

We as a nation are engaged in titanic struggles over the future of immigration in the United States. These are difficult conversations. As a court, the Ninth Circuit in particular has felt the effects of the recent surge in immigration. As we observed last year with respect to the asylum problem:

We have experienced a staggering increase in asylum applications. Ten years ago we received about 5,000 applications for asylum. In fiscal year 2018 we received about 97,000—nearly a twenty-fold increase. Our obligation to process these applications in a timely manner, consistent with our statutes and regulations, is overburdened. The current backlog of asylum cases exceeds 200,000—about 26% of the immigration courts’ total backlog of nearly 800,000 removal cases. In the meantime, while applications are processed, thousands of applicants who had been detained by immigration authorities have been released into the United States.

E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 754 (9th Cir. 2018) (citations omitted). Because of our proximity to Mexico, Central America, and East Asia, the brunt of these cases will find their way into our court. And we are well aware that we are only seeing the matters that find their way

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into federal court, and that the burdens of the increase in immigration are borne not only by our judges, but by the men and women in the executive branch charged with enforcing the immigration laws.

Our court has faced an unprecedented increase in emergency petitions arising out of the administration’s efforts to administer the immigration laws and secure our borders. These controversial efforts have met with mixed success in our court and the Supreme Court. See, e.g., Sierra Club v. Trump, 929 F.3d 670 (9th Cir.) (construction of wall on the border with Mexico), stay issued, 140 S. Ct. 1 (2019) (mem.); E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742 (9th Cir. 2018) (aliens entering outside a port of entry are ineligible for asylum); Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476 (9th Cir. 2018) (DACA), cert. granted, 139 S. Ct. 2779 (2019) (mem.); Trump v. Hawai‘i, 878 F.3d 662 (9th Cir. 2017) (per curiam) (entry restrictions), rev’d, 138 S. Ct. 2392 (2018); Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017) (treatment of detained alien minors under Flores agreement); Hawai‘i v. Trump, 859 F.3d 741 (9th Cir.) (per curiam) (travel ban), vacated as moot, 138 S. Ct. 377 (2017) (mem.); Washington v. Trump, 847 F.3d 1151 (9th Cir.) (per curiam) (travel ban), cert. denied sub nom. Golden v. Washington, 138 S. Ct. 448 (2017) (mem.).

My first point is that even as we are embroiled in these controversies, no one should mistake our judgments for our policy preferences. Whether “the iron fist [or an extended velvet glove] would be the preferable policy. . . . our thoughts on the efficacy of the one approach versus the other are beside the point, since our business is not to judge the wisdom of the National Government’s policy.” Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 427 (2003); see Sale v.

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Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993) (“The wisdom of the policy choices made by Presidents Reagan, Bush, and Clinton is not a matter for our consideration.”); Lochner v. New York, 198 U.S. 45, 69 (1905) (Harlan, J., dissenting) (“Whether or not this be wise legislation it is not the province of the court to inquire. Under our systems of government the courts are not concerned with the wisdom or policy of legislation.”).

Oh, I am not so naive as to think that a simple declaration of judicial neutrality will quell inquiry into judges’ backgrounds, prior writings, and opinions. The battles over judicial nominations provide ample proof that our generation of lawyers bear a diverse set of assumptions about the nature of law, proper modes of constitutional interpretation, and the role of the judiciary. These are fair debates and they are likely to continue for some time. We can only hope that over time our differences can be resolved by reason and persuasion rather than by politics by other means. But I don’t know of any judge—at least not this judge—who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes. “[I]n our private opinions, [we] need not concur in Congress’ policies to hold its enactments constitutional. Judicially we must tolerate what personally we may regard as a legislative mistake.” Harisiades v. Shaughnessy, 342 U.S. 580, 590 (1952).

My second point is less politic. In this case, we are called upon to review the merits of DHS’s Final Rule through the lens of the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 706. Our review is quite circumscribed. We can set aside agency action if it is contrary to law, if it exceeds the agency’s jurisdiction or authority, or if the agency failed to follow proper procedure.

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Id. § 706(2)(B)–(D). Those are largely legal judgments, which we can address through the traditional tools judges have long used. With respect to the policy behind the agency’s action, we are largely relegated to reviewing the action for arbitrariness and caprice. Id. § 706(2)(A). That is not a very rigorous standard and, as a result, an agency has broad discretion to administer the programs entrusted to it by Congress. Cf. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558 (1978) (“[F]undamental policy questions appropriately resolved in Congress . . . are not subject to reexamination in the federal courts under the guise of judicial review of agency action.”).

In the immigration context, whatever dialogue we have been having with the administration over its policies, we are a poor conversant. We are limited in what we can say and in our ability—even if anyone thought we were qualified to do so—to shape our immigration policies. We lack the tools of inquiry, investigation, and fact-finding that a responsible policymaker should have at its disposal. In sum, the APA is the meagerest of checks on the executive. We are not the proper foil to this or any other administration as it crafts our immigration policies.

By constitutional design, the branch that is qualified to establish immigration policy and check any excesses in the implementation of that policy is Congress. See U.S. CONST. Art. I, § 8, cl. 4. And, so far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates. We have seen case after case come through our courts, serious and earnest efforts, even as they are controversial, to address the nation’s immigration challenges. Yet we have seen little engagement and no actual legislation from Congress. It matters not to me as a judge whether

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Congress embraces or disapproves of the administration’s actions, but it is time for a feckless Congress to come to the table and grapple with these issues. Don’t leave the table and expect us to clean up.

OWENS, Circuit Judge, concurring in part and dissenting in part:
While I concur with the majority’s jurisdiction analysis, I otherwise respectfully dissent. In light of the: (1) government’s heavy burden due to the standard of review, (2) opaqueness of the legal questions before us, (3) lack of irreparable harm to the government at this early stage, (4) likelihood of substantial injury to the plaintiffs, and (5) equities involved, I would deny the government’s motions to stay and let these cases proceed in the ordinary course. See Nken v. Holder, 556 U.S. 418, 427, 433–34 (2009) (holding that a “stay is an ‘intrusion into the ordinary processes of administration and judicial review,’” and “[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of [judicial] discretion” (citation omitted)).

Case: 19-35914, 12/05/2019, ID: 11523019, DktEntry: 25-2, Page 1 of 11  Home
American Dictionary of the English Language

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Webster's Dictionary 1828

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Charge
CHARGE, verb transitive
123ipnr...deTTTicgoooeeprllsoeuttaasisb;ddhl,teoooarfnsoc;bhoautadormr;dgfeouaenrsllt;kthooetenctol;iamottyetrhoiddrNcooaanwiwontn,t.intaooCh1ocrnn9kiftt;,ao-oy1cretfato7siismlnp2l.t,edh1pwcro3iuCiastsealholtyoruticuhnwnhtatipitytovohpwewopfdhfidrxieSeceoshrda,nsoniobnDpragFpeyp;rrocoeaanwessnesm,dcteetsibsosr;;ecacaarohnss6,ad,vr,a.tbgno2Uae0laclSt1hrhomCa9erryIgsmSheceohtmtah.reogresytsowtmhiteahcerhunlweemisthya.nd
4. To set or lay on; to impose, as a tax; as, the land is charged with a quit rent; a rent is charge on the land. 5. To lay on or impose, as a task. The gospel chargeth us with piety towards God. 6. To put or lay on; as, to charge a building with ornaments, often implying superfluity. 7. To lay on, as a duty; followed by with. The commander charged the officer with the execution of the project. See Genesis 40:4 8. To entrust to; as, an officer is charged with dispatches. 9. To set to, as a dept; to place on the debit side of an account; as, to charge a man with the price of goods sold to him. 10. To load or lay on in words, something wrong, reproachful or criminal; to impute to; as, to charge a man with theft.

Case: 19-35914, 12/05/2019, ID: 11523019, DktEntry: 25-2, Page 2 of 11
11. To lay on in words; to impute to; followed by on before the person; as, to charge a crime on the offender; to charge evil consequences on the doctrines of the stoics.

12. To lay on, give or communicate, as an order, command or earnest request; to enjoin; to exhort.

In all this, Job sinned not, nor charged God foolishly. Job 1:22.

13. To lay on, give or communicate, as an order, command or earnest request; to enjoin; to exhort.

CHARGE them that are rich in this world, that they be not high-minded. 1 Timothy 6:17.

In this sense, when the command is given in the name of God, or with an oath, the phrase amounts to an adjuration.

To adjure; to bind by an oath. 1 Samuel 14:28.

14. To give directions to; to instruct authoritatively; as, the judge charged the grand jury to inquire respecting breaches of the peace.

15. To communicate electrical matter to, as to a coated vial, or an electrical battery.

CHARGE, verb intransitive To make an onset. Thus Glanville says, like your heroes of antiquity, he

charges in iron; and we say, to charge with fixed bayonets. But in this application, the object is

understood; to charge the enemy.
C1c2a..HrTTgAhhoRae.GtqEwu,hanincothiutynisolaf ipdoowncdieoterr,diNonr;iono.infC1pa9ito-ygw1ead7nne2erd1raa3Clnsadoerunbcnsaheltily,voeaorndfsySholoaontan,DduFesorecradebnmutcoribdsleoecanrod.6vI,at.

USCIS 2019
is the same word radically as
musket, cannon or other like

instrument.

3. An onset; a rushing on an enemy; attack; especially by moving troops with fixed bayonets. But it is used for an onset of cavalry as well as of infantry.

4. An order, injunction, mandate, command.

Moses gave Joshua a charge Numbers 27:19.

The king gave charge concerning Absalom. 2 Samuel 18:5.

5. That which is enjoined, committed, entrusted or delivered to another, implying care, custody, oversight, or duty to be performed by the person entrusted.

I gave Hanani charge over Jerusalem. Nehemiah 7:2.

Hence the word includes any trust or commission; an office, duty, employment. It is followed by of or over; more generally by of. Hence,

6. The person or thing committed to anothers custody, care or management; a trust. Thus the people of a parish are called the ministers charge

The starry guardian drove his charge away to some fresh pasture.

Case: 19-35914, 12/05/2019, ID: 11523019, DktEntry: 25-2, Page 3 of 11
7. Instructions given by a judge to a jury, or by a bishop to his clergy. The word may be used as synonymous with command, direction, exhortation or injunction, but always implies solemnity.

8. Imputation in a bad sense; accusation.

Lay not this sin to their charge Acts 7:60.

9. That which constitutes debt, in commercial transactions; an entry of money or the price of goods, on the debit side of an account.

10. Cost; expense; as, the charges of the war are to be borne by the nation.

11. Imposition on land or estate; rent, tax, or whatever constitutes a burden or duty.

12. In military affairs, a signal to attack; as, to sound the charge

13. The posture of a weapon fitted for an attack or combat.

Their armed slaves in charge

14. Among farriers, a preparation of the consistence of a thick decoction, or between an ointment and a plaster, used as a remedy for sprains and inflammations.

1w1oAf56hcg..ihclIIaahnnrsgtshehe.leeerocabftlerdlieacraryaed,lr,teshixsaaptrteehwriidrcmhtiiiystcee-thnisdnNtiixgssio,unpb.iaisoCg1hqrs9ineu,t-dyeae1nafua7rtcpnoi2htomdy1nc3oCootfnhnaoeteerualcecinahnconttiiylnvoroigtercoh;adfseloiSrxof.rlaunstihntdoDe,nFefcericog,aemuwnmrmcaeinsbsutecnrineroicgp6avrtt,e.wes2dUoe0nStp1otoCe9audInScodonsa.tthede

escutcheon, by jar, vial or pane

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Related Documents: Inadmissibility on Public Charge Grounds; Correction Inadmissibility on Public Charge Grounds Inadmissibility on Public Charge Grounds

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https://www.regulations.gov/document?D=USCIS-2010-0012-63742[12/6/2019 4:05:57 PM]

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DEPARTMENT OF HOMELAND SECURITY [CIS No. 2637-19; DHS Docket No. USCIS-2010-0012]; RIN 1615-AA22 Final Rule: Inadmissibility on Public Charge Grounds Economic Analysis Supplemental Information for Analysis of Public Benefits Programs

The purpose of this document is to provide additional information and further details

about estimates DHS presents in the Inadmissibility on Public Charge Ground final rule

regarding public benefits programs included in the economic analysis. In order to estimate the

total economic impact of the final rule, it was necessary for DHS to estimate various aspects of

the populations that receive benefits from public benefits programs, the total amount of benefits

each public benefits program paid to recipients, and the average amount each recipient received

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forego the is

For each of the public benefits program in this economic analysis, DHS estimated the

total annual average enrollment based on a 5-year average, whenever possible. Table 1 shows

annual total enrollment figures for the most recent 5-year periods for which data are available as

reported by the benefits-granting agencies. In some cases, however, DHS was not able to base

its estimates on a 5-year average and, instead, had to rely on the most recent annual data

reported.

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Source : USCIS analysis.
Notes: 1 DHS estimates the rate of disenrollment/foregone enrollment based on the number of foreign-born immigrants adjusting status as a percentage of the foreign-born non-citizen population in the United States. Calculation: (Individuals adjusting status / Estimated foreign-born non-citizen population) *100 = Rate of disenrollment/foregone enrollment. To estimate the population that could choose to disenroll/forego enrollment, DHS multiplied the population of members of households that include foreign-born non-citizens who may be receiving benefits or the number of households with at least 1 foreign-born non-citizen by 2.5 percent.
Finally, Table 5 shows the estimated total reduction in transfer payments paid by the federal government to the population of members of households that include foreign-born noncitizens, or households with at least 1 foreign-born non-citizen, that are likely to disenroll from or forego enrollment in public benefits programs due to the provisions of the final rule. The table also presents the previously estimated average annual benefit per person, or household with
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enrollment in a public benefits program.

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 City and County of San Francisco v. United States Citizenship..., 981 F.3d 742 (2020) 20 Cal. Daily Op. Serv. 12,316, 2020 Daily Journal D.A.R. 12,824

981 F.3d 742 United States Court of Appeals, Ninth Circuit.
CITY AND COUNTY OF SAN FRANCISCO; County of Santa Clara, Plaintiffs-Appellees,
v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; U.S. Department of Homeland Security, a federal agency; Chad F. Wolf, in his official capacity as Acting Secretary of the United States Department of Homeland Security; Kenneth T. Cuccinelli, in his official capacity as Acting Director of United States Citizenship and Immigration Services,
Defendants-Appellants. State of California; District of Columbia; State of Maine; Commonwealth of Pennsylvania; State of
Oregon, Plaintiffs-Appellees, v.
U.S. Department of Homeland Security, a federal agency; United States Citizenship and
Immigration Services, a federal agency; Chad F. Wolf, in his official capacity as Acting Secretary of
the United States Department of Homeland Security; Kenneth T. Cuccinelli, in his official capacity as Acting Director of United States
Citizenship and Immigration Services, Defendants-Appellants.
State of Washington; Commonwealth of Virginia; State of Colorado; State of Delaware; State of Illinois; State of Maryland; Commonwealth of
Massachusetts; Dana Nessel, Attorney General on behalf of the People of Michigan; State of
Minnesota; State of Nevada; State of New Jersey; State of New Mexico; State of Rhode Island; State
of Hawaii, Plaintiffs-Appellees, v.
U.S. Department of Homeland Security, a federal agency; Chad F. Wolf, in his official capacity as
Acting Secretary of the United States Department of Homeland Security; United States Citizenship
and Immigration Services, a federal agency; Kenneth T. Cuccinelli, in his official capacity as Acting Director of United States Citizenship and Immigration Services, Defendants-Appellants.
No. 19-17213, No. 19-17214, No. 19-35914 |
Argued and Submitted September 15, 2020 San Francisco, California
1

| Filed December 2, 2020
Synopsis Background: Counties, cities, and states brought separate actions against the Department of Homeland Security (DHS) and related parties, challenging the validity of DHS’s rule expanding the definition of “public charge” under the Immigration and Nationality Act (INA) provision that deemed public charges inadmissible, on multiple grounds. The United States District Court for the Northern District of California, Phyllis J. Hamilton, Chief Judge, 408 F.Supp.3d 1057, granted preliminary injunction to enjoin implementation of the rule. The United States District Court for the Eastern District of Washington, Raosanna Malouf Peterson, J., 408 F.Supp.3d 1191, issued nationwide preliminary injunction. DHS appealed.
Holdings: The Court of Appeals, Schroeder, Senior Circuit Judge, held that:
plaintiffs alleged injury sufficient to confer standing to challenge DHS rule;
interests of counties, cities, and states were within INA provision’s zone of interests, as required to support APA challenge to DHS rule;
as a matter of apparent first impression, plaintiffs demonstrated likelihood of success on merits of APA challenge to validity of DHS rule;
plaintiffs demonstrated sufficient irreparable harm to support issuance of preliminary injunction; and
balance of equities and hardships tipped in favor of states and municipalities, for purposes of their motion for preliminary injunction.
Affirmed in part, and vacated in part.
VanDyke, Circuit Judge, filed dissenting opinion.
Procedural Posture(s): On Appeal; Motion for Preliminary Injunction.

City and County of San Francisco v. United States Citizenship..., 981 F.3d 742 (2020) 20 Cal. Daily Op. Serv. 12,316, 2020 Daily Journal D.A.R. 12,824

West Codenotes
Validity Called into Doubt 8 C.F.R. §§ 212.21(a), 212.21(b)
Attorneys and Law Firms
*745 Gerard Sinzdak (argued), Daniel Tenny, Joshua Dos Santos, and Jack Starcher, Appellate Staff; David L. Anderson and William D. Hyslop, United States Attorneys; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington D.C.; for Defendants-Appellants.
H. Luke Edwards (argued), Raphael N. Rajendra, Julia B. Spiegel, and Hannah Kieschnick, Deputy County Counsels; Laura Trice, Lead Deputy County Counsel; Greta S. Hansen, Chief Assistant County Counsel; James R. Williams, County Counsel; Office of the County Counsel, County of Santa Clara, San Jose, California; Dennis J. Herrera, City Attorney; Jesse C. Smith, Chief Assistant City Attorney; Ronald P. Flynn, Chief Deputy City Attorney; Yvonne R. Mere, Chief, Complex & Affirmative Litigation; Sara J. Eisenberg, Chief of Strategic Advocacy; Matthew D. Goldberg, Deputy City Attorney; City Attorney’s Office, San Francisco, California; for Plaintiffs-Appellees City and County of San Francisco; County of Santa Clara.
Xavier Becerra, Attorney General; Matthew Rodriguez, Chief Assistant Attorney General; Michael L. Newman, Senior Assistant Attorney General; Cherokee DM Melton, Supervising Deputy Attorney General; Jennifer C. Bonilla, Lisa Cisneros, Rebekah Fretz, Katherine Lehe, Marissa Malouff, Julia Harumi Mass, Anita Garcia Velasco, Brenda Ayon Verduzco, and Anna Rich, Deputy Attorneys General; Office of the Attorney General, Oakland, California; Karl A. Racine, Attorney General; Loren L. AliKhan, Solicitor General; Office of the Attorney General, Washington, D.C.; Aaron M. Frey, Attorney General; Susan P. Herman, Chief Deputy Attorney General; Office of the Attorney General, Augusta, Maine; Ellen Rosenblum, Attorney General; Benjamin Gutman, Solicitor General; Nicole DeFever and Patricia Garcia Rincon, Attorneys; Oregon Department of Justice, Salem, Oregon; Josh Shapiro, Attorney General; Michael J. Fischer, Chief Deputy Attorney General; Aimee D. Thomson, Deputy Attorney General; Office of the Attorney General, Philadelphia, Pennsylvania; for Plaintiffs-Appellees State of California, District of Columbia, State of Maine, Commonwealth of Pennsylvania and State of Oregon.
2

Robert W. Ferguson, Attorney General; Noah G. Purcell, Solicitor General; Tera M. Heintz, Deputy Solicitor General; Jeffrey T. Sprung, Nathan K. Bays, and Joshua Weissman, Assistant Attorneys General; Office of the Attorney General, Seattle, Washington; Mark R. Herring, Attorney General; Michelle S. Kallen, Deputy Solicitor General; Jessica Merry Samuels, Assistant Solicitor General; Ryan Spreague Hardy, Alice Anne Lloyd, and Mamoona H. Siddiqui, Assistant Attorneys General; Office of the Attorney General, Richmond, Virginia; Phil Weiser, Attorney General, Eric R. Olson, Solicitor General; Office of the Attorney General, Denver, Colorado; Kathleen Jennings, Attorney General; Aaron R. Goldstein, State Solicitor, Monica A. Horton, Deputy Attorney General; Department of Justice, Wilmington, Delaware; Kwame Raoul, Attorney General; Liza Roberson-Young, Public Interest Counsel; Office of the Attorney General, Chicago, Illinois; Clare C. Connors, Attorney General; Lili A. Young, Deputy Attorney General; Department of the Attorney General, Honolulu, Hawaii; Brian E. Frosh, Attorney General; Jeffrey P. Dunlap, Assistant Attorney General; Office of the Attorney General, Baltimore, Maryland; Maura Healey, Attorney General; Abigail B. Taylor, Chief, Civil Rights Division; David Ureña, Special Assistant Attorney General; Angela Brooks, Assistant Attorney General; Office of the Attorney General, Boston, Massachusetts; Dana Nessel, Attorney General; Fadwa A. Hammoud, Solicitor General; Toni L. Harris, First Assistant Attorney General; Michigan Department of Attorney General, Lansing, Michigan; Keith Ellison, Attorney General; R.J. Detrick, Assistant Attorney General; Attorney General’s Office, St. Paul, Minnesota; Aaron D. Ford, Attorney General; Heidi Parry Stern, Solicitor General; Office of the Attorney General; Gurbir S. Grewal, Attorney General; Glenn J. Moramarco, Assistant Attorney General; Office of the Attorney General, Trenton, New Jersey; Hector Balderas, Attorney General; Tania Maestas, Chief Deputy Attorney General; Office of the Attorney General, Santa Fe, New Mexico; Peter F. Neronha, Attorney General; Lauren E. Hill, Special Assistant Attorney General; Office of the Attorney General, Providence, Rhode Island; for Plaintiffs-Appellees Washington, Virginia, Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Rhode Island, and Hawaii.
Edward T. Waters, Phillip A. Escoriaza, and Amanda N. Pervine, Feldesman Tucker Leifer Fidell LLP, for Amici Curiae Public Health, Health Policy, Medicine, and Nursing Deans, Chairs, and Scholars; American Public

City and County of San Francisco v. United States Citizenship..., 981 F.3d 742 (2020) 20 Cal. Daily Op. Serv. 12,316, 2020 Daily Journal D.A.R. 12,824

Health Association; and American Academy of Nursing.
R. Adam Lauridsen, Chessie Thacher, Victor H. Yu, and Nicholas R. Green, Keker Van Nest & Peters LLP, San Francisco, California for Amici Curiae National Housing Law Project, Food Research & Action Center, and Center for Law & Social Policy, National Education Association, and Service Employees International Union.
Nicholas Espíritu, Linton Joaquin, Alvaro M. Huerta, Mayra B. Joachin, and Max S. Wolson, National Immigration Law Center, Los Angeles, California; Allon Kedem, Graham White, Jayce Born, Hillary Anderson, Arnold & Porter Kaye Scholer LLP, Washington, D.C., for Amici Curiae Immigrant and Healthcare Service Organizations.
Barbara J. Parker, City Attorney; Maria Bee, Chief Assistant City Attorney; Eric Bernstein, Senior Deputy City Attorney; Malia McPherson, Deputy City Attorney; Caroline Wilson, Fellow; Oakland, California; Michael N. Feuer, City Attorney; Kathleen A. Kenealy, Chief Deputy City Attorney; Danielle L. Goldstein, Deputy City Attorney, Los Angeles, California; Vince Ryan, County Attorney; Robert Hazeltine-Shedd, Assistant County Attorney; Harris County, Houston, Texas; Margaret L. Carter and Daniel R. Suvor, O’Melveny & Myers LLP, Los Angeles, California; Esteban A. Aguilar Jr., City Attorney, Albuquerque, New Mexico; Anne L. Morgan, City Attorney, Austin, Texas; Andre M. Davis, City Solicitor, Baltimore, Maryland; Mark A. Flessner, Corporation Counsel; Benna Ruth Solomon, Deputy Corporation Counsel, Chicago, Illinois; Barbara J. Doseck, Director of Law; John C. Muston, Chief Trial Counsel, Dayton, Ohio; Crystal Barnes, Acting City Solicitor, Holyoke, Massachusetts; Howard Phillip Schneiderman, Senior Deputy Prosecuting Attorney, King County, Seattle, Washington; Brian E. Washington, County Counsel, County of Marin, San Rafael, California; Charles J. McKee, County Counsel; William M. Litt, Anne K. Brereton, and Marina S. Pantchenko, Deputy County Counsels; County of Monterey, Salinas, California; Marc. P. Hansen, County Attorney, Montgomery County, Rockville, Maryland; Marcel S. Pratt, City Solicitor, Philadelphia, Pennsylvania; Susana Alcala Wood, City Attorney, Sacramento, California; John C. Beiers, County Counsel; David A. Silverman, Chief Deputy County Counsel; Ilana Parmer Mandelbaum, Deputy County Counsel; County of San Mateo, Redwood City, California; Peter S. Holmes, City Attorney, Seattle, Washington; Michael Tubbs, Mayor, Stockton, California; Michael Jenkins, City Attorney,
3

West Hollywood, California; for Amici Curiae 20 Counties, Cities, and Municipalities.
Denny Chan, Justice in Aging, Los Angeles, California; Regan Bailey and Natalie Kean, Justice in Aging, Washington, D.C.; Russel L. Hirschhorn and Christopher Spadaro, Proskauer Rose LLP, New York, New York; for Amici Curiae Justice in Aging, American Society on Aging, Caring Across Generations, Jewish Family Service of Los Angeles, Jewish Federations of North America, National Asian Pacific Center on Aging, National Council on Aging, National Hispanic Council on Aging, Mazon, Phi, and Center for Medicare Advocacy.
Alexandra Wald, Cohen & Gresser LLP, New York, New York; Elizabeth B. Wydra, Brianne J. Gorod, and Dayna J. Zolle, Constitutional Accountability Center, Washington, D.C.; for Amici Curiae Legal Historians.
Simon Sandoval-Moshenberg and Kelly Salzmann, Legal Aid Justice Center, Falls Church, Virginia; Ariel Nelson and Chi Chi Wu, National Consumer Law Center, Boston, Massachusetts; for Amici Curiae National Consumer Law Center, Legal Aid Justice Center, Public Citizen Inc., Consumer Action, Equal Justice Society, Impact Fund, Secure Justice, Media Alliance, Americans for Financial Reform Education Fund, and New Economy Project.
Richard L. Revesz, Jack Lienke, and Max Sarinsky, New York, New York, as and for Amicus Curiae Institute for Policy Integrity.
Debra Gardner, Monisha Cherayil, Sally Dworak-Fisher, and Tyra Robinson, Baltimore, Maryland, as and for Amicus Curiae Public Justice Center.
Paul J. Lawrence and Alanna E. Peterson, Pacifica Law Group, Seattle, Washington, for Amici Curiae Nonprofit Anti-Domestic Violence and Sexual Assault Organizations.
Diana Kasdan, Pilar Herrero, Amy Myrick, and Elyssa Spitzer, New York, New York, as and for Amicus Curiae Center for Reproductive Rights.
Robert M. Loeb, Thomas M. Bondy, Peter E. Davis, and Emily Green, Orrick Herrington & Sutcliffe LLP, Washington, D.C.; Douglas N. Letter, General Counsel; Todd B. Tatelman, Principal Deputy General Counsel; Megan Barbero, Josephine Morse, Adam A. Grogg, and William E. Havemann, Deputy General Counsel; Office of General Counsel, U.S. House of Representatives, Washington, D.C., for Amicus Curiae United States

City and County of San Francisco v. United States Citizenship..., 981 F.3d 742 (2020) 20 Cal. Daily Op. Serv. 12,316, 2020 Daily Journal D.A.R. 12,824

House of Representatives.
Harry Lee, Mary Woodson Poag, Johanna Dennehy, Steptoe & Johnson LLP, Washington, D.C., for Amici Curiae Immigration Law Professors.
Emily Tomoko Kuwahara, Crowell & Moring LLP, Los Angeles, California; Austin J. Sutta, Crowell & Moring LLP, San Francisco, California; for Amici Curiae Asian Americans Advancing Justice, Asian American Legal Defense and Education Fund, National Women’s Law Center, and 38 Other Amici Curiae.
Sadik Huseny, Brittany N. Lovejoy, Joseph C. Hansen, Tess L. Curet, and Alexandra B. Plutshack, Latham & Watkins LLP, San Francisco, California, for Amici Curiae Fiscal Policy Institute, President’s Alliance on Higher Education and Immigration, and 12 Other Amici Curiae.
Susan M. Krumplitsch, Elizabeth Stameshkin, and Priyamvada Arora, Cooley LLP, Palo Alto, California, for Amici Curiae American Academy of Pediatrics; American Medical Association; American College of Physicians; American College of Obstetricians and Gynecologists; California Medical Association; American Academy of Pediatrics, California; American Academy of Pediatrics, Hawaii Chapter; Alaska Chapter of the American Academy of Pediatrics; Arizona Chapter of the American Academy of Pediatrics; and Nevada Chapter, American Academy of Pediatrics.
Paul W. Hughes, Michael B. Kimberly, and Matthew A. Waring, McDermott Will & Emery LLP, Washington, D.C., for Amici Curiae 105 Businesses and Organizations.
Appeal from the United States District Court for the Northern District of California, Phyllis J. Hamilton, Chief District Judge, Presiding, D.C. Nos. 4:19-cv-04717-PJH, 4:19-cv-04975-PJH
Appeal from the United States District Court for the Eastern District of Washington, Rosanna Malouf Peterson, District Judge, Presiding, D.C. No. 4:19-cv-05210-RMP
Before: Mary M. Schroeder, William A. Fletcher, and Lawrence VanDyke, Circuit Judges.
Dissent by Judge VanDyke
4

OPINION
SCHROEDER, Circuit Judge:
*749 The phrase “public charge” enjoys a rich history in Anglo-American lore and literature, one more colorful than our American law on the subject. There have been relatively few published court decisions construing the phrase, even though our immigration statutes have barred admission to immigrants who are likely to become a “public charge” for more than a century. Until recently, the judicial and administrative guidance has reflected the traditional concept—rooted in the English Poor Laws and immortalized by Dickens in the workhouse of Oliver Twist—of incapacity and reliance on public support for subsistence. The first comprehensive federal immigration law barred entry to “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” Immigration Act of 1882, 22 Stat. 214, Chap. 376 § 2 (1882). The 1999 Guidance (the Guidance) issued by the Immigration and Naturalization Service (INS), the predecessor of the current agency, defined a “public charge” as one who “is or is likely to become primarily dependent on the government for subsistence.” See Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689 (May 26, 1999).
In 2019, the Department of Homeland Security (DHS) changed direction, however, and issued a rule (the Rule) that defines the term to include those who are likely to participate, even for a limited period of time, in non-cash federal government assistance programs. The programs designated by the Rule are not intended to provide for subsistence but instead to supplement an individual’s ability to provide for basic needs such as food, medical care, and housing. 8 C.F.R. § 212.21(b). Foreseeable participation for an aggregate of twelve months in any of the federal programs within a three-year span renders an immigrant inadmissible as a public charge and ineligible for permanent resident status. § 212.21(a). In other words, a single mother with young children who DHS foresees as likely to participate in three of those programs for four months could not get a green card.
Litigation followed in multiple district courts against DHS and U.S. Citizenship and Immigration Services (USCIS) as states and municipalities recognized that *750

City and County of San Francisco v. United States Citizenship..., 981 F.3d 742 (2020) 20 Cal. Daily Op. Serv. 12,316, 2020 Daily Journal D.A.R. 12,824

the immediate effect of the Rule would be to discourage immigrants from participating in such assistance programs, even though Congress has made them available to immigrants who have been in the country for five years. According to the plaintiffs in those cases, the Rule’s effect would be to increase assistance demands on state and local governments, as their resident immigrants’ overall health and welfare would be adversely affected by non-participation in federal assistance programs.
The challenges to the Rule in the district courts resulted in a chorus of preliminary injunctions holding the Rule to be contrary to law and arbitrary and capricious under the Administrative Procedure Act (APA). 5 U.S.C. § 706(2)(A). These included the two preliminary injunctions before us, one issued by the District Court for the Northern District of California (Northern District) covering the territory of the plaintiffs, and the other by the District Court for the Eastern District of Washington (Eastern District) purporting to apply nationwide. Our court became the first federal appeals court to weigh in when we granted DHS’s motion for a stay of those injunctions pending appeal. City and Cnty. of San Francisco v. USCIS, 944 F.3d 773, 781 (9th Cir. 2019). Preliminary injunctions were also issued by courts in the Northern District of Illinois and the Southern District of New York, and they were stayed by the United States Supreme Court before appeals could be considered by the circuit courts of appeals.
When the Seventh Circuit and the Second Circuit did consider those preliminary injunction appeals, both courts affirmed the injunctions. Although their reasoning differed in some respects, both circuits concluded that the Rule’s definition was both outside any historic or commonly understood meaning of “public charge,” and arbitrary and capricious, in concluding that short-term reliance on supplemental benefits made immigrants dependent on public assistance within the meaning of the statutory public charge immigration bar. Cook Cnty., Ill. v. Wolf, 962 F.3d 208, 229, 232–33 (7th Cir. 2020); New York v. DHS, 969 F.3d 42, 80–81 (2nd Cir. 2020). The Second Circuit opinion was unanimous, while a dissenting opinion in the Seventh Circuit agreed with DHS that those who receive such supplemental benefits could be considered public charges because, by receiving some assistance, they are not completely self-sufficient. Cook Cnty., 962 F.3d at 250–51 (Barrett, J., dissenting).
The district court in Maryland also enjoined enforcement of the Rule and was reversed by a divided decision of the Fourth Circuit. The majority looked in large measure to
5

the fact that the Supreme Court had stayed the injunctions in the Seventh and Second Circuits. CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 230 (4th Cir. 2020). In dissent, Judge King viewed the Rule as outside the longstanding meaning of “public charge” and would have affirmed the injunction. He also disagreed with the majority about the significance of the Supreme Court’s stay, explaining that “[i]f the Court’s decision to grant a stay could be understood to effectively hand victory to the government regarding the propriety of a preliminary injunction, there would be little need for an intermediate appellate court to even consider the merits of an appeal in which the Court has granted a stay.” Id. at 281 n.16 (King, J., dissenting) (citing Cook Cnty., 962 F.3d at 234).
To understand the reason for this recent cascade of litigation after a relatively quiescent statutory and regulatory history, we review the historical background of the Rule. Such a review reveals the extent to which the Rule departs from past congressional and administrative policies.
*751 A. Statutory and Administrative Background This country has had a federal statutory provision barring the admission of persons likely to become a “public charge” since 1882. The Immigration Act of 1882 barred entry to, among others, “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” The Immigration and Nationality Act now provides that “[a]ny alien who, ... in the opinion of the [Secretary of Homeland Security] at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” 8 U.S.C. § 1182(a)(4)(A). No statute has ever defined the term. For over a century, agencies have routinely applied these provisions in determining admissibility and removal as well as in issuing visas for entry.
In 1996, however, Congress amended the statute to add five factors for agencies to consider in determining whether an individual is likely to be a public charge: the non-citizen’s age; health; family status; assets, resources and financial status; and education and skills. § 1182(a)(4)(B)(i). Congress also included a provision requiring applicants to produce an affidavit of support. See § 1182(a)(4)(C)–(D) (requiring most family-sponsored immigrants to submit affidavits of

City and County of San Francisco v. United States Citizenship..., 981 F.3d 742 (2020) 20 Cal. Daily Op. Serv. 12,316, 2020 Daily Journal D.A.R. 12,824

support); § 1183a (affidavit of support requirements).
At nearly the same time, Congress enacted major reforms of public benefit programs that, as relevant here, made only non-citizens with five or more years of residency in the United States eligible for public benefits such as Supplemental Nutrition Assistance Program (SNAP) and Medicaid. Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), Pub. L. No. 104-193, 110 Stat. 2105, 2265 (1996). Previously, lawful immigrants had generally been eligible for such benefits. Congress thus simultaneously reduced the number of immigrants eligible for this assistance and spelled out the factors to be considered in a public charge determination. The fact that Congress delineated the factors relevant to the public charge determination at the same time it adjusted certain immigrants’ eligibility to receive specific supplemental assistance strongly suggests that Congress did not intend for such assistance to be considered as one of the public charge factors.
Judicial guidance in interpreting the phrase was apparently not in need or demand: There are relatively few such decisions. A leading early Supreme Court case resolved the important question of whether the adverse economic conditions in the location where the immigrant intends to live can render an immigrant likely to become a “public charge.” Gegiow v. Uhl, 239 U.S. 3, 36 S.Ct. 2, 60 L.Ed. 114 (1915). The Supreme Court’s answer was no because the statute spoke to the permanent characteristics personal to the immigrant rather than to local labor market conditions. Id. at 10, 36 S.Ct. 2. We followed Gegiow in Ex parte Sakaguchi, 277 F. 913 (9th Cir. 1922), where we held that a person temporarily in need of family assistance should not have been excluded as likely to become a public charge. We so held because there was an absence of “any evidence whatever of mental or physical disability or any fact tending to show that the burden of supporting the appellant is likely to be cast upon the public.” Id. at 916. Thus, our court in Sakaguchi understood the standard for determining whether someone is a public charge to be whether the “burden of support” falls on the public.
Administrative decisions followed the Supreme Court’s lead by looking to the inherent characteristics of the individual *752 rather than to external circumstances. The Board of Immigration Appeals thus held that only an individual with the inherent inability to be self-supporting is excludable as “likely to become a public charge” within the meaning of the statute. Matter of Harutunian, 14 I & N. Dec. 583, 589–90 (BIA 1974); Matter of Vindman, 16
6

I. & N. Dec. 131, 132 (BIA 1977); see also New York, 969 F.3d at 69. There has been corollary administrative recognition that even if an individual has been on welfare, that fact does not in and of itself establish the requisite likelihood of becoming a public charge. An Attorney General decision collected authorities indicating that it is the totality of circumstances that must be considered in order to determine whether “the burden of supporting the alien is likely to be cast on the public.” Matter of Martinez-Lopez, 10 I & N. Dec. 409, 421–22 (BIA 1962; A.G. 1964) (citing Sakaguchi, 277 F. at 916). Likely receipt of some public benefits does not automatically render an immigrant a public charge because the public does not bear the “burden of support.”
The 1996 amendments, which added factors to be considered and created the current public charge statutory provision, caused some confusion as to how big a change they represented. The INS, the agency then in charge of administering immigration, decided a regulatory definition would be helpful. It adopted the 1999 Guidance, the first regulatory guidance to interpret the rather ancient notion of “public charge” in light of the myriad, modern forms of public assistance. 64 Fed. Reg. 28,269.
The Guidance defined a “public charge” as a non-citizen who depends on the government for survival, either by receipt of income or confinement in a public institution. It described persons “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long term care at government expense.” Id. at 28,689. It thus embodied the traditional notion of primary dependence on the government for either income or institutional care.
The Guidance went on to identify the types of public assistance that would typically qualify as evidence of primary dependence: (1) Supplemental Security Income (SSI); (2) Temporary Assistance for Needy Families (TANF); (3) state and local cash assistance programs; and (4) programs supporting people institutionalized for long-term care. Id. at 28,692. The Guidance expressly excluded non-cash benefits intended to supplement income and not to provide primary support. The explanation lay with the changing times that were bringing benefits to more and more families to improve their health and welfare. See id. (“[C]ertain federal, state, and local benefits are increasingly being made available to families with incomes far above the poverty level, reflecting broad public policy decisions about improving

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general public health and nutrition, promoting education, and assisting working-poor families in the process of becoming self-sufficient. Thus, participation in such non-cash programs is not evidence of poverty or dependence.”).
The Guidance actually encouraged non-citizens to receive supplemental benefits in order to improve their standard of living and to promote the general health and welfare. The Guidance drew a sharp distinction between the receipt of such supplemental benefits and dependence on the government for subsistence income that would render the individual a “public charge.” Id. at 28,692–93.
The 2019 Public Charge Rule we review in this case effectively reversed that policy by making receipt of supplemental benefits *753 the very definition of a public charge. See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019). The Rule defines the term “public charge” to mean “an alien who receives one or more [specified] public benefits ... for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).” Id. at 41,501. The public benefits specified by the Rule include most Medicaid benefits, SNAP benefits, Section 8 housing vouchers and rental assistance, and other forms of federal housing assistance. Id. Any receipt of such a benefit, no matter how small, will factor into the public charge determination. The Rule also directs officials to consider English proficiency in making the public charge determination. Id. at 41,503–04.
The Rule was greeted with challenges in federal district courts throughout the country. We deal with those in this circuit.
B. The District Court Injunctions On appeal are two district court decisions granting preliminary injunctions barring enforcement of the Rule. The Northern District considered the challenges of California, the District of Columbia, Maine, Pennsylvania, and Oregon, consolidated with the challenges brought by the City and County of San Francisco, and the County of Santa Clara. The Eastern District heard the challenges brought by Washington, Virginia, Colorado, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New
7

Jersey, New Mexico, and Rhode Island. Both district courts agreed that the plaintiffs had standing because they had shown that they would likely suffer economic harm and other costs and that their concerns were within the zone of interests of the statute. Both held that the new definition of “public charge” was likely not a permissible interpretation of the statute because it would depart from the longstanding, settled understanding that a person does not become a public charge by receiving short-term aid, and must instead demonstrate an inherent incapacity to provide subsistence. City and Cnty. of San Francisco v. USCIS, 408 F. Supp. 3d 1057, 1101 (N.D. Cal. 2019), Washington v. DHS, 408 F. Supp. 3d 1191, 1219 (E.D. Wash. 2019). Both found the Rule to be likely arbitrary and capricious because the agency failed to consider the burdens the Rule would impose on states and municipalities. The Eastern District issued a nationwide injunction, and the Northern District declined to do so.
Within a few weeks of the district court rulings, a divided motions panel of this court, however, stayed both injunctions pending this appeal. City and Cnty. of SF, 944 F.3d 773. The panel majority wrote that DHS was likely to prevail because the Rule would probably be viewed as a reasonable interpretation of a statute that had no consistent historical application and gave the agency “considerable discretion.” Id. at 796, 799. Judge Owens dissented in part and would have denied the stay. Id. at 809–10 (Owens, J., dissenting).
The stay was based on a prediction of what this panel would hold in reviewing the merits of the preliminary injunctions. The stay in this case was entered at a particularly early point, less than two months after the district court injunctions. Almost none of the extensive documentation relevant to this appeal was before the motions panel. The brief of the appellant DHS in the Northern District case had been filed only the day before the panel entered its stay, and the opening brief in the Eastern District case was not filed until the day after. Still to come were not only the answering and reply briefs in both *754 appeals, but two dozen amicus briefs, many of which we have found very helpful.
At least equally important, no other circuit court opinions had yet considered the issues. By now we have heard from three. One of those opinions even discussed and disagreed with the reasoning of this court’s motions panel stay opinion, pointing out that it “pinn[ed] the definition of ‘public charge’ on the form of public care provided” in concluding that there was no consistent interpretation of the Rule. New York, 969 F.3d at 73 (emphasis in original).

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The court there said our motions panel thereby went “astray.” Id. This was because the issue was not whether a “public charge” had always received similar assistance. Id. The issue should have been whether the “inquiry” under the statute had been consistent. Id. The Second Circuit concluded the public charge inquiry had always been whether the non-citizen “is likely to depend on that [assistance] system.” Id.
We therefore turn to the appeal before us. We deal first with DHS’s arguments that the plaintiffs may not maintain the suit because they lack Article III standing or are outside the zone of interests of the immigration statute in question.
C. Plaintiffs’ Capacity to Maintain the Action Plaintiffs are states and municipalities that allege the Rule is causing them to suffer continuing financial harm, as lawful immigrants eligible for federal cash, food, and housing assistance withdraw from these programs to avoid the impact of the Rule. Plaintiffs allege harm because such immigrants will instead turn to assistance programs administered by the state and local entities.
DHS argues that such injuries are speculative and represent only plausible future injury. There is no question that to have Article III standing to bring this action, the plaintiffs must allege that they have suffered, or will imminently suffer, a “concrete and particularized” injury in fact. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). There is also no question that an increased demand for aid supplied by the state and local entities would be such an injury. The only question is whether such demand is, as of yet, apparent or imminent.
That is not a difficult question to answer. The Rule itself predicts a 2.5 percent decrease in enrollment in public benefit programs and a corresponding reduction in Medicaid payments of over one billion dollars per year. Final Rule, 84 Fed. Reg. at 41,302, 41,463. The Rule itself further acknowledges that disenrollment will cause other indirect financial harm to state and local entities by increasing the demand for uncompensated indigent care. Declarations in the record show that such entities are already experiencing disenrollment as a result of the Rule. See City and Cnty. of SF, 408 F. Supp. 3d at 1122.
8

DHS nevertheless asserts that the Rule will result in a long-term cost savings after states compensate for the loss of federal funds by reforming their operations. But such long-term reforms would not remedy the immediate financial injury to the plaintiffs or the harms to the health and welfare of those individuals affected. As the Second Circuit explained, “this simplistic argument fails to account for the fact that the States allege injuries that extend well beyond reduced Medicaid revenue and federal funding to the States, including an overall increase in healthcare costs that will be borne by public hospitals and general economic harms.” New York, 969 F.3d at 60. Thus, plaintiffs have established Article III standing.
*755 Those suing under the APA, must also establish that the interest they assert is at least “arguably within the zone of interests to be protected or regulated by the statute” in question. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). The Supreme Court has described the test as “not meant to be especially demanding” and as “not requir[ing] any ‘indication of congressional purpose to benefit the would-be plaintiff.’ ” Id. at 225, 132 S.Ct. 2199 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399–400, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987)). A plaintiff’s interest need only be “sufficiently congruent with those of the intended beneficiaries that the litigants are not ‘more likely to frustrate than to further the statutory objectives.’ ” First Nat. Bank & Tr. Co. v. Nat’l Credit Union Admin., 988 F.2d 1272, 1275 (D.C. Cir. 1993) (quoting Clarke, 479 U.S. at 397 n.12, 107 S.Ct. 750).
The statute in question is, of course, the immigration statute that renders inadmissible an individual likely to become a “public charge.” 8 U.S.C. § 1182(a)(4)(A). DHS appears to contend that the only entities within the zone of interests are the federal government itself and individuals seeking to immigrate, because the provision deals with immigration and only the federal government controls immigration. If that were to define the zone of interests regulated by the statute, the scope of permissible immigration litigation against the government would be so narrow as to practically insulate it from many challenges to immigration policy and procedures, even those violating the Constitution or federal laws.
DHS suggests that the purpose of the public charge exclusion is to reduce immigrants’ use of public benefits, and that the plaintiffs’ suit therefore contradicts this

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purpose by seeking to make more federal benefits available. But this assumes that Congress’s statutory purpose was the same as DHS’s purpose here, which is the very dispute before us. As the Second Circuit pointed out, “DHS assumes the merits of its own argument when it identifies the purpose of the public charge ground as ensuring that non-citizens do not use public benefits .... Understood in context, [the public charge bar’s] purpose is to exclude where appropriate and to not exclude where exclusion would be inappropriate.”) New York, 969 F.3d at 62–63.
Moreover, DHS maintains that the statute’s overall purpose is to promote self-sufficiency. Providing access to better health care, nutrition and supplemental housing benefits is consistent with precisely that purpose. See Cook Cnty., 962 F.3d at 220 (access to affordable basic health care may promote self-sufficiency); Hilary Hoynes, Diane Whitmore Schanzenbach & Douglas Almond, Long-Run Impacts of Childhood Access to the Safety Net, 106 Am. Econ. Rev. 903, 921 (2016) (access to food stamps in childhood significantly increases economic self-sufficiency among women). For these reasons, the interests of the plaintiffs in preserving immigrants’ access to supplemental benefits is within the zone of interests protected by the statute.
We therefore conclude that the district courts correctly determined that the plaintiffs are entitled to maintain this action. All of the circuits to consider the validity of this Rule have reached a similar conclusion. See Cook Cnty., 962 F.3d at 219–20, CASA de Maryland, 971 F.3d at 240–241, New York, 969 F.3d at 62–63. We now turn to the question whether they were entitled *756 to the preliminary injunctions entered by the district courts.
D. Contrary to Law Both district courts concluded that the plaintiffs are likely to prevail in their contention that the Rule violates the statute’s public charge provision, and that such a conclusion supports the entry of preliminary injunctions. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). On appeal, DHS contends, as it has throughout the litigation, that the Rule is a permissible interpretation of the statute. The plaintiffs maintain that the Rule violates the statute because the Rule is not a reasonable interpretation of the meaning of “public charge.”
9

History is a strong pillar supporting the plaintiffs’ case. Plaintiffs point to repeated congressional reenactment of the provision after it had been interpreted to mean long-term dependence on government support, and had never been interpreted to encompass temporary resort to supplemental non-cash benefits. Plaintiffs contend that this repeated reenactment amounts to congressional ratification of the historically consistent interpretation. DHS disagrees, arguing that the repeated reenactments reflect congressional intent to have a flexible standard subject to various executive branch interpretations.
Our review of the history of the provision in our law suggests the plaintiffs have the better part of this dispute. From the Victorian Workhouse through the 1999 Guidance, the concept of becoming a “public charge” has meant dependence on public assistance for survival. Up until the promulgation of this Rule, the concept has never encompassed persons likely to make short-term use of in-kind benefits that are neither intended nor sufficient to provide basic sustenance. The Rule also, for the first time, introduces a lack of English proficiency as figuring into the equation, despite the common American experience of children learning English in the public schools and teaching their elders in our urban immigrant communities. 8 C.F.R. § 212.22(b)(5)(ii)(D). Indeed, in Gegiow, 239 U.S. 3, 36 S.Ct. 2, 60 L.Ed. 114, the Supreme Court found that the individuals in that case were not likely to become public charges even though they spoke only Russian.
In New York, 969 F.3d 42, the Second Circuit essentially agreed with plaintiffs’ historical analysis. The court recognized and explained the line of settled judicial and administrative interpretations of a public charge as one who is primarily dependent on the government for subsistence. Id. at 65–70. The court traced that history in far more detail than we have outlined and was “convinced” that there was a well-settled meaning of “public charge” even before congressional passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, and that was a person “unable to support herself, either through work, savings, or family ties.” Id. at 71. Receipt of cash benefits may be considered in deciding whether a person is dependent on the government but has never been determinative. The Second Circuit persuasively summarized:
The Plaintiffs do not argue, and we do not hold, that the receipt of

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various kinds of public benefits is irrelevant to the determination of whether a non-citizen is likely to become a public charge. But defining public charge to mean the receipt, even for a limited period, of any of a wide range of public benefits – particularly ... ones that are designed to supplement an individual’s or family’s efforts to support themselves, rather than to deal with their likely permanent *757 inability to do so – is inconsistent with the traditional understanding of what it means to be a “public charge,” which was well-established by 1996.

Id. at 78 (emphasis removed).
A few months earlier, the Seventh Circuit had come to a similar conclusion that the Rule violates the statutory meaning of public charge. Cook Cnty., 962 F.3d 208. The Seventh Circuit differed somewhat in its analysis. After a historical survey of court decisions and secondary sources, it determined that the phrase “public charge” was susceptible to various interpretations. Id. at 226. It concluded, however, that DHS’s interpretation, quantifying the definition to mean receipt of twelve months’ worth of benefits within three years, represented an understanding of its authority to define the phrase that “has no natural limitation.” Id. at 228–29. If DHS’s interpretation were to be accepted, then there is nothing in the statutory text that would prevent a zero-tolerance rule, where foreseeable receipt of a single benefit on one occasion would bar entry or adjustment of status. The majority forcefully rejected such an interpretation, stating:

We see no warrant in the Act for

this sweeping view. Even assuming

that the term “public charge” is

ambiguous and thus might

encompass

more

than

institutionalization or primary,

long-term dependence on cash

benefits, it does violence to the

English language and the statutory

context to say that it covers a

person who receives only de

10

minimis benefits for a de minimis period of time. There is a floor inherent in the words “public charge,” backed up by the weight of history.
Id. at 229.
Although the opinions of the Second Circuit in New York and the Seventh Circuit in Cook County reflect some disagreement over whether there was any historically established meaning of the phrase “public charge,” they agreed that the Rule’s interpretation of the statute was outside any historically accepted or sensible understanding of the term. In commenting on the difference between its historical review in New York and that of the Seventh Circuit in Cook County, the Second Circuit noted that the Seventh Circuit had not included the significant administrative rulings that preceded the 1996 statute. New York, 969 F.3d at 74.
The New York opinion was unanimous, but the Cook County opinion was not. The lengthy dissenting opinion in Cook County focused on other statutory provisions aimed at preventing entry of persons who could become dependent on the government. The most significant of these provisions is the requirement that family-sponsored immigrants, and employment-sponsored immigrants whose employment is tied to a family member, must furnish an affidavit from the sponsor. 8 U.S.C. §§ 1182(a)(4)(C)–(D). In the affidavit, the sponsor must agree to support the immigrant at annual income of at least 125 percent of the poverty level and pay back the relevant governmental entity in the event the immigrant receives “any means-tested public benefit.” 8 U.S.C. § 1183a(a)(1)(b).
The dissent focused on the fact that the affidavit provision forces sponsors to bear responsibility for “any means-tested public benefit” that an immigrant may receive. It concluded that the affidavit provision reflects Congress’s view that “public charge” may encompass receipt of supplemental benefits as well as primary dependence. See Cook Cnty., 962 F.3d at 246 (Barrett, J., dissenting).
In its focus on the provisions in a related but different section of the statute, the dissent did not address the significance of the history of the public charge provision *758 itself, nor did it address the majority’s objection to

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the duration of the receipt of benefits as a standard having no limiting principle. The dissent concluded only that the choice of an aggregate of twelve months is “not unreasonable.” Id. at 253. Moreover, the dissent’s interpretation of the affidavit requirement’s application here seems to suggest that it would approve a public charge rule excluding individuals who received “any means-tested benefit,” no matter how small, as in line with congressional intent.
In this appeal, DHS also relies upon the affidavit of support provisions to contend that the Rule is consistent with the statutory public charge bar. The public charge bar and affidavit of support provisions were parts of two separate acts. The two have no historic or functional relationship to each other. The public charge bar dates back to the 19th century, embodying an age-old concept of excluding those who may become primarily dependent on the government. Congress enacted the affidavit of support provision, however, in 1996 as part of more recent specific immigration reforms including the financial responsibilities of families and employers sponsoring individual immigrants. See PRWORA, Pub. L. No. 423, 110 Stat. 2271 (1996); IIRIRA, Pub. L. No. 104-208, 110 Stat. 3009 (1996). The section of the affidavit provision that refers to public benefits serves as a post-admission remedy to help local and federal governments recoup funds. § 1183a(b). The changes to the affidavit provisions were aimed at problems with the unenforceability of such affidavits prior to 1996. Michael J. Sheridan, The New Affidavit of Support and Other 1996 Amendments to Immigration and Welfare Provisions Designed to Prevent Aliens from Becoming Public Charges, 31 Creighton L. Rev. 741, 743-44, 752-53 (1998) (article by INS Associate General Counsel).
DHS also points to the provision that permits entry of battered women without regard to receipt of “any benefits.” See 8 U.S.C. § 1182(s). DHS argues that this reflects Congress’s belief that the receipt of any public benefits would be a consideration in admission for most other public charge determinations. Had Congress intended to make non-cash benefits a factor for admission or permanent residence, it would have done so directly and not through this ancillary provision. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (Congress does not “hide elephants in mouseholes”). It is more likely that Congress created this provision in order to provide sweeping protections for battered migrant women, as it did throughout Section 1182. See § 1182(a)(6)(ii), (a)(9)(B)(iii)(IV).

For these reasons we conclude the plaintiffs have demonstrated a high likelihood of success in showing that the Rule is inconsistent with any reasonable interpretation of the statutory public charge bar and therefore is contrary to law.
E. Arbitrary and Capricious Both district courts also ruled that the plaintiffs were likely to succeed in their contention that the Rule is arbitrary and capricious. The APA standard in this regard is inherently deferential. The task of the courts is to ensure that the agency’s action relied on appropriate considerations, considered all important aspects of the issue, and provided an adequate explanation for its decision. The Supreme Court summed it up in its leading decision, Motor Vehicle Mfrs. Ass’n, Inc. v. State Farm Mut. Auto. Ins. Co. (“State Farm”), 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The Court explained the general rule:
*759 Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Id. at 43, 103 S.Ct. 2856.
The plaintiffs argue that DHS failed the test in three principal respects: It failed to take into account the costs the Rule would impose on state and local governments; it did not consider the adverse effects on health, including both the health of immigrants who might withdraw from programs and the overall health of the community; and it did not adequately explain why it was changing the policy that was thoroughly explained in the 1999 Guidance.

11

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1. Disenrollment and Financial Costs We first turn to DHS’s consideration of the financial impact of the proposed Rule. During the comment period, there was repeated emphasis on the financial burdens that would befall state and local governments because immigrants fearing application of the Rule would disenroll from the supplemental programs, even if the Rule did not apply to them. DHS’s response was a generality coupled with an expression of uncertainty. It said that, despite these effects, the Rule’s “overriding consideration” of self-sufficiency formed “a sufficient basis to move forward.” 84 Fed. Reg. at 41,312. DHS added that there was no way of knowing with any degree of exactitude how many individuals would disenroll or how much of a burden it would place on the state and local governments. Id. at 41,312–13.

DHS provided no analysis of the effect of the Rule on governmental entities like the plaintiffs in these cases. As the Northern District found, DHS had not “grapple[d] with estimates and credible data explained in the comments.” City and Cnty. of SF, 408 F. Supp. 3d at 1106.

Our law requires more from an agency. A bald declaration

of an agency’s policy preferences does not discharge its

duty to engage in “reasoned decisionmaking” and

“explain the evidence which is available.” State Farm,

463 U.S. at 52, 103 S.Ct. 2856. The record before DHS

was replete with detailed information about, and

projections of, disenrollment and associated financial

costs to state and local governments. See, e.g., Ninez

Ponce, Laurel Lucia, & Tia Shimada, How Proposed

Changes to the ‘Public Charge’ Rule Will Affect Health,

Hunger and the Economy in California, 32 (Nov. 2018),

https://healthpolicy.ucla.edu/newsroom/Documents/2018/

public-charge-seminar-slides-nov2018.pdf (estimating

over 300,000 disenrollments from Medicaid in California

alone); Fiscal Policy Institute, Only Wealthy Immigrants

Need Apply: The Chilling Effects of “Public Charge,” 5

(Nov.

2019),

http://fiscalpolicy.org/wp-content/uploads/2019/11/FINA

L-FPI-Public-Charge-2019-MasterCopy.pdf (estimating

over $500 million combined in lost state tax revenue).

DHS was required to “reasonably reflect upon” and

“grapple with” such evidence. Fred Meyer Stores, Inc. v.

NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017). But DHS

made no attempt to quantify the financial costs of the

Rule or critique the projections offered.

12

Similarly, DHS’s repeated statements that the Rule’s disenrollment impacts are “difficult to predict” do not satisfy its duty to “examine the relevant data” before it. State Farm, 463 U.S. at 43, 103 S.Ct. 2856. The Supreme Court held in State Farm that an agency may not, without analysis, *760 cite even “ ‘substantial uncertainty’ ... as a justification for its actions.” Id. at 52, 103 S.Ct. 2856; see also Ctr. for Biological Diversity v. NHTSA, 538 F.3d 1172, 1200 (9th Cir. 2008) (rejecting as arbitrary and capricious agency’s characterization of greenhouse gas reductions as “too uncertain to support their explicit valuation and inclusion” in analysis). DHS’s analysis thus fell short of the standard established by the Supreme Court and recognized by our circuit. DHS did not adequately deal with the financial effects of the Rule.
2. Health Consequences Although DHS wrote the Rule was intended to make immigrants healthier and stronger, commenters stressed the Rule’s likely adverse health consequences for immigrants and the public as a whole, including infectious disease outbreaks and hospital closures. While acknowledging these comments, DHS concluded, without support, that the Rule “will ultimately strengthen public safety, health, and nutrition.” 84 Fed. Reg. at 41,314. The Northern District aptly found that DHS impermissibly “simply declined to engage with certain, identified public-health consequences of the Rule.” City and Cnty. of SF, 408 F. Supp. 3d at 1111–12.
Commenters provided substantial evidence that the Rule would in fact harm public safety, health, and nutrition. DHS itself repeatedly acknowledged that hospitals might face financial harms as a result of the Rule, but DHS repeatedly declined to quantify, assess, or otherwise deal with the problem in any meaningful way. See, e.g., 84 Fed. Reg. at 41,313–14, 41,384, 41,475, 41,476. This is inadequate and suggests that DHS’s position was intractable. As the D.C. Circuit has observed, making some mention of evidence but then coming to a contrary, “unsupported and conclusory” decision “add[s] nothing to the agency’s defense of its thesis except perhaps the implication that it was committed to its position regardless of any facts to the contrary.” Chem. Mfrs. Ass’n. v. EPA, 28 F.3d 1259, 1266 (D.C. Cir. 1994). DHS responded by excluding certain programs for children and pregnant women from the ambit of the Rule, but never

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addressed the larger concerns about the Rule’s effect on health as well as on hospital resources.

There were other serious health concerns. For example,

comments demonstrated that the Rule would endanger

public health by decreasing vaccination rates in the

general population. DHS insisted that vaccines would

“still be available” to Medicaid-disenrolled individuals

because “local health centers and state health

departments” would pick up the slack, id. at 41,385,

despite objections voiced by such local health centers and

state health departments themselves showing that the Rule

will put the populations they serve—citizens and

non-citizens alike—in danger. See, e.g., Mass. Dep’t of

Pub. Health, Comments on Inadmissibility on Public

Charge

Grounds

(Dec.

2018),

https://www.regulations.gov/document?D=USCIS-2010-0

012-45697; Hilltown Cmty. Health Ctr., Comments on

Inadmissibility on Public Charge Grounds (Dec. 2018),

https://www.regulations.gov/document?D=USCIS-2010-0

012-45675. A decision that “runs counter to the evidence”

or “is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise” is

arbitrary and capricious. State Farm, 463 U.S. at 43, 103

S.Ct. 2856. The promulgation of this Rule is such a

decision. DHS claims no expertise in public health, unlike

the scores of expert commenters who weighed in against

the Rule.

3. Reversal of Position Above all, DHS failed to explain its abrupt change in policy from the 1999 *761 Guidance. An agency reversing a prior policy “must show that there are good reasons for the new policy” and provide “a reasoned explanation ... for disregarding facts and circumstances that underlay or were engendered by the prior policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515–16, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). The district courts below found that DHS had failed to satisfy this standard. City and Cnty. of SF, 408 F. Supp. 3d at 1111–12; Washington v. DHS, 408 F. Supp. 3d at 1220.
The 1999 Guidance had been issued after the 1996 statutory amendments setting out the general factors to be taken into account in making a public charge determination. The Guidance considered all of the different types of public assistance governments offered, including programs providing subsistence income and
13

those providing supplemental benefits. The Guidance expressly provided that receipt of supplemental assistance for food, healthcare and housing were not to be considered in assessing an immigrant’s likelihood of becoming a public charge. As discussed above, this provision was consistent with over a century of judicial and administrative decisions interpreting the public charge bar. The Rule, however, provides that the prospect of receiving those same supplemental benefits, for even a few months, renders an individual inadmissible. This is directly contrary to the 1999 Guidance.
Yet DHS promulgated the Rule without any explanation of why the facts found, and the analysis provided, in the prior Guidance were now unsatisfactory. This is a practice the Supreme Court has rejected: an agency about-face with no “reasoned explanation ... for disregarding” the findings underlying the prior policy. Fox, 556 U.S. at 516, 129 S.Ct. 1800. Here is an illustration of the about-face. The 1999 Guidance had found that deterring acceptance of “important health and nutrition benefits” had yielded “an adverse impact ... on public health and the general welfare.” 64 Fed. Reg. at 28,692. In contrast, DHS now says that the new Rule “will ultimately strengthen public safety, health, and nutrition.” 84 Fed. Reg. at 41,314. DHS provides no basis for this conclusion or for its departure from the empirical assessments underlying the prior policy.
In light of this policy change, coupled with the “serious reliance interests” engendered by over two decades of reliance on the Guidance, DHS was required to provide a “more detailed justification” for the Rule. Fox, 556 U.S. at 515, 129 S.Ct. 1800. DHS provides no justification, other than the repeated conclusory mantra that the new policy will encourage self-sufficiency. DHS in effect says that by creating a disincentive for immigrants to use available assistance, the Rule will “ensur[e] that [admitted immigrants] be self-sufficient and not reliant on public resources.” 84 Fed. Reg. at 41,319. DHS does not substantiate, and the record does not support, this empirical prediction. See, e.g., Hilary Hoynes, Diane Whitmore Schanzenbach & Douglas Almond, Long-Run Impacts of Childhood Access to the Safety Net, 106 Am. Econ. Rev. 903, 930 (finding that having access to food stamps during childhood leads to “significant improvement in adult health” and “increases in economic self-sufficiency,” including decreased welfare participation). Plaintiffs urge that their experience is contrary to DHS’s conclusion. Also to the contrary is the experience related in multiple amicus briefs. See, e.g., Brief for the Institute for Policy Integrity as Amicus

City and County of San Francisco v. United States Citizenship..., 981 F.3d 742 (2020) 20 Cal. Daily Op. Serv. 12,316, 2020 Daily Journal D.A.R. 12,824

Curiae Supporting Petitioners at 9 (citing evidence that reductions in SNAP participation increase homelessness); Brief for National Housing Law Project et al. as Amici Curiae Supporting Petitioners at 13 (citing evidence *762 that Medicaid made it easier for recipients to work and find work).

evidence that they are already experiencing harm and DHS itself has projected significant disenrollment from federal programs, likely leading to enrollments in state and local ones. The district courts both made factual findings as to harm that DHS does not refute with citations to the record.

4. Arbitrary and Capricious In sum, DHS adopted the Rule, reversing prior, longstanding public policy, without adequately taking into account its potential adverse effects on the public fisc and the public welfare. We must conclude that the Rule’s promulgation was arbitrary and capricious as well as contrary to law within the meaning of the APA. 5 U.S.C. § 706(2)(A).
F. Remaining Injunction Factors
1. Irreparable Harm Plaintiffs have shown a likelihood of success on the merits of their claim that the Rule violates the standards of the APA in that it is both contrary to law and arbitrary and capricious. To support entry of an injunction, Plaintiffs must also show a likely threat of irreparable injury in the absence of an injunction. Winter, 555 U.S. at 22, 129 S.Ct. 365. Plaintiffs have established that they likely are bearing and will continue to bear heavy financial costs because of withdrawal of immigrants from federal assistance programs and consequent dependence on state and local programs.
There is no dispute that such economic harm is sufficient to constitute irreparable harm because of the unavailability of monetary damages. See California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018); 5 U.S.C. § 702 (providing for relief “other than monetary damages”). DHS counters that such harm in this case is speculative, amounting to no more than the possibility of future injury. See Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Tr., 636 F.3d 1150, 1160 (9th Cir. 2011).
We have, however, already seen that in this case such harm is more than speculative. Plaintiffs have presented
14

2. Balance of Equities and Public Interest There was no error in finding that the balance of equities and public interest support an injunction. The Northern District pointed to the need for “continuing the provision of medical services through Medicaid to those who would predictably disenroll absent an injunction” in light of the explanations given by “parties and numerous amici ... [of the] adverse health consequences not only to those who disenroll, but to the entire populations of the plaintiff states, for example, in the form of decreased vaccination rates.” City and Cnty. of SF, 408 F. Supp. 3d at 1127. The public interest in preventing contagion is particularly salient during the current global pandemic.
Although DHS nevertheless argues that it is harmed by not being able to implement its new definition of public charge, if it is ultimately successful in defending the merits of the Rule, the harm will amount to no more than a temporary extension of the law previously in effect for decades. Given the financial burdens that plaintiffs have persuasively demonstrated will befall them as a result of disenrollment from federal programs, coupled with adverse effects on the health and welfare of the immigrant as well as general population, we cannot say the district courts abused their discretion in finding that the balance of equities and public interest weigh in favor the injunction.
*763 G. Propriety of a Nationwide Injunction The Northern District issued a preliminary injunction limited to the territory of the plaintiff state and local entities before it. The Eastern District issued a nationwide injunction, explaining that a more limited injunction would not prevent all the harms alleged. The court was concerned about protecting immigrants from harm if they moved outside of the plaintiff jurisdictions, about the economic impact on plaintiff states if immigrants moved

City and County of San Francisco v. United States Citizenship..., 981 F.3d 742 (2020) 20 Cal. Daily Op. Serv. 12,316, 2020 Daily Journal D.A.R. 12,824

to them to evade the consequences of the Rule, and about lawful immigrants being subject to the Rule at points of entry after travel abroad. Washington, 408 F. Supp. 3d at 1223.
The appropriateness of nationwide injunctions in any case has come under serious question. See, e.g., DHS v. New York, ––– U.S. ––––, 140 S Ct. 599, 599–601, 206 L.Ed.2d 115 (2020) (Gorsuch, J., concurring); Trump v. Hawaii, ––– U.S. ––––, 138 S. Ct. 2392, 2424–29, 201 L.Ed.2d 775 (2018) (Thomas, J., concurring). In explaining the limited scope of its injunction, the Second Circuit questioned the propriety of one court imposing its will on all:
It is not clear to us that, where contrary views could be or have been taken by courts of parallel or superior authority entitled to determine the law within their own geographical jurisdictions, the court that imposes the most sweeping injunction should control the nationwide legal landscape.
New York, 969 F.3d at 88.
Whatever the merits of nationwide injunctions in other contexts, we conclude a nationwide injunction is not appropriate in this case. This is because the impact of the Rule would fall upon all districts at the same time, and the same issues regarding its validity have been and are being litigated in multiple federal district and circuit courts.
Accordingly, we vacate that portion of the Eastern District’s injunction making it applicable nationwide, but otherwise affirm it.

H. Rehabilitation Act The plaintiffs also contend that the Rule violates the Rehabilitation Act, which bans discrimination on the basis of disabilities. 29 U.S.C. § 794(a). The Seventh Circuit looked favorably on this contention, and the Second Circuit expressly did not address it. Cook Cnty., 962 F.3d at 228, New York, 969 F.3d at 64 n.20. Because we have held that the Rule violates the APA as contrary to law and arbitrary and capricious, we similarly do not address the Rehabilitation Act.
I. Conclusion The order of the District Court for the Northern District of California is AFFIRMED. The order of the District Court for the Eastern District of Washington is AFFIRMED in part and VACATED in part. Costs are awarded to the plaintiffs.
VANDYKE, Circuit Judge, dissenting:
For the reasons ably articulated by our court in a December 2019 published opinion,1 by the Fourth Circuit in an August 2020 opinion,2 and by a dissenting Seventh Circuit judge in a June 2020 opinion (particularly notable for its erudition)3—and implied by the Supreme Court’s multiple *764 stays this year of injunctions virtually identical to those the majority today affirms4—I must respectfully dissent.
All Citations
981 F.3d 742, 20 Cal. Daily Op. Serv. 12,316, 2020 Daily Journal D.A.R. 12,824

Footnotes

1

City & County of San Francisco v. USCIS, 944 F.3d 773 (9th Cir. 2019).

2

CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (4th Cir. 2020).

15

City and County of San Francisco v. United States Citizenship..., 981 F.3d 742 (2020) 20 Cal. Daily Op. Serv. 12,316, 2020 Daily Journal D.A.R. 12,824

3

Cook County v. Wolf, 962 F.3d 208, 234–54 (7th Cir. 2020) (Barrett, J., dissenting).

4

Dep’t of Homeland Sec. v. New York, ––– U.S. ––––, 140 S. Ct. 599, 206 L.Ed.2d 115 (2020); Wolf v. Cook County, –––

U.S. ––––, 140 S. Ct. 681, 206 L.Ed.2d 142 (2020).

16

 
 Case 4:19-cv-04717-PJH Document 150 Filed 12/17/20 Page 1 of 3

CITY ATTORNEY’S OFFICE

OFFICE OF THE COUNTY COUNSEL

1 CITY AND COUNTY OF SAN FRANCISCO COUNTY OF SANTA CLARA

DENNIS J. HERRERA, State Bar #139669

JAMES R. WILLIAMS, State Bar #271253

2 City Attorney

County Counsel

JESSE C. SMITH, State Bar #122517

GRETA S. HANSEN, State Bar #251471

3 Chief Assistant City Attorney

Chief Assistant County Counsel

RONALD P. FLYNN, State Bar #184186

LAURA TRICE, State Bar #284837

4 Chief Deputy City Attorney

Lead Deputy County Counsel

YVONNE R. MERÉ, State Bar #173594

RAPHAEL N. RAJENDRA, State Bar #255096

5 Chief of Complex and Affirmative Litigation

Deputy County Counsel

SARA J. EISENBERG, State Bar #269303

JULIA B. SPIEGEL, State Bar #292469

6 Chief of Strategic Advocacy

Deputy County Counsel

MATTHEW D. GOLDBERG, State Bar #240776

H. LUKE EDWARDS, State Bar #313756

7 Deputy City Attorney

Deputy County Counsel

City Hall, Room 234

70 West Hedding Street

8 1 Dr. Carlton B. Goodlett Place

East Wing, Ninth Floor

San Francisco, California 94102-4602

San Jose, CA 95110-1770

9 Telephone: (415) 554-4748

Telephone: (408) 299-5900

Facsimile: (415) 554-4715

Facsimile: (408) 292-7240

10 E-Mail:

matthew.goldberg@sfcityatty.org E-Mail:

luke.edwards@cco.sccgov.org

11 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
12

Attorneys for Plaintiff COUNTY OF SANTA CLARA

13

UNITED STATES DISTRICT COURT 14

NORTHERN DISTRICT OF CALIFORNIA 15

CITY AND COUNTY OF SAN FRANCISCO Case No. 4:19-cv-4717-PJH 16 and COUNTY OF SANTA CLARA,

17

Plaintiffs,

JOINT STATUS REPORT

18

vs.

19 U.S. CITIZENSHIP AND IMMIGRATION SERVICES; DEPARTMENT OF
20 HOMELAND SECURITY; CHAD F. WOLF, Acting Secretary of Homeland Security; and
21 KENNETH T. CUCCINELLI, in his official capacity as Acting Director of U.S. Citizenship
22 and Immigration Services,

23

Defendants.

24

25

26

27

28

Joint Status Report

No. 4:19-cv-4717-PJH

Case 4:19-cv-04717-PJH Document 150 Filed 12/17/20 Page 2 of 3

1

The parties respectfully submit this Joint Status Report pursuant to the Court’s January 10, 2020

2 Order, ECF No. 141. In that Order, the Court stayed all proceedings in this matter pending resolution

3 of the appeal in Ninth Circuit Case No. 19-17213. The Court also ordered that the parties submit a status

4 report within 14 days of the Ninth Circuit Court of Appeals issuing its decision on the merits in Case

5 No. 19-17213. See id.

6

The parties report that on December 2, 2020, the Ninth Circuit Court of Appeals issued its

7 decision in case number 19-17213. See City & Cty. of S.F. v. U.S. Citizenship & Immigration Servs.,

8 Nos. 19-17213, 19-17214, 19-35914, 2020 U.S. App. LEXIS 37602 (9th Cir. Dec. 2, 2020). In that

9 decision, the Court of Appeals affirmed this Court’s Order preliminarily enjoining the DHS rule titled

10 “Inadmissibility on Public Charge Grounds.”

11

Defendants are currently considering potential next steps concerning the Ninth Circuit’s

12 decision.1 Given the possibility of further appellate activity, the parties agree, and respectfully propose

13 to the Court, that this matter should remain stayed pending issuance of the mandate by the Court of

14 Appeals. The parties further propose that they file a joint status report within 7 days following issuance

15 of the mandate.

16

17 Dated: December 16, 2020

Respectfully submitted,

18
JEFFREY BOSSERT CLARK 19 Acting Assistant Attorney General
20 ALEXANDER K. HAAS Branch Director
21
By: /s/ Joshua Kolsky 22 ERIC J. SOSKIN
Senior Trial Counsel 23 KERI L. BERMAN
KUNTAL V. CHOLERA 24 JOSHUA M. KOLSKY, DC Bar No. 993430
Trial Attorneys 25 United States Department of Justice
Civil Division, Federal Programs Branch 26

DENNIS J. HERRERA City Attorney JESSE C. SMITH RONALD P. FLYNN YVONNE R. MERÉ SARA J. EISENBERG MATTHEW D. GOLDBERG
By: /s/ Sara J. Eisenberg Sara J. Eisenberg Deputy City Attorney
Attorneys for Plaintiff City and County of San Francisco

27 1 In analogous litigation, Defendants have filed petitions for a writ of certiorari with the U.S. Supreme Court seeking review of decisions affirming preliminary injunctions of the public charge rule by the
28 Second and Seventh Circuits.

Joint Status Report

1 No. 4:19-cv-4717-PJH

Case 4:19-cv-04717-PJH Document 150 Filed 12/17/20 Page 3 of 3

1100 L Street NW 1 Washington, D.C. 20005
Tel: (202) 305-7664 2 Fax: (202) 616-8470
joshua.kolsky@usdoj.gov 3
Attorneys for Defendants 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Joint Status Report

UNITED S ALIFORNIA

OURT NORTH

JAMES R. WILLIAMS County Counsel GRETA S. HANSEN LAURA TRICE RAPHAEL N. RAJENDRA JULIA B. SPIEGEL H. LUKE EDWARDS By: /s/ H. Luke Edwards
H. Luke Edwards Deputy County Counsel Attorneys for Plaintiff County of Santa Clara
TATES DISTRICT C IT IS SO ORDERED
Judge Phyllis J. Hamilton
ERNDDecIeSmTbeRr I1C7,T20O20F C
2 No. 4:19-cv-4717-PJH

 
 Case 4:19-cv-04975-PJH Document 187 Filed 01/20/21 Page 1 of 3
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JAN 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

CITY AND COUNTY OF SAN FRANCISCO; COUNTY OF SANTA CLARA,
Plaintiffs-Appellees,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services,
Defendants-Appellants.

No. 19-17213 D.C. No. 4:19-cv-04717-PJH Northern District of California, Oakland
ORDER

STATE OF CALIFORNIA; DISTRICT OF COLUMBIA; STATE OF MAINE; COMMONWEALTH OF PENNSYLVANIA; STATE OF OREGON,
Plaintiffs-Appellees,
v.

No. 19-17214
D.C. No. 4:19-cv-04975-PJH Northern District of California, Oakland

Case 4:19-cv-04975-PJH Document 187 Filed 01/20/21 Page 2 of 3

U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services,
Defendants-Appellants.

STATE OF WASHINGTON; COMMONWEALTH OF VIRGINIA; STATE OF COLORADO; STATE OF DELAWARE; STATE OF ILLINOIS; STATE OF MARYLAND; COMMONWEALTH OF MASSACHUSETTS; DANA NESSEL, Attorney General on behalf of the People of Michigan; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF RHODE ISLAND; STATE OF HAWAII,
Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; KEVIN K. MCALEENAN, in his official capacity as

No. 19-35914
D.C. No. 4:19-cv-05210-RMP Eastern District of Washington, Richland

2

Case 4:19-cv-04975-PJH Document 187 Filed 01/20/21 Page 3 of 3
Acting Secretary of the United States Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services,
Defendants-Appellants.
Before: SCHROEDER, W. FLETCHER, and VANDYKE, Circuit Judges. Defendants-Appellants have moved to stay the issuance of this Court’s
mandate pending resolution of a petition for a writ of certiorari in this case, which Defendants-Appellants intend to file if the Supreme Court grants certiorari in either or both of the two parallel cases named below. The motion is GRANTED as follows: the mandate is stayed pending the Supreme Court’s final disposition of Wolf v. Cook County, Illinois, petition for cert. pending, No. 20-450 (filed Oct. 7, 2020) and Department of Homeland Security v. New York, petition for cert. pending, No. 20-449 (filed Oct. 7, 2020). Fed. R. App. P. 41.
3

 
 City and County of San Francisco v. United States Citizenship..., --- F.3d ---- (2021) 21 Cal. Daily Op. Serv. 3168

2021 WL 1310846 United States Court of Appeals, Ninth Circuit.
CITY AND COUNTY OF SAN FRANCISCO; County of Santa Clara, Plaintiffs-Appellees,
v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; U.S. Department of Homeland Security, a federal agency; Alejandro Mayorkas, in his official capacity as Secretary of the U.S. Department of Homeland Security; Tracy Renaud, in her official capacity as Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration
Services, Defendants-Appellants, State of Arizona, And additional States: Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Oklahoma, Texas, and West
Virginia; State of South Carolina, Intervenors-Pending.
State of California; District of Columbia; State of Maine; Commonwealth of Pennsylvania; State of
Oregon, Plaintiffs-Appellees, v.
U.S. Department of Homeland Security, a federal agency; United States Citizenship and
Immigration Services, a federal agency; Alejandro Mayorkas, in his official capacity as Secretary of the U.S. Department of Homeland Security; Tracy Renaud, in her official capacity as Senior Official
Performing the Duties of the Director, U.S. Citizenship and Immigration Services, Defendants-Appellants,
State of Arizona; State of Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Missouri,
Montana, Oklahoma, Texas and West Virginia; State of South Carolina, Intervenors-Pending. State of Washington; Commonwealth of Virginia; State of Colorado; State of Delaware; State of Illinois; State of Maryland; Commonwealth of Massachusetts; Dana Nessel, Attorney General on
behalf of the People of Michigan; State of Minnesota; State of Nevada; State of New Jersey; State of New Mexico; State of Rhode Island; State
of Hawaii, Plaintiffs-Appellees, v.
U.S. Department of Homeland Security, a federal agency; Alejandro Mayorkas, in his official
capacity as Secretary of the U.S. Department of Homeland Security; United States Citizenship and
1

Immigration Services, a federal agency; Tracy Renaud, in her official capacity as Senior Official
Performing the Duties of the Director, U.S. Citizenship and Immigration Services, Defendants-Appellants,
State of Arizona; State of Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Missouri,
Montana, Oklahoma, Texas, and West Virginia; State of South Carolina, Intervenors-Pending.
No. 19-17213, No. 19-17214, No. 19-35914 |
FILED APRIL 8, 2021
Northern District of California, Oakland, D.C. No. 4:19-cv-04717-PJH Northern District of California, Oakland, D.C. No. 4:19-cv-04975-PJH
Eastern District of Washington, Richland, D.C. No. 4:19-cv-05210-RMP Before: SCHROEDER, W. FLETCHER, and VANDYKE, Circuit Judges.
ORDER *1 The Motion of State of South Carolina to Join Motion to Intervene by the States of Arizona, et al., is GRANTED.
The Motion of State of Missouri to Join Motion to Intervene by the States of Arizona, et al., is GRANTED.
The Motion to Intervene by the States of Arizona, et al., is DENIED.
VANDYKE, Circuit Judge, dissenting from the denial of intervention

City and County of San Francisco v. United States Citizenship..., --- F.3d ---- (2021) 21 Cal. Daily Op. Serv. 3168

With the recent change in federal administrations, the Biden Administration stopped defending certain rules promulgated by the Trump Administration, including the Public Charge rule at issue in this case. That in itself is neither surprising nor particularly unusual. Elections have consequences, as they say, and a common enough one is that new presidential administrations, especially of a different party, often disagree with some of the rules promulgated by their predecessors. But here, as I explain in more detail below, the new administration did something quite extraordinary with the Public Charge rule. In concert with the various plaintiffs who had challenged the rule in federal courts across the country, the federal defendants simultaneously dismissed all the cases challenging the rule (including cases pending before the Supreme Court), acquiesced in a single judge’s nationwide vacatur of the rule, leveraged that now-unopposed vacatur to immediately remove the rule from the Federal Register, and quickly engaged in a cursory rulemaking stating that the federal government was reverting back to the Clinton-era guidance—all without the normal notice and comment typically needed to change rules.

In short, the new administration didn’t just stop defending the prior administration’s rule and ask the courts to stay the legal challenges while it promulgated a new rule through the ordinary (and invariably time- and resource-consuming) process envisioned by the APA. Instead, together with the plaintiffs challenging the rule, it implemented a plan to instantly terminate the rule with extreme prejudice—ensuring not only that the rule was gone faster than toilet paper in a pandemic, but that it could effectively never, ever be resurrected, even by a future administration. All while avoiding the normal messy public participation generally required to change a federal rule. Not bad for a day’s work.

But not everyone was impressed with this rare display of

governmental efficiency. Swiftly rebounding from the

whiplash, a collection of states quickly moved to

intervene in the various lawsuits challenging the rule

around the country (including this one), arguing that

because the federal government was now demonstrably in

cahoots with the plaintiffs, the states should be allowed to

take up the mantle of defending the Trump-era rule.

Pointing to the fact that the Supreme Court had both

stayed multiple lower courts’ injunctions of the rule

and—until the new administration voluntarily dismissed

its appeals—planned to review the rule’s validity, the

states contended there is something amuck about the

federal

government’s

new

2

rulemaking-by-collusive-acquiescence.
*2 The panel majority denies the states’ motion for intervention. I conclude intervention is warranted, and therefore respectfully dissent. Before explaining why, I first provide some background on the Public Charge rule and the legal challenges to it. And after explaining why we should have granted intervention, I briefly conclude with what I think might be a possible solution to this novel problem of a new federal administration deliberately (1) short-circuiting the normal APA process by using a single judge to engage in de facto nationwide rulemaking and (2) locking in adverse legal precedents that the Supreme Court has already signaled are highly questionable.
I. Background
A. The term “Public Charge”
The term “public charge” has been a part of our country’s statutory immigration lexicon for more than a century. City & County of San Francisco v. USCIS, 981 F.3d 742, 749 (9th Cir. 2020) (noting the first use in the Immigration Act of 1882). The most recent regulatory interpretation of that term has prompted various circuits across the nation to spill much ink arguing over its precise historical contours. See, e.g., Cook County v. Wolf, 962 F.3d 208, 222–29 (7th Cir. 2020); New York v. U.S. Dep’t of Homeland Security, 969 F.3d 42, 63–80 (2d Cir. 2020); CASA de Md., Inc. v. Trump, 971 F.3d 220, 230–34 (4th Cir. 2020), vacated for reh’g en banc, 981 F.3d 311 (4th Cir. 2020) (dismissed Mar. 11, 2021); City & County of San Francisco, 981 F.3d at 756–58. Throughout much of its history, however, “public charge” has maintained a less-than-precise meaning, even as the term was continuously used in various state and federal statutes denying admission or adjustment of immigration status to noncitizens that were “likely at any time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A); see also Cook County, 962 F.3d at 238–42 (Barrett, J., dissenting) (explaining the statutory usages and inferred meanings of the term “public charge” throughout its history).

City and County of San Francisco v. United States Citizenship..., --- F.3d ---- (2021) 21 Cal. Daily Op. Serv. 3168

In a laudable attempt to give the term a more concrete meaning, the Clinton Administration proposed a rule to define the term “public charge,” but the effort was ultimately abandoned and a final rule never issued. See Inadmissibility and Deportability on Public Charge Grounds, 64 Fed. Reg. 28,676 (proposed May 26, 1999). Enduring from that attempt, however, was field guidance defining a “public charge.” Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,692 (May 26, 1999). This field guidance was not binding, but the Department of Homeland Security (DHS) followed it in the absence of explicit regulatory direction. See New York, 969 F.3d at 53.
Under the guidance, an individual was considered a “public charge” if he was likely to receive “[c]ash assistance for income maintenance [or] institutionalization for long-term care at government expense.” 64 Fed. Reg. at 28,692. But an individual seeking adjustment of status would not be considered a “public charge,” even though he would need government-provided housing, government-paid electrical assistance, government-provided food, government health insurance for himself and his children, and government-provided childcare while using government-provided job training. See 64 Fed. Reg. at 28,692–93. In short, under the de facto rule in existence before the Trump Administration promulgated an actual rule, a noncitizen would not be deemed a public charge even though the government furnished essentially his every need (and many of his wants), just as long as the government didn’t give him cash benefits that he could then use to pay for his Netflix subscription.
While the ambiguous concept of a “public charge” no doubt allows for substantial interpretive elasticity, that seems quite a stretch. Indeed, it seems exactly backwards from what most people would think makes someone a “public charge.” Nowadays, almost everybody in this country is getting cash stimulus payments from the IRS on what feels like a semi-regular basis, and nobody thinks that alone makes them a public charge. Call me crazy, but I expect most people would say it is being overly reliant on the government to meet your needs that makes one a public charge, not whether the welfare benefits are provided in cash or in kind.
3

B. New Public Charge Definition
*3 Nearly two decades after the Clinton Administration promulgated its guidance, the Trump Administration in August 2019 issued a final rule—after notice and comment—defining “public charge.” Inadmissibility on Public Charge Grounds; Final Rule, 84 Fed. Reg. 41,292 (Aug. 14, 2019). The 2019 rule looked prospectively at applications for admission or adjustment of status to determine whether the individual was “more likely than not at any time in the future to receive one or more designated public benefits for more than 12 months in the aggregate within any 36-month period.” Id. at 41,295. The rule considered whether an individual would likely receive cash from the government and/or “means-tested non-cash benefits ... which bear directly on the recipient’s self-sufficiency and ... account for significant federal expenditures on low-income individuals.” Id. at 41,296. If, under the totality of circumstances analysis, a noncitizen applying for admission or adjustment of status would likely need specified cash benefits and/or various non-monetizable government-provided housing, food assistance, or medical insurance for more than a collective twelve months, then the noncitizen could be considered a public charge. Id. at 41,501 (citing 8 C.F.R. § 212.21).
Because many categories of immigrants are either not eligible for these types of public benefits or are exempted from the public charge exclusion, the rule primarily affected only a limited subset of immigrants—nonimmigrant visa holders applying for green cards. See Cook County, 962 F.3d at 235–38 (Barrett, J., dissenting).1 While not currently eligible for public benefits, upon adjustment of status, those individuals would be eligible in the future—thus, “[t]he public charge rule is concerned with what use a green card applicant would make of this future eligibility.” Id. at 237.
C. Challenging the 2019 Public Charge Rule
Notwithstanding that the 2019 rule affected only a narrow group of people, almost none of whom have previously used public benefits, a score of outraged entities challenged the rule.2 In late 2019, district courts in the Second, Fourth, Seventh, and Ninth Circuits all preliminarily enjoined the rule’s enforcement. See New

City and County of San Francisco v. United States Citizenship..., --- F.3d ---- (2021) 21 Cal. Daily Op. Serv. 3168

York v. U.S. Dep’t of Homeland Sec., 408 F. Supp. 3d 334, 353 (S.D.N.Y. 2019); CASA de Md., Inc. v. Trump, 414 F. Supp. 3d 760, 788 (D. Md. 2019); Cook County v. McAleenan, 417 F. Supp. 3d 1008, 1014 (N.D. Ill. 2019); City & County of San Francisco v. USCIS, 408 F. Supp. 3d 1057, 1073 (N.D. Cal. 2019); Washington v. U.S. Dep’t of Homeland Sec., 408 F. Supp. 3d 1191, 1224 (E.D. Wash. 2019). A divided motions panel of this court stayed the injunctions issued in this circuit in a published opinion, thereby allowing the rule to go into effect. City & County of San Francisco v. USCIS, 944 F.3d 773, 781 (9th Cir. 2019). Likewise, the Fourth Circuit stayed the preliminary injunction in its circuit. CASA de Md., Inc., 971 F.3d at 237. The Second and Seventh Circuits initially denied stays, but the Supreme Court stepped in and stayed the preliminary injunctions issued in those circuits as well. See Dep’t of Homeland Sec. v. New York, ––– U.S. ––––, 140 S. Ct. 599, 599, 206 L.Ed.2d 115 (2020); Wolf v. Cook County, ––– U.S. ––––, 140 S. Ct. 681, 681, 206 L.Ed.2d 142 (2020). In sum, although the plaintiffs had a nice run of initial successes challenging the rule, by early 2020, all the injunctions against the rule had been stayed and the rule was in effect nationwide.
*4 Undeterred by the Supreme Court’s signal that challenges to the rule were ultimately likely to fail on the merits, lower courts continued to hammer away. The Second Circuit in continuing litigation affirmed the issuance of its circuit’s preliminary injunction (with a limited scope), as did divided panels in the Seventh Circuit and this circuit. See New York, 969 F.3d at 50 (affirming the preliminary injunction, but with a limited scope); Cook County, 962 F.3d at 215; City & County of San Francisco, 981 F.3d at 763 (affirming preliminary injunctions, but with a limited scope). But a divided Fourth Circuit panel reversed, noting that the Supreme Court’s stay in other circuits’ proceedings “would have been improbable if not impossible had the government, as the stay applicant, not made a strong showing that it was likely to succeed on the merits.” CASA de Md., Inc., 971 F.3d at 229 (citation and internal quotation marks omitted).
Meanwhile, back in the Seventh Circuit, having moved on from the preliminary injunction stage to the merits phase of litigation, the Northern District of Illinois on November 2, 2020 entered a Rule 54(b) final judgment against the federal government and vacated the rule in its entirety. Cook County v. Wolf, No. 1:19-cv-06334, ––– F.Supp.3d ––––, ––––, 2020 WL 6393005, at *6–7 (N.D. Ill. Nov. 2, 2020). Notwithstanding the Supreme Court’s stay of its earlier preliminary injunction, the district court
4

denied the government’s request to stay the vacatur of the rule. Id. The Seventh Circuit, perhaps more experienced at reading the Supreme Court, stepped in and stayed implementation of the district court’s judgment pending appeal. Order Granting Motion to Stay Judgment, Cook County v. Wolf, No. 20-3150 (7th Cir. Nov. 19, 2020), ECF No. 21.
While all this was going on, the federal government filed multiple petitions for certiorari seeking Supreme Court review of the Second, Seventh, and Ninth Circuit decisions concluding that the rule was likely unlawful. As these petitions were pending, President Biden took office in January 2021. Almost exactly a month later, the Supreme Court on February 22, 2021 granted review of the Second Circuit’s case. See Dep’t of Homeland Sec. v. New York, No. 20-449, ––– U.S. ––––, ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2021 WL 666376, at *1 (U.S. Feb. 22, 2021). While obviously one can never fully predict how the Supreme Court is going to decide a case, the Supreme Court’s earlier stays—combined with its later cert grant of a lower court decision at odds with those stays—did not bode well for opponents of the rule.
D. DHS’s Rapid Dismissal of the Litigation
One of those opponents was the new Biden Administration, which put the federal government in the awkward position of having a case teed up before the Supreme Court that it knew it was likely to win, but now really wanted to lose. So in the early hours of March 9, 2021, despite the Supreme Court having granted certiorari just two weeks prior in a related case that the government had asked the Court to review, DHS in coordination with the plaintiffs moved to dismiss the Seventh Circuit appeal of the district court’s vacatur of the rule.3 Approximately an hour and a half later, DHS released a statement explaining that “the Department of Justice will no longer pursue appellate review of judicial decisions invalidating or enjoining enforcement of the 2019 Rule.”4 With a reaction time the envy of every appellate court, the Seventh Circuit only a few hours after DHS’s statement granted the motion to dismiss and immediately issued the mandate.5 Later that same evening, DHS issued another statement noting that “[f]ollowing the Seventh Circuit dismissal this afternoon, the final judgment from the Northern District of Illinois, which vacated the 2019

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public charge rule, went into effect.” It continued that “[a]s a result, the 1999 interim field guidance on the public charge inadmissibility provision (i.e., the [Clinton-era] policy that was in place before the 2019 public charge rule) is now in effect.”6 A little over 24 hours later, the parties filed a joint stipulation to dismiss the case in the Northern District of Illinois.7 The district court closed the case the following day.8
*5 On the same day it dismissed its Seventh Circuit appeal, the federal government, now BFFs with its prior opponents, also filed joint stipulations to dismiss all the cases pending before the Supreme Court, including the Second Circuit case in which the Supreme Court had already granted cert.9 Consistent with the Supreme Court’s Rule 46.1, which allows automatic dismissal of a case by unanimous agreement of the parties, the Clerk of the Supreme Court, “without further reference to the Court,” dismissed those cases. Sup. Ct. R 46.1.10
In the afternoon of that same day, March 9, 2021, the parties also moved to dismiss their case in the Fourth Circuit.11 The Fourth Circuit granted the unopposed motion and issued the mandate two days later, on March 11, 2021, noting the lack of opposition.12
On that same day—March 11, 2021, only two days after the federal government’s volte-face—fourteen states13 responded in the Seventh and Fourth Circuits to the parties’ synchronized blitzkrieg, collectively filing a Motion to Recall the Mandate to Permit Intervention as Appellant, an Opposed Motion to Reconsider, or alternatively, Rehear, a Motion to Dismiss, and an Opposed Motion to Intervene.14 The states explained that “[b]ecause the Court issued its mandate within hours of the United States’ announcement that it would no longer defend the Rule, interested parties had no ability to intervene before it did so,” and “because the United States did not inform the States that it intended to cease defending the Rule before abandoning numerous cases supporting the Rule nationwide, the States did not have an opportunity to intervene at an earlier point.”15
*6 The Seventh Circuit summarily denied the states’ motions on March 15, 2021,16 coincidentally the same day that DHS issued a final rule removing the 2019 rule. The Fourth Circuit also summarily denied the states’ motions on March 18, 2021.17 On March 19, 2021, having been denied intervention or any other relief by the Seventh Circuit, the states asked the Supreme Court to order intervention or grant alternative relief that would allow them to revive the lower court litigation.18
5

E. DHS’s Rescission of the 2019 Rule
On March 15, 2021, DHS issued a final rule “remov[ing] the regulations resulting from [the 2019 rule], which has since been vacated by a Federal district court.”19 Notably, it issued the final rule without a notice and comment period or delayed effective date, stating instead that it was promulgating a rule that was already in effect: “[t]his rule is effective on March 9, 2021, as a result of the district court’s vacatur.” It explained that “[b]ecause this rule simply implements the district court’s vacatur of the August 2019 rule, as a consequence of which the August 2019 rule no longer has any legal effect, DHS is not required to provide notice and comment or delay the effective date of this rule.” Accordingly, there was “good cause” to “bypass[ ] any otherwise applicable requirements of notice and comment and a delayed effective date” as “unnecessary for implementation of the court’s order vacating the rule ... in light of the agency’s immediate need to implement the now-effective final judgment.”20
This is the background against which we are presented the instant motion to intervene. Arguing that the federal government managed to snatch defeat from the jaws of victory only by naked capitulation, the states ask for an opportunity to pick up the football and step into the federal government’s shoes, just as the formerly adversarial parties are walking off the field together, hand-in-hand, celebrating their “win-win.” Meanwhile, the plaintiffs and feds, only months ago bitter enemies, collectively press us to deny intervention. The game is over, they say. You can’t put Humpty Dumpty back together again. The horse hasn’t just left the barn—it’s dead, and never coming back.
II. Analysis
The federal government and the plaintiffs have certainly played their hand well. Not only have they gotten rid of a rule they dislike, but they’ve done so in a way that allowed them to dodge the pesky requirements of the

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APA and ensure that it will be very difficult for any future administration to promulgate another rule like the 2019 rule. But putting aside one’s view of the merits of the rule itself, that doesn’t seem like a good thing for good government. Leveraging a single judge’s ruling into a mechanism to avoid the public participation in rule changes envisioned by the APA should trouble pretty much everyone, one would hope. Especially when the legal validity of that ruling is highly suspect and left untested only because of the collusive actions of the parties. Left unchecked, it seems quite likely this will become the mechanism of choice for future administrations to replace disfavored rules with prior favored ones.
*7 But of course, just because something is bad policy doesn’t always mean there is a legal basis to challenge it. Ultimately, the question currently before this panel is whether the states should be allowed to intervene—that is, not whether they should win the game, but just whether they should be allowed to play. That question is controlled by a well-established standard that favors intervention. As explained below, I think the states have easily met that standard here.
A. The States Meet the Intervention Standard
The states’ motion to intervene is governed by Federal Rule of Civil Procedure 24. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., AFL-CIO, Local 283 v. Scofield, 382 U.S. 205, 217 n.10, 86 S.Ct. 373, 15 L.Ed.2d 272 (1965); Day v. Apoliona, 505 F.3d 963, 965 (9th Cir. 2007). Per Rule 24(a)(2), applicants can intervene in an action as of right when they meet the following four requirements:
(1) the intervention application is timely; (2) the applicant has a significant protectable interest relating to the property or transaction that is the subject of the action; (3) the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest; and (4) the existing parties may not
6

adequately represent the applicant’s interest.
Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (citation and internal quotation marks omitted); see also Fed. R. Civ. P. 24(a)(2). When determining whether these four “requirements are met, we normally follow ‘practical and equitable considerations’ and construe the Rule ‘broadly in favor of proposed intervenors.’ ” Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1179 (9th Cir. 2011) (en banc) (citation omitted).
To evaluate intervention’s timeliness, “we consider (1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay.” Peruta v. County of San Diego, 824 F.3d 919, 940 (9th Cir. 2016) (en banc) (citation and internal quotation marks omitted). If a putative intervenor moves promptly to intervene when it becomes clear that their interests “would no longer be protected .... there is no reason why [the intervention] should not be considered timely.” United Airlines, Inc. v. McDonald, 432 U.S. 385, 394–95, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977). The states here moved to intervene in the public charge cases within mere days of the federal government making public that it no longer sought to defend the rule. The plaintiffs and the federal government argue against intervention by contending that “[n]either practical nor equitable concerns justify intervention at this late stage in the litigation.” But this is hardly the typical case where putative intervenors sat on their hands until the eleventh hour. Instead, the federal government robustly defended the rule for more than a year in courts across the nation before suddenly acquiescing in its vacatur and dismissing all the public charge cases without prior notice. Because the states quickly intervened when they discovered that the federal government had abandoned their interests, and the federal government has asserted no apparent prejudice in allowing intervention, the motion to intervene is timely.
The states also have a “significant protectable interest” in the continuing validity of the rule because invalidating the rule could cost the states as much as $1.01 billion annually.21 The federal government contends that in lieu of joining this litigation, the states can vindicate their interests by participating in an agency review process or asking the agency to promulgate a new rule. This argument might have had more merit had the federal government followed the traditional route of asking the

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courts to hold the public charge cases in abeyance, rescinding the rule per the APA, and then promulgating a new rule through notice and comment rulemaking. But instead, the federal government intentionally avoided the APA entirely by acquiescing in a final district court judgment and altering the federal regulations by unilaterally reinstating the 1999 field guidance. See 86 Fed. Reg. at 14,221 (“This rule removes from the Code of Federal Regulations ... the regulatory text that DHS promulgated in the August 2019 rule and restores the regulatory text to appear as it did prior to the issuance of the August 2019 rule.”). Its carefully coordinated actions effectively removed the Trump-era rule and installed the Clinton-era guidance as the de facto new rule—without any formal agency rulemaking or meaningful notice to the public. By deliberately evading the administrative process in this way, the government harmed the state intervenors by preventing them from seeking any meaningful relief through agency channels. The courts can and should remedy this procedural harm. See Massachusetts v. EPA, 549 U.S. 497, 518, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (“When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.”).
*8 The disposition of this action, together with the federal government’s other coordinated efforts to eliminate the rule while avoiding APA review, will impair or impede the states’ ability to protect their interest in the 2019 rule’s estimated annual savings discussed above. And the existing parties obviously do not adequately represent the states’ interests because they are now united in vigorous opposition to the rule. See Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003) (“The most important factor in determining the adequacy of representation is how the interest compares with the interests of existing parties.”).
Against the states’ arguments in favor of intervention, the federal government and plaintiffs have one main response: this case is moot because the court cannot offer adequate relief now that the 2019 rule has been vacated by a different federal judge in a different circuit.
“The party asserting mootness bears the burden of establishing that there is no effective relief that the court can provide.” Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir. 2006). “That burden is ‘heavy’; a case is not moot where any effective relief may be granted.” Id. (emphasis in original) (citation omitted).
7

The parties opposing intervention have failed to meet their “heavy” burden here. Id. (citation omitted). As the states explain, they could obtain effective relief because they currently have an action pending before the Supreme Court asking that Court to order the Seventh Circuit to reverse or stay the vacatur of the rule. If successful, that would remove any obstacle to the states ultimately getting relief in this court. See Allied Concrete & Supply Co. v Baker, 904 F.3d 1053, 1066 (9th Cir. 2018) (distinguishing moot cases where the underlying litigation had concluded from cases where “a potential petition for rehearing or certiorari keeps a case alive”). Indeed, if the states are successful in their current request that the Supreme Court stay the Seventh Circuit’s vacatur of the rule, given our denial of their intervention here the states will be left with no way to prevent one of the district courts in our circuit from immediately imposing a nationwide preliminary injunction of the rule or, worse, vacating the rule (again). The horse may have left the barn, but the rumors of its death are, if not greatly exaggerated, at least premature.
Since this case is not moot, I would have granted the states’ intervention motion because now that the federal government has abandoned the field, only the states themselves can present their arguments in favor of the rule to the Court. By denying the motion to intervene, we are sanctioning a collude-and-circumvent tactic by the parties, who clearly now share the same agenda. Cf. Knox v. Serv. Emp. Int’l Union, Loc. 1000, 567 U.S. 298, 307, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) (warning that “postcertiorari maneuvers designed to insulate a decision from review by [the Supreme] Court must be viewed with a critical eye”).
There is a final reason why intervention is especially warranted in this case. By granting two stays (and a later petition for certiorari), the Supreme Court repeatedly indicated that the United States had “made a strong showing that [it was] likely to succeed on the merits” in its defense of the rule. Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (citation omitted). Absent intervention, the parties’ strategic cooperative dismissals preclude those whose interests are no longer represented from pursuing arguments that the Supreme Court has already alluded are meritorious. Even more concerning, the dismissals lock in a final judgment and a handful of presumptively wrong appellate court decisions in multiple circuits, and circumvent the APA by avoiding formal notice-and-comment procedures. See Transp. Div. of the Int’l Ass’n of Sheet Metal, Air, Rail, & Transp. Workers v. Fed. R.R. Admin., 988 F.3d 1170,

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1180 (9th Cir. 2021) (noting that among “the most fundamental of the APA’s procedural requirements” is the requirement that “the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments for the agency’s consideration” (citation and internal quotation marks omitted)). The United States’ evasion of one of the APA’s most fundamental requirements, especially on such shaky grounds as a district court decision that never withstood the crucible of full appellate review, further supports intervention here.
B. Munsingwear Vacatur?
*9 There is truth to the federal government’s and plaintiffs’ arguments in opposition to intervention that, as things currently stand, the Ninth Circuit’s Public Charge cases have been relegated to little more than a rearguard action. So long as the 2019 rule itself remains vacated nationwide by a single judge in the Seventh Circuit, not much can be done in this circuit to affect that. While that doesn’t technically make this case moot for purposes of our intervention analysis, it does highlight the expansive reach of the parties’ coordinated actions, and how impressively effective those actions are at preventing anyone or any single court from unwinding their multifaceted, calculated capitulation and avoidance of the APA. They really have smashed Humpty Dumpty into pieces spread across the nation, and there isn’t a single court (or future administration) that can do much about it.
Except the one court that has yet to address the states’ arguments: the Supreme Court. First, the Supreme Court obviously could allow the states to intervene in the Seventh Circuit litigation and defend the 2019 rule in place of the federal government. But I think there may be a simpler solution here that would not only address what has happened with respect to the Public Charge rule but, perhaps more importantly, would encourage future administrations to change rules—not through collusive capitulation—but via the familiar and required APA rulemaking process Congress created for that purpose.
The solution is that the Supreme Court could simply clarify that Munsingwear vacatur of lower court decisions and judgments is appropriate in this circumstance where the federal government and the plaintiffs jointly mooted
8

litigation by acquiescing in a judgment against the government, which then prevented the normal APA process for removing or replacing a formal rule. Under Munsingwear, when a civil case is mooted while on appeal to the Supreme Court, “[t]he established practice” is “to reverse or vacate the judgment below and remand with a direction to dismiss.” United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950). “Because this practice is rooted in equity, the decision whether to vacate turns on ‘the conditions and circumstances of the particular case.’ ” Azar v. Garza, ––– U.S. ––––, 138 S. Ct. 1790, 1792, 201 L.Ed.2d 118 (2018) (per curiam) (citation omitted).
For instance, “[v]acatur is in order when mootness occurs through ... the ‘unilateral action of the party who prevailed in the lower court.’ ” Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 71–72, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (quoting U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 23, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994)). This is to prevent a party from securing “a favorable judgment, tak[ing] voluntary action that moots the dispute, and then retain[ing] the benefit of the judgment.” Arizonans for Off. Eng., 520 U.S. at 75, 117 S.Ct. 1055 (alterations omitted). By requiring that the lower court judgment be vacated under those circumstances, Munsingwear “prevent[s] a judgment, unreviewable because of mootness, from spawning any legal consequences.” Munsingwear, 340 U.S. at 41, 71 S.Ct. 104. That’s why vacatur in such circumstances is “generally ‘automatic.’ ” NASD Dispute Resol., Inc. v. Jud. Council of State of Cal., 488 F.3d 1065, 1068 (9th Cir. 2007) (citation omitted).
But under the Bancorp exception to Munsingwear, courts usually won’t vacate lower court decisions when the appellant’s voluntary actions moot the appeal. See Bancorp, 513 U.S. at 25, 115 S.Ct. 386. The reason for that is straightforward: generally, if a party lost below, but does something intentional to moot its case while the appeal is pending, you don’t need to worry about that losing party deliberately mooting the case on appeal so that it can “retain the benefit of the judgment” without risking a future adverse decision. For the party that lost below, there isn’t generally any “benefit of the judgment” to be retained. If the losing party voluntarily moots the case on appeal, it is invariably for some reason other than trying to manipulate the court system to lock in favorable precedent while insulating that precedent from further review. That is why, in reliance on Bancorp, courts rarely Munsingwear vacate a lower court decision when the parties voluntarily settle a case. See generally id. In those

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situations, “[t]he judgment is not unreviewable, but simply unreviewed by [the losing party’s] own choice.” Id. Those appellants “voluntarily forfeited [their] legal remedy by the ordinary process of appeal or certiorari, thereby surrendering [their] claim to the equitable remedy of vacatur.” Id.

apply in this circumstance. The states’ proceedings before the Supreme Court seem like a perfect vehicle for the Court to address this unique situation where a new administration doesn’t like a duly enacted rule and attempts to insulate the lower court’s judgment vacating the disfavored rule from further appellate review.

*10 The federal government’s coordinated settlement of

Clarifying that all lower court decisions and judgments

the Public Charge cases falls within the technical

should be vacated under these circumstances would have

parameters of the Bancorp exception to Munsingwear

both immediate and long-term salutary effects. First, the

vacatur because the federal government was the appellant

current administration will be required to do what every

in these cases. But the uniquely inequitable circumstances

administration before it did with existing rules they didn’t

facing the intervening states here, together with the

like—promulgate a new rule subject to all of the

government’s maneuvering precisely so that it could

procedural protections provided by the APA. Second, the

retain the benefit of some questionable judgments it now

thicket of suspect lower-court precedents created by the

really likes, demonstrates that this situation clearly falls

Public Charge litigation, which the Supreme Court

far outside any reasonable rationale for Bancorp’s

seemed poised to correct before the parties’ voluntary

exception to Munsingwear’s normal rule. The settlements

dismissal, would be cleared away instead of remaining as

that the states seek to challenge are a transparent attempt

a calcified obstacle to future executive discretion. And

by a new federal administration and its prior litigation

third, future administrations (and courts, and challengers)

opponents to not only rid the federal government of a

will be incentivized to follow the APA’s rules, rather than

now-disfavored rule, but also to avoid the APA’s

attempt procedural workarounds that eliminate the

procedures in changing that rule and force any future

public’s participation in administrative rulemaking.22

administration that wants to enact a similar rule to fight

against the strong headwinds of dubious Ninth, Seventh,

Our court should have allowed the states to intervene in

and Second Circuit precedent. This is, in short, precisely

these suits. But one hopes that maybe our incorrect denial

an example of a party “tak[ing] voluntary action that

of intervention may be as inconsequential as the panel

moots the dispute, and then retain[ing] the benefit of the

majority’s prior incorrect opinion, once the Supreme

judgment.” Arizonans for Off. Eng., 520 U.S. at 75, 117

Court makes clear that our dirty slate must be wiped clean

S.Ct. 1055 (alterations omitted).

under Munsingwear—and with it, all its inequitable

repercussions.

Because both Munsingwear and Bancorp turn on

equity—and even Bancorp notes that “exceptional circumstance[s] may ... counsel in favor of ... vacatur”

All Citations

when parties settle, Bancorp, 513 U.S. at 29, 115 S.Ct. 386—the Supreme Court should make clear that the Bancorp exception to Munsingwear, which usually

--- F.3d ----, 2021 WL 1310846 (Mem), 21 Cal. Daily Op. Serv. 3168

counsels against vacating a judgment where the

appellant’s voluntary actions mooted the appeal, does not

Footnotes

1

A lawful permanent resident—already admitted to the U.S. and thus eligible for select public benefits—could also be

subject to the 2019 rule if the individual left the United States for more than 180 days, which would bring his

residency into question and prompt the need to seek admission upon returning. See Cook County, 962 F.3d at 236

(Barrett, J., dissenting).

2

The states challenging the rule alleged injury in the form of resident noncitizens, confused by the language of the

rule, unnecessarily disenrolling from state public benefits. See New York, 969 F.3d at 59–60. DHS explained that the

new rule would actually save the states money because they would be paying out less in public benefits. Id. at 60.

9

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The challenging states didn’t disagree that the rule would directly save them money, but countered with a response that would delight salespeople everywhere: sometimes you have to spend money to save it. Id.; see also City & County of San Francisco, 981 F.3d at 755.

3

See Unopposed Motion to Voluntarily Dismiss Appeal, Cook County v. Wolf, No. 20-3150 (7th Cir. Mar. 9, 2021), ECF

No. 23.

4

Press Release, U.S. Dep’t of Homeland Sec., DHS Statement on Litigation Related to the Public Charge Ground of

Inadmissibility

(Mar.

9,

2021),

https://www.dhs.gov/news/2021/03/09/dhs-statement-litigation-related-public-charge-ground-inadmissibility.

5

Order Dismissing Appeal, Cook County v. Wolf, No. 20-3150 (7th Cir. Mar. 9, 2021), ECF No. 24-1; Notice of Issuance

of Mandate, Cook County v. Wolf, No. 20-3150 (7th Cir. Mar. 9, 2021), ECF No. 24-2.

6

Press Release, U.S. Dep’t of Homeland Sec., DHS Secretary Statement on the 2019 Public Charge Rule (Mar. 9, 2021),

https://www.dhs.gov/news/2021/03/09/dhs-secretary-statement-2019-public-charge-rule.

7

Joint Stipulation of Dismissal with Prejudice, Cook County v. Wolf, No. 19-cv-6334 (N.D. Ill. Mar. 11, 2019), ECF No.

253.

8

Notification of Docket Entry, Cook County v. Wolf, No. 19-cv-6334 (N.D. Ill. Mar. 12, 2019), ECF No. 254.

9

Joint Stipulation to Dismiss, U.S. Dep’t of Homeland Sec. v. New York, No. 20-449 (U.S. Mar. 9, 2021); Joint

Stipulation to Dismiss, Mayorkas v. Cook County, No. 20-450 (U.S. Mar. 9, 2021); Joint Stipulation to Dismiss, USCIS

v. City & County of San Francisco, No. 20-962 (U.S. Mar. 9, 2021).

10 Mayorkas v. Cook County, No. 20-450, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2021 WL 1081063 (U.S. Mar. 9, 2021); USCIS v. City & County of San Francisco, No. 20-962, 2021 WL 1081068 (U.S. Mar. 9, 2021); Dep’t of Homeland Sec. v. New York, No. 20-449, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2021 WL 1081216 (U.S. Mar. 9, 2021).

11 See Unopposed Motion to Voluntarily Dismiss Appeal, CASA de Md. v. Biden, No. 19-2222 (4th Cir. Mar. 9, 2021), ECF No. 210.

12 See Order, CASA de Md. v. Biden, No. 19-2222 (4th Cir. Mar. 11, 2021), ECF No. 211; Rule 42(b) Mandate, CASA de Md. v. Biden, No. 19-2222 (4th Cir. Mar. 11, 2021), ECF No. 212.

13 The states are Texas, Alabama, Arizona, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, and West Virginia. The day before, on March 10, 2021, the states of Arizona, Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Montana, Oklahoma, Texas, and West Virginia, filed the Motion to Intervene now denied by this panel. See Motion to Intervene, City and County of San Francisco v. USCIS, Nos. 19-17213, 19-17214, 19-35914 (9th Cir. Mar. 10, 2021). South Carolina and Missouri subsequently moved to join the motion before our court.

14 See Motion to Recall the Mandate to Permit Intervention as Appellant, Opposed Motion to Reconsider, or in the Alternative to Rehear, the Motion to Dismiss, Opposed Motion to Intervene-Appellants, Cook County v. Wolf, No. 20-3150, (7th Cir. Mar. 11, 2021), ECF Nos. 25-1, 25-2, 25-3; Motion to Recall the Mandate to Permit Intervention as Appellant, Opposed Motion to Reconsider, or in the Alternative to Rehear, the Motion to Dismiss, Opposed Motion for Leave to Intervene-Appellants, CASA de Md. v. Biden, No. 19-2222 (4th Cir. Mar. 11, 2021), ECF Nos. 213, 214,
10

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215. 15 See Motion to Recall the Mandate to Permit Intervention as Appellant, Cook County v. Wolf, No. 20-3150, (7th Cir.
Mar. 11, 2021), ECF Nos. 25-1, at 4. 16 See Order Denying Motions, Cook County v. Wolf, No. 20-3150 (7th Cir. Mar. 15, 2021), ECF No. 26. 17 See Order Denying Motions, CASA de Md. v. Biden, No. 19-2222 (4th Cir. Mar. 18, 2021), ECF No. 216. 18 See Application for Leave to Intervene & for a Stay of Judgment, Texas v. Cook County, No. 20A150 (U.S. Mar. 19,
2021). 19 Inadmissibility on Public Charge Grounds; Implementation of Vacatur, 86 Fed. Reg. 14,221 (Mar. 15, 2021) (to be
codified at 8 C.F.R. pts. 103, 106, 212–14, 245, 248). 20 Id. at 14,221. 21 Motion to Intervene by the States at 1, 3–5, City & County of San Francisco v. USCIS, 981 F.3d 742 (9th Cir. 2021)
(Nos. 19-17213, 19-17214, 19-35914). 22 There is one additional reason why Munsingwear vacatur of the lower courts’ decisions would be particularly
appropriate in the context of the Public Charge rule. By design, the federal government’s and plaintiffs’ coordinated dismissals act to replace the Trump Administration’s Public Charge rule with the Clinton Administration’s Public Charge “guidance.” Press Release, U.S. Dep’t of Homeland Sec., DHS Secretary Statement on the 2019 Public Charge Rule (Mar. 9, 2021), https://www.dhs.gov/news/2021/03/09/dhs-secretary-statement-2019-public-charge-rule. As discussed, under the Clinton-era guidance, a noncitizen who is entirely dependent on in kind government support—for food, housing, medical care, etc.—cannot be considered a “public charge” unless he also receives cash benefits. That seems like it might run into problems under the APA. But the government’s circumvention of the APA allowed it to slip back into applying the old guidance without even needing to take that into consideration.
11