APPEAL,PROTO,VALDEZ
United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 6.3.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:19-cv-06334

Cook County, Illinois et al v. Wolf et al Assigned to: Honorable Gary Feinerman Case in other court: 19-03169
20-03150 Cause: 46:1156 Administrative Procedure Act

Date Filed: 09/23/2019 Jury Demand: Plaintiff Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff
Cook County, Illinois an Illinois governmental entity TERMINATED: 11/02/2020

represented by A Colin Wexler Goldberg Kohn Ltd. Mid-Continental Plaza 55 East Monroe Street #3300 Chicago, IL 60603 (312)201-4000 Email: colin.wexler@goldbergkohn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David E. Morrison Goldberg Kohn Ltd. Mid-Continental Plaza 55 East Monroe Street #3300 Chicago, IL 60603 (312)201-4000 Email: david.morrison@goldbergkohn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jessica Megan Scheller Office of the Cook County States Attorney 500 Richard J. Daley Center Chicago, IL 60602 312-603-6934 Email:

Plaintiff Illinois Coalition for Immigrant

jessica.scheller@cookcountyil.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven A. Levy Goldberg Kohn Ltd. Mid-Continental Plaza 55 East Monroe Street #3300 Chicago, IL 60603 (312)201-4000 Email: steven.levy@goldbergkohn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Juan Carlos Arguello Goldberg Kohn LTD. 55 E Monroe Suite 3300 Chicago, IL 60603 312-201-3954 Email: juan.arguello@goldbergkohn.com ATTORNEY TO BE NOTICED
Lauren Elizabeth Miller Cook County County State's Attorney's Office Civil Actions Bureau 500 Richard J. Daley Center Chicago, IL 60602 (312) 603-5500 Email: Lauren.Miller@cookcountyil.gov ATTORNEY TO BE NOTICED
Takayuki Ono Goldberg Kohn Ltd. 55 E. Monroe Street Chicago, IL 60603 (312) 201-4000 Email: taky.ono@goldbergkohn.com ATTORNEY TO BE NOTICED
represented by David Andrew Gordon

and Refugee Rights, Inc.

Sidley Austin LLP (Chicago) One South Dearborn Street Chicago, IL 60603 (312) 853-7000 Email: dgordon@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrea Marie Kovach Shriver Center On Poverty Law 67 E. Madison St Suite 2000 Chicago, IL 60603 (312) 316-3153 Email: andreakovach@povertylaw.org ATTORNEY TO BE NOTICED
Caroline Goodwin Chapman Legal Counsel for Health Justice 17 N. State Street Suite 900 Chicago, IL 60602 312-605-1981 Email: cchapman@legalcouncil.org ATTORNEY TO BE NOTICED
Gavin Michael Kearney Shriver Center On Poverty Law 67 E. Madison Suite 2000 Chicago, IL 60603 (312) 448-8266 Email: gavinkearney@povertylaw.org TERMINATED: 09/02/2020
Katherine Elizabeth Walz Sargent Shriver National Center on Poverty Law 50 E. Washington #500 Chicago, IL 60602 (312) 263-3830 Email: katewalz@povertylaw.org ATTORNEY TO BE NOTICED

Marlow Elizabeth Svatek Sidley Austin Llp 1 South Dearborn Street Chicago, IL 60603 (312) 853-7028 Email: msvatek@sidley.com ATTORNEY TO BE NOTICED
Meghan Patricia Carter Legal Council for Health Justice 17 N. State St., Ste. 900 Chicago, IL 60602 (312) 6051979 Email: mcarter@legalcouncil.org ATTORNEY TO BE NOTICED
Militza Marie Pagan Lopez Shriver Center On Poverty Law 67 E. Madison Suite 2000 Chicago, IL 60603 (312) 690-5907 Email: militzapagan@povertylaw.org ATTORNEY TO BE NOTICED
Nanshelmun Ruth Dashan Legal Council for Health Justice 17 N. State Street Suite 900 Chicago, IL 60602 (312) 605-1975 Email: sdashan@legalcouncil.org ATTORNEY TO BE NOTICED
Nolan Patrick Downey Shriver Center On Poverty Law 67 E Madison St #2000 Chicago, IL 60603 (312) 854-3375 Email: nolandowney@povertylaw.org ATTORNEY TO BE NOTICED
Robert S. Velevis Sidley Austin LLP 2021 McKinney Ave

V.
Defendant
Alejandro Mayorkas Secretary of the U.S. Department of Homeland Security

Suite #2000 Dallas, TX 75201 (214) 969-3501 Email: rvelevis@sidley.com PRO HAC VICE ATTORNEY TO BE NOTICED
Tacy Fletcher Flint Sidley Austin Llp One South Dearborn Chicago, IL 60603 (312) 853-7875 Email: tflint@sidley.com ATTORNEY TO BE NOTICED
Yvette Ostolaza Sidley Austin LLP 2021 McKinney Ave. Suite 2000 Dallas, TX 75201 214-981-3401 Email: yvette.ostolaza@sidley.com ATTORNEY TO BE NOTICED
represented by Eric J. Soskin U.S. Department of Justice, Civil Division, Federal Programs 1100 L Street NW Room 12002 Washington, DC 20005 (202) 353-0533 Email: eric.soskin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA - Chicago United States Attorney's Office (NDIL - Chicago) 219 South Dearborn Street Chicago, IL 60604 Email: USAILN.ECFAUSA@usdoj.gov ATTORNEY TO BE NOTICED

Defendant U.S. Department of Homeland Security a federal agency
Defendant

Jason Cyrus Lynch U.S. Department of Justice, Civil Division, Federal Programs 1100 L Street NW Washington, DC 20005 (202) 514-1359 Email: Jason.Lynch@usdoj.gov ATTORNEY TO BE NOTICED
Kuntal Cholera U.S. Department of Justice, Federal Programs Branch 1100 L St. NW Washington, DC 20005 (202) 305-8645 Email: kuntal.cholera@usdoj.gov ATTORNEY TO BE NOTICED
represented by Eric J. Soskin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA - Chicago (See above for address) ATTORNEY TO BE NOTICED
Jason Cyrus Lynch (See above for address) ATTORNEY TO BE NOTICED
Joshua Kolsky U.S. Department of Justice 1100 L Street NW Washington, DC 20005 (202) 305-7664 Email: Joshua.kolsky@usdoj.gov ATTORNEY TO BE NOTICED
Kuntal Cholera (See above for address) ATTORNEY TO BE NOTICED

Tracey Renaud Senior Official Performing the Duties of the Director of the U.S. Citizenship and Immigration Services
Defendant U.S. Citizenshiup and Immigration Services a federal agency
Amicus American Civil Liberties Union

represented by Eric J. Soskin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA - Chicago (See above for address) ATTORNEY TO BE NOTICED
Jason Cyrus Lynch (See above for address) ATTORNEY TO BE NOTICED
Joshua Kolsky (See above for address) ATTORNEY TO BE NOTICED
Kuntal Cholera (See above for address) ATTORNEY TO BE NOTICED
represented by Eric J. Soskin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
AUSA - Chicago (See above for address) ATTORNEY TO BE NOTICED
Jason Cyrus Lynch (See above for address) ATTORNEY TO BE NOTICED
Joshua Kolsky (See above for address) ATTORNEY TO BE NOTICED
Kuntal Cholera (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague Latham & Watkins LLP

505 Montgomery Street Suite 2000 San Francisco, CA 94111-6538 (415) 395-8115 Email: charles.sprague@lw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien Latham & Watkins LLP 505 Montgomery Street Suite 2000 San Francisco, CA 94111-6538 (415) 395-8074 Email: kyle.virgien@lw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray Latham & Watkins LLP 505 Montgomery Street Suite 2000 San Francisco, CA 94111 (415) 395-8029 Email: sarah.ray@lw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar Latham & Watkins LLP 505 Montgomery Street Suite 2000 San Francisco, CA 94111 (415) 395-8025 Email: diana.aguilar@lw.com TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick Latham & Watkins LLP 330 N. Wabash Avenue Suite 2800 Chicago, IL 60611

Amicus Center for Public Representation
Amicus American Association of People with Disabilities

(312) 876-7700 Email: marc.zubick@lw.com ATTORNEY TO BE NOTICED
represented by Charles Sprague (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray

Amicus Association of University Centers on Disabilities
Amicus Autistic Self Advocacy Network

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague (See above for address) LEAD ATTORNEY

Amicus
Civil Rights Education and Enforcement Center

PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020

Amicus Coelho Center for Disability Law, Policy and Innovation
Amicus Disability Rights Advocates

PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Disability Rights Education and Defense Fund
Amicus Equip for Equality

Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague

Amicus
Judge David L. Bazelon Center for Mental Health Law

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar

Amicus Little Lobbyists
Amicus Mental Health America

(See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY

Amicus National Association of Councils on Developmental Disabilities
Amicus

PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED

National Council on Independent Living
Amicus National Disability Rights Network

represented by Charles Sprague (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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

Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address)

Amicus United Spinal Association

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Sprague (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle A. Virgien (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah M. Ray (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Diana A. Aguilar (See above for address) TERMINATED: 05/27/2020 PRO HAC VICE
Marc N. Zubick (See above for address) ATTORNEY TO BE NOTICED

Amicus Asian Pacific Institute on GenderBased Violence
Amicus ASISTA Immigration Assistance
Amicus Battered Womens Justice Project Battered Womens Justice Project
Amicus Casa de Esperanza Casa de Esperanza
Amicus Legal Momentum Legal Momentum
Amicus National Alliance to End Sexual Violence National Alliance to End Sexual Violence Amicus National Coalition Against Domestic Violence National Coalition Against Domestic Violence Amicus National Council of Jewish Women National Council of Jewish Women

represented by Charles Roth National Immigrant Justice Center 224 South Michigan Ave. Suite 600 Chicago, IL 60604 312-660-1613 Email: croth@heartlandalliance.org ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED

Amicus National Domestic Violence Hotline National Domestic Violence Hotline
Amicus National Network to End Domestic Violence National Network to End Domestic Violence
Amicus National Resource Center on Domestic Violence National Resource Center on Domestic Violence
Amicus National Survivor Network, Tahirih Justice Center National Survivor Network, Tahirih Justice Center
Amicus Arizona Coalition to End Sexual and Domestic Violence Arizona Coalition to End Sexual and Domestic Violence
Amicus California Coalition Against Sexual Assault California Coalition Against Sexual Assault
Amicus California Partnership to End Domestic Violence California Partnership to End Domestic Violence
Amicus Violence Free Colorado Violence Free Colorado

represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED

Amicus Delaware Coalition Against Domestic Violence Delaware Coalition Against Domestic Violence
Amicus Idaho Coalition Against Sexual & Domestic Violence Idaho Coalition Against Sexual & Domestic Violence
Amicus Illinois Coalition Against Domestic Violence Illinois Coalition Against Domestic Violence
Amicus Illinois Accountability Initiative Illinois Accountability Initiative
Amicus Iowa Coalition Against Domestic Violence Iowa Coalition Against Domestic Violence
Amicus Kansas Coalition Against Sexual and Domestic Violence Kansas Coalition Against Sexual and Domestic Violence
Amicus Kentucky Coalition Against Domestic Violence Kentucky Coalition Against Domestic Violence
Amicus Legal Voice Legal Voice
Amicus

represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED

Maine Coalition to End Domestic Violence Maine Coalition to End Domestic Violence
Amicus
Jane Doe Inc. Jane Doe Inc.
Amicus
The Massachusetts Coalition Against Sexual Assault and Domestic Violence The Massachusetts Coalition Against Sexual Assault and Domestic Violence
Amicus
Montana Coalition Against Domestic and Sexual Violence Montana Coalition Against Domestic and Sexual Violence
Amicus
Nebraska Coalition to End Sexual and Domestic Violence Nebraska Coalition to End Sexual and Domestic Violence
Amicus
Nevada Coalition to End Domestic and Sexual Violence Nevada Coalition to End Domestic and Sexual Violence
Amicus
New Jersey Coalition to End Domestic Violence New Jersey Coalition to End Domestic Violence
Amicus
The North Carolina Coalition Against Domestic Violence The North Carolina Coalition Against Domestic Violence

represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED

Amicus Ohio Domestic Violence Network Ohio Domestic Violence Network
Amicus Rhode Island Coalition Against Domestic Violence Rhode Island Coalition Against Domestic Violence
Amicus South Carolina Coalition Against Domestic Violence and Sexual Assault South Carolina Coalition Against Domestic Violence and Sexual Assault
Amicus Texas Council on Family Violence Texas Council on Family Violence
Amicus Vermont Network Against Domestic and Sexual Violence Vermont Network Against Domestic and Sexual Violence
Amicus Washington Coalition of Sexual Assault Programs Washington Coalition of Sexual Assault Programs
Amicus Washington State Coalition Against Domestic Violence Washington State Coalition Against Domestic Violence
Amicus End Domestic Abuse Wisconsin End Domestic Abuse Wisconsin

represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED

Amicus API Chaya API Chaya
Amicus Sexual Violence Law Center Sexual Violence Law Center
Amicus PUBLIC HEALTH, HEALTH POLICY, MEDICINE, AND NURSING DEANS, CHAIRS AND SCHOLARS; THE AMERICAN PUBLIC HEALTH ASSOCIATION; AND THE AMERICAN ACADEMY OF NURSING

represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) ATTORNEY TO BE NOTICED
represented by David N. Michael Gould & Ratner 222 North LaSalle Street Suite 300 Chicago, IL 60601 (312) 236-3003 Email: dmichael@gouldratner.com ATTORNEY TO BE NOTICED
Edward Todd Waters Feldesman Tucker Leifer Fidell, LLP 1129 20th Street N.W., Fourth Floor Washington, DC 20036 (202) 466-8960 Email: ewaters@ftlf.com PRO HAC VICE ATTORNEY TO BE NOTICED
Mark Douglas Brookstein Gould & Ratner 222 North LaSalle St. Suite 300 Chicago, IL 60601 (312) 236-3003 Email: mbrookstein@gouldratner.com ATTORNEY TO BE NOTICED
Phillip Anselm Escoriaza Feldesman Tucker Leifer Fidell, LLP 1129 20th Street N.W., Fourth Floor Washington, DC 20036 (202) 466-8960 Email: pescoriaza@ftlf.com PRO HAC VICE

Amicus City of Chicago
Amicus Immigration Reform Law Institute

ATTORNEY TO BE NOTICED
represented by Rebecca Alfert Hirsch City of chicago 30 N. LaSalle St Suite 1230 Chicago, IL 60602 (312) 742-0260 Email: rebecca.hirsch2@cityofchicago.org ATTORNEY TO BE NOTICED
Stephen J Kane City of Chicago 121 N. LaSalle Street Room 600 Chicago, IL 60602 (312) 744-6934 Email: Stephen.Kane@cityofchicago.org ATTORNEY TO BE NOTICED
represented by David John Shestokas Shestokas & Pastor, Ltd. 114 Illinois Street Lemont, IL 60439 (630) 243-0099 Email: constitution@shestokas.com ATTORNEY TO BE NOTICED
Lew Olowski Immigration Reform Law Institute 25 Massachusetts NW Suite 335 Washington, DC 20001 (202) 232-5590 Email: lolowski@irli.org PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 09/23/2019
09/23/2019 09/23/2019 09/23/2019 09/23/2019 09/23/2019 09/23/2019 09/23/2019 09/23/2019 09/23/2019
09/23/2019 09/23/2019 09/23/2019

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF filed by Cook County, Illinois, an Illinois governmental entity, Illinois Coalition for Immigrant and Refugee Rights, Inc.; Jury Demand. Filing fee $ 400, receipt number 0752-16265670.(Morrison, David) (Entered: 09/23/2019)
2 CIVIL Cover Sheet (Morrison, David) (Entered: 09/23/2019)
3 ATTORNEY Appearance for Plaintiff Cook County, Illinois, an Illinois governmental entity by David E. Morrison (Morrison, David) (Entered: 09/23/2019)
4 ATTORNEY Appearance for Plaintiff Cook County, Illinois, an Illinois governmental entity by Steven A. Levy (Levy, Steven) (Entered: 09/23/2019)
5 ATTORNEY Appearance for Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. by Caroline Goodwin Chapman (Chapman, Caroline) (Entered: 09/23/2019)
6 ATTORNEY Appearance for Plaintiff Cook County, Illinois, an Illinois governmental entity by A Colin Wexler (Wexler, A) (Entered: 09/23/2019)
7 ATTORNEY Appearance for Plaintiff Cook County, Illinois, an Illinois governmental entity by Takayuki Ono (Ono, Takayuki) (Entered: 09/23/2019)
8 ATTORNEY Appearance for Plaintiff Cook County, Illinois, an Illinois governmental entity by Juan Carlos Arguello (Arguello, Juan) (Entered: 09/23/2019)
9 ATTORNEY Appearance for Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. by David Andrew Gordon (Gordon, David) (Entered: 09/23/2019)
10 ATTORNEY Appearance for Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. by Militza Marie Pagan Lopez ATTORNEY Appearance for Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. by Militza M.Pagan (Pagan Lopez, Militza) (Entered: 09/23/2019)
11 NOTIFICATION of Affiliates pursuant to Local Rule 3.2 by Illinois Coalition for Immigrant and Refugee Rights, Inc. (Gordon, David) (Entered: 09/23/2019)
12 ATTORNEY Appearance for Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. by Tacy Fletcher Flint (Flint, Tacy) (Entered: 09/23/2019)
13 ATTORNEY Appearance for Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. by Katherine Elizabeth Walz (Walz, Katherine)

09/23/2019 09/23/2019 09/23/2019 09/23/2019 09/24/2019 09/24/2019 09/24/2019 09/24/2019
09/25/2019
09/25/2019 09/25/2019
09/25/2019

(Entered: 09/23/2019)
14 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752-16265691. (Ostolaza, Yvette) (Entered: 09/23/2019)
15 ATTORNEY Appearance for Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. by Gavin Michael Kearney (Kearney, Gavin) (Entered: 09/23/2019)
16 ATTORNEY Appearance for Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. by Andrea Marie Kovach (Kovach, Andrea) (Entered: 09/23/2019)
17 ATTORNEY Appearance for Plaintiff Cook County, Illinois, an Illinois governmental entity by Jessica Megan Scheller Office of the Cook County State's Attorney (Scheller, Jessica) (Entered: 09/23/2019)
CASE ASSIGNED to the Honorable John Robert Blakey. Designated as Magistrate Judge the Honorable Maria Valdez. Case assignment: Random assignment. (lw, ) (Entered: 09/24/2019)
18 ATTORNEY Appearance for Plaintiff Cook County, Illinois by Lauren Elizabeth Miller (Miller, Lauren) (Entered: 09/24/2019)
19 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752-16266542. (Velevis, Robert) (Entered: 09/24/2019)
20 MINUTE entry before the Honorable John Robert Blakey: One of the attorneys appearing in this case served as a law clerk to this Court within the past year. As a result, this Court hereby exercises its discretion under 28 U.S.C. Section 455 and requests that this case be referred to the Executive Committee for reassignment. Mailed notice (gel, ) (Entered: 09/24/2019)
SUMMONS Issued as to Kenneth T. Cuccinelli, Kevin K. McAleenan, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, U.S. Attorney, and U.S. Attorney General (cc, ) (Entered: 09/25/2019)
21 ATTORNEY Appearance for Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. by Nanshelmun Ruth Dashan (Dashan, Nanshelmun) (Entered: 09/25/2019)
22 EXECUTIVE COMMITTEE ORDER: Case reassigned to the Honorable Gary Feinerman for all further proceedings. Honorable John Robert Blakey no longer assigned to the case. Signed by the Executive Committee on 9/25/2019. (sxb, ) (Entered: 09/25/2019)
23 MOTION by Plaintiffs Cook County, Illinois, Illinois Coalition for Immigrant and Refugee Rights, Inc.( PLAINTIFFS' EMERGENCY LOCAL RULE 7.1 MOTION FOR LEAVE TO FILE BRIEF IN EXCESS

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OF 15 PAGES) (Attachments: # 1 Exhibit 1)(Morrison, David) (Entered: 09/25/2019)
24 MOTION by Plaintiffs Cook County, Illinois, Illinois Coalition for Immigrant and Refugee Rights, Inc. for temporary restraining order and/or Preliminary Injunction or Stay Pursuant to 5 U.S.C. § 705 (Morrison, David) (Entered: 09/25/2019)
25 Plaintiffs' Notice of Emergency Motions NOTICE of Motion by David E. Morrison for presentment of motion for miscellaneous relief, 23 , motion for temporary restraining order 24 before Honorable Gary Feinerman on 9/27/2019 at 10:15 AM. (Morrison, David) (Entered: 09/25/2019)
26 MINUTE entry before the Honorable Gary Feinerman: Motion for leave to file excess pages 23 is granted, Plaintiffs shall file their memorandum as a separate docket entry. Mailed notice (ags, ) (Entered: 09/26/2019)
27 MEMORANDUM by Cook County, Illinois, Illinois Coalition for Immigrant and Refugee Rights, Inc. in support of motion for temporary restraining order 24 (Attachments: # 1 Exhibit 1-6)(Morrison, David) (Entered: 09/26/2019)
28 ATTORNEY Appearance for Defendants Kenneth T. Cuccinelli, Kevin K. McAleenan, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security by Eric J. Soskin (Soskin, Eric) (Entered: 09/27/2019)
29 MINUTE entry before the Honorable Gary Feinerman: Motion hearing held on 9/27/2019. Defendant's response to Plaintiffs' emergency motion for temporary restraining order and/or preliminary injunction or stay 24 due by 10/8/2019 at 1:00 p.m. Central Time; Plaintiffs' reply due by 10/10/2019 at 3:00 p.m. Central Time. Amicus briefs in support of Plaintiffs must be filed by 10/3/2019 at 5:00 p.m. Central Time. Amicus brief in support of Defendants must be filed by 10/8/2019 at 1:00 p.m. The court will advise the parties of a motion ruling hearing time in a separate minute order. Mailed notice (cn). (Entered: 09/27/2019)
30 MINUTE entry before the Honorable Gary Feinerman:Motions to appear pro hac vice 14 and 19 are granted. Mailed notice. (jlj, ) (Entered: 09/30/2019)
31 ATTORNEY Appearance for Amicus Parties American Civil Liberties Union, Center for Public Representation, American Association of People with Disabilities, Association of University Centers on Disabilities, Autistic Self Advocacy Network, Civil Rights Education and Enforcement Center, Coelho Center for Disability Law, Policy and Innovation, Disability Rights Advocates, Disability Rights Education and Defense Fund, Equip for Equality, Judge David L. Bazelon Center for Mental Health Law, Little Lobbyists, Mental Health America, National

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Association of Councils on Developmental Disabilities, National Council on Independent Living, National Disability Rights Network, National Federation of the Blind, The Arc of the United States, United Spinal Association by Marc N. Zubick (Zubick, Marc) (Entered: 10/02/2019)
32 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752-16297595. (Ray, Sarah) (Entered: 10/02/2019)
33 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752-16297650. (Virgien, Kyle) (Entered: 10/02/2019)
34 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752-16297678. (Aguilar, Diana) (Entered: 10/02/2019)
35 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752-16297704. (Sprague, Charles) (Entered: 10/02/2019)
36 Brief of Amici Curiae The American Civil Liberties Union, Center for Public Representation, et al. in Support of Plaintiffs' Motion for Temporary Restraining Order and/or Preliminary Injunction by American Association of People with Disabilities, American Civil Liberties Union, Association of University Centers on Disabilities, Autistic Self Advocacy Network, Center for Public Representation, Civil Rights Education and Enforcement Center, Coelho Center for Disability Law, Policy and Innovation, Disability Rights Advocates, Disability Rights Education and Defense Fund, Equip for Equality, Judge David L. Bazelon Center for Mental Health Law, Little Lobbyists, Mental Health America, National Association of Councils on Developmental Disabilities, National Council on Independent Living, National Disability Rights Network, National Federation of the Blind, The Arc of the United States, United Spinal Association (Zubick, Marc) (Entered: 10/02/2019)
37 NOTICE by American Association of People with Disabilities, American Civil Liberties Union, Association of University Centers on Disabilities, Autistic Self Advocacy Network, Center for Public Representation, Civil Rights Education and Enforcement Center, Coelho Center for Disability Law, Policy and Innovation, Disability Rights Advocates, Disability Rights Education and Defense Fund, Equip for Equality, Judge David L. Bazelon Center for Mental Health Law, Little Lobbyists, Mental Health America, National Association of Councils on Developmental Disabilities, National Council on Independent Living, National Disability Rights Network, National Federation of the Blind, The Arc of the United States, United Spinal Association re other,,, 36 Brief of Amici Curiae in Support of Plaintiffs' Motion for Temporary Restraining Order and/or Preliminary Injunction (Zubick, Marc) (Entered: 10/02/2019)
38 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752-16299139. (Peterson, Alanna) (Entered: 10/02/2019)

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39 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752-16299808. (Lawrence, Paul) (Entered: 10/02/2019)
40 MINUTE entry before the Honorable Gary Feinerman:Motions to appear pro hac vice 32 , 33 , 34 , 35 , 38 and 39 are granted.Mailed notice. (jlj, ) (Entered: 10/03/2019)
41 ATTORNEY Appearance for Amicus PUBLIC HEALTH, HEALTH POLICY, MEDICINE, AND NURSING DEANS, CHAIRS AND SCHOLARS; THE AMERICAN PUBLIC HEALTH ASSOCIATION; AND THE AMERICAN ACADEMY OF NURSING by David N. Michael (Michael, David) (Entered: 10/03/2019)
42 ATTORNEY Appearance for Amicus PUBLIC HEALTH, HEALTH POLICY, MEDICINE, AND NURSING DEANS, CHAIRS AND SCHOLARS; THE AMERICAN PUBLIC HEALTH ASSOCIATION; AND THE AMERICAN ACADEMY OF NURSING by Mark Douglas Brookstein (Brookstein, Mark) (Entered: 10/03/2019)
43 BRIEF OF AMICI CURIAE IN SUPPORT OF PLAINTIFFS by PUBLIC HEALTH, HEALTH POLICY, MEDICINE, AND NURSING DEANS, CHAIRS AND SCHOLARS; THE AMERICAN PUBLIC HEALTH ASSOCIATION; AND THE AMERICAN ACADEMY OF NURSING (Brookstein, Mark) (Entered: 10/03/2019)
44 NOTICE by PUBLIC HEALTH, HEALTH POLICY, MEDICINE, AND NURSING DEANS, CHAIRS AND SCHOLARS; THE AMERICAN PUBLIC HEALTH ASSOCIATION; AND THE AMERICAN ACADEMY OF NURSING re other 43 (Brookstein, Mark) (Entered: 10/03/2019)
45 MINUTE entry before the Honorable Gary Feinerman:Hearing on Plaintiffs' emergency motion for temporary restraining order and/or preliminary injunction or stay 24 set for 10/11/2019 at 12:15 p.m. Attorneys who wish to participate by telephone at the hearing should call Toll-Free Number: (877) 336-1828, Access Code: 4082461.Mailed notice. (jlj, ) (Entered: 10/03/2019)
46 Enter Notice Concerning Waiver of Judicial Disqualification. Judge Feinerman was a partner at Sidley Austin LLP, counsel for Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc., from 2007-2010. He currently has two 401(k) plans and a cash benefit plan from his time at Sidley Austin; all three plans are held through Schwab. As noted by Sections 3.3-2(b) and (b)(2) of the Compendium of Selected Opinions, this results in a circumstance where the judge's impartiality might reasonably be questioned under Canon 3(C)(1), though for which a remittal of disqualification may be entered under Canon 3(D) if the parties unanimously agree. Please note the 10/8/2019 deadline for submitting the remittal letters to the Clerk of Court.Mailed notice.(jlj, ) (Entered:

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10/03/2019)
47 ATTORNEY Appearance for Amicus Parties API Chaya, ASISTA Immigration Assistance, Arizona Coalition to End Sexual and Domestic Violence, Asian Pacific Institute on Gender-Based Violence, Battered Womens Justice Project, California Coalition Against Sexual Assault, California Partnership to End Domestic Violence, Casa de Esperanza, Delaware Coalition Against Domestic Violence, Idaho Coalition Against Sexual & Domestic Violence, Illinois Accountability Initiative, Illinois Coalition Against Domestic Violence, Iowa Coalition Against Domestic Violence, Kansas Coalition Against Sexual and Domestic Violence, Kentucky Coalition Against Domestic Violence, Legal Momentum, Maine Coalition to End Domestic Violence, Montana Coalition Against Domestic and Sexual Violence, National Alliance to End Sexual Violence, National Coalition Against Domestic Violence, National Council of Jewish Women, National Domestic Violence Hotline, National Network to End Domestic Violence, National Survivor Network, Tahirih Justice Center, Nebraska Coalition to End Sexual and Domestic Violence, Nevada Coalition to End Domestic and Sexual Violence, New Jersey Coalition to End Domestic Violence, Ohio Domestic Violence Network, Rhode Island Coalition Against Domestic Violence, Sexual Violence Law Center, South Carolina Coalition Against Domestic Violence and Sexual Assault, Texas Council on Family Violence, The Massachusetts Coalition Against Sexual Assault and Domestic Violence, The North Carolina Coalition Against Domestic Violence, Vermont Network Against Domestic and Sexual Violence, Violence Free Colorado, Washington Coalition of Sexual Assault Programs, Washington State Coalition Against Domestic Violence by Charles Roth (Roth, Charles) (Entered: 10/03/2019)
48 MOTION by Unknown Nonprofit Anti-Domestic Violence and Sexual Assault Organizations for leave to file brief amicus curiae (Attachments: # 1 Exhibit Proposed amicus brief)(Roth, Charles) (Entered: 10/03/2019)
49 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752-16303574. (Waters, Edward) (Entered: 10/03/2019)
50 NOTICE of Motion by Charles Roth for presentment of motion for leave to file 48 before Honorable Gary Feinerman on 10/8/2019 at 09:00 AM. (Roth, Charles) (Entered: 10/03/2019)
51 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752-16303636. (Escoriaza, Phillip) (Entered: 10/03/2019)
52 ATTORNEY Appearance for Amicus CITY OF CHICAGO CITY OF CHICAGO by Rebecca Alfert Hirsch (Hirsch, Rebecca) (Entered: 10/03/2019)
53 Brief of Amici Curiae by CITY OF CHICAGO CITY OF CHICAGO the City of Los Angeles, the City of Oakland, the County of Harris Texas, and

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26 other local governments (Hirsch, Rebecca) (Entered: 10/03/2019)
54 NOTICE by CITY OF CHICAGO CITY OF CHICAGO re other 53 Notice of Filing (Hirsch, Rebecca) (Entered: 10/03/2019)
55 ATTORNEY Appearance for Amicus CITY OF CHICAGO CITY OF CHICAGO by Stephen J Kane (Kane, Stephen) (Entered: 10/03/2019)
56 MINUTE entry before the Honorable Gary Feinerman:Motion for leave to file of Amici Curiae Nonprofit Anti-Domestic Violence and Sexual Assault Organizations in support of Plaintiffs' motion for preliminary injunction 48 is granted. Amicus shall file its amicus brief as a separate docket entry. Motion hearing set for 10/8/2019 50 is stricken. Mailed notice. (jlj, ) (Entered: 10/04/2019)
57 MINUTE entry before the Honorable Gary Feinerman:Motions to appear pro hac vice 49 and 51 are granted.Mailed notice. (jlj, ) (Entered: 10/04/2019)
58 Amendedfor Phillip A. Escoriaza MOTION by Amicus PUBLIC HEALTH, HEALTH POLICY, MEDICINE, AND NURSING DEANS, CHAIRS AND SCHOLARS; THE AMERICAN PUBLIC HEALTH ASSOCIATION; AND THE AMERICAN ACADEMY OF NURSING for leave to appear as Pro Hac Vice (Filing Fee Paid for Dkt. 51) Amendedfor Phillip A. Escoriaza (Escoriaza, Phillip) (Entered: 10/04/2019)
59 SUMMONS Returned Executed by Cook County, Illinois as to U.S. Citizenshiup and Immigration Services served on 9/25/2019, answer due 11/25/2019 (Morrison, David) (Entered: 10/04/2019)
60 SUMMONS Returned Executed by Cook County, Illinois as to Kevin K. McAleenan served on 9/25/2019, answer due 11/25/2019 (Morrison, David) (Entered: 10/04/2019)
61 SUMMONS Returned Executed by Cook County, Illinois as to Kenneth T. Cuccinelli served on 9/25/2019, answer due 11/25/2019 (Morrison, David) (Entered: 10/04/2019)
62 SUMMONS Returned Executed by Cook County, Illinois as to U.S. Department of Homeland Security served on 9/25/2019, answer due 11/25/2019 (Morrison, David) (Entered: 10/04/2019)
63 MINUTE entry before the Honorable Gary Feinerman:Motion for leave to appear 58 is granted.Mailed notice. (jlj, ) (Entered: 10/04/2019)
64 TRANSCRIPT OF PROCEEDINGS held on 9/27/19 before the Honorable Gary Feinerman. Order Number: 36270. Court Reporter Contact Information: Frances Ward - (312)435-5561 wardofficialtranscripts@gmail.com.
IMPORTANT: The transcript may be viewed at the court's public terminal

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or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.
Redaction Request due 10/25/2019. Redacted Transcript Deadline set for 11/4/2019. Release of Transcript Restriction set for 1/2/2020. (Ward, Frances) (Entered: 10/04/2019)
65 ENTERED in Error. (Roth, Charles) Modified on 10/21/2019 (smm, ). (Entered: 10/04/2019)
66 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752-16310877. (Olowski, Lew) (Entered: 10/07/2019)
67 ATTORNEY Appearance for Defendants Kenneth T. Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security by Joshua Kolsky (Kolsky, Joshua) (Entered: 10/07/2019)
68 MEMORANDUM by Nonprofit Anti-Domestic Violence and Sexual Assault Organizations (docket entry corrected) (Roth, Charles) (Entered: 10/07/2019)
69 MINUTE entry before the Honorable John Robert Blakey: Lew Olowski's motion for leave to appear pro hac vice 66 granted. Mailed notice (gel, ) (Entered: 10/08/2019)
70 ATTORNEY Appearance for Amicus Immigration Reform Law Institute by Lew Olowski (Olowski, Lew) (Entered: 10/08/2019)
71 MOTION by Amicus Immigration Reform Law Institute for leave to file Brief as Amicus Curiae (Attachments: # 1 Exhibit Brief of Amicus Curiae Immigration Reform Law Institute, # 2 Notice of Filing Notice of Filing Motion For Leave To File Brief As Amicus Curiae)(Olowski, Lew) (Entered: 10/08/2019)
72 NOTICE of Motion by Lew Olowski for presentment of motion for leave to file, 71 before Honorable Gary Feinerman on 10/8/2019 at 01:00 PM. (Olowski, Lew) (Entered: 10/08/2019)
73 MEMORANDUM by Kenneth T. Cuccinelli, Kevin K. McAleenan, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security in Opposition to motion for temporary restraining order 24 (Kolsky, Joshua) (Entered: 10/08/2019)
74 Canon 3D waiver letters. (jlj, ) (Entered: 10/08/2019)
75 MINUTE entry before the Honorable Gary Feinerman:Hearing on Plaintiffs' emergency motion for temporary restraining order and/or preliminary injunction or stay 45 set for 10/11/2019 at 12:15 p.m. is re-set

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for 1:00 p.m. Central Time. Attorneys who wish to participate by telephone at the hearing should call Toll-Free Number: (877) 336-1828, Access Code: 4082461.TIME CHANGE ONLY.Mailed notice. (jlj, ) (Entered: 10/08/2019)
76 MINUTE entry before the Honorable Gary Feinerman:Because all parties have submitted Canon 3D remittal letters 74 , this case will remain assigned to Judge Feinerman. The Clerk entered the remittal letters on the docket only because all parties submitted them; had any party not submitted a remittal letter, any letter that had been submitted would have been entered on the docket.Mailed notice. (jlj, ) (Entered: 10/08/2019)
77 ATTORNEY Appearance for Amicus Immigration Reform Law Institute by David John Shestokas (Shestokas, David) (Entered: 10/08/2019)
78 MINUTE entry before the Honorable Gary Feinerman:Motion for leave to file amicus brief 71 is granted. Amicus Immigration Reform Law Institute shall file its amicus brief as a separate docket entry. Motion hearing set for 10/8/2019 72 is stricken.Mailed notice. (jlj, ) (Entered: 10/08/2019)
79 Brief of Amicus Curiae by Immigration Reform Law Institute (Olowski, Lew) (Entered: 10/09/2019)
80 REPLY by Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. Reply Brief in support of Motion for Temporary Restraining Order and or Preliminary Injunction or Stay (Gordon, David) (Entered: 10/10/2019)
81 MINUTE entry before the Honorable Gary Feinerman:Motion hearing on Plaintiffs' emergency motion for temporary restraining order and/or preliminary injunction or stay 24 held. Mailed notice. (jlj, ) (Entered: 10/11/2019)
82 MEMORANDUM motion for temporary restraining order 24 by Kenneth T Cuccinelli, Kevin K. McAleenan, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kolsky, Joshua) (Entered: 10/13/2019)
83 Supplemental Brief Regarding Mootness by Illinois Coalition for Immigrant and Refugee Rights, Inc. (Gordon, David) (Entered: 10/13/2019)
84 MINUTE entry before the Honorable Gary Feinerman:The 10/8/2019 order 76 is amended to add the word "not" between the words "would" and "have" in its final sentence.Mailed notice. (jlj, ) (Entered: 10/14/2019)
85 MINUTE entry before the Honorable Gary Feinerman:For the reasons set forth in the accompanying Memorandum Opinion and Order, Plaintiff's emergency motion for temporary restraining order and/or preliminary

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injunction or stay 24 is granted. Enter preliminary injunction and stay orderInitial status hearing set for 11/5/2019 at 9:00 a.m. The parties shall file an initial joint status report by 10/30/2019.Mailed notice. (jlj, ) (Entered: 10/14/2019)
86 MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 10/14/2019.Mailed notice.(jlj, ) (Entered: 10/14/2019)
87 PRELIMINARY INJUNCTION AND STAY ORDER signed by the Honorable Gary Feinerman on 10/14/2019.Mailed notice.(jlj, ) (Entered: 10/14/2019)
106 CORRECTED MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 10/14/2019.Mailed notice.(jlj, ) (Entered: 11/15/2019)
88 ATTORNEY Appearance for Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. by Meghan Patricia Carter (Carter, Meghan) (Entered: 10/16/2019)
89 NOTICE of Motion by Joshua Kolsky for presentment of before Honorable Gary Feinerman on 10/30/2019 at 09:00 AM. (Kolsky, Joshua) (Entered: 10/25/2019)
90 MOTION by Defendants Kenneth T Cuccinelli, Kevin K. McAleenan, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security to stay Preliminary Injunction (Kolsky, Joshua) (Entered: 10/25/2019)
91 MEMORANDUM by Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security in support of motion to stay 90 (Kolsky, Joshua) (Entered: 10/25/2019)
92 DECLARATION of Daniel Renaud regarding motion to stay 90 (Kolsky, Joshua) (Entered: 10/25/2019)
93 MINUTE entry before the Honorable Gary Feinerman:Hearing on Defendant's motion for stay of injunction pending appeal 90 set for 10/30/2019 at 9:00 a.m. 89 is re-set for 9:30 a.m. TIME CHANGE ONLY.Mailed notice. (jlj, ) (Entered: 10/29/2019)
94 MINUTE entry before the Honorable Gary Feinerman:Motion hearing held. Motion for stay of injunction pending appeal 90 is entered and continued. Plaintiffs' response due by 11/6/2019; Defendants' reply due by 11/11/2019. The 11/5/2019 status hearing 85 is stricken and re-set for 11/14/2019 at 10:00 a.m.Mailed notice. (jlj, ) (Entered: 10/30/2019)
95 STATUS Report (Joint, Initial) by Illinois Coalition for Immigrant and Refugee Rights, Inc. (Gordon, David) (Entered: 10/30/2019)
96 NOTICE of appeal by Kenneth T Cuccinelli, Kevin K. McAleenan, U.S.

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Citizenshiup and Immigration Services, U.S. Department of Homeland Security regarding orders 87 , 86 Receipt number: y (Kolsky, Joshua) (Entered: 10/30/2019)
97 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 96 (sxb, ) (Entered: 10/31/2019)
98 TRANSMITTED to the 7th Circuit the short record on notice of appeal 96 . Notified counsel. (sxb, ) (Entered: 10/31/2019)
99 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal 96 ; USCA Case No. 19-3169 (sxb, ) (Entered: 10/31/2019)
100 RESPONSE by Illinois Coalition for Immigrant and Refugee Rights, Inc.in Opposition to MOTION by Defendants Kenneth T Cuccinelli, Kevin K. McAleenan, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security to stay Preliminary Injunction 90 (Gordon, David) (Entered: 11/06/2019)
101 Notice of Waiver of Reply and Hearing by Kenneth T Cuccinelli, Kevin K. McAleenan, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security (Kolsky, Joshua) (Entered: 11/06/2019)
102 MINUTE entry before the Honorable Gary Feinerman:The 11/14/2019 hearing 94 will proceed as scheduled. Attorneys who wish to participate by telephone at the hearing should call Toll-Free Number: (877) 336-1828, Access Code: 4082461.Mailed notice. (jlj, ) (Entered: 11/07/2019)
103 ATTORNEY Appearance for Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. by Marlow Elizabeth Svatek (Svatek, Marlow) (Entered: 11/14/2019)
104 MINUTE entry before the Honorable Gary Feinerman:Status hearing held and continued to 1/7/2020 at 10:00 a.m. For the reasons stated on the record, Defendants' motion for stay of injunction pending appeal 90 is denied. Defendants shall respond to the complaint by 1/16/2020. Motion hearing set for 1/22/2020 at 9:15 a.m. Defendants shall file the administrative record by 11/25/2019. By agreement, simultaneous briefs as to discovery on the equal protection claim shall be filed by 12/5/2019; responses due by 12/19/2019.Mailed notice. (jlj, ) (Entered: 11/14/2019)
105 MINUTE entry before the Honorable Gary Feinerman:When preparing for today's hearing, the court found some non-substantive errors in its preliminary injunction opinion 86 . Accordingly, the court enters a corrected Memorandum Opinion and Order. Most of the corrections involve citations, and none are substantive. Enter Corrected Memorandum Opinion and Order.Mailed notice. (jlj, ) (Entered: 11/15/2019)
107 ATTORNEY Appearance for Defendants Kenneth T Cuccinelli, Kevin K.

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McAleenan, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security by Kuntal Cholera (Cholera, Kuntal) (Entered: 11/21/2019)
108 TRANSCRIPT OF PROCEEDINGS held on 10/11/19 before the Honorable Gary Feinerman. Court Reporter Contact Information: Charles R. Zandi, 312/435-5387, charles_zandi@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

11/27/2019

Redaction Request due 12/18/2019. Redacted Transcript Deadline set for 12/30/2019. Release of Transcript Restriction set for 2/25/2020. (Zandi, Charles) (Entered: 11/27/2019)
109 TRANSCRIPT OF PROCEEDINGS held on 11/14/19 before the Honorable Gary Feinerman. Court Reporter Contact Information: Charles R. Zandi, 312/435-5387, charles_zandi@ilnd.uscourts.gov.

IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.

12/03/2019 12/04/2019 12/05/2019

Redaction Request due 12/18/2019. Redacted Transcript Deadline set for 12/30/2019. Release of Transcript Restriction set for 2/25/2020. (Zandi, Charles) (Entered: 11/27/2019)
110 NOTICE by Kevin K. McAleenan, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security (Cholera, Kuntal) (Entered: 12/03/2019)
115 DOCUMENT NOT IMAGED: External Drive by Kevin K. McAleenan (Attachments: # 1 To view the External Drive, you must first obtain the case file at the Clerk's Office.) (ph, ) (Entered: 12/05/2019)
111 MEMORANDUM by Illinois Coalition for Immigrant and Refugee Rights, Inc. IN SUPPORT OF PLAINTIFF ICIRR'S REQUEST FOR DISCOVERY ON ITS EQUAL PROTECTION CLAIM (Attachments: # 1 Exhibit A and B - Orders)(Carter, Meghan) (Entered: 12/05/2019)

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112 MOTION by Defendants Kevin K. McAleenan, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security to stay Proceedings Pending Appeal (Cholera, Kuntal) (Entered: 12/05/2019)
113 MEMORANDUM by Kevin K. McAleenan, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security in Opposition to ICIRR's Request for Supplemental Discovery and in Support of Motion for Stay of Proceedings (Cholera, Kuntal) (Entered: 12/05/2019)
114 NOTICE of Motion by Kuntal Cholera for presentment of motion to stay 112 before Honorable Gary Feinerman on 12/10/2019 at 09:00 AM. (Cholera, Kuntal) (Entered: 12/05/2019)
116 Notice by Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security of Ninth Circuit Order Staying Preliminary Injunctions (Attachments: # 1 Exhibit A)(Cholera, Kuntal) (Entered: 12/06/2019)
117 MINUTE entry before the Honorable Gary Feinerman:Defendants' motion to stay 112 is denied.. The motion to stay is premature, as it has not yet been decided whether discovery will be permitted on the equal protection claim. Motion hearing set for 12/10/2019 114 is stricken.Mailed notice. (jlj, ) (Entered: 12/06/2019)
118 RESPONSE by Defendants Kevin K. McAleenan, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security to memorandum 111 (Cholera, Kuntal) (Entered: 12/19/2019)
119 RESPONSE by Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. to memorandum 111 (Attachments: # 1 Exhibit A)(Gordon, David) (Entered: 12/19/2019)
120 ORDER dated 12/23/2019 from the 7th Circuit regarding notice of appeal 96 ; Appellate case no. : 19-3169 : IT IS ORDERED that the motion is DENIED. An expedited briefing schedule will follow. Judge Barrett dissents and would grant the motion. (sxb, ) (Entered: 12/26/2019)
121 MINUTE entry before the Honorable Gary Feinerman:Status hearing held and continued to 1/22/2020 at 9:15 a.m. Argument held on the scope of discovery. The Clerk shall substitute Acting Secretary of U.S. Department of Homeland Security Chad F. Wolf as lead Defendant in lieu of Kevin K. McAleenan. Attorneys who wish to participate by telephone at the 1/22/2020 hearing should call Toll-Free Number: (877) 336-1828, Access Code: 4082461. Mailed notice. (jlj, ) (Entered: 01/07/2020)
122 MOTION by Defendants Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf for leave to file excess pages (Cholera, Kuntal) (Entered: 01/14/2020)

01/15/2020
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123 MINUTE entry before the Honorable Gary Feinerman:Motion for leave to file excess pages 122 is granted. The parties may file oversized initial and response briefs, not to exceed 45 pages each, in connection Defendants' forthcoming motion to dismiss. For future reference, the parties are reminded that Local Rule 5.3(b) requires that all motions be noticed for presentment.Mailed notice. (jlj, ) (Entered: 01/15/2020)
124 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendants Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf (Cholera, Kuntal) (Entered: 01/16/2020)
125 NOTICE of Motion by Kuntal Cholera for presentment of Motion to Dismiss for Failure to State a Claim 124 before Honorable Gary Feinerman on 1/22/2020 at 09:30 AM. (Cholera, Kuntal) (Entered: 01/16/2020)
126 MEMORANDUM by Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf in support of Motion to Dismiss for Failure to State a Claim 124 (Cholera, Kuntal) (Entered: 01/16/2020)
127 MINUTE entry before the Honorable Gary Feinerman:Hearing on Defendants' motion to dismiss 124 set for 1/22/2020 at 9:30 a.m 125 is reset for 9:15 a.m. TIME CHANGE ONLY.Mailed notice. (jlj, ) (Entered: 01/17/2020)
128 MINUTE entry before the Honorable Gary Feinerman:Status hearing held. Motion hearing held and continued to 3/17/2020 at 2:00 p.m. Defendants' motion to dismiss 124 is entered and continued. Plaintiff shall respond by 2/19/2020; Defendants shall reply by 3:00 p.m. Central on 3/12/2020.Mailed notice. (jlj, ) (Entered: 01/22/2020)
129 MINUTE entry before the Honorable Gary Feinerman:The parties are reminded that the court issued a corrected memorandum opinion and order 106 in conjunction with its order 85 granting a preliminary injunction. See 11/14/2019 order 105 .Mailed notice. (jlj, ) (Entered: 02/06/2020)
130 RESPONSE by Illinois Coalition for Immigrant and Refugee Rights, Inc.in Opposition to MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendants Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf 124 (Gordon, David) (Entered: 02/19/2020)
131 MINUTE entry before the Honorable Gary Feinerman:At the parties' request, Plaintiffs are given leave to file an Amended Brief in Response to Defendants' Motion to Dismiss by 3/13/2020. Defendants have until 3/26/2020 to file their Reply brief. The motion hearing set for 3/17/2020 128 is stricken and re-set for 4/28/2020 at 10:00 a.m.Mailed

03/11/2020 03/13/2020 03/16/2020 03/16/2020 03/19/2020 03/26/2020 03/30/2020
04/02/2020

notice. (jlj, ) (Entered: 03/09/2020)
132 ATTORNEY Appearance for Defendants Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf by Jason Cyrus Lynch (Lynch, Jason) (Entered: 03/11/2020)
133 MEMORANDUM by Illinois Coalition for Immigrant and Refugee Rights, Inc. in Opposition to Motion to Dismiss for Failure to State a Claim 124 (Amended) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Gordon, David) (Entered: 03/13/2020)
134 ORDER Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 16, 2020. All open cases are impacted by this Amended General Order. See attached Order for guidance.Signed by the Honorable Rebecca R. Pallmeyer on 3/16/2020: Mailed notice. (ecw, ) (Entered: 03/16/2020)
135 ORDER Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 16, 2020. All open cases are impacted by this Amended General Order. See attached Order for guidance.Signed by the Honorable Rebecca R. Pallmeyer on 3/16/2020: Mailed notice. (ecw, ) (Entered: 03/17/2020)
136 MINUTE entry before the Honorable Gary Feinerman:Notwithstanding Amended General Order 20-0012, Defendants shall file their reply brief by 4/9/2020. A further extension may be requested by motion.Mailed notice .(jlj, ) (Entered: 03/19/2020)
137 NOTICE by All Defendants of Supplemental Authority (Re: Discovery Dispute) (Attachments: # 1 Exhibit A)(Cholera, Kuntal) (Entered: 03/26/2020)
138 ORDER Seconded Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on March 30, 2020. All open cases are impacted by this Second Amended General Order. Amended General Order 20-0012, entered on March 17, 2020, and General Order 20-0014, entered on March 20, 2020, are vacated and superseded by this Second Amended General. See attached Order for guidance.Signed by the Honorable Rebecca R. Pallmeyer on 3/30/2020: Mailed notice. (docket1, ) (Entered: 03/31/2020)
139 MINUTE entry before the Honorable Gary Feinerman:Pursuant to Paragraph 2.c of Second Amended General Order 20-0012, and absent further order of court, the deadline for Defendants to file their reply brief is extended to 4/16/2020. The motion hearing set for 4/28/2020 131 is

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05/01/2020

stricken and re-set for 5/4/2020 at 10:00 a.m.Mailed notice. (jlj, ) (Entered: 04/02/2020)
140 Notice of Supplemental Authority by Illinois Coalition for Immigrant and Refugee Rights, Inc. (Attachments: # 1 Exhibit 1)(Gordon, David) (Entered: 04/07/2020)
141 RESPONSE by Defendants Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf to other 140 Plaintiff's Notice of Supplemental Authority (Cholera, Kuntal) (Entered: 04/15/2020)
142 MOTION by Defendants Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf for leave to file excess pages for Defendants' Reply Brief in Support of Defendants' Motion to Dismiss (Cholera, Kuntal) (Entered: 04/16/2020)
143 NOTICE of Motion by Kuntal Cholera for presentment of motion for leave to file excess pages, 142 before Honorable Gary Feinerman on 5/4/2020 at 10:00 AM. (Cholera, Kuntal) (Entered: 04/16/2020)
144 REPLY by Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf to memorandum in opposition to motion 133 (Cholera, Kuntal) (Entered: 04/16/2020)
145 MINUTE entry before the Honorable Gary Feinerman:Motion for leave to file excess pages 142 is granted. Motion hearing set for 5/4/2020 142 is stricken.Mailed notice. (jlj, ) (Entered: 04/17/2020)
146 SUPPLEMENT to Notice of Supplemental Authority (Attachments: # 1 Exhibit)(Gordon, David) (Entered: 04/23/2020)
147 ORDER Third Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on April 24, 2020. All open cases are impacted by this Third Amended General Order. Parties are must carefully review all obligations under this Order, including the requirement listed in paragraph number 5 to file a joint written status report in most civil cases. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 4/24/2020: Mailed notice. (docket6, ) (Entered: 04/27/2020)
148 MINUTE entry before the Honorable Gary Feinerman:Pursuant to Paragraph 3 of Third Amended General Order 20-0012, the 5/4/2020 motion hearing 139 is stricken and re-set to 6/8/2020 at 9:15 a.m. If any party would like that the hearing to be held in May 2020, the party should file a motion under Paragraph 3 of the Third Amended General Order. If any party wishes to present any other procedural issue or question to the court, the party should send an email to the Courtroom Deputy (Jackie_Deanes@ilnd.uscourts.gov) and the proposed order email box

05/19/2020
05/19/2020 05/26/2020
05/27/2020 05/27/2020 05/27/2020

(Proposed_Order_Feinerman@ilnd.uscourts.gov), with a copy to all other counsel, and the court will respond as soon as practicable. If any party wishes to extend, shorten, or revoke in a particular case an extension granted by Paragraph 2 of the Third Amended General Order or any prior iteration of General Order 20-0012, the party should file a motion on the case docket pursuant to Paragraph 2.c of the Third Amended General Order, and shall indicate in the motion whether the relief sought is agreed or opposed. Parties may file non-emergency motions on the case docket as they see fit. Emergency relief in any case, or emergency relief from the Third Amended General Order, shall be sought in the manner set forth in Paragraphs 7-8 of the Third Amended General Order.Mailed notice. (jlj, ) (Entered: 05/01/2020)
149 MINUTE entry before the Honorable Gary Feinerman:For the reasons set forth in the accompanying Memorandum Opinion and Order, Defendants' motion to dismiss 124 is denied, and Plaintiff Illinois Coalition of Immigrant and Refugee Rights, Inc., is entitled to extra-record discovery on its equal protection claim. Defendants shall answer the complaint by 6/9/2020.Mailed notice. (jlj, ) (Entered: 05/19/2020)
150 MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 5/19/2020.Mailed notice.(jlj, ) (Entered: 05/19/2020)
151 ORDER ORDER Fourth Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on May 26, 2020. This Order does not extend or modify any deadlines set in civil cases. For non-emergency motions, no motion may be noticed for presentment on a date earlier than July 15, 2020. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 5/26/2020: Mailed notice. (docket7, ) (Entered: 05/26/2020)
152 MOTION by Defendants Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf for extension of time to file answer (Cholera, Kuntal) (Entered: 05/27/2020)
153 NOTICE of Motion by Kuntal Cholera for presentment of motion for extension of time to file answer 152 before Honorable Gary Feinerman on 6/3/2020 at 09:00 AM. (Cholera, Kuntal) (Entered: 05/27/2020)
154 MOTION by Attorney Diana A. Aguilar to withdraw as attorney for American Association of People with Disabilities, American Civil Liberties Union, Association of University Centers on Disabilities, Autistic Self Advocacy Network, Center for Public Representation, Civil Rights Education and Enforcement Center, Coelho Center for Disability Law, Policy and Innovation, Disability Rights Advocates, Disability Rights Education and Defense Fund, Equip for Equality, Judge David L. Bazelon Center for Mental Health Law, Little Lobbyists, Mental Health America, National Association of Councils on Developmental Disabilities, National

05/27/2020 05/29/2020 06/09/2020 06/10/2020 06/10/2020 06/10/2020
06/15/2020

Council on Independent Living, National Disability Rights Network, National Federation of the Blind, The Arc of the United States, United Spinal Association. No party information provided (Ray, Sarah) (Entered: 05/27/2020)
155 MINUTE entry before the Honorable Gary Feinerman:Motion for extension of time to answer 152 is granted. The deadline for Defendants to answer the complaint is extended to 7/9/2020. Motion hearing set for 6/3/2020 153 is stricken. Motion to withdraw as attorney 154 is granted. Attorney Diana Aguilar is terminated as counsel for Amici American Civil Liberties Union, et al.Mailed notice. (jlj, ) (Entered: 05/27/2020)
156 MINUTE entry before the Honorable Gary Feinerman:Given the 5/27/2020 order 155 , the motion hearing set for 6/8/2020 148 is stricken and re-set for 7/20/2020 at 9:00 a.m. The parties shall file a joint status report, using the format on Judge Feinerman's webpage, by 7/13/2020. Mailed notice. (jlj, ) (Entered: 05/29/2020)
157 MOTION by Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. For Expedited Discovery On Equal Protection Claim (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Gordon, David) (Entered: 06/09/2020)
158 MINUTE entry before the Honorable Gary Feinerman:Defendants shall respond to Plaintiff ICIRR's motion for expedited discovery on equal protection claim 157 by 6/12/2020; Plaintiff may reply by 4:00 pm Central Time on 6/15/2020. Motion hearing set for 6/16/2020 at 2:30 p.m.Mailed notice. (jlj, ) (Entered: 06/10/2020)
159 MOTION by Defendants Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf for extension of time (Kolsky, Joshua) (Entered: 06/10/2020)
160 MINUTE entry before the Honorable Gary Feinerman:Motion for extension of time 159 is granted in part. The 6/10/2020 order 158 is vacated and the 6/16/2020 motion hearing 158 is stricken. Defendants shall respond to Plaintiff ICIRR's motion for expedited discovery on equal protection claim 157 by 6/16/2020; Plaintiff may reply by 4:00 pm Central Time on 6/18/2020. Motion hearing set for 6/16/2020 158 is stricken and re-set for 6/19/2020 at 1:15 p.m.Mailed notice. (jlj, ) (Entered: 06/10/2020)
161 MINUTE entry before the Honorable Gary Feinerman:Telephonic hearing scheduled for 6/19/2020 at 1:15 p.m. Members of the public and media will be able to call in to listen to this hearing. The call-in number is 877336-1828 and the access code is 4082461. Counsel of record will receive an email prior to the start of the telephonic hearing with instructions to join the call. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in

06/16/2020 06/16/2020 06/16/2020 06/16/2020
06/17/2020 06/18/2020 06/19/2020 06/22/2020
06/23/2020

sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court.Mailed notice. (jlj, ) (Entered: 06/15/2020)
162 MOTION by Defendants Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf for certificate of appealability (Cholera, Kuntal) (Entered: 06/16/2020)
163 MEMORANDUM by Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf in support of motion for certificate of appealability 162 (Cholera, Kuntal) (Entered: 06/16/2020)
164 NOTICE of Motion by Kuntal Cholera for presentment of motion for certificate of appealability 162 before Honorable Gary Feinerman on 6/26/2020 at 09:30 AM. (Cholera, Kuntal) (Entered: 06/16/2020)
165 MEMORANDUM by Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf in Opposition to motion for miscellaneous relief 157 (Attachments: # 1 Exhibit A, # 2 Declaration (Bell), # 3 Declaration (Legagneux), # 4 Declaration (Palmer), # 5 Declaration (Kolsky))(Kolsky, Joshua) (Entered: 06/16/2020)
166 MINUTE entry before the Honorable Gary Feinerman:Motion hearing set for 6/19/2020 at 1:15m p.m. 160 is re-set for 9:00 a.m. TIME CHANGE ONLY.Mailed notice. (jlj, ) (Entered: 06/17/2020)
167 REPLY by Illinois Coalition for Immigrant and Refugee Rights, Inc. to MOTION by Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. For Expedited Discovery On Equal Protection Claim 157 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Gordon, David) (Entered: 06/18/2020)
168 MINUTE entry before the Honorable Gary Feinerman:Motion hearing held and continued to 7/8/2020 at 2:00 p.m. Defendants' motion for certificate of appealability 162 is entered and continued. Plaintiff ICIRR shall respond by 6/26/2020; reply due by 7/30/2020.Mailed notice. (jlj, ) (Entered: 06/22/2020)
169 MINUTE entry before the Honorable Gary Feinerman:Order entered 6/19/2020 is corrected. Telephonic motion hearing held and continued to 7/8/2020 at 2:00 p.m. Defendants' motion for certificate of appealability 162 is entered and continued. Plaintiff ICIRR shall respond by 6/26/2020; reply due by 7/3/2020.Mailed notice. (jlj, ) (Entered: 06/22/2020)
170 ORDER written by the Honorable Gary Feinerman on 6/23/2020: Plaintiff

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ICIRR's motion for expedited discovery 157 is granted in part and denied in part for the reasons and to the extent set forth below. Telephonic status hearing set for 7/14/2020 at 3:00 p.m.Mailed notice.(jlj, ) (Entered: 06/23/2020)
171 MINUTE entry before the Honorable Gary Feinerman:Telephonic hearing scheduled for 7/8/2020 at 2:00 p.m. Members of the public and media will be able to call in to listen to this hearing. The call-in number is 877-3361828 and the access code is 4082461. Counsel of record will receive an email prior to the start of the telephonic hearing with instructions to join the call. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court.Mailed notice.(jlj) (Entered: 06/24/2020)
172 MOTION by Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. for leave to file excess pages (Gordon, David) (Entered: 06/26/2020)
173 RESPONSE by Illinois Coalition for Immigrant and Refugee Rights, Inc.in Opposition to MOTION by Defendants Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf for certificate of appealability 162 (Gordon, David) (Entered: 06/26/2020)
174 MINUTE entry before the Honorable Gary Feinerman:Motion hearing set for 6/26/2020 164 is stricken.Mailed notice. (jlj, ) (Entered: 06/26/2020)
175 MINUTE entry before the Honorable Gary Feinerman:Motion for leave to file excess pages 172 is granted.Mailed notice. (jlj, ) (Entered: 07/02/2020)
176 MINUTE entry before the Honorable Gary Feinerman:Then telephonic motion hearing set for 7/8/2020 at 2:00 p.m. 168 is re-set for 2:15 p.m. TIME CHANGE ONLY. Attorneys/Parties should appear by calling the Toll-Free Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (jlj, ) (Entered: 07/02/2020)
177 REPLY by Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf to

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MOTION by Defendants Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf for certificate of appealability 162 (Cholera, Kuntal) (Entered: 07/02/2020)
178 MINUTE entry before the Honorable Gary Feinerman:Motion hearing held. The 7/14/2020 telephonic hearing 170 shall stand. Attorneys/Parties should appear by calling the Toll-Free Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court.Mailed notice. (jlj, ) (Entered: 07/09/2020)
179 ANSWER to Complaint by Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf(Cholera, Kuntal) (Entered: 07/09/2020)
180 ORDER Fifth Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on July 10, 2020. This Order does not extend or modify any deadlines set in civil cases. No motions may be noticed for in-person presentment; the presiding judge will notify parties of the need, if any, for a hearing by electronic means or in-court proceeding. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 7/10/2020: Mailed notice. (Clerk6, Docket) (Entered: 07/10/2020)
181 STATUS Report (Joint) by Illinois Coalition for Immigrant and Refugee Rights, Inc. (Gordon, David) (Entered: 07/10/2020)
182 STATUS Report by Cook County, Illinois (Miller, Lauren) (Entered: 07/13/2020)
183 MINUTE entry before the Honorable Gary Feinerman:For the reasons set forth in the accompanying Memorandum Opinion and Order, Defendants' motion for interlocutory appeal 162 is denied.Mailed notice. (jlj, ) (Entered: 07/14/2020)
184 MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 7/14/2020.Mailed notice.(jlj, ) (Entered: 07/14/2020)
185 MINUTE entry before the Honorable Gary Feinerman:Status hearing set for 7/20/2020 156 at 9:00 a.m. Attorneys/Parties should appear by calling the Toll-Free Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use

07/15/2020
07/15/2020 07/21/2020 07/23/2020
07/24/2020

toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (jlj, ) (Entered: 07/14/2020)
186 MINUTE entry before the Honorable Gary Feinerman:Order entered 7/14/2020 185 is amended. Status hearing held and continued to 7/23/2020 at 2:30 p.m. The parties shall file a status report regarding the proposed search terms by 7/21/2020. The 7/20/2020 status hearing 156 is stricken. Attorneys/Parties should appear for the 7/23/2020 hearing by calling the Toll-Free Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court.Mailed notice. (jlj, ) (Entered: 07/15/2020)
187 Supplemental Notice by Cook County, Illinois, Illinois Coalition for Immigrant and Refugee Rights, Inc. (Gordon, David) (Entered: 07/15/2020)
188 STATUS Report Joint Status Report Regarding Search Terms by Illinois Coalition for Immigrant and Refugee Rights, Inc. (Gordon, David) (Entered: 07/21/2020)
189 MINUTE entry before the Honorable Gary Feinerman:Status hearing held and continued to 8/6/2020 at 9:30 a.m. Attorneys/Parties should appear for the 8/6/2020 hearing by calling the Toll-Free Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (jlj, ) (Entered: 07/24/2020)
190 ORDER written by the Honorable Gary Feinerman on 7/24/2020. Having reached agreement on many issues regarding document production during

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expedited discovery 170 , the parties present for court resolution 181 188 the few issues on which they could not agree. Those disputes are resolved in the manner set forth below. By 8/3/2020, the parties shall file a joint status report setting forth their joint proposal or, if agreement cannot be reached, their competing proposals for (1) a document production schedule and (2) a process for determining which individuals will be deposed and when.Mailed notice.(jlj, ) (Entered: 07/24/2020)
191 STATUS Report (Joint Status Report Regarding Discovery) by Illinois Coalition for Immigrant and Refugee Rights, Inc. (Gordon, David) (Entered: 08/03/2020)
192 MINUTE entry before the Honorable Gary Feinerman:By agreement 191 , Defendants shall produce documents on a rolling basis from 8/28/2020 through 9/25/2020. By 9/18/2020, Defendants shall serve a privilege log for documents withheld from the productions made from 8/28/2020 through 9/11/2020; by 10/2/2020, Defendants shall serve a privilege log for documents withheld from the productions made from 9/12/2020 through 9/25/2020. By 8/11/2020, the parties shall file a status report addressing the search terms for the limited search for documents from 7/1/2019 through 8/31/2019 concerning Defendant Cuccinelli's statement about the Lazarus poem. By agreement 191 , the parties shall meet and confer about deponents and the timing of depositions after Defendants have commenced document production. The status hearing set for 8/6/2020 189 is stricken and re-set for 8/17/2020 at 9:15 a.m. Attorneys/Parties should appear for the 8/17/2020 hearing by calling the Toll-Free Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (jlj, ) (Entered: 08/04/2020)
193 STATUS Report Regarding Discovery (Joint) by Illinois Coalition for Immigrant and Refugee Rights, Inc. (Gordon, David) (Entered: 08/11/2020)
194 MINUTE entry before the Honorable Gary Feinerman:Because the parties have agreed on the search terms for the limited search 193 , the status hearing set for 8/17/2020 192 is stricken and reset for 10/14/2020 at 9:30 a.m. By 10/7/2020, the parties shall file a joint status report: (1) identifying any disputed issues concerning the document production and privilege logs; and (2) setting forth any disputed issues regarding depositions. Any

08/13/2020 08/20/2020 08/20/2020 08/20/2020
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party wishing an earlier status hearing should contact the Courtroom Deputy. Attorneys/Parties should appear for the hearing by calling the Toll-Free Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (jlj, ) (Entered: 08/12/2020)
195 ATTORNEY Appearance for Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. by Nolan Patrick Downey (Downey, Nolan) (Entered: 08/13/2020)
196 CERTIFIED COPY OF OPINION from the USCA for the 7th Circuit; Argued 2/26/20; Decided 6/10/20 in USCA case no. 19-3169. (aee, ) (Entered: 08/20/2020)
197 CERTIFIED COPY OF USCA JUDGMENT dated 6/11/20 regarding notice of appeal 96 ; USCA No. 19-3169. The judgment of the District Court is AFFIRMED, with costs, in accordance with the decision of this court entered on June 10, 2020. (aee, ) (Entered: 08/20/2020)
198 CERTIFIED copy of order dated 8/12/20 from the 7th Circuit regarding notice of appeal 96 ; Appellate case no. : 19-3169. IT IS ORDERED that the motion for leave to file a brief as amicus curiae in support of the petition for rehearing en banc is DENIED. (aee, ) (Entered: 08/20/2020)
199 MANDATE of USCA dated 8/20/20 regarding notice of appeal 96 ;USCA No.19-3169 ; No record to be returned. (aee, ) (Entered: 08/20/2020)
200 MOTION by Plaintiffs Illinois Coalition for Immigrant and Refugee Rights, Inc., Cook County, Illinois for summary judgment on Counts IIII (Gordon, David) (Entered: 08/31/2020)
201 MEMORANDUM by Cook County, Illinois, Illinois Coalition for Immigrant and Refugee Rights, Inc. in support of motion for summary judgment 200 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Gordon, David) (Entered: 08/31/2020)
202 RULE 56.1 Statement by Cook County, Illinois, Illinois Coalition for Immigrant and Refugee Rights, Inc. regarding motion for summary judgment 200 (Gordon, David) (Entered: 08/31/2020)
203 MOTION by Plaintiffs Cook County, Illinois, Illinois Coalition for Immigrant and Refugee Rights, Inc. for leave to file excess pages (Gordon, David) (Entered: 08/31/2020)

08/31/2020 09/01/2020 09/02/2020
09/17/2020 09/28/2020 09/28/2020 09/29/2020
09/30/2020

204 NOTICE of Motion by David Andrew Gordon for presentment of motion for leave to file excess pages 203 , motion for summary judgment 200 before Honorable Gary Feinerman on 9/3/2020 at 09:00 AM. (Gordon, David) (Entered: 08/31/2020)
205 MOTION by Attorney Gavin Kearney to withdraw as attorney for Illinois Coalition for Immigrant and Refugee Rights, Inc.. No party information provided (Pagan Lopez, Militza) (Entered: 09/01/2020)
206 MINUTE entry before the Honorable Gary Feinerman:Motion for leave to file excess pages 203 is granted. Motion for summary judgment 200 is entered and continued. Defendants shall respond to the summary judgment motion by 9/28/2020; Plaintiffs shall reply by 10/12/2020. Motion hearing set for 9/3/2020 204 is stricken. Motion to withdraw as attorney 205 is granted. Attorney Gavin Kearney is terminated as counsel for Plaintiff Illinois Coalition of Immigrant and Refugee Rights.Mailed notice. (jlj, ) (Entered: 09/02/2020)
207 NOTICE by Katherine Elizabeth Walz of Change of Address And Change of Firm (Walz, Katherine) (Entered: 09/17/2020)
208 MOTION by Plaintiff Illinois Coalition for Immigrant and Refugee Rights, Inc. for order (Joint) (Attachments: # 1 Exhibit A - Proposed Order)(Gordon, David) (Entered: 09/28/2020)
209 RESPONSE by Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolfin Opposition to MOTION by Plaintiffs Illinois Coalition for Immigrant and Refugee Rights, Inc., Cook County, Illinois for summary judgment on Counts I-III 200 (Attachments: # 1 Supplement Response to Statement of Undisputed Material Facts)(Cholera, Kuntal) (Entered: 09/28/2020)
210 MINUTE entry before the Honorable Gary Feinerman:Motion for order 208 is granted. Paragraph 5(b) shall refer to "subparagraphs (1)(10)," and subparagraph (9) shall read: "A party (including its employees) to a common interest agreement with Plaintiffs, so long as the party is a plaintiff in a parallel suit challenging DHS's Inadmissibility on Public Charge Grounds Rule, and so long as the court in the parallel suit has allowed the party to take discovery that would encompass the Confidential Information. Before disclosing Confidential Information to the party, Plaintiffs shall inform Defendants which Confidential Information will be disclosed and to which party, and Defendants shall have five business days to inform Plaintiffs of any objection(s) to the disclosure. If there are no objections, or if Plaintiffs and Defendants resolve any objections, Plaintiffs may disclose the Confidential Information to the party. Any unresolved objections may be brought to the Court for resolution."Mailed notice. (jlj, ) (Entered: 09/29/2020)
211 MINUTE entry before the Honorable Gary Feinerman:Enter

09/30/2020 10/02/2020 10/07/2020 10/09/2020
10/13/2020
10/16/2020

confidentiality order. Mailed notice. (jlj, ) (Entered: 09/30/2020)
212 PROTECTIVE Order signed by the Honorable Gary Feinerman on 9/30/2020.Mailed notice.(jlj, ) (Entered: 09/30/2020)
213 REPLY by Illinois Coalition for Immigrant and Refugee Rights, Inc. to response in opposition to motion, 209 (Gordon, David) (Entered: 10/02/2020)
214 STATUS Report Joint by Cook County, Illinois (Miller, Lauren) (Entered: 10/07/2020)
215 MINUTE entry before the Honorable Gary Feinerman:The status hearing set for 10/14/2020 194 is stricken and re-set for 10/13/2020 at 11:00 a.m. NOTE DATE AND TIME CHANGE. Attorneys/Parties should appear for the hearing by calling the Toll-Free Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (jlj, ) (Entered: 10/09/2020)
216 MINUTE entry before the Honorable Gary Feinerman:Status hearing held and continued to 10/29/2020 at 2:30 p.m. Plaintiffs shall file their supplemental summary judgment brief(s) by 10/16/2020; the brief(s) shall address the nature of the judgment Plaintiffs seek (a Rule 54(b) judgment or a Rule 58 judgment) and, relatedly, whether Plaintiff ICIRR's equal protection claim should proceed if judgment is entered. Defendants shall file their supplemental response by 10/27/2020. Attorneys/Parties should appear for the 10/29/2020 hearing by calling the Toll-Free Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (jlj, ) (Entered: 10/13/2020)
217 MEMORANDUM by Cook County, Illinois in support of motion for summary judgment 200 PLAINTIFF COOK COUNTY'S SUPPLEMENTAL BRIEF IN SUPPORT OF SUMMARY JUDGMENT (Scheller, Jessica) (Entered: 10/16/2020)

10/16/2020 10/27/2020 10/29/2020
11/02/2020
11/02/2020 11/02/2020 11/02/2020 11/03/2020 11/03/2020

218 Supplemental Brief Regarding Remedy by Illinois Coalition for Immigrant and Refugee Rights, Inc. In Support of 200 Motion For Summary Judgment (Gordon, David) (Entered: 10/16/2020)
219 Supplemental Memorandum by Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf (Cholera, Kuntal) (Entered: 10/27/2020)
220 MINUTE entry before the Honorable Gary Feinerman: Status hearing held and continued to 12/1/2020 at 11:00 a.m. Oral argument held on Plaintiff's motion for summary judgment 200 . Attorneys/Parties should appear for the 12/1/2020 hearing by calling the Toll-Free Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (jjr, ) (Entered: 10/30/2020)
221 MINUTE entry before the Honorable Gary Feinerman:For the reasons set forth in the accompanying Memorandum Opinion and Order, Plaintiffs' summary judgment motion 200 is granted. The Department of Homeland Security's final rule, Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) ("Final Rule"), is unlawful under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. The Final Rule is vacated, effective immediately. Enter Civil Rule 54(b) judgment. Defendants' request for a stay of judgment pending appeal is denied. The Clerk is directed to terminate Cook County, Illinois as a party plaintiff. This case is not closed, as Plaintiff ICIRR's equal protection claim may proceed.Mailed notice. (jlj, ) (Entered: 11/02/2020)
222 MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 11/2/2020.Mailed notice.(jlj, ) (Entered: 11/02/2020)
223 ENTERED JUDGMENT on 11/2/2020.Mailed notice.(jlj, ) (Entered: 11/02/2020)
224 NOTICE of appeal by Kenneth T Cuccinelli, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security, Chad F. Wolf regarding orders 222 , 221 , 223 Receipt number: y (Cholera, Kuntal) (Entered: 11/02/2020)
225 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal 224 . (ph, ) (Entered: 11/03/2020)
226 TRANSMITTED to the 7th Circuit the short record on notice of

11/04/2020 11/04/2020 11/17/2020
11/19/2020
11/20/2020

appeal 224 . Notified counsel (ph, ) (Entered: 11/03/2020)
227 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal 224 ; USCA Case No. 20-3150. (ph, ) (Entered: 11/04/2020)
228 ORDER dated 11/3/2020 from the 7th Circuit regarding notice of appeal 224 ; Appellate case no.: 20-3150; Upon consideration of the MOTION FOR STAY PENDING APPEAL AND REQUEST FOR IMMEDIATE ADMINISTRATIVE STAY, filed on November 3, 2020, by counsel for the appellants, IT IS ORDERED that the district court's judgment is administratively STAYED pending further order of this court. Appellees shall file a response no later than November 17, 2020. (ph, ) (Entered: 11/04/2020)
229 MINUTE entry before the Honorable Gary Feinerman:The status hearing set for 12/1/2020 at 11:00 a.m. 220 is re-set for 11:45 a.m. TIME CHANGE ONLY. Attorneys/Parties should appear for the 12/1/2020 hearing by calling the Toll-Free Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (jlj, ) (Entered: 11/17/2020)
230 ORDER dated 11/19/2020 from the 7th Circuit regarding notice of appeal 224 ; Appellate case no.: 20-3150; The following are before the court: 1. MOTION FOR STAY PENDING APPEAL AND REQUEST FOR IMMEDIATE ADMINISTRATIVE STAY, filed on November 3, 2020, by counsel for appellants. 2. PLAINTIFFS-APPELLEES' RESPONSE TO DEFENDANTS-APPELLANTS' MOTION FOR STAY PENDING APPEAL, filed on November 17, 2020, by counsel. IT IS ORDERED that the motion is GRANTED. The district court's judgment is STAYED pending resolution of this appeal. IT IS FURTHER ORDERED that briefing in this appeal is SUSPENDED pending the Supreme Court's resolution of the petition for a writ of certiorari in Wolf v. Cook County, No. 20-450. The government shall file a status report within 10 days of a ruling on the petition. (ph, ) (Entered: 11/19/2020)
231 MINUTE entry before the Honorable Gary Feinerman:Due to the schedule of this Court, the status hearing set for 12/1/2020 at 11:45 a.m. 229 is reset for 9:00 a.m. TIME CHANGE ONLY. Attorneys/Parties should appear for the 12/1/2020 hearing by calling the Toll-Free Number: (877) 3361828, Access Code: 4082461. Members of the public and media will be

11/30/2020 12/01/2020
12/15/2020
12/15/2020 12/15/2020 12/16/2020

able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court.Mailed notice. (jlj, ) (Entered: 11/20/2020)
232 STATUS Report Joint, Regarding Discovery by Illinois Coalition for Immigrant and Refugee Rights, Inc. (Carter, Meghan) (Entered: 11/30/2020)
233 MINUTE entry before the Honorable Gary Feinerman:Status hearing held and continued to 12/17/2020 at 9:15 a.m. The parties shall file a joint status report by 12/15/2020 addressing the metadata and attorney-client-privilege issues. Attorneys/Parties should appear for the 12/17/2020 hearing by calling the Toll-Free Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court.Mailed notice. (jlj, ) (Entered: 12/02/2020)
234 MINUTE entry before the Honorable Gary Feinerman:For the reasons set forth in the accompanying Memorandum Opinion and Order, Defendants are not categorically barred from invoking the deliberative process privilege to withhold documents from production. By 12/18/2020, Defendants shall submit the withheld documents to Chambers for an in camera inspection. The court will determine whether further briefing is necessary after it has the opportunity to review the documents.Mailed notice. (jlj, ) (Entered: 12/15/2020)
235 MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 12/15/2020.Mailed notice.(jlj, ) (Entered: 12/15/2020)
236 STATUS Report Joint, Regarding Discovery by Illinois Coalition for Immigrant and Refugee Rights, Inc. (Carter, Meghan) (Entered: 12/15/2020)
237 MINUTE entry before the Honorable Gary Feinerman:It would appear from the status report 236 that the only ripe discovery issues concern the documents that the court has already decided 234 to review in camera. Accordingly, the status hearing set for 12/17/2020 223 is stricken and reset for 1/12/2021 at 9:30 a.m. By 1/7/2021, the parties shall file a joint

01/07/2021 01/08/2021
01/22/2021

status report: (1) identifying any unresolved discovery issues; and (2) briefly setting forth each side's position on the unresolved issues. Attorneys/Parties should appear for the 1/12/2021 hearing by calling the Toll-Free Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court.Mailed notice. (jlj, ) (Entered: 12/16/2020)
238 STATUS Report Joint, Regarding Discovery by Illinois Coalition for Immigrant and Refugee Rights, Inc. (Carter, Meghan) (Entered: 01/07/2021)
239 MINUTE entry before the Honorable Gary Feinerman:The court thanks the parties for the status report 238 . The documents submitted in camera remain under consideration. The status hearing set for 1/12/2021 237 is stricken and re-set for 1/26/2021 at 9:00 a.m. Attorneys/Parties should appear for the 1/12/2021 hearing by calling the Toll-Free Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court.Mailed notice. (jlj, ) (Entered: 01/08/2021)
240 MINUTE entry before the Honorable Gary Feinerman: The Clerk is directed to amend the docket to substitute David Pekoske, Acting Secretary of the U.S. Department of Homeland Security, for Chad Wolf. The Clerk also is directed to amend the docket to substitute Tracey Renaud, Senior Official Performing the Duties of the Director of the U.S. Citizenship and Immigration Services, for Kenneth T. Cuccinelli. The status hearing set for 1/26/2021 239 is stricken and re-set for 2/8/2021 at 9:30 a.m. By 2/4/2021, Defendants shall file a status report addressing: (1) whether they plan to pursue their appeal in No. 20-3150 (7th Cir.); (2) whether they plan to pursue their petition for certiorari in No. 20-450 (U.S.); and (3) if the answer to Questions (1) or (2) is either yes or that a decision has not yet been made, whether they continue to assert the deliberative process privilege as to the documents submitted for this court's in camera review. Attorneys/Parties should appear for the hearing by calling the Toll-Free

02/03/2021 02/03/2021 02/03/2021
02/04/2021

Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (jlj, ) (Entered: 01/22/2021)
241 MOTION by Defendants David P Pekoske, Tracey Renaud, U.S. Citizenshiup and Immigration Services, U.S. Department of Homeland Security to amend/correct January 22, 2021 Minute Order and Notice of Executive Order (Cholera, Kuntal) (Entered: 02/03/2021)
242 NOTICE of Motion by Kuntal Cholera for presentment of motion to amend/correct 241 before Honorable Gary Feinerman on 2/4/2021 at 09:30 AM. (Cholera, Kuntal) (Entered: 02/03/2021)
243 MINUTE entry before the Honorable Gary Feinerman:The motion hearing set for 2/4/2021 at 9:30 a.m. 242 is re-set for 9:20 a.m. TIME CHANGE ONLY. Attorneys/Parties should appear for the hearing by calling the TollFree Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (jlj, ) (Entered: 02/03/2021)
244 MINUTE entry before the Honorable Gary Feinerman:Motion hearing held. Defendants' motion to modify January 22, 2021 minute order 241 is granted. The 2/8/2021 status hearing 240 is stricken and re-set to 2/26/2021 at 9:30 a.m. The parties shall file a joint status report by 2/19/2021. The Clerk is directed to amend the docket to substitute Alejandro Mayorkas, Secretary of the U.S. Department of Homeland Security, for David Pekoske. Attorneys/Parties should appear for the 2/26/2021 hearing by calling the Toll-Free Number: (877) 336-1828, Access Code: 4082461. Members of the public and media will be able to call in to listen to this hearing (use toll free number). Please, please be sure to keep your phone on mute when you are not speaking. Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings. Violation of these prohibitions may result in sanctions, including removal of court issued

media credentials, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the Court. Mailed notice. (jlj, ) (Entered: 02/05/2021)

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 Case: 1:19-cv-06334 Document #: 1 Filed: 09/23/19 Page 1 of 61 PageID #:1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

COOK COUNTY, ILLINOIS, an Illinois governmental entity; and ILLINOIS COALITION FOR IMMIGRANT AND REFUGEE RIGHTS, INC.,

Plaintiffs,

Case No.

vs.

KEVIN K. McALEENAN, in his official capacity as Acting Secretary of U.S. Department of Homeland Security; U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; KENNETH T. CUCCINELLI II, in his official capacity as Acting Director of U.S. Citizenship and Immigration Services; and U.S. CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency,

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

10958470v12 9/23/2019 8:00 PM

8888.099

Case: 1:19-cv-06334 Document #: 1 Filed: 09/23/19 Page 2 of 61 PageID #:1
TABLE OF CONTENTS
Page
INTRODUCTORY ALLEGATIONS .............................................................................................1 JURISDICTION AND VENUE ......................................................................................................5 PARTIES .........................................................................................................................................5 LEGAL AND FACTUAL BACKGROUND ..................................................................................6 I. CURRENT STATUTORY FRAMEWORK AND THE HISTORY OF PUBLIC
CHARGE. ............................................................................................................................7 A. The History Of Public Charge: Public Charge Has Been Defined As
Primarily And Permanently Dependent On Government Assistance For Well Over A Century. ..............................................................................................8 B. The Immigration Naturalization Act Of 1952 Codified The Existing Public Charge Definition.....................................................................................................9 C. For Decades, Congress Has Affirmed The Narrow Meaning Of Public Charge And Rejected Efforts To Change It. ..........................................................10 D. INS, State Department, Board of Immigration Appeals, And Department Of Justice Have Consistently Understood Public Charge To Refer To Someone Primarily And Permanently Dependent On Government Assistance. .............................................................................................................12 E. Congress Has Extended Non-Cash Benefits To Immigrants Subject To The Public Charge Rule. ........................................................................................14 F. Federal Agency Guidance Conforms With Congress's Intentions With Respect To The Use Of Public Benefits By Immigrant Communities. .................15 II. THE PROPOSED RULE. ..................................................................................................17 III. THE FINAL PUBLIC CHARGE RULE ABANDONS THE ESTABLISHED MEANING OF PUBLIC CHARGE IN CONTRAVENTION OF THE LAW AND CONGRESSIONAL INTENT. ................................................................................17 A. The Final Rule Abandons The Primarily And Permanently Dependent Standard. ................................................................................................................18 B. The Final Rule Is Contrary To Law Because It Greatly Expands The Public Benefits To Be Considered For A Public Charge Determination...............20 C. The Final Rule Alters The Totality Of Circumstances Test In A Manner That Is Unlawful And Contrary To Congressional Intent. ....................................21 D. The Final Rule Unlawfully Discriminates Against People With Disabilities By Asserting That Their Disability Alone Makes Them A Public Charge. ..........22
-i-

Case: 1:19-cv-06334 Document #: 1 Filed: 09/23/19 Page 3 of 61 PageID #:1 IV. HARMS AS A RESULT OF THE PUBLIC CHARGE FINAL RULE. ..........................23
A. The Final Rule Will Have A Broad Chilling Effect On Public Benefits Enrollment..............................................................................................................23
B. The Final Rule's Chilling Effect Will Harm Public Health. ..................................25 C. The Final Rule's Chilling Effect Will Directly Harm Cook County......................27 D. The Final Rule's Chilling Effect Frustrates The Mission Of Plaintiff
ICIRR And Its Member Organizations And Requires Them To Divert Resources To Address Its Harms. ..........................................................................34 E. The Final Rule's Weighted Circumstances Test Discriminates Against Immigrants Of Color..............................................................................................42 LEGAL CLAIMS ..........................................................................................................................44 JURY DEMAND ...........................................................................................................................55 PRAYER FOR RELIEF ................................................................................................................55
-ii-

Case: 1:19-cv-06334 Document #: 1 Filed: 09/23/19 Page 4 of 61 PageID #:1

Plaintiffs COOK COUNTY, ILLINOIS (the "County" or "Cook County"), and the

ILLINOIS COALITION FOR IMMIGRANT AND REFUGEE RIGHTS, INC. ("ICIRR"),

by their respective undersigned counsel, allege as follows for their Complaint for Declaratory

and Injunctive Relief against Defendants KEVIN K. McALEENAN, in his official capacity as

Acting Secretary of U.S. Department of Homeland Security; U.S. DEPARTMENT OF

HOMELAND SECURITY, a federal agency; KENNETH T. CUCCINELLI II, in his official

capacity as Acting Director of U.S. Citizenship and Immigration Services; and U.S.

CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency.

INTRODUCTORY ALLEGATIONS

1.

For centuries, the United States has viewed itself as a beacon offering opportunity

and refuge to those in search of it. See, e.g., EMMA LAZARUS, THE NEW COLOSSUS (1883)

(welcoming "your tired, your poor, your huddled masses"). Federal immigration law has

reflected this identity and the values embodied in it, including by allowing exclusion of those

seeking status here only in established and narrow circumstances. One circumstance in which

the federal immigration code has permitted exclusion is when an immigrant is deemed a "public

charge." Reflecting our nation's values, the law has long defined "public charge" to refer only to

an immigrant who is likely to be primarily and permanently dependent on the federal

government for long-term subsistence. By contrast, the law has never deemed someone a public

charge merely because they received some non-cash public benefits; indeed, the law welcomes

those simply needing to avail themselves of supplemental benefits to find their footing.

2.

But the Department of Homeland Security ("DHS") has now attempted to rewrite

the immigration statute. DHS recently adopted a Final Rule that redefines "public charge" and

radically changes long-settled and regularly affirmed precedent. Inadmissibility on Public

Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (the "Final Rule," to be codified at 8

Case: 1:19-cv-06334 Document #: 1 Filed: 09/23/19 Page 5 of 61 PageID #:1

C.F.R. pt. 103, 212, 213, 214, 245, 248). If allowed to go into effect, this Final Rule will

undermine our national identity, contravene the law, and discriminate against racial minorities

and people with disabilities.

3.

This case concerns the Trump administration's systematic efforts to: (1) use the

administrative rulemaking process to reverse well-settled history and law; and (2) vilify, shame,

and exclude certain (predominantly non-white) immigrants. By promulgating arbitrary and

discriminatory regulations that change the meaning of the term "public charge" as used in the

Immigration and Nationality Act of 1952 ("INA"), DHS has attempted to eviscerate 100 years of

settled immigration law and practice. It would do so in a manner that exceeds its legal authority,

is contrary to Congress' intent, is arbitrary and capricious, and, as alleged by ICIRR in Count IV,

violates Constitutional prohibitions against racial discrimination and statutory prohibitions

against discrimination against people with disabilities. DHS issued the Final Rule without

sufficient regard for more than 250,000 comments submitted during the rulemaking process—

comments that demonstrate the myriad ways in which the Final Rule is inconsistent with the law

and historical practice, and would cause substantial, irreparable harm to millions of vulnerable

people in the United States.

4.

The meaning of "public charge" has remained essentially the same for more than

100 years. Initially codified in agency guidance from the former Immigration and Nationality Service ("INS"),1 and consistent with its plain meaning, courts, Congress, and federal agencies

all have defined "public charge" to apply to instances where the person in question was

"primarily dependent" on the government for long-term subsistence, as evidenced by the receipt

of cash assistance or long-term institutionalization at government expense.

1 INS ceased to exist as of March 1, 2003. The agency is now the U.S. Citizenship and Immigration Services ("USCIS").
-2-

Case: 1:19-cv-06334 Document #: 1 Filed: 09/23/19 Page 6 of 61 PageID #:1

5.

With its Final Rule, DHS takes this narrow and established restriction on

admission and redefines "public charge" beyond any legal or common sense understanding to

include anyone who ever has used, or is considered likely to use, certain public benefits,

regardless of the amount and their de minimis use. Specifically, the Final Rule denies admission

and change in status to lawful permanent resident to immigrants receiving any number of health,

nutrition, and housing benefits, even though Congress regularly excludes such benefits from

public charge consideration. If allowed to go into effect, the Final Rule will have a chilling

effect upon immigrant communities, causing individuals to forgo critical public benefits—an

impact that will cause devastating, irreparable harm to children, families, and public health in

Cook County and throughout Illinois.

6.

This chilling effect will lead to disenrollment and non-enrollment in health,

nutrition, and other assistance programs, making many working class immigrant families less

healthy, less productive, more reliant on County-paid emergency medical care, and more likely

to experience economic dislocation and homelessness, which will result in increased strain on

County agencies and programs. The chilling effect likewise will burden County's administration

of both federal and state benefits programs. And direct costs to the County will result from

immigrants who shift from federal programs to County programs that do not qualify as "public

benefits" under the Final Rule.

7.

Defendants' radical reversal of longstanding law, practice, and policy violates the

Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et. seq. First, Defendants' exceeded their

statutory authority by redefining the statutory term "public charge." Second, the Regulation

contravenes existing law by considering public benefits programs that Congress has explicitly

and repeatedly chosen to exclude from public charge determinations. For example, Congress

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expressly declined to include for public charge consideration such public benefit programs when

it passed the Illegal Immigration Reform and Immigrant Responsibility Act, 8 U.S.C. §§ 1182,

1183, 1624, as well as when it passed the Personal Responsibility and Work Opportunity

Reconciliation Act, Pub. L. No. 104–193, 110 Stat. 2105 (1996) ("PRWORA" or "Welfare

Reform Act"), 8 U.S.C. §§ 1161-1163, 1621-1622, 1641. The Final Rule also contradicts settled

law by discriminating against people with disabilities in violation of Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794. Third, the Final Rule is arbitrary and capricious in

a host of ways, including: (1) Defendants' failure to reasonably justify their departure from

decades of settled practice; (2) Defendants' failure to adequately consider the Final Rule's varied

and extensive harms; and (3) the Final Rule's vague and complex nature, which will lead to

arbitrary and inconsistent enforcement.

8.

In the absence of adequate agency reasoning and without legitimate policy ends,

the Final Rule should be struck down.

9.

The Final Rule and actions taken prior to its issuance harm Cook County's

economic and proprietary interests, and will continue to cause injury unless and until the Final

Rule is vacated. The Final Rule also harms ICIRR because it frustrates ICIRR's mission to help

immigrants become full and contributing members of society, and further directly harms ICIRR

and its member agencies, which rely on compensation they earn for their work supporting

immigrants' access to these necessary benefits. As a result, ICIRR and its members have

diverted and will continue to have to divert precious resources that would have been spent on

other valuable activities to halt Defendants' actions and to calm the fears of immigrant

communities throughout Illinois. Plaintiffs bring this action to stop Defendants' unlawful and

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discriminatory conduct, and to redress the harm they have suffered and will continue to suffer as a direct result of Defendants' actions absent relief.
JURISDICTION AND VENUE 10. This Court has personal jurisdiction over the Defendants pursuant to 28 U.S.C. § 1391(e) because the Defendants are agencies and officers of the United States. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because this action arises under federal law. 11. Defendants' publication of the Final Rule in the Federal Register on August 14, 2019 constitutes final agency action and is therefore judicially reviewable within the meaning of the APA, 5 U.S.C. §§ 704, 706. 12. Venue is proper in this district because Defendants are agencies and officers of the United States, the County is a resident of this judicial district, ICIRR is a non-profit organization incorporated in Chicago, Illinois and a resident of Illinois, and because a substantial part of the events or omissions giving rise to the claims occurred in this district.
PARTIES 13. Plaintiff Cook County is an Illinois governmental entity with its principal place of business in Chicago, Cook County, Illinois. The County is the second largest county in the United States by population. 14. ICIRR is a non-profit, member-based organization located in Chicago, Illinois, and incorporated in Illinois. ICIRR promotes the rights of immigrants and refugees to full and equal participation in the civic, cultural, social, and political life in Illinois and beyond. ICIRR has nearly 100 member organizations throughout Illinois. Member organizations include community health centers, health and nutrition programs, social service providers, and other
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organizations that work to ensure immigrants receive the support they need for their families to

be successful.

15.

Defendant Kevin K. McAleenan is Acting Secretary of DHS and is sued in his

official capacity. In his capacity as the Acting Secretary of DHS, Defendant McAleenan issued

the Final Rule challenged by this lawsuit. He directs each of the component agencies of DHS.

16.

Defendant United States Department of Homeland Security is a cabinet-level

department of the United States federal government. DHS is made up of U.S. Citizenship and

Immigration Services ("USCIS"), Customs and Border Protection ("CBP"), and Immigration and

Customs Enforcement ("ICE").

17.

Defendant Kenneth T. Cuccinelli is the Acting Director of USCIS and is sued in

his official capacity.

18.

Defendant USCIS is a sub-agency of DHS that is primarily responsible for the

immigration services functions of the United States, including the administration of applications

by foreign nationals in the United States for the adjustment of status to lawful permanent

residency, immigrant and nonimmigrant visas, change of status to a different visa category, or

extension of stay.

LEGAL AND FACTUAL BACKGROUND

19.

This case concerns changes by the Defendants to the interpretation and

application of the "public charge" ground for inadmissibility included in section 212(a)(4) of the

Immigration and Nationality Act, 8 U.S.C. §1182(a)(4). Defendants made these changes in

violation of law and in an attempt to deter immigrants, particularly those from majority non-

white countries, from gaining admission to the U.S. and from seeking help to assure their

families' basic health, nutrition, and housing needs are met.

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I. CURRENT STATUTORY FRAMEWORK AND THE HISTORY OF PUBLIC CHARGE.

20.

Under the Immigration and Nationality Act ("INA"), an individual seeking

admission to the United States or applying to become a lawful permanent resident may be denied

admission or adjustment of status if he or she, "at the time of application for admission or

adjustment of status, is likely at any time to become a public charge." 8 U.S.C. § 1182(a)(4)(A).

21.

The statute directs the adjudicator to consider the following factors in determining

the likelihood that a person is or is likely to become a public charge: (1) age; (2) health; (3)

family status; (4) assets, resources, and financial status; and (5) education and skills. 8 U.S.C.

§1184(a)(4)(B). In considering these factors, the adjudicator must apply a "totality of the circumstances" test, a nuanced test that broadly considers an applicant's circumstances. Id.2

22.

For more than 130 years, courts, Congress and federal agencies have interpreted

the term "public charge" consistently to mean an individual who is likely to become primarily or

permanently dependent on the government in the long term. Consistent with its plain meaning,

Congress, over several decades, has repeatedly rejected numerous attempts to expand the legal

definition of public charge beyond this established and narrow definition. Contrary to the Final

Rule, the term has never been understood to apply to all individuals of moderate or low income,

or all individuals in receipt of, or likely to use, some non-cash and supplemental public benefits,

or to apply to individuals using a modest amount of public benefits in limited duration.

2 The standard for adjudicating inadmissibility under INA §212(a)(4) has been developed in several Immigration and Naturalization Service, ("INS"), BIA, and Attorney General decisions and has been codified in the INS regulations implementing the legalization provisions of the Immigration Reform and Control Act of 1986. These decisions and regulations, and §212(a)(4) itself, create a "totality of the circumstances" test.
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A. The History Of Public Charge: Public Charge Has Been Defined As Primarily And Permanently Dependent On Government Assistance For Well Over A Century.

23.

The term "public charge" first appeared in federal immigration law in the 1882

Immigration Act, and its definition largely mirrored those found in several pre-existing local and

state statutes. Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875),

93 COLUM. L. REV. 1833, 1850 (1993) (citing Act of Feb. 26, 1794, ch. 32, §§ 15, 1794 Mass.

Acts & Laws 375, 385). It barred admission to "any convict, lunatic, idiot, or any person unable

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

Immigration, ch. 376, § 2, 22 Stat. 214 (1882). Like its state and local predecessors, the federal

statute did not exclude as public charges individuals who could work.

24.

Congress passed another immigration statute in 1907 that included a similar bar

against admission for:

All idiots, imbeciles, feeble-minded persons, epileptics, insane persons, and persons who have been insane within five years previous; persons who have had two or more attacks of insanity at any time previously; paupers; persons likely to become a public charge; professional beggars; persons afflicted with tuberculosis or with a loathsome or dangerous contagious disease . . . .

An Act to Regulate the Immigration of Aliens to the United States. Pub. L. No. 59-96, § 2, 34

Stat. 898, 898–99 (1907).

25.

Congress amended the Immigration Act of 1907 in 1910 and maintained a

consistent use of the term "public charge." See Immigration Act of 1907, ch. 1134, § 2, 34 Stat.

898, 899 (1907) (amended by Act of Mar. 26, 1910, ch. 128, § 1, 36 Stat. 263, 263 (1910)).

These federal statutes consistently affirmed the prevailing understanding of a public charge as

someone who needed to rely primarily and permanently on the government to live and was

unable to work, i.e., someone who is a charge of the public.

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26.

In 1915, the Supreme Court affirmed this understanding. In Gegiow v. Uhl, 239

U.S. 3, 10 (1915), the Court held that a public charge determination should be based solely on

"permanent personal objections." Listed in the 1907 statute, these permanent personal objections

included: (1) a long-term history of poverty ("paupers and professional beggars"); (2) disability ("idiots" and those with "a mental or physical defect");3 (3) a history of criminality ("convicted

felons, prostitutes"); or (4) "persons dangerously diseased." Id. Thus, simply being poor or

unemployed was insufficient to be considered a "likely public charge." Rather, a "likely public

charge" determination required a permanent condition of dependence.

27.

Based upon this reasoning, an individual could be considered a public charge only

if he or she were found likely to rely primarily and permanently on government assistance to

live. In other words, applicants who arrived in the United States could rely upon non-cash and

supplemental public benefits or other benefits of limited duration without a risk of being

considered a public charge. In fact, the acceptance of immigrants of limited means into the U.S.

was, and remains, core to our country's identity as the land of opportunity.

B. 28.

The Immigration Naturalization Act Of 1952 Codified The Existing Public Charge Definition.
In 1952, Congress passed the INA, which includes a provision identifying public

charge as a ground of inadmissibility. Section 212(a)(4) of the INA provides that "[a]ny alien

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

of the Attorney General at the time of application for admission or adjustment of status, is likely

at any time to become a public charge is inadmissible." 8 U.S.C. § 1182(a)(4).

29.

The statute requires a public charge determination for applicants seeking to adjust

their status to become lawful permanent residents (i.e., green card holders) and for individuals

3 Understandings of disability and its impact on a person's ability to work, as well as legal protections afforded to people with disabilities, have changed greatly since this decision.

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seeking entry to the United States. In enacting the INA, Congress did not alter the long-standing

legal definition of public charge as someone primarily and permanently dependent on

government resources. Act of June 27, 1952, 66 Stat. 163 (codified as amended at 8 U.S.C.

§ 1182).

C. For Decades, Congress Has Affirmed The Narrow Meaning Of Public Charge And Rejected Efforts To Change It.

30.

Since the passage of the INA in 1952, Congress has consistently affirmed the

narrow meaning of public charge. Despite passing multiple, sweeping changes to immigration

laws over the course of decades, Congress consistently maintained the same "public charge" test.

Act of Oct. 3, 1965, 79 Stat. 917 (codified as amended at 8 U.S.C. § 1182); Act of Nov. 6, 1986,

100 Stat. 3359 (codified as amended at 8 U.S.C. § 1182); Act of Nov. 29, 1990, 104 Stat. 4978

(codified as amended at 8 U.S.C. § 1182).

31.

In early-1996, Congress considered and rejected a bill that would have drastically

changed the definition of "public charge" along the lines proposed in DHS's Final Rule. The

Immigration Control and Financial Responsibility Act ("ICFRA") would have expressly altered

the well-established meaning of "public charge" to encompass a non-citizen who used almost any

public benefit program for more than one year, with limited exceptions for certain emergency

medical and childhood nutrition services. H.R. REP. NO.104-469, at 266-67 (1996). Specifically,

the ICFRA would have changed the existing statutory definition of "public charge" to now

encompass "any alien who receives benefits . . . for an aggregate period of more than 12 months"

from:

(i) the aid to families with dependent children program, (ii) Medicaid, (iii) the food stamp program, (iv) the supplemental security income ("SSI") program, (v) any state general assistance program, or (vi) "any other program of assistance funded, in whole or in part, by the Federal Government or any State or local

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government entity, for which eligibility for benefits is based on need.

H.R. 2202 §202(a)(5)(C)(ii); §202(a)(5)(D) (1996). The proposed legislation containing this new

definition of "public charge" was not enacted.

32.

Instead, that same year Congress passed the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 ("IIRIRA"), which made no changes to the existing

definition of public charge. Rather than change the statutory definition, IIRIRA left it

unmodified—and expressly codified the "totality of circumstances" test, which had been

developed in case law and administrative policies concerning the "public charge" adjudication. 8

U.S.C. § 1182(a)(4)(B)(i). As it did with the ICFRA bill, during the drafting of IIRIRA

Congress specifically chose to reject a provision similar to the Final Rule. The provision would

have redefined public charge to include individuals who received "federal public benefits for an

aggregate of 12 months over a period of 7 years." 42 CONG. REC. S11872 (daily ed. Sept. 30,

1996) (statement of Sen. Kyl). Once again, Congress made its intent clear: a person should not

be considered a public charge simply because he or she uses public benefits.

33.

As recently as 2013, Congress rejected yet another attempt to change the

definition of public charge. A proposed amendment to the Border Security, Economic

Opportunity, and Immigration Modernization Act of 2013 ("Border Security Act") would have

altered the meaning of public charge to include individuals likely "to qualify even for non-cash

employment supports" such as Medicaid and the Supplemental Nutrition Assistance Program

("SNAP"). S. 744, 113th Cong. (2013); S. Rep. No. 113- 40, at 42 (2013). A report of the

Judiciary Committee noted that Senators opposing the amendment "cited the strict benefit

restrictions and requirements" as a basis for their opposition. Id.

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D. INS, State Department, Board of Immigration Appeals, And Department Of Justice Have Consistently Understood Public Charge To Refer To Someone Primarily And Permanently Dependent On Government Assistance.

34.

The federal agencies and divisions responsible for implementing federal

immigration law have issued guidance consistent with the narrow statutory definition of public

charge. For example, an INS rule adopted in 1987 stated that an applicant would not be subject

to exclusion on public-charge grounds if "the applicant demonstrates a history of employment in

the United States evidencing self-support without the receipt of public cash assistance."

Adjustment of Status for Certain Aliens, 52 Fed. Reg. 16,205, 16,211 (May 1, 1987) (emphasis

added). INS defined "public cash assistance" as "income or needs-based monetary assistance . . .

designed to meet subsistence levels." Id. at 16,209. INS specifically excluded "assistance in

kind, such as food stamps, public housing, or other non-cash benefits" from those benefits that

could render an individual a public charge. Id.

35.

For decades, the State Department's Foreign Affairs Manual prohibited officials

from considering an individual's use of non-cash benefits, stating that "[n]either the past nor

possible future receipt of such non-cash supplemental assistance may be considered in

determining whether an alien is likely to become a public charge." 9 F.A.M. § 302.8-2(B)(1). It

distinguished the food stamp program from those programs that would be considered in public-

charge determinations because the food stamp program's purpose is:

essentially supplementary in nature, in the sense of providing training, services, food, etc. to augment the standard of living, rather than to undertake directly the support of the recipients does not fall within the scope of INA 212(a)(4).

9 FAM § 40.41, N 9.1; see also 64 Fed. Reg. 28,678.

36.

Following IIRIRA amendments to the INA, INS issued guidance that the statute

"has not altered the standards used to determine the likelihood of an alien to become a public

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charge nor has it significantly changed the criteria to be considered in determining such a

likelihood." Dep't of Justice, Immigr. & Naturalization Serv., Memorandum on Public Charge:

INA Sections 212(A)(4) and 237(A)(5)—Duration of Departure for LPRs and Repayment of

Public Benefits (Dec. 16, 1997).

37.

These federal agencies also have expressly acknowledged that federal law

presumes that individuals can and will find work upon entry into the United States. In 1998, for

example, the State Department stated that IIRIRA's amendments to the INA did "not change[]

the long-standing legal presumption that an able-bodied, employable individual will be able to

work upon arrival in the United States" and thus not become a public charge. Dep't of State,

Cable on I-864 Affidavit of Support: Update No. 14—Commitment to Provide Assistance, (June

8, 1998). The Department of State explained that "[t]he presumption that the applicant will find

work coupled with the fact that the [affidavit of support] is a legally enforceable contract will

provide in most cases a sufficient basis to accept a sponsor's . . . technically sufficient [affidavit]

as overcoming the public charge ground." Id.

38.

The Board of Immigration Appeals ("BIA") has specifically held that "[t]he fact

that an alien has been on welfare does not, by itself, establish that he or she is likely to become a

public charge." In re Perez, 15 I. & N. Dec. 134, 137 (BIA 1974). And in the government's

appeal from a BIA decision overturning a public charge determination, then-Attorney General

Robert F. Kennedy reaffirmed the point, noting that the INA "requires more than a showing of a

possibility that the alien will require public support." In re Martinez-Lopez, 10 I. & N. Dec. 409,

421 (BIA 1962; AG 1964).

39.

Instead, the public charge determination "should be a prospective evaluation

based on the alien's age, health, income, and vocation." 8 C.F.R. § 245a.3(g)(4)(i). And even

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where an immigrant's "income may be below the poverty level," he is "not excludable" as a

public charge if he "has a consistent employment history which shows the ability to support

himself." Id. at § 245a.3(g)(4)(iii).

40.

Though a noncitizen's past acceptance of "public cash assistance" may "enter into

this decision," the 1989 DOJ rule, U.S. Dep't of Justice, Final Rule: Adjustment of Status for

Certain Aliens, 54 Fed. Reg. 29,442 (July 12, 1989), codified in relevant part at 8 C.F.R. §§

245a.2(k)(4), 245a.3(g)(4)(iii), 245a.4(b)(1)(iv)(C), does not provide for consideration of non-

cash public benefits. Id.

41.

This rule reaffirmed the understanding of a public charge as a person permanently

and primarily dependent on government for survival.

E. Congress Has Extended Non-Cash Benefits To Immigrants Subject To The Public Charge Rule.

42.

In 1996, Congress passed the PRWORA. PRWORA excluded non-citizens from

many federal and state cash public benefits programs, 8 U.S.C. §§ 1611(a), 1621(a), but it also

ensured that non-citizens would remain eligible for numerous non-cash benefits, including

emergency medical assistance, disaster relief, immunization services, and public housing and the

Section 8 program, 8 U.S.C. §§ 1611(b), 1621(b).

43.

Congress subsequently took steps to ensure that certain immigrant households had

access to food and nutrition programs. For example, as a part of the reauthorization of the

omnibus Farm Security and Rural Investment Act of 2002, Congress rolled back PRWORA

restrictions to restore access to supplemental nutrition benefits for many non-citizen children and

non-citizens receiving disability benefits. Pub. L. No. 107–171, § 4401, 116 Stat. 134 (2002).

The reauthorization also provided that non-citizens who had resided in the country for more than

five years would be eligible for supplemental nutrition benefits. Id.

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44.

Seven years later, Congress passed The Children's Health Insurance Program

("CHIP") Reauthorization Bill, which further expanded access to benefits for non-citizens,

allowing states to provide Medicaid and CHIP coverage to lawfully residing non-citizen children

and pregnant women during their first five years in the country. CHIP Reauthorization Act of

2009, Pub. L. No. 111-3, § 214, 123 Stat. 8 (2009).

45.

Importantly, when repeatedly given the opportunity to alter the definition of

"public charge," Congress has declined. This left intact the understanding that these benefits are

not included in its auspices. Recent efforts to enact new laws denying immigrant access to non-

cash benefits have likewise failed. For example, the Reforming American Immigration for

Strong Employment (RAISE) Act of 2017 proposed sweeping changes to the INA, including a

point-based visa system. S. 1720, 115th Cong. (2017). A substantially identical bill of the same

title was introduced in 2019. S. 1103, 116th Cong. (2019). Both bills would have restricted

parents of citizen children to obtaining only temporary immigrant visas and barred them from

receiving any federal, state, or local public benefits. S. 1720 § 4(d)(2)(s)(2)(b); S. 1103 §

4(d)(2)(s)(2)(b). Congress has not acted on either bill.

F. Federal Agency Guidance Conforms With Congress's Intentions With Respect To The Use Of Public Benefits By Immigrant Communities.

46.

In 1999, INS proposed a rule and issued field guidance clarifying how and when

immigrants can access public benefits without being rendered a public charge. Inadmissibility

and Deportability on Public Charge Grounds, 64 Fed. Reg. 28,676 ("1999 NPRM"); Field

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

(May 26, 1999) ("Field Guidance"). INS published the 1999 NPRM and Field Guidance to

"summarize longstanding law with respect to public charge and provide new guidance on public

charge determinations." Field Guidance at 28,689.

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47.

Both the INS Field Guidance and the 1999 NPRM affirmed that "public charge"

refers to an individual "who is likely to become . . . primarily dependent on the Government for

subsistence, as demonstrated by either the receipt of public cash assistance for income

maintenance or institutionalization for long-term care at Government expense." 1999 NPRM at

28,677 (emphasis added).

48.

The 1999 NPRM observed that the "primary dependence model of public

assistance was the backdrop against which the 'public charge' concept in immigration law

developed in the late 1800s," and "[h]istorically, individuals who became dependent on the

Government were institutionalized in asylums or placed in 'almshouses' . . . long before the array

of limited-purpose public benefits now available existed." Id. at 28,677. Although DOJ never

published a final public charge rule, the Field Guidance's public charge definition and policies

were "adopt[ed] . . . immediately" and have guided DOJ—and, later, DHS—policy ever since.

Id. at 28,689.

49.

In 2009, DOJ issued a Public Charge Fact Sheet ("DOJ Fact Sheet"), which

confirmed the Field Guidance's definition of "public charge" to mean "an individual who is likely

to become 'primarily dependent on the government for subsistence.'" U.S. Dep't of Justice,

Public Charge Fact Sheet, 2009 WL 3453730 (Oct. 29, 2011) (quoting "Field Guidance on

Deportability and Inadmissibility on Public Charge Grounds," 64 Fed. Reg. 28689 (May 26,

1999)). The DOJ Fact sheet reiterated that "a number of factors must be considered," in the

public charge determination, "including age, health, family status, assets, resources, financial

status, education, and skills." Id. It also made clear that "[n]o single factor—other than the

lack of an affidavit of support, if required—will determine whether an individual is a public

charge." Id.

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50.

The DOJ Fact Sheet makes abundantly clear that: (1) the definition of "public

charge," as understood by federal agencies, has been unambiguous; (2) a public charge is an

individual who is permanently and primarily dependent on government for survival; and (3)

certain public benefit programs (including Medicaid and SNAP) are irrelevant to public charge

determinations.

II. THE PROPOSED RULE.

51.

On October 10, 2018, DHS published a Notice of Proposed Rulemaking regarding

the public charge ground for inadmissibility in the Federal Register. 83 Fed. Reg. 51,114-

51,296.

52.

More than 250,000 comments were submitted on the Proposed Rule, "the vast

majority of which opposed the rule." 84 Fed. Reg. 41,297. Commenters comprehensively and

vigorously opposed changes to: (1) the definition of "public charge"; (2) the benefits that would

be newly considered and the manner in which they would be considered; and (3) the totality of

the circumstances test, which was overhauled and made unclear by the introduction of the

weighted factors. Id. Commenters also pointed out the great harms that the Proposed Rule

would exact, including the public health and economic harms that would result from dramatically

decreased usage of the vital programs now included for consideration. Id.

53.

Numerous commenters also pointed out that the Proposed Rule would target

vulnerable and protected classes, including people with disabilities, the elderly, and people of

color. Id.

III. THE FINAL PUBLIC CHARGE RULE ABANDONS THE ESTABLISHED MEANING OF PUBLIC CHARGE IN CONTRAVENTION OF THE LAW AND CONGRESSIONAL INTENT.

54.

On August 14, 2019, DHS published the Final Rule in the Federal Register. The

Final Rule changes both the definition of "public charge" and the manner in which DHS makes

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public charge determinations. 84 Fed. Reg. 41,292-508. Specifically, the Final Rule eliminates

the "primarily dependent" definition of public charge, considers the use of non-cash benefits, and

introduces weighted and heavily weighted factors to the totality of circumstances test. Id.

at 41,294-95. Each change reflects no relationship to established, plain language understandings

of what it means to be a "public charge." In fact, the Final Rule expands the definition of public

charge so radically and unreasonably that approximately one-third of all U.S. born citizens

would be deemed a public charge.4

A. The Final Rule Abandons The Primarily And Permanently Dependent Standard.

55.

The Final Rule redefines "public charge" to include an immigrant "who receives

one or more public benefits" for more than 12 months in any 36-month period. 84 Fed. Reg.

41,501. In making a public charge determination, the Final Rule expands to count non-cash

benefits including SNAP nutritional assistance, Medicaid, and housing assistance. Id. Where an

individual receives more than one of these benefits in a given month, the Final Rule would

consider each benefit as a separate month of receipt for purposes of determining whether the 12-

month threshold has been met. Id. at 41,295-97. The Final Rule gives no consideration to the

value of the benefit received, id. at 41,355, and includes no consideration of whether the receipt

of benefits evidences a likelihood of long-term government dependence, or serves as a temporary

measure to address immediate, short-term needs. As a result, for example, an individual could

be deemed a public charge if they were to go through a temporary, four-month period of

unemployment during which they sought housing, food, and Medicaid assistance. And this

would be true even if the assistance obtained was of minimal value.

4 Danilo Trisi, One-Third of U.S.-Born Citizens Would Struggle to Meet Standard of Extreme Trump Rule for Immigrants, Ctr. For Budget and Pol'y Priorities (Sept. 27, 2018), https://www.cbpp.org/blog/one-third-of-us-borncitizens-would-struggle-to-meet-standard-of-extreme-trump-rule-for.
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56.

In the Final Rule, DHS acknowledges that "[s]ince 1999, the prevailing approach

to public charge inadmissibility has been dictated primarily by the [Field Guidance] … Under

that approach, 'public charge' has been interpreted to mean a person who is 'primarily dependent

on the Government for subsistence, as demonstrated by either the receipt of public cash

assistance for income maintenance or institutionalization for long-term care at Government

expense.'" 84 Fed. Reg. 41,294-95. DHS' drastic redefinition of public charge contradicts long-

established and narrow definitions under the INA and contradicts Congress' clear intent that a

person is a public charge only if he or she is primarily, and permanently, dependent on

government support for subsistence, as discussed above. In adopting this redefinition, DHS has

exceeded its statutory authority and controverted well-established law. DHS offers no rational

basis for its new public charge definition and provides no evidence that this limited use of public

benefits indicates long-term dependence, that is, whether the recipient will likely become a

charge of the public.

57.

Defendants cited no data showing that either citizen or non-citizen immigrants use

benefits at a higher rate than birthright citizens to defend this expansion. In fact, the only data

Defendants cited shows non-citizens using both SNAP and Medicaid benefits at a lower level

than native-born citizens. 83 Fed. Reg. 51,161. Nor do Defendants find that naturalized

immigrants become dependent on public benefits at a disproportionate rate after naturalization or

becoming citizens. Id.. Defendants do concede that the Final Rule will result in $2.27 billion less

transfers from Federal to State governments due to disenrollment. Id. at 51,117.

58.

DHS offers no rational basis for its new public charge definition and provides no

evidence that this limited use of public benefits indicates long-term dependence, that is, whether

the recipient will likely become a charge of the public.

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B. The Final Rule Is Contrary To Law Because It Greatly Expands The Public Benefits To Be Considered For A Public Charge Determination.

59.

The Final Rule dramatically expands the scope of benefits considered for

determining a public charge. In line with well-established precedent, the Field Guidance has

focused the public charge analysis on an applicant's long-term dependence on cash benefits (e.g.,

Temporary Assistance for Needy Families ["TANF"], also known as cash welfare, and

Supplemental Security Income) and institutional care and it explicitly prohibited DHS officials

from considering non-cash benefits—benefits that "are by their nature supplemental and [that] do

not, alone or in combination, provide sufficient resources to support an individual or family."

Field Guidance at 28,692. Without reason or authority, the Final Rule abandons this precedent

and dramatically expands the list of benefits considered, with no consideration of whether the

benefit used is a supplemental support or evidence of a long-term dependence on government

support.

60.

By adding non-cash benefits to the public charge determination, DHS has

exceeded its statutory authority to rewrite the U.S. Code. Receipt of in-kind benefits does not

make an individual a "public charge" within any reasonable definition of the statutory term. In

fact, Congress has specified that SNAP may not be considered against recipients as income or

resources under any federal, state, or local law. See 7 U.S.C. § 2017(b). While Congress has

repeatedly considered changing the statutory definition of public-charge inadmissibility to

consider non-cash benefits like SNAP, Medicaid, and housing assistance, it has rejected every

such proposal. This history demonstrates Congress's understanding that a statutory change would

be necessary to achieve the radical revision of immigration laws that the Final Rule

contemplates; the Final Rule's new interpretation of "public charge" cannot be reconciled with

the plain meaning of the statute that Congress enacted.

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C. The Final Rule Alters The Totality Of Circumstances Test In A Manner That Is Unlawful And Contrary To Congressional Intent.

61.

Section 212(a)(4) of the INA requires DHS to look at an individual's "totality of

circumstances" when considering whether they are inadmissible on public charge grounds,

specifying at a minimum that the agency consider the individual's "age; health; family status;

assets, resources, and financial status; and education and skills." 8 U.S.C. § 1182(a)(4). In

requiring this comprehensive assessment, the INA requires a case-by-case assessment of each

applicant, and prohibits using the "existence or absence of a particular factor" as the "sole

criterion" for determining whether an individual is likely to become a public charge. See Field

Guidance at 28,690.

62.

The Final Rule impermissibly dictates that certain specific factors, including

factors not found in the law, be afforded great, functionally prescriptive weight, ignoring the

statutory mandate of a totality of the circumstances analysis. Specifically, the Final Rule

identifies factors that are to be given negative, heavily negative, positive and heavily positive

weights in determining the likelihood of an applicant "becoming a public charge at any time in

the future," i.e., "whether the alien is more likely than not at any time in the future to receive one

or more public benefits, as defined in 8 CFR 212.21(b), for more than 12 months in the aggregate

within any 36-month period." 84 Fed. Reg. 41,502-04.

63.

Factors to be weighed negatively include: (1) age, specifically if the individual is

under 18 or over 62; (2) health, including any medical condition that will interfere with the

individual's ability to work or attend school at any time in the future; (3) income below 125

percent of the Federal Poverty Guideline; (4) assets and resources, including whether the

individual may have medical costs that they cannot cover without Medicaid; (5) if the individual

has "applied for, been certified to receive, or received public benefits"; (6) skills, including

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whether the individual is not proficient in English; and (7) if the individual has a large family.

Id.

64.

Factors that the Final Rule requires to be given "heavily negative" weight include:

(1) lack of employment; (2) receipt or approval for one or more public benefits for more than 12

months within the 36 months preceding an application (with each benefit received counting

separately for purposes of calculating the 12 months); (3) diagnosis with a medical condition that

will "interfere with" the individual's ability to work or attend school where the individual does

not have private insurance; and (4) a previous finding of inadmissibility. 84 Fed. Reg. 41,504.

65.

Heavily weighted positive factors simply include income, assets, resources and

support in excess of 250 percent of the Federal Poverty Guideline, and private health insurance,

provided that the insurance does not include tax credits provided under the Patient Protection and

Affordable Care Act. Id. All combined, these weighted factors create a web of complexities that

in many cases will lead to inconsistent and arbitrary enforcement.

D. The Final Rule Unlawfully Discriminates Against People With Disabilities By Asserting That Their Disability Alone Makes Them A Public Charge.

66.

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, prohibits federal agencies

and entities that receive federal funding from discriminating against people with disabilities,

regardless of whether the discriminatory impact is intended. Thus, Section 504 reaches

government action that, either through purpose or effect, discriminates against individuals with

disabilities.

A recipient [of federal funds] may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (i) That have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap; (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program with respect to handicapped persons . . . .") (emphasis added).

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28 C.F.R. § 41.51(b)(3).5

67.

In violation of Section 504, the Final Rule assigns heavy negative weight to

medical conditions that "will interfere with" an individual's ability to work or attend school. 8

C.F.R. § 212.22(b)(2)(i). In so doing, however, the Final Rule gives no consideration to the fact

that many people with disabilities successfully work and attend school with reasonable

accommodations. See generally id.

68.

The Final Rule also violates Section 504 by assigning heavily negative weight to

the receipt of Medicaid. For many people with disabilities, Medicaid is essential because it is the

only insurance that provides sufficient coverage for certain forms of vital care and medical equipment for people with disabilities seeking independence and self-sufficiency.6 This is true

regardless of income. Thus, the Final Rule discriminates against people with disabilities both by

virtue of their disability and for their use of the only available health care insurance that meets

their needs – Medicaid. Together, these would count as two heavily negative factors and make a

finding of inadmissibility highly likely for people with disabilities.

IV. HARMS AS A RESULT OF THE PUBLIC CHARGE FINAL RULE.

A. 69.

The Final Rule Will Have A Broad Chilling Effect On Public Benefits Enrollment.
As a direct result of the Final Rule, and fear that they will be labeled a public

charge, or labeled as likely to become a public charge, millions of immigrants including many

Cook County residents, ICIRR clients, and ICIRR member organization clients will be confused

and frightened about the consequences of using benefits and will disenroll from them or forgo

5 The Rehabilitation Act, 29 U.S.C. § 701, et seq., applies to federal government agencies as well as organizations that receive federal funds. See, e.g., Wis. Cmty. Servs. V. City of Milwaukee, 465 F.3d 737, 746 (7th Cir. 2006). 6 See Medicaid Works for People with Disabilities, CTR. ON BUDGET AND POL'Y PRIORITIES (Aug. 29, 2017), https://www.cbpp.org/sites/default/files/atoms/files/8-29-17health.pdf.
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them altogether.7 This is in significant part due to the fact that the Final Rule is contradictory

and complex, and thus impermissibly invites arbitrary and discriminatory enforcement by

immigration officials.

70.

Many of these immigrant families will not in fact be subject to the public charge

inquiry, but nonetheless will disenroll due to fear or lack of understanding as to how the Final

Rule operates, forgoing benefits that their tax dollars support and to which they are legally

entitled.

71.

DHS is well aware that the Final Rule will have a substantial chilling effect on

enrollment in benefits programs. DHS estimates that the Final Rule will lead to a 2.5 percent

disenrollment from SNAP, Medicaid, and housing assistance, programs it explicitly now covers.

84 Fed. Reg. 41,463. In absolute numbers, DHS estimates that "324,438 individuals who are

members of households with foreign-born non-citizens and about 9,632 households with at least

one foreign born non-citizen will choose to disenroll from or forego [sic] enrollment in a public

benefits program." 84 Fed. Reg. 41,463.

72.

While the harms of this level of disenrollment would be massive, DHS

significantly underestimates the Final Rule's chilling effect, i.e., its impact on forgone benefits.

Independent experts predict that disenrollment actually will occur at a rate of between 15 and 35 percent, i.e., a rate 6 to 14 times greater than DHS predicts.8 Such an impact will be devastating

to those families that use benefits programs, as well as to Plaintiffs.

7 Samantha Artiga, Rachel Garfield, & Anthony Damico, Estimated Impacts of the Proposed Public Charge Rule on

Immigrants and Medicaid, THE HENRY J. KAISER FAM. FOUND. (Oct. 11, 2018), https://www.kff.org/disparities-

policy/issue-brief/estimated-impacts-of-the-proposed-public-charge-rule-on-immigrants-and-medicaid/;

"Only

Wealthy Immigrants Need Apply": How a Trump Rule's Chilling Effect Will Harm the U.S., FISCAL POL'Y INST.

(Oct. 10, 2018), http://fiscalpolicy.org/wp-content/uploads/2018/10/US-Impact-of-Public-Charge.pdf. 8 Samantha Artiga, et. Al., Estimated Impacts of the Proposed Public Charge Rule on Immigrants and Medicaid,

The Henry J. Kaiser Fam. Found. (Oct, 18, 2018), https://www.kff.org/disparities-policy/issue-brief/estimated-

impacts-of-the-proposed-public-charge-rule-on-immigrants-and-medicaid/; :Only Wealthy Immigrants Need Apply":

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73.

Immigrants will likely forgo public benefits because it is simply too hard to

ascertain the risk of using public benefits from the plain reading of the Final Rule.

74.

Indeed, this chilling effect has already begun. The City of Chicago Department of

Public Health has documented a decrease in patients at its immunization clinics since the publication of the Proposed Rule.9 This has corresponded with a decrease in patients with

Medicaid and an increase in uninsured patients. Id.

75.

According to press reports, health centers, physician practices, and other agencies

have also seen patients requesting disenrollment from benefits due to concerns about DHS's changes to the public charge doctrine.10

76.

If it is allowed to go into effect on October 15, 2019, the Final Rule will

exacerbate this chilling effect and the number of immigrants forgoing critical and sometimes

life-saving public benefits will increase.

B. 77.

The Final Rule's Chilling Effect Will Harm Public Health. The Final Rule will endanger health insurance coverage and access to nutritional,

housing, and other important supports for a substantial number of Cook County residents and

ICIRR member organization clients, causing significant harm to the public health.

How a Trump Rule's Chilling Effect Will Harm the U.S. Fiscal Pol'y Inst. (Oct, 10, 2018), http://fiscalpolicy.org/wpcontent/uploads/2018/10/US-Impact-of-Public-Charge.pdf; 9 City of Chicago, Comment Letter on Proposed Final Rule on Inadmissibility on Public Charge Grounds, 10-11 (Dec. 10, 2018), https://www.regulations.gov/document?D=USCIS-2010-0012-50648. 10 Illinois Chapter of the American Academy of Pediatrics, Comment Letter on Proposed Final Rule on Inadmissibility on Public Charge Grounds (Dec. 10, 2018), https://www.regulations.gov/document?D=USCIS-20100012-63585. Health Justice Project, Beazley Institute, Loyola University Chicago School of Law, Comment Letter on Proposed Final Rule on Inadmissibility on Public Charge Grounds, 2 (Dec. 10, 2018), ttps://www.regulations.gov/document?D=USCIS-2010-0012-54996. Prairie State Legal Services, Comment Letter on Proposed Final Rule on Inadmissibility on Public Charge Grounds, 1 (Dec. 10, 2018), https://www.regulations.gov/document?D=USCIS-2010-0012-45064. (citing Schencker, Lisa. Chicago Tribune. "Illinois doctors say Trump immigration proposal already scaring away patients." Dec. 2, 2018, available at https://www.chicagotribune.com/business/ct-biz-immigration-proposal-scaring-people-from-medicaid-1202story.html).
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78.

By deterring participation in Medicaid, CHIP, and other health insurance

programs made available by federal law the Final Rule also undermines Cook County's interest

in improving both short- and long-term health and advancing public health interests for both

immigrants and citizens, because it will decrease preventative primary care access among

immigrant communities.

79.

Lack of access to primary care not only puts the health and well-being of non-

citizens at risk, but it also jeopardizes the County's ability to provide for the well-being of its communities. Because uninsured persons are less likely to receive immunizations,11 there is an

increased risk of vaccine-preventable diseases to the entire community. Additionally, Cook

County is concerned that residents will fail to seek testing and treatment for communicable

diseases, leading to poor health outcomes and increasing the risk of disease transmission.

80.

The Final Rule's inclusion of housing assistance programs and its overall chilling

effect on seeking public assistance will discourage individuals and families from participating in

affordable housing programs. Individuals deterred from participating in housing programs

because of the Final Rule will face substantial challenges in finding affordable housing and

avoiding homelessness.

81.

Specifically, once an individual forgoes housing because of the Final Rule, it will

be very difficult for such an individual to reenroll in housing programs to receive the benefits

they once had. For example, all federal housing programs in Cook County have waiting lists, and

once individuals terminate their housing benefits, they may not be able to return to their old apartment or neighborhood.12

11 Lu, P. J., O'Halloran, A., Williams, W. W., Impact of health insurance status on vaccination coverage among adult populations. American Journal of Preventive Medicine, Vol. 48 Issue 6, 647-61 (2015). 12 See, e.g., Housing Authority of Cook County, Housing Choice Voucher Program Administrative Plan, 58–65 (2018), available at http://thehacc.org/wp-content/uploads/2016/06/HACC-Admin-Plan-2018-Final.pdf.
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82.

Further, housing insecurity creates negative health impacts. Scarce affordable

housing can cause families to cohabitate in crowded, multi-family households, which can have negative health effects from overcrowding and stress.13 It is significantly more expensive to

provide health care for individuals who are housing insecure. Housing insecure individuals

make more frequent use of emergency departments, have long stays when admitted and have higher rates of readmission, all of which lead to increased health care costs.14

C. 83.

The Final Rule's Chilling Effect Will Directly Harm Cook County. The Final Rule's chilling effect will, in particular, directly harm Plaintiff Cook

County.

84.

For over 180 years, Cook County has provided care to all county residents

regardless of their ability to pay, insurance status, or immigration status. Cook County Health

("CCH") is one of the largest public hospital systems in the nation, serving the residents of the

second most populous county in America.

85.

Pursuant to the "Ordinance Establishing the Cook County Health and Hospital

Systems" (the "Enabling Ordinance"), CCH "shall: (1) Provide integrated health services with

dignity and respect, regardless of a patient's ability to pay…" Ord. No. 08-O-35, 5-20-2008, Sec.

38-71(a)(1) (emphasis added).

86.

Patient services are delivered at CCH hospitals, regional outpatient centers, and

community-based health centers located throughout Cook County; a comprehensive HIV and

13 Megan Sandel et al., Unstable Housing and Caregiver and Child Health in Renter Families, 141 Pediatrics 1 (2018), http://pediatrics.aappublications.org/content/141/2/e20172199; see also Will Fischer, Research Shows Housing Vouchers Reduce Hardship and Provide Platform for Long-Term Gains Among Children, Center on Budget and Policy Priorities (October 7, 2015), https://www.cbpp.org/research/housing/research-shows-housingvouchers-reduce-hardship-and-provide-platform-for-long-term; Linda Giannarelli et al., Reducing Child Poverty in the US: Costs and Impacts of Policies Proposed by the Children's Defense Fund (Jan. 2015), http://www.childrensdefense.org/library/PovertyReport/assets/ReducingChildPovertyintheUSCostsandImpactsofPol iciesProposedbytheChildrensDefenseFund.pdf. 14 Kushel, M. B., Vittinghoff, E., Haas, J. S. (2001). Factors Associated with the Health Care Utilization of Homeless Persons. Journal of the American Medical Association, 285(2), 200-206. doi: 10.1001/jama.285.2.200.

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infectious disease center; and correctional health facilities at the Cook County Jail and Juvenile

Temporary Detention Center. CCH also includes the Cook County Department of Public Health,

which serves most of suburban Cook County, and CountyCare, the largest Medicaid managed

care plan serving Cook County Medicaid beneficiaries.

87.

CCH is the largest safety-net provider of health care in the region, providing care

for hundreds of thousands of patients. In fiscal year 2018, patient volumes at CCH included

142,735 Emergency Department visits; 29,117 inpatient observation visits; 873,822 outpatient

registrations including 217,152 primary care visits and 334,901 specialty care/diagnostic

procedure visits; and 93,435 correctional health visits.

88.

CCH is the largest provider of care to uninsured and underinsured individuals in

Illinois, providing $500 million in uncompensated care each year. In 2018, 42.5 percent of its

patients were uninsured. Only 4.4 percent of its patients were commercially insured, while 35.4

percent used Medicaid, and 15.9 percent used Medicare. CCH also operates CareLink, a

program that provides access to high quality health care for un-insured and underinsured Cook

County residents who are not otherwise eligible for public or affordable health insurance. As of

June 30, 2019, CareLink had 33,037 enrollees.

89.

The Final Rule's frightening, confusing, and unpredictable application will lead to

disenrollment from benefits, harm to public health, harm to the Cook County economy, and

increased direct and administrative costs to the County and its agencies. Specifically, Plaintiff

Cook County will suffer harm from: (1) loss of revenue to CCH and the CountyCare insurance

plan, as well as increased uncompensated care costs to CCH, jeopardizing the fiscal stability of

the health system and threatening the healthcare safety net serving the entire County; (2)

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increased burden on its Health Department and Housing Authority, and (3) fiscal losses due to

reduction in federal funds supporting the County economy.

90.

CCH frontline staff members have reported that clients have disenrolled from or

expressed reluctance to enroll in public benefits and services due to fear of changes in the public charge definition and determination.15 Immigrants have already expressed concern and

hesitancy to CCH staff when applying for Medicaid and other public benefit programs, including

programs that are not part of the final rule, such as the Women, Infant and Children (WIC)

program and the AIDS Drug Assistance Program.

91. In fact, comparing the first eight months of 2018 with the same period of time in

2019:

i. there has been an across-the-board increase in ambulatory, observation,

emergency and inpatient patients who are "self-pay" instead of covered by a

third party payment source, such as private or public insurance;

ii. there has been a corresponding increase in the percentage of uninsured

patients; and

iii. there has been a corresponding decrease in the percentage of Medicaid-

covered patients.

92.

Increases in disenrollment will further strain CCH finances through a loss in

Medicaid reimbursement and an increase in uncompensated care costs. CountyCare is the largest

provider of Medicaid-managed care within Cook County, with its membership constituting

approximately one-third of all Medicaid managed care members in the County. Thus,

statistically, one-third of all eligible persons who disenroll or elect not to enroll in Medicaid

15 John Jay Shannon, Comment Letter on Proposed Rule on Inadmissibility on Public Charge Grounds, 5 (Dec. 7, 2018), https://www.regulations.gov/document?D=USCIS-2010-0012-38001.
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managed care would be CountyCare members, and CCH will lose the per member/per month

capitation payment from the State for those members.

93.

As CCH also provides approximately 50% of all charity care in Cook County,

there is a 50% chance uninsured patients will seek their medical care from CCH, with no

reasonable ability to pay for it. Thus, CCH will lose revenue from not being able to enroll those

members, and will still wind up expending funds to treat a significant portion of those patients

without having a source to reimburse it for their care.

94.

CCH estimates that if 20 percent of potentially affected Medicaid enrollees were

to drop their health insurance, over 7,300 individuals who receive their care or coverage from

CCH would become uninsured and CCH would face a significant financial loss as a result in the

first year of the Final Rule being in effect, both from a loss in Medicaid reimbursement and an

increase in uncompensated care expenses.

95.

By the end of the current fiscal year, which ends on November 30, 2019, CCH

estimates that it will spend $544 million on uncompensated care, which is an 8% increase from

the last fiscal year, a 73% increase from 2014, and the highest expenditure since early expansion

of Medicaid in Cook County began in 2012/2013.

96.

CCH's ability to provide high-quality care to all is inextricably connected to its

ability to bill patients who have insurance for services. A decrease in the number of insured

patients, combined with an increase in the number of uninsured patients, will damage the

financial stability CCH has achieved as a result of the Affordable Care Act and Medicaid

expansion, and jeopardize its ability to continue serving its mission, including the operation of

and recent enhancements to the CareLink program.

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97.

Based on an analysis that was prepared on behalf of America's Essential Hospitals

and other trade associations by Manatt Health,16 and per CCH's subsequent discussions with

America's Essential Hospitals, the effects of the Final Rule and the accompanying chilling

effects are estimated to result in an annual loss of $30 million in Medicaid reimbursement to CCH.17

98.

Accordingly, the Final Rule will shift the costs of health care from the federal

government to Cook County. Moreover, the health care costs Cook County will bear will

increase overall and cause significant financial strain on its institutions. Because individuals

without health insurance wait longer to seek care, the care they eventually receive from

emergency rooms is more costly.

99.

If the Final Rule is implemented, CCH also expects to face increased costs for

clinic services resulting from uncompensated care due to its obligation to provide certain types of

care regardless of a patient's ability to pay; this may be compounded by an influx of uninsured

patients.

100. Because Medicaid and other health insurance programs offered through the

marketplace have made health insurance more affordable, the number of uninsured residents of

Cook County has decreased. In 2012, the uninsured rate was 19 percent—in 2018, the rate was

10 percent. The Final Rule will reverse this progress.

101. Cook County will also be responsible for the substantial financial burden of

increased health care costs associated with the decline in SNAP and WIC usage. Nearly 14% of

16 Cindy Mann, April Grady, & Allison Orris, Medicaid Payments at Risk for Hospitals Under the Public Charge Proposed Rule, MANATT HEALTH 1, 19 (November 2018) available at (https://www.manatt.com/Manatt/media/Documents/Articles/Medicaid-Payments-at-Risk-for-Hospitals-Under-thePublic-Charge-Proposed-Rule_Manatt-Health_Nov-2018.PDF). 17 America's Essential Hospitals & Manatt Health, Projected Impact of Public Charge Proposal on Hospital Payments (November 2018).
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CCH's adult primary care patients report food insecurity. Cook County has close to 200,000 households with at least one immigrant receiving benefits that provide them with proper nutrition; access to education and job training programs; ability to care for their children; and adequate housing.18 Children who grow up with resulting higher rates of disease and malnutrition will likely need to rely on health care provided by state governments, and thus care provided by CCH, to treat these long-term issues.
102. The Final Rule will reduce the overall economic output of Cook County, as reduced access to healthcare makes the workforce less healthy and productive. Access to affordable health insurance helps workers to enter and remain in the workforce.19 Workers with health insurance miss approximately 75% fewer work days and are more productive at work than their uninsured peers.20
103. Cook County's tax revenues are also likely to decrease substantially as a result of the Final Rule, as eligible immigrants will disenroll from public benefit programs, which in turn will limit their full participation in the workforce and economy. On average, an immigrant in the United States currently pays $900 more per individual in tax revenue than they collect in public expenditures.21 Cook County will be forced to provide additional support to immigrants as a result of the Final Rule with significantly less money due to reduced tax revenues.
18 https://www.regulations.gov/document?D=USCIS-2010-0012-56024 (Cook County President public comment). 19 Larisa Antonisse and Rachel Garfield, The Relationship Between Work and Health: Findings from a Literature Review, Kaiser Fam. Found. (Aug. 7, 2018), https://tinyurl.com/KKFRelationship-work-health. 20 Allan Dizioli and Roberto Pinheiro, Health Insurance as a Productive Factor, 40 Labour Econ. 1-24, (June 2016), https://www.sciencedirect.com /science/article/abs/pii/S0927537116300021 21 Nat'l Academies. Sci., Engineering, Med., The Economic and Fiscal Consequences of Immigration, 524 (2017), https://doi.org/10.17226/23550; Sang V. Nguyen and Alice Zawacki, Health Insurance and Productivity: Evidence from the Manufacturing Sector, Ctr. for Econ. Studies, U.S. Census Bureau, Working Papers (Jan. 2009), https://tinyurl.com/Health-Insur-Productivity.
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104. The Final Rule will also impose significant additional programmatic and administrative burdens on Cook County agencies that administer many of the programs that are included in the public charge analysis or will be implicated by the Final Rule's chilling effect.
105. These agencies will no longer be able to consistently rely on systems in which they have invested to streamline benefits enrollment to ensure individuals can enroll in the variety of programs for which they are eligible.
106. Moreover, these agencies will have to expend time to process increased disenrollment requests and to process fear-based disenrollment followed by subsequent reenrollment.
107. Cook County will also need to undertake significant efforts to train staff and educate the public on the complexities of the Final Rule. CCH has already directed resources to better understanding the rule and creating education materials for staff and patients. Indeed, although DHS significantly underestimates the costs of familiarizing individuals with the Final Rule, it acknowledges these costs exist. 84 Fed. Reg. 41,467 & 41,488.
108. Specific costs CCH will incur to implement the Final Rule include costs for staff training, outreach, preparation of materials, and additional financial counseling and legal services to support its patients. CountyCare, the managed care plan owned by CCH, will similarly experience a negative financial impact related to decreased enrollment and the cost of implementation.
109. The Final Rule creates unnecessary and unwelcome tension between immigrant patients and CCH as a health care provider. It will create fear of registering for programs and reporting to appointments, thereby causing many immigrants to avoid seeking treatment for cases other than emergencies. Inspiring fear and distrust among immigrant communities will
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wreak havoc on one of the country's largest public hospital systems. The likely decline in preventive treatment and increase in costly emergency services will have detrimental effects on the health system for immigrants and non-immigrants alike, including the U.S. citizen minor children of immigrants and these effects will endure for many years to come.
D. The Final Rule's Chilling Effect Frustrates The Mission Of Plaintiff ICIRR And Its Member Organizations And Requires Them To Divert Resources To Address Its Harms.
110. The Final Rule's destructive and discriminatory consequences also will directly and in particular frustrate ICIRR's and its member organizations' missions to provide health and social services to immigrant Illinoisans.
111. ICIRR is a membership-based organization representing nonprofit organizations and social and health service providers throughout Illinois that deliver and seek to protect access to health care, nutrition, housing, and other services for immigrants, including immigrants of color, regardless of their immigration status or financial means.
112. For example, in partnership with the Illinois Department of Human Services, ICIRR operates the Immigrant Family Resource Program, working with 53 partner organizations to educate immigrants about their public benefit eligibility, assist with interpretation at public aid offices, and manage cases of immigrant families who apply for benefits. ICIRR's partner organizations in this Program are paid by reimbursement depending upon what case management and benefits enrollment they are able to offer immigrants.
113. ICIRR also operates the Immigrant Healthcare Access Initiative ("IHAI"), which works to increase access to care and improve health literacy for tens of thousands of low-income uninsured immigrants in Illinois, in order to reduce reliance on emergency room care and to improve overall public health. As a part of that initiative, ICIRR leads the Illinois Alliance for Welcoming Healthcare, where more than 25 providers and 20 organizations throughout the state
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convene to track, discuss, and create health-related best practices in an immigrant context for health providers including hospitals and clinics. ICIRR also leads the Healthy Communities Cook County ("HC3") coalition, which seeks to address and mitigate the barriers to accessing healthcare for the uninsured, regardless of immigration status, through policy and systems change.
114. In the Spring of 2018, in direct response to the anticipated threat of the Proposed and Final Rule and the growing fear and confusion within immigrant communities, ICIRR cofounded the Protecting Immigrant Families-Illinois coalition ("PIF-IL"). PIF-IL was created specifically to: (1) resist the proposed harmful changes to the public charge test; and (2) provide assistance and accurate information to immigrant communities seeking to safely make use of public benefits for which they are eligible. In addition to serving on PIF-IL's Steering and Executive Committees, ICIRR co-chairs its Outreach Subcommittee. As a PIF-IL founding member, ICIRR devotes substantial resources to, among other efforts, educating individuals, service providers, elected officials, and other constituencies about the public charge test and the related rule. ICIRR has also dedicated substantial resources to urging units of local government to adopt resolutions that call upon DHS to immediately withdraw the proposed changes to the rule because of the great harms they have created, and will continue to create.
115. In response to the Final Rule, ICIRR staff have had to re-direct their work planning, budgets, and staff time — amounting to more than 235 hours — away from their proactive mission and towards defensive PIF-IL activities to: (1) educate immigrant communities about the Final Rule in an attempt to prevent immigrant households from foregoing benefits and services out of fear and misunderstanding of the Final Rule; (2) expand their outreach and education to immigrant communities to encourage people unaffected by the Final Rule to
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continue to enroll in TANF, SNAP and Medicaid benefits for which they are eligible; and (3) to train IFRP case managers on public charge so that they can provide accurate information to people concerning the potential impact of public benefits on their potential to adjust. ICIRR estimates a total diversion of staff time and resources to public charge activities in the amount of $100,000 to date, including unplanned overtime, over 50 trainings and other community events. ICIRR will continue to divert a comparable amount of resources in the future to mitigate the harm caused by the Final Rule once implemented.
116. In this manner, the Final Rule has already forced, and will continue to force, ICIRR and its members to divert resources from planned work. As a direct result of the Final Rule, ICIRR was forced to abandon planned activities and divert those resources to educating immigrant communities about the Final Rule and ensuring that immigrant households do not unduly forgo critical services. ICIRR has also provided overtime pay to staff who give public education trainings so that the communities ICIRR serves receive sufficient and accurate information about the Final Rule.
117. Immigrant families who are served by ICIRR and its members have been disenrolling from public benefit programs, such as TANF, SNAP, and Medicaid, since the initial leaks about the proposed Final Rule began in January 2017, based on fears that using those programs, made available to them by federal law, will affect their future immigration relief options. Individuals have refrained and will continue to refrain from seeking health services, food, and other programs for themselves and their children, based on fears that using those benefits will prevent them from adjusting status. If the Final Rule is implemented, ICIRR expects even more immigrants to refrain from seeking Medicaid and other necessary health services, food, and other programs for themselves and their children, based on fears that using those
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benefits will prevent them from adjusting status. Losing access to critical health and nutrition services will have long-term harms for the clients of ICIRR and its member organizations, frustrating the mission of ICIRR and its member organizations.
118. Plaintiff ICIRR and its members also will be forced to continue expending their limited resources to address the broad chilling effect on public benefits enrollment that the Final Rule is designed to have. As a direct result of the Final Rule, ICIRR staff work plans have had to change, and staff have spent considerable time developing fact sheets, slide presentations, and other materials for community members, service providers, immigration attorneys, and other constituencies. ICIRR staff have also spent significant time coordinating with partners to ensure that immigrant families and the agencies that serve them are educated about the Final Rule and to respond to questions about the Final Rule and concerns about enrolling in or remaining enrolled in public benefits. ICIRR has had to forgo time spent on healthcare trainings that inform immigrants about their rights to health care and other public benefits such as SNAP, and has diminished ability to provide individualized assistance to immigrants seeking health care and SNAP consistent with its mission. ICIRR has had to spend time and resources fundraising to support its work responding to the Final Rule, and has had to reallocate existing resources to cover the costs of these new activities in response to the Final Rule, including paying certain staff overtime pay.
119. ICIRR expects this diversion of resources to continue, and likely increase, should the Final Rule go into effect. ICIRR will have to continue to divert considerable resources to responding to concerns of members and immigrant households about the Final Rule because it provides virtually no guidance on difficult decisions such as: (1) whether to pursue public benefits to meet their needs; (2) how to mitigate the Final Rule's negative view of an individual
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who has a medical condition and/or disability; (3) how to mitigate the Final Rule's negative treatment of an individual of limited English proficiency; (4) how to mitigate the Final Rule's negative treatment of an individual who, despite working full-time, has household income less than 125 percent of the federal poverty guideline; (5) whether to spend money on necessities or to allocate earnings to asset building; (6) whether to choose to leave the United States or live apart from their spouse as a result of the public charge's new weighted factors of the public charge test;22 or even (7) whether to have another child or welcome a family member into their household since adding the financial responsibility of an additional family member under the Final Rule may jeopardize their ability to pursue a permanent place in the United States.
120. The amount of resources marshaled to this issue are causing and will continue to cause ICIRR and its members to serve fewer clients and work less on issues connected to their mission, and instead spend time and resources challenging and responding to the harmful effects of the Final Rule.
121. Indeed, within ICIRR's Immigrant Family Resource Program, declines in immigrant public benefits enrollment have already occurred. These declines have in turn strained the resources of the Program because it is funded on a reimbursement model. ICIRR and the Immigrant Family Resource Program are at the same time facing an overwhelming increase in requests for assistance with disenrollment.
122. Additionally, because Plaintiff ICIRR receives a portion of the grant funding and its partner organizations receive per person funding for enrollment and case management in TANF, SNAP, and Medicaid, they face the loss of reimbursement as a result of declining
22 In the analysis of one public commenter, 54% of foreign-born spouses who are currently eligible for green cards would become ineligible under the Rule's higher income threshold. Paul Hughes, Boundless Immigration Inc., Comment Letter on Proposed Final Rule on Inadmissibility on Public Charge Grounds, 48 (Dec. 10, 2018), https://www.regulations.gov/document?D=USCIS-2010-0012-50974.
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enrollment directly caused by the Final Rule. Additionally, case managers at ICIRR and its member organizations have had to increase their outreach and education to immigrant communities to still encourage them to enroll in TANF, SNAP, and Medicaid. ICIRR and its members also have had to train case managers on public charge so that they can provide accurate information to clients concerned that the receipt of public benefits will deem them a public charge.
123. In June 2019, ICIRR conducted a survey of its members to document the impact of the Final Rule on its members and the individuals they serve. From responses to that survey, ICIRR ascertained the substantial harms of the Final Rule for ICIRR and its members. These harms are evidenced in the experiences of the Immigrant Migrant Council, a member of ICIRR that works to enroll immigrants in public benefits programs. On a monthly basis, the Immigrant Migrant Council has seen 21 to 30 of its clients disenroll from SNAP, Medicaid, and WIC out of fear that proposed changes to the public charge doctrine will harm their immigration status and options. To deal with the fallout from the Final Rule's promulgation, the Immigrant Migrant Council has had to devote three staff members to spending ten hours per week on public charge.
124. YWCA Northwestern Illinois is another member of ICIRR that has experienced and will continue to experience direct harm due to the chilling effect of the Final Rule and prior proposals. YWCA Northwestern Illinois assists clients with public benefits such as TANF, SNAP, and Medicaid. On a monthly basis, the YMCA has had clients withdraw from or choose not to apply for public benefits as a result of proposed public charge changes. To deal with this fallout, staff members at YWCA Northwestern Illinois have had to spend additional time explaining public charge to their clients and have faced additional difficulties when assisting
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immigrants who wish to access public benefits to improve their chances to gain or sustain employment.
125. Erie Neighborhood House is a member of ICIRR that has experienced and will continue to experience direct harm due to the chilling effect of the Final Rule. Erie Neighborhood House assists clients with public benefits such as SNAP and Medicaid and, on a monthly basis, has had clients withdraw from or choose not to apply for SNAP or Medicaid (for themselves and their children) as a result of proposed public charge changes. Erie Neighborhood House has had five staff members devote approximately five hours per week to dealing with the fallout from the Final Rule and prior proposals, for a total of about 1,000 staff hours thus far.
126. HANA Center is another member of ICIRR that has experienced and will continue to experience direct harm due to the Final Rule. HANA Center's mission is to empower Korean American, immigrant, and multi-ethnic communities through social services, education, culture, and community organizing to advance human rights. HANA Center assists clients with benefits enrollment issues including for SSI, WIC, SNAP, Medicaid, CHIP, MSP, LIS, LIHEAP, Weatherization, and Unemployment Compensation. On a monthly basis, HANA Center clients have been withdrawing from or choosing not to enroll in benefits. Because of the Final Rule, the HANA Center has had to cut programs and services, such as its Breast Cancer Early Detection Program, so that its staff can spend more time working to address client concerns about the Final Rule. Additionally, in the HANA Center's Senior Health and Public Benefit Department, staff workloads have increased by 20% due to time spent in trainings and meetings, and answering client questions regarding the Final Rule.
127. Hispanic American Community Education and Services ("HACES") is a member of ICIRR that has experienced and will continue to experience direct harm due to the
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promulgation of the Final Rule. HACES's mission as an organization is to assist immigrant community members with achieving their individual and collective goals to foster their prosperity and harmony with the larger community as a whole. HACES assists clients with public benefits programs and has seen 11 to 20 clients each month disenroll from or choose not to enroll in Medicaid, SNAP, WIC, TANF, or subsidized housing due to proposed public charge changes. To deal with the fallout from the Final Rule's promulgation, HACES has had to have at least three staff members spend extra time conducting outreach and educational sessions to inform the community about the Final Rule.
128. The Final Rule will frustrate ICIRR's mission by directly restricting the number of immigrants from majority non-white countries who will be able to adjust to lawful permanent resident status or maintain or change their non-immigrant immigration status due to the public charge test, thus eliminating essential pathways for this population to obtain lawful permanent resident status.
129. ICIRR also has clients who receive Medicaid, SNAP, and other public benefits. ICIRR will be forced to divert its resources to combat the chilling effects and discriminatory message of the Regulation, forcing the organization to spend less time on its other areas of work and to reduce the overall number of projects the organization can take on.
130. As a direct result of Defendants' actions, ICIRR has had to withdraw staff resources from its Healthy Communities Cook County coalition to address the harmful effects of the Final Rule, reducing the progress the coalition has been able to make in expanding access to health coverage in Cook County. ICIRR expects this resource re-direction to continue in the future.
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131. ICIRR has also had to withdraw staff resources from the Alliance from Welcoming Healthcare in order to deploy those resources to combat the impact of the Final Rule and expects this diversion to continue in the future.
E. The Final Rule's Weighted Circumstances Test Discriminates Against Immigrants Of Color.
132. The Final Rule will disproportionately disqualify non-white immigrants from adjusting their status. In 2016, 25.9 million non-citizen immigrants earned less than 250 percent of the federal poverty guidelines.23 Of those, just under 90 percent were non-white (23.3 million).24 The disproportional impact is even clearer when examining the percentage of each race or ethnicity that earns more than 250 percent of the federal poverty guidelines, a heavily weighted positive factor under the Final Rule. White non-citizen immigrants had the highest percentage at 58.5 percent attaining or exceeding 250 percent of the federal poverty guideline. Asian immigrants followed at 56.3 percent, then Black immigrants at 38.8 percent, and Latinos immigrants at 24.9 percent. Id.
133. In 2017, under the Field Guidance, DHS reported that approximately 50.8 percent of people gaining legal permanent resident status through family re-unification bases came from majority-non-white regions. The Final Rule will overwhelmingly harm non-white immigrants. Of the 25.9 million immigrants who will be affected by the Final Rule, 23.3 million are nonwhite.

23 Office of Immigration Statistics, U.S. Dep't of Homeland Sec., 2017 Yearbook of Immigration Statistics 27 tbl. 10

(July 2019), https://www.dhs.gov/sites/default/files/publications/yearbook_immigration_statistics_2017_0.pdf 24 Custom Tabulation by Manatt Phelps & Philips LLP, Public Charge Proposed Rule: Potentially Chilled

Population Data Dashboard, (Oct. 11, (2018), https://www.manatt.com/Insights/Articles/2018/Public- Charge-Rule-

Potentially-Chilled-Population (using 2012-2016 5-Year American Community Survey Public Use Microdata

Sample (ACS/PUMS); 201220162012-201620122016 5-Year American Community Survey (ACS) estimates

accessed via American FactFinder; Missouri Census Data Center (MCDC) MABLE PUMA-County Crosswalk

24 Randy Capps, Mark Greenberg, Michael Fix & Jie Zong, Gauging the Impact of DHS' Proposed Public-Charge

Rule

on

U.S.

Immigration,

MIGRATION

POL'Y

INST.,

9

(Nov.

2018),

https://www.migrationpolicy.org/research/impactdhs-public-charge-rule-immigration

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134. Cook County residents are racially diverse. Of its over 5 million people, 1.2 million are African American, 1.3 million are Latino, and about 500,000 are Asian, American Indian, or multiracial. Cook County is home to more than one million immigrants, integrated in every city, township, neighborhood and community. As with the rest of Illinois, the most common origins of these residents are Mexico and India.
135. CCH patients likewise represent the demographics of the County. CCH's diverse patient body identifies as approximately 51 percent African-American/Black and 32 percent Hispanic/Latino.
136. The Final Rule's weighted circumstances test favors white immigrants, and thus disfavors non-white immigrants. Sixty percent of green card applicants from Mexico and Central America and 41 percent from Asia between 2014 and 2016 had two or more negative factors, whereas only 27 percent of immigrants from Europe, Canada, and Oceania (primarily Australia and New Zealand) have two or more negative factors.25 Immigrants from Europe, Canada, and Oceania are the least likely to be affected by the Final Rule's changes to public charge because they are generally wealthier, more educated, and more likely to speak English. Of the seven countries with the highest rates of English proficiency, six are in Europe and none is in Latin America or Africa. Conversely, none of the 24 countries with the lowest rates of English proficiency is in Europe, while all but one are in Latin America, Africa, or the Middle East.26 In fact, immigrants from regions with predominantly white populations have the highest proportion of recent lawful permanent residents with family income above 250 percent of the federal poverty guideline.

25 Randy Capps, Mark Greenberg, Michael Fix & Jie Zong, Gauging the Impact of DHS' Proposed Public-Charge

Rule

on

U.S.

Immigration,

MIGRATION

POL'Y

INST.,

9

(Nov.

2018),

https://www.migrationpolicy.org/research/impactdhs-public-charge-rule-immigration

26

Education

First,

EF

English

Proficiency

Index

at

6–7

(2018),

https://www.ef.edu/__/~/media/centralefcom/epi/downloads/full-reports/v8/ef-epi-2018-english.pdf.

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137. Through their actions described above, Defendants have acted in contravention of federal law.
138. Defendants' actions have caused and will continue to create a severe hardship for Plaintiffs.
139. Plaintiffs have no adequate remedy at law. LEGAL CLAIMS
COUNT I -VIOLATION OF ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. §706
EXCEEDS STATUTORY AUTHORITY (Plaintiffs Cook County and ICIRR against all Defendants) 140. Plaintiffs repeat and incorporate by reference each allegation contained in the preceding paragraphs of this Complaint. 141. The Administrative Procedure Act prohibits agency action that is "in excess of statutory jurisdiction, authority or limitations, or short of statutory right." 5 U.S.C. § 706(2)(C). 142. Defendants may only exercise the authority conferred by statute. City of Arlington v. FCC, 569 U.S. 290, 297-98 (2013). 143. Defendants have exceeded their statutory authority as follows. 144. First, the Final Rule exceeds its authorizing statute, section 212 of the INA, 8 U.S.C. §1182. The Final Rule's novel and expanded definition of "public charge" is contrary to the unambiguous, plain, and well-settled meaning of that phrase as Congress, federal courts, and federal agencies have interpreted and applied it since 1882. As a result of this rewriting of the definition of "public charge," the Final Rule impermissibly prevents from adjusting their status immigrants that are not subject to exclusion under the statutory definition of "public charge." The INA does not expressly or impliedly permit DHS to expand its authority in this regard. Similarly, the Final Rule's adoption of a weighted circumstances test contradicts with the INA's
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requirement that an adjudicator consider an individual's "totality of circumstances" when making a public charge determination.
145. Second, the Final Rule exceeds Defendants' statutory authority by mandating consideration of an applicants' use of non-cash benefits programs as permitted by Federal law, such as food supplements, public health insurance, and housing assistance in a public charge determination in contradiction of Congressional intent.
146. Because the Final Rule exceeds its statutory jurisdiction, authority, and limitations, and falls short of providing the rights the relevant statutes provide, it is invalid and prohibited by the APA, 5 U.S.C. § 706(2)(C).
147. Defendants' violation is causing ongoing harm to Plaintiffs. COUNT II -VIOLATION OF ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. §706 NOT IN ACCORDANCE WITH LAW (Plaintiffs Cook County and ICIRR against all Defendants)
148. Plaintiffs repeat and incorporate by reference each allegation contained in the preceding paragraphs of this Complaint.
149. Under the APA, a court must set "aside agency action" that is "not in accordance with law." 5 U.S.C. § 706(2)(A).
150. The Final Rule's public charge definition and weighted circumstances test contravenes Section 504 of the Rehabilitation Act of 1973 which says that no person with a disability shall, on the basis of disability, "be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency . . . ." 29 U.S.C. §794(a).
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151. The Final Rule's novel and broad public charge definition contravenes the PRWORA by placing qualifications on LRP and immigrant access to Federal public benefits specifically permitted by the PRWORA. The PRWORA specifically provides that "a State is authorized to determine the eligibility of an alien . . . for any designated Federal program." 8 U.S.C. § 1612(b)(1).
152. The Final Rule's public charge definition is also contrary to the IIRIRA, specifically sections 531 and 551, as evidenced by Congress' consideration and rejection of provisions very similar to the Final Rule when passing the Act. 8 U.S.C. §1182, 1183(a).
153. The Final Rule violates the SNAP statute which prohibits Defendants from considering SNAP benefits as "income or resources for any purpose under any Federal…laws…." 7 U.S.C. § 2017(b).
154. The Final Rule is prohibited by the APA because it contravenes the statutes listed in this Count in addition to the INA itself. The term public charge in the INA reflects the original meaning of the term as one who is "primarily and permanently dependent" on the government for subsistence. The Final Rule's redefinition of public charge contravenes INA sections 212(a)(4), 202(a)(1), and 212 (a)(1). 8 U.S.C. § 1152, 1182 (a)(1), (4).
155. Defendants' violation is causing ongoing harm to Plaintiffs. COUNT III – VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT,
5 U.S.C. § 706 ARBITRARY AND CAPRICIOUS (Plaintiffs Cook County and ICIRR against all Defendants) 156. Plaintiffs repeat and incorporate by reference each allegation contained in the preceding paragraphs of this Complaint.
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157. The APA states that a court must "hold unlawful and set aside" agency action that is "arbitrary, capricious, [or] an abuse of discretion." 5 U.S.C. § 706(2)(C).
158. The Final Rule is arbitrary and capricious because Defendants have failed to meet their burden to reasonably justify the unprecedented definition of Public Charge which departs from decades of prior law and settled practice. When an agency substantially alters a position, it must "supply a reasoned analysis for the change," Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co. (State Farm), 463 U.S. 30, 42 (1983), and may not "depart from a prior policy sub silentio or simply disregard rules that are still on the books." FCC v. Fox TV Stations, Inc., 556 U.S. 502, 515 (2009) (citing United States v. Nixon, 418 U.S. 683, 696 (1974)).
159. The Final Rule is arbitrary and capricious because Defendants have not provided a reasoned response to significant public comments regarding extensive public health, economic, and other economic harms. State Farm, 463 U.S. at 42. DHS must consider the advantages and disadvantages of a proposal before issuing a final rule.
160. The Final Rule is arbitrary and capricious because it does not quantify harm to public health, state or local economies, or other administrative burdens or adequately address the harms alleged in the record.
161. The Final Rule is arbitrary and capricious because despite receiving overwhelming evidence of its extensive chilling effect, Defendants failed to make any changes that would reduce disenrollment of individuals who are not subject to the rule including citizens and humanitarian immigrants.
162. The Final Rule is arbitrary and capricious because it rejects Congress' established immigration policy of promoting family unity in favor of policies Congress has already rejected.
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163. The Final Rule is arbitrary and capricious because it relies on factors Congress intended that Defendant DHS should not consider, including non-cash benefits, and disregards material facts and evidence.
164. The Final Rule is arbitrary and capricious because it discriminates against individuals with disabilities and does not address the Rule's conflict with Section 504 of the Rehabilitation Act.
165. The Final Rule is arbitrary and capricious because it impermissibly overhauls the statutory "totality of the circumstances" test with a "weighted factors" test that is vague, arbitrary, unsupported by the evidence and that will inevitably lead to inconsistent, arbitrary and discriminatory public charge determinations.
166. The Final Rule is arbitrary and capricious because it is pretext for discrimination. While the Final Rule purports to identify individuals who will be public charges, its adoption of factors that bear no reasonable relationship to that inquiry demonstrates Defendants' intent to reduce immigration by immigrants of color.
167. The Final Rule is arbitrary and capricious because Defendants have failed to consider the racially disparate impact of the Regulation.
168. Defendants' actions are thus arbitrary and capricious, within the meaning proscribed by 5 U.S.C. §§ 705 and 706.
169. Defendants' violation is causing ongoing harm to Plaintiffs.
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COUNT IV– VIOLATION OF THE FIFTH AMENDMENT, EQUAL PROTECTION, U.S. CONST. AMEND. V
DISCRIMINATION AGAINST NON-WHITE IMMIGRANTS (Plaintiff ICIRR against All Defendants)
170. Plaintiff ICIRR repeats and incorporates by reference each allegation contained in the preceding paragraphs of this Complaint.
171. The Due Process Clause of the Fifth Amendment prohibits the Defendants from denying equal protection of laws to persons residing in the United States. The Fifth Amendment also prohibits Defendants from acting with an intent or purpose of racial animus even if Defendants' action is facially neutral.
172. Defendants were motivated by "discriminatory purpose" to disparately impact immigrants of color and Latinos when they promulgated the Final Rule. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977).
173. Defendants not only knew of that disparate impact, but that impact is also consistent with the intent made plain by the Administration's repeated public statements in support of a broader agenda to vilify immigrants from majority non-white countries and to suppress immigration and those seeking citizenship from those countries. This agenda has manifested in other forms such as repeated statements that Haiti, El Salvador, and unspecified African nations are "s***hole countries."27 President Trump has described Mexican immigrants as "drug dealers, criminals, rapists"28 and migrants from Central America as "animals,"29 claimed
27 Clark Mindock, Donald Trump referred to Haitians and Africans as coming from s***hole countries,' says report, INDEPENDENT (Jan. 11 2018) available at https://www.independent.co.uk/news/world/americas/us-politics/trumpshithole-countries-haiti-africa-latest-report-comments-a8154666.html. 28 Alexander Burns, Choice Words From Donald Trump, Presidential Candidate, N.Y. TIMES (June 16, 2015), https://www.nytimes.com/politics/first-draft/2015/06/16/choice-words-from-donald-trump-presidential-candidate. 29 Gregory Korte & Alan Gomez, Trump ramps up rhetoric on undocumented immigrants: 'These aren't people. These are animals.' USA TODAY, https://www.usatoday.com/story/news/politics/2018/05/16/trump-immigrantsanimals-mexico-democrats-sanctuary-cities/617252002/ (last updated May 17, 2018).
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that 15,000 recent immigrants "all have AIDS,"30 and stated that 40,000 Nigerians would never "go back to their huts" in Africa after seeing the United States.31
174. Other senior officials within the administration and at DHS, including the officials
responsible for implementing the Final Rule, have expressed similar statements. On August 13,
2019, one day after announcing the Final Rule, Defendant Cuccinelli stated that the Emma
Lazarus quote on the Statue of Liberty, welcoming immigrants to the U.S. (addressing "your
tired, your poor, Your huddled masses yearning to breathe free"), was only meant to refer to "people coming from Europe."32
175. On October 23, 2018, Defendant Cuccinelli has also described immigrants
crossing the southern border, immigrants who are overwhelming Latino and of color, as "an invasion."33
176. In January 2019, Acting Director of U.S. Immigration and Customs Enforcement
Mark Morgan re-enforced Defendants' vilification of immigrants of color as "criminals" when he
said of children detained at the southern border, "I've been to detention facilities where I've
walked up to these individuals that are so-called minors, 17 or under. I've looked at them I've
looked at their eyes … and I've said that is a soon-to-be MS-13 gang member. It's unequivocal."34
30 Michael Shear & Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, N.Y. TIMES (Dec. 23, 2017), https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html. 31 Id. 32 Zeke Miller & Ashley Thomas, Trump official: Statute of Liberty poem refers to Europeans, ASSOCIATED PRESS (Aug. 14, 2019), https://www.msn.com/en-nz/news/world/trump-official-statue-of-liberty-poem-refers-toeuropeans/ar-AAFMp57. 33 John Binder, Exclusive--Ken Cucinelli: States Can Stop Migrant Caravan 'Invasion' with Constitutional 'War Powers,' Breitbart (October 23, 2018) available at https://www.breitbart.com/politics/2018/10/23/exclusive-kencuccinelli-states-can-stop-migrant-caravan-invasion-with-constitutional-war-powers/. 34 Ted Hesson, Trump's pick for ICE Director: I can tell which migrant children will become gang members by looking into their eyes, Politico (May 16, 2019) available at https://www.politico.com/story/2019/05/16/markmorgan-eyes-ice-director-1449570.
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177. In further denigration of immigrants of color, President Trump and the
Defendants have also repeatedly and falsely characterized this class of immigrants as a poor,
welfare-reliant, drain on society.
178. On June 21, 2017, President Trump demanded the need for "new immigration
rules which say those seeking admission into our country must be able to support themselves
financially and should not use welfare for a period of at least five years…" even though immigrants are already held to this standard.35
179. Speaking in support of the RAISE Act, a bill that would decrease the population
of Latino immigrants and other immigrants of color in the United States by restricting family-
based visas, President Trump stated that the bill would ensure that immigrants were "not going to come in and just immediately go and collect welfare."36
180. During a press conference on August 2, 2017, President Trump's Senior Policy
Advisor on immigration and the alleged architect of the Final Rule, Stephen Miller, falsely
charged that "roughly half of immigrant head of households in the United States receive some type of welfare benefit."37 But research has shown that poor immigrant household use less welfare than poor non-immigrant households.38 At the same press conference, Miller went on to
falsely state that the United States "issue[s] a million green cards to foreign nationals from all the
35 Michelle Mark, Trump called for legislation blocking immigrants from receiving welfare for 5 years -- but it already exists, Business Insider, (June 22, 2017) available at https://www.businessinsider.com/trump-called-forlegislation-blocking-immigrants-from-receiving-welfare-for-5-years-but-it-already-exists-2017-6; 8 U.S.C.S. §1612. 36 Alexia Fernandez Campbell, Poor immigrants are the least likely group to use welfare, despite Trump's claims, VOX (Aug. 4, 2017) available at https://www.vox.com/policy-and-politics/2017/8/4/16094684/trump-immigrantswelfare. 37 Press Briefing, White House, Press Briefing by Press Secretary Sarah Sanders and Senior Policy Advisor Stephen Miller (Aug. 2, 2017) available at https://www.whitehouse.gov/briefings-statements/press-briefing-press-secretarysarah-sanders-senior-policy-advisor-stephen-miller-080217/. 38 Alex Nowrasteh, CIS Exaggerates the Cost of Immigration Welfare Use, CATO Inst. (May 10, 2016), https://www.cato.org/blog/cis-exaggerates-immigrant-welfare-use.
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countries of the world" without regard to "whether they can pay their own way or be reliant on
welfare."39
181. Defendants have also adopted a long list of policies aimed at discriminating
against and excluding immigrants of color and Latino immigrants, including:
• Ended the Deferred Action for Childhood Arrivals Program, which protects
approximately 800,000 individuals, predominantly from Latin American
countries, from deportation proceedings;40
• Attempted to bar people arriving at the Southern border from claiming asylum
in violation of United States law;41
• Terminated special protections from removal for migrants from nations
experiencing war and natural disasters, including Nicaragua, Honduras, Haiti
and El Salvador;42
39Press Briefing, supra, note 44. 40 Mike Lillis, Rafael Bernal, and Rebecca Savransky, Trump rescinding DACA program, The Hill (Sep. 5, 2017) available at https://thehill.com/latino/348848-sessions-says-DACA-to-end-in-six-months. See Statement on the Deferred Action for Childhood Arrivals Policy, Daily Comp. Pres. Doc. 201700 (Sept. 5, 2017), available at https://www.govinfo.gov/content/pkg/DCPD-201700609/pdf/DCPD-201700609.pdf. 41 Richard Gonzales, Trump Administration Faces 2 Legal Challenges For Asylum Restrictions, NPR (Nov. 19, 2018) available at https://www.npr.org/2018/11/19/668824846/trump-administration-faces-2-legal-challenges-forasylum-restrictions; Daniella Silva, Julia Ainsley, Pete Williams, & Geoff Bennett, Trump administration moves to end asylum protections for most Central American migrants, NBC NEWS, https://www.nbcnews.com/news/usnews/trump-administration-moves-end-asylum-protections-most-central-american-migrants-n1029866 (last updated July 15, 2019, 9:51 AM); Ted Hesson & Josh Gerstein, DOJ restricts asylum claims based on family relations, POLITICO, https://www.politico.com/story/2019/07/29/doj-asylum-claims-family-relations-1624028 (last updated July 29, 2019, 3:49 PM); Katie Benner & Caitlin Dickerson, Sessions Says Domestic and Gang Violence Are Not Grounds for Asylum, N.Y. TIMES (June 11, 2018), https://www.nytimes.com/2018/06/11/us/politics/sessionsdomestic-violence-asylum.html. 42 Alan Gomez, The six countries 300,000 immigrants must return to with end of TPS program, USA Today (Oct. 15, 2018) available at https://www.usatoday.com/story/news/world/2018/10/15/six-countries-300-000-immigrantsmust-return-end-tps/1112581002/. See Termination of the Designation of El Salvador for Temporary Protected Status, 83 Fed. Reg. 2,654 (Jan. 18, 2018); Termination of the Designation of Haiti for Temporary Protected Status, 83 Fed. Reg. 2,648 (Jan. 18, 2018); Termination of the Designation of Honduras for Temporary Protected Status, 83 Fed. Reg. 26,074 (June 5, 2018); Termination of the Designation of Nepal for Temporary Protected Status, 83 Fed. Reg. 23,705 (May 22, 2018); Termination of the Designation of Nicaragua for Temporary Protected Status, 82 Red. Reg. 59,636 (Dec. 15, 2017); Termination of the Designation of Sudan for Temporary Protected Status, 82 Fed. Reg. 47,228 (Oct. 11, 2017).
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• Sought to suspend or terminate federal funding to jurisdictions who offered
sanctuary to undocumented immigrants and refused to participate in federal immigration enforcement efforts;43
• Diverted federal funds, including Federal Emergency Management Agency
dollars needed to respond to an increasing number of natural disasters, to fund border security programs;44
• Adopted policies that separate minor children from their families who enter the United States at the U.S. - Mexico border;45
• Argued in court that the federal government should not be required to give
detained migrant children toothbrushes, soap, towels, showers, or beds inside
Border Patrol detention facilities;46 and
• Proposed a rule that would block households with undocumented
members from obtaining federally subsidized housing assistance.47
182. On information and belief, Defendants knew that the Final Rule would have a
disparate impact on Latino immigrants and immigrants of color, based at a minimum on
comments provided on the Proposed Rule. Defendants intend to target Latino immigrants and
43 Martin Kaste, Trump Threatens 'Sanctuary' Cities With Loss of Federal Funds, NPR (Jan. 26, 2017) available at https://www.npr.org/sections/thetwo-way/2017/01/26/511899896/trumps-threatens-sanctuary-cities-with-loss-offederal-funds. 44 Catilin Emma, DHS to siphon $155M in disaster aid to bolster immigration enforcement, Politico (Aug. 27, 2019) available at https://www.politico.com/story/2019/08/27/dhs-disaster-aid-immigration-1686247. 45 Julie Hirschfield Davis and Michael D. Shear, How Trump Came to Enforce a Practice of Separating Migrant Families, NY Times (June 16, 2018) available at https://www.nytimes.com/2018/06/16/us/politics/familyseparation-trump.html. See also Michael Scherer & Josh Dawsey, Trump cites as a negotiating tool his policy of separating immigrant children from their parents, WASHINGTON POST (June 15, 2018), https://www.washingtonpost.com/politics/trump-cites-as-a-negotiating-tool-his-policy-of-separating-immigrantchildren-from-their-parents/2018/06/15/ade82b80-70b3-11e8-bf86-a2351b5ece99_story.html?noredirect=on. 46 Meagan Flynn, Detained migrant children got no toothbrush, no soap, no sleep. It's no problem, government argues, Washington Post (June 21, 2019) available at https://www.washingtonpost.com/nation/2019/06/21/detainedmigrant-children-no-toothbrush-soap-sleep/. 47 Katy O'Donnell, HUD moves to crack down on undocumented immigrants in public housing, Politico (Apr. 18, 2019) available at https://www.politico.com/story/2019/04/18/hud-immigrants-public-housing-1367559.
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immigrants of color with the Final Rule, as part of their broader effort to reduce immigration by people of color into the United States.
183. Defendants use facially neutral but pre-textual concerns about self-sufficiency in an effort to cloak their discriminatory intent against non-white people. Although people of color account for approximately 36% of the total U.S. population, approximately 90% of those chilled from seeking public services would be immigrants of color (70% of whom are Latino).48
184. The purpose of the Final Rule is to discriminate against non-white immigrants. Defendants knew that the Final Rule would have a targeted, disproportionate impact on people from non-white countries. The Final Rule departs from rulemaking history and procedure as part of a pattern and practice of discriminatory animus towards non-European immigrants.
185. Thus, the Final Rule violates the right to equal protection under the law of noncitizen immigrants of color and Latino immigrants from majority non-white countries.
186. ICIRR has a central interest in promoting and fully integrating immigrants into society, which the Final Rule and the Defendants' actions and statements dramatically undermine and frustrate. The majority of immigrant communities ICIRR serves in Illinois are immigrants of color and Latino immigrants from majority non-white countries.
187. Due to the broad agenda of this administration to discriminate against and instill fear in Latino immigrants and immigrants from majority non-white countries, immigrants likely impacted by the Final Rule are not only chilled from accessing public benefits they may be entitled to, but to challenging the Final Rule. The interests of directly impacted immigrants of color and Latino immigrants are however closely aligned with ICIRR.
188. Defendants' violation is causing ongoing harm to ICIRR.
48 Public Charge Proposed Rule: Potentially Chilled Population Data, Manatt, Phelps & Phillips, LLP (Oct. 11, 2018).
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JURY DEMAND Plaintiff Illinois Coalition for Immigrant and Refugee Rights demands a jury trial on Count IV.
PRAYER FOR RELIEF WHEREFORE, with respect to Counts I-III, Plaintiffs Cook County, Illinois, and Illinois Coalition for Immigrant and Refugee Rights pray that this Court: 1. Declare that the actions of the Defendants are arbitrary, capricious, and otherwise not
in accordance with the law and without observance of procedure required by law in violation of the Administrative Procedure Act, 5 U.S.C. § 706. 2. Declare the Final Rule unlawful and invalid as a violation of the Administrative Procedure Act, of section 504 of the Rehabilitation Act. 3. Enter a preliminary and permanent injunction, without bond, enjoining Defendants, their officials, agents, employees, and assigns from implementing or enforcing the Final Rule in the State of Illinois. 4. Stay the implementation or enforcement of the Final Rule in the State of Illinois. 5. Award Plaintiffs reasonable attorneys' fees and costs pursuant to 28 U.S.C. § 2412; and 6. Order such other relief as the Court deems just and equitable. With respect to Count IV, Plaintiff Illinois Coalition for Immigrant and Refugee Rights prays that this Court: 1. Declare the Final Rule unlawful and invalid as a violation of the Fifth Amendment of the United States Constitution.
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2. Enter a permanent injunction, without bond, enjoining Defendants, their officials, agents, employees, and assigns from implementing or enforcing the Final Rule in the State of Illinois.
3. Stay the implementation or enforcement of the Final Rule in the State of Illinois. 4. Award Plaintiffs reasonable attorneys' fees and costs pursuant to 28 U.S.C. § 2412;
and 5. Order such other relief as the Court deems just and equitable.

Dated: September 23, 2019
KIMBERLY M. FOXX Cook County Illinois State's Attorney

Respectfully submitted,
COOK COUNTY, ILLINOIS
By /s/ Jessica M. Scheller Jessica M. Scheller, Assistant State's Attorney Chief; Advice, Business & Complex Litigation Division Lauren Miller, Special Assistant State's Attorney Civil Actions Bureau 500 W. Richard J. Daley Center Place, Suite 500 Chicago, IL 60602 Phone: (312) 603-6934 Phone: (312) 603-4320 Jessica.Scheller@cookcountyil.gov Lauren.Miller@cookcountyil.gov
/s/ David E. Morrison David E. Morrison Steven A. Levy A. Colin Wexler Takayuki Ono Juan C. Arguello Goldberg Kohn Ltd. Special Assistant State's Attorneys 55 E. Monroe St., Suite 3300 Chicago, IL 60603 Phone: (312) 201-4000 Fax: (312) 332-2196 david.morrison@goldbergkohn.com steven.levy@goldbergkohn.com colin.wexler@goldbergkohn.com takayuki.ono@goldbergkohn.com juan.arguello@goldbergkohn.com
Counsel for Cook County, Illinois

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Case: 1:19-cv-06334 Document #: 1 Filed: 09/23/19 Page 60 of 61 PageID #:1
ILLINOIS COALITION FOR IMMIGRANT AND REFUGEE RIGHTS, INC.
By /s/ David A. Gordon David A. Gordon Tacy F. Flint Sidley Austin LLP One South Dearborn Street Chicago, IL 60603 (312) 853-7000 (Telephone) (312) 853-7036 (Facsimile) dgordon@sidley.com tflint@sidley.com
Yvette Ostolaza (pro hac vice forthcoming) Texas Bar No. 00784703 Robert S. Velevis (pro hac vice forthcoming) Texas Bar No. 24047032 SIDLEY AUSTIN LLP 2021 McKinney Ave, Suite 2000 Dallas, Texas 75201 (214) 981-3300 (Telephone) (214) 981-3400 (Facsimile) Yvette.ostolaza@sidley.com rvelevis@sidley.com
Caroline Chapman Meghan P. Carter Shelmun Dashan LEGAL COUNCIL FOR HEALTH JUSTICE 17 N. State, Suite 900 Chicago, IL 60602 Phone: (312) 605-1958 Fax: 312-427-8419 cchapman@legalcouncil.org mcarter@legalcouncil.org sdashan@legalcouncil.org
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Katherine E. Walz Gavin M. Kearney Andrea Kovach Militza M. Pagan SHRIVER CENTER ON POVERTY LAW 67 E. Madison, Suite 2000 Chicago, IL 60603 Phone: (312) 368-2679 Fax: (312) 263-3846 katewalz@povertylaw.org gavinkearney@povertylaw.org andreakovach@povertylaw.org militzapagan@povertylaw.org Counsel for Illinois Coalition For Immigrant and Refugee Rights, Inc.
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 Case: 1:19-cv-06334 Document #: 86 Filed: 10/14/19 Page 1 of 33 PageID #:1450

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

COOK COUNTY, ILLINOIS, an Illinois governmental )

entity, and ILLINOIS COALITION FOR IMMIGRANT )

AND REFUGEE RIGHTS, INC.,

)

)

Plaintiffs,

)

)

vs.

)

)

KEVIN K. McALEENAN, in his official capacity as

)

Acting Secretary of U.S. Department of Homeland

)

Security, U.S. DEPARTMENT OF HOMELAND

)

SECURITY, a federal agency, KENNETH T.

)

CUCCINELLI II, in his official capacity as Acting

)

Director of U.S. Citizenship and Immigration Services, )

and U.S. CITIZENSHIP AND IMMIGRATION

)

SERVICES, a federal agency,

)

)

Defendants.

)

19 C 6334 Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

In this suit under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.,

Cook County and Illinois Coalition for Immigrant and Refugee Rights, Inc. (“ICIRR”) challenge

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

Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (to be codified at 8 C.F.R. pt. 103,

212-14, 245, 248). Doc. 1. The Final Rule has an effective date of October 15, 2019. Cook

County and ICIRR move for a temporary restraining order and/or preliminary injunction under

Civil Rule 65, or a stay under § 705 of the APA, 5 U.S.C. § 705, to bar DHS (the other

defendants are ignored for simplicity’s sake) from implementing and enforcing the Rule in the

State of Illinois. Doc. 24. At the parties’ request, briefing closed on October 10, 2019, and oral

argument was held on October 11, 2019. Docs. 29, 81. The motion is granted, and DHS is

enjoined from implementing the Rule in the State of Illinois absent further order of court.

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Background Section 212(a)(4) of the Immigration and Nationality Act (“INA”) states: “Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” 8 U.S.C. § 1182(a)(4). The public charge provision has a long pedigree, dating back to the Immigration Act of 1882, ch. 376, §§ 12, 22 Stat. 214, 214, which directed immigration officers to refuse entry to “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” The provision has been part of our immigration laws, in various but nearly identical guises, ever since. See Immigration Act of 1891, ch. 551, 26 Stat. 1084, 1084; Immigration Act of 1907, ch. 1134, 34 Stat. 898, 899; Immigration Act of 1917, ch. 29 § 3, 39 Stat. 874, 876; INA of 1952, ch. 477, § 212(a)(15), 66 Stat. 163, 183; Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, § 531(a), 110 Stat. 3009-546, 3009-674-75 (1996). Prior to the rulemaking resulting in the Final Rule, the federal agency charged with immigration enforcement last articulated its interpretation of “public charge” in a 1999 field guidance document. Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689 (May 26, 1999). The field guidance defined a “public charge” as a person “primarily dependent on the government for subsistence,” and instructed immigration officers to ignore non-cash public benefits in assessing whether an individual was “likely at any time to become a public charge.” Ibid. That definition and instruction never made their way into a regulation. On October 10, 2018, DHS published a Notice of Proposed Rulemaking, Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (Oct. 10, 2018), which was followed by a sixty-
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day public comment period. Some ten months later, DHS published the Final Rule, which addressed the comments, revised the proposed rule, and provided analysis to support the Rule. See Inadmissibility on Public Charge Grounds, supra. As DHS described it, the Rule “redefines the term ‘public charge’ to mean an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).” 84 Fed. Reg. at 41,295.
By adopting a duration-based standard, the Rule covers aliens who receive only minimal benefits so long as they receive them for the requisite time period. As the Rule explains: “DHS may find an alien inadmissible under the standard, even though the alien who exceeds the duration threshold may receive only hundreds of dollars, or less, in public benefits annually.” Id. at 41,360-61. The Rule “defines the term ‘public benefit’ to include cash benefits for income maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing.” Ibid. The Rule sets forth several nonexclusive factors DHS must consider in determining whether an alien is likely to become a public charge, including “the alien’s health,” any “diagnosed … medical condition” that “will interfere with the alien’s ability to provide and care for himself or herself,” and past applications for the enumerated public benefits. Id. at 41,502-04. The Rule provides that persons found likely to become public charges are ineligible “for a visa to come the United States temporarily or permanently, for admission, or for adjustment of status to that of a lawful permanent resident.” Id. at 41,303. The Rule also “potentially affect[s] individuals applying for an extension of stay or change of status because these individuals would have to demonstrate that they have not received, since obtaining
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the nonimmigrant status they are seeking to extend or change, public benefits for” more than the allowed duration. Id. at 41,493.
Cook County and ICIRR challenge the Rule’s legality and seek to enjoin its implementation. Cook County operates the Cook County Health and Hospitals System (“CCH”), one of the largest public hospital systems in the Nation. Doc. 27-1 at p. 326, ¶ 5. ICIRR is a membership-based organization that represents nonprofit organizations and social and health service providers throughout Illinois that deliver and seek to protect access to health care, nutrition, housing, and other services for immigrants regardless of immigration status. Id. at pp. 341-342, ¶¶ 3-10. Cook County and ICIRR maintain that the Rule will cause immigrants to disenroll from public benefits—or to not seek benefits in the first place—which will in turn generate increased costs and cause them to divert resources from their existing programs meant to aid immigrants and safeguard public health. Doc. 27-1 at pp. 330-338, ¶¶ 25-52; id. at pp. 342-350, ¶¶ 11-42. Cook County and ICIRR argue that the Rule exceeds the authority granted to DHS under the INA and that DHS acted arbitrarily and capriciously in promulgating the Rule.
Discussion “To win a preliminary injunction, the moving party must establish that (1) without preliminary relief, it will suffer irreparable harm before final resolution of its claims; (2) legal remedies are inadequate; and (3) its claim has some likelihood of success on the merits.” Eli Lilly & Co. v. Arla Foods, Inc., 893 F.3d 375, 381 (7th Cir. 2018). “If the moving party makes this showing, the court balances the harms to the moving party, other parties, and the public.” Ibid. “In so doing, the court employs a sliding scale approach: the more likely the plaintiff is to win, the less heavily need the balance of harms weigh in [its] favor; the less likely [it] is to win, the more need [the balance] weigh in [its] favor.” Valencia v. City of Springfield, 883 F.3d 959,
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966 (7th Cir. 2018) (alteration and internal quotation marks omitted). “The sliding scale approach is not mathematical in nature, rather it is more properly characterized as subjective and intuitive, one which permits district courts to weigh the competing considerations and mold appropriate relief.” Stuller, Inc. v. Steak N Shake Enters., 695 F.3d 676, 678 (7th Cir. 2012) (internal quotation marks omitted). “Stated another way, the district court sits as would a chancellor in equity and weighs all the factors, seeking at all times to minimize the costs of being mistaken.” Ibid. (alteration and internal quotation marks omitted). A request for a temporary restraining order is analyzed under the same rubric, see Carlson Grp., Inc. v. Davenport, 2016 WL 7212522, at *2 (N.D. Ill. Dec. 13, 2016), as is a request for a stay under 5 U.S.C. § 705, see Cronin v. U.S. Dep’t of Agric., 919 F.2d 439, 446 (7th Cir. 1990) (“The standard is the same whether a preliminary injunction against agency action is being sought in the district court or a stay of that action [under 5 U.S.C. § 705] is being sought in [the appeals] court.”). I. Likelihood of Success on the Merits
A. Standing DHS argues at the outset that Cook County and ICIRR lack Article III standing. Doc. 73 at 20-23. “To assert [Article III] standing for injunctive relief, [a plaintiff] must show that [it is] under an actual or imminent threat of suffering a concrete and particularized ‘injury in fact’; that this injury is fairly traceable to the defendant’s conduct; and that it is likely that a favorable judicial decision will prevent or redress the injury.” Common Cause Ind. v. Lawson, 937 F.3d 944, 949 (7th Cir. 2019) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). On the present record, Cook County has established its standing. In Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 (1979), where a municipality alleged under the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq., that real estate brokers had engaged in racial steering, the Supreme Court held for Article III purposes that “[a] significant reduction in property values
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directly injures a municipality by diminishing its tax base, thus threatening its ability to bear the costs of local government and to provide services.” Id. at 110-11. That was so even though the causal chain resulting in the municipality’s injury involved independent decisions made by nonparties; as the Court explained, “racial steering effectively manipulates the housing market” by altering homebuyers’ decisions, which “reduce[s] the total number of buyers in the … housing market,” particularly where “perceptible increases in the minority population … precipitate an exodus of white residents.” Id. at 109-10. That reduction in buyers, in turn, meant that “prices may be deflected downward[,] … directly injur[ing] a municipality by diminishing its tax base.” Id. at 110-11.
Applying Gladstone, the Seventh Circuit in City of Chicago v. Matchmaker Real Estate Sales Center, Inc., 982 F.2d 1086 (7th Cir. 1992), held that Chicago had standing in a similar FHA case, reasoning that “racial steering leads to resegregation” and to “[p]eople … becom[ing] panicked and los[ing] interest in the community,” generating “destabilization of the community and a corresponding increased burden on the City in the form of increased crime and an erosion of the tax base.” Id. at 1095. The Seventh Circuit added that Chicago’s standing also rested on the fact that its “fair housing agency ha[d] to use its scarce resources to ensure compliance with the fair housing laws” rather than to “perform its routine services.” Ibid.
The Supreme Court’s decision earlier this year in Department of Commerce v. New York, 139 S. Ct. 2551 (2019), is of a piece with Gladstone and Matchmaker. In a challenge to the Department of Commerce’s addition of a citizenship question to the census, the Court held that the plaintiff States had shown standing by “establish[ing] a sufficient likelihood that the reinstatement of a citizenship question would result in noncitizen households responding to the census at lower rates than other groups, which in turn would cause them to be undercounted and
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lead to” injuries to the States such as “diminishment of political representation, loss of federal funds, degradation of census data, and diversion of resources.” Id. at 2565. In so holding, the Court explained that the fact that a “harm depends on the independent action of third parties,” even when such actions stem from the third parties’ “unfounded fears,” does not make an injury too “speculative” to confer standing. Id. at 2565-66.
Cook County asserts injuries at least as concrete, imminent, and traceable as did the government plaintiffs in Gladstone, New York, and Matchmaker. As the parties agree, the Final Rule will cause immigrants to disenroll from, or refrain from enrolling in, critical public benefits out of fear of being deemed a public charge. Doc. 27-1 at pp. 330-332, ¶¶ 25, 30; id. at pp. 344345, ¶¶ 19-20, 23; 84 Fed. Reg. at 41,300 (“The final rule will … result in a reduction in transfer payments from the Federal Government to individuals who may choose to disenroll from or forego enrollment in a public benefits program.”); id. at 41,485 (same). Cook County adduces evidence showing, consistent with common sense, that where individuals lack access to health coverage and do not avail themselves of government-provided healthcare, they are likely to forgo routine treatment—resulting in more costly, uncompensated emergency care down the line. Doc. 27-1 at pp. 331-333, 335-337, ¶¶ 30-32, 41-50. Additionally, because uninsured persons who do not seek public medical benefits are less likely to receive immunizations or to seek diagnostic testing, the Rule increases the risk of vaccine-preventable and other communicable diseases spreading throughout the County. Id. at pp. 329-330, 333, ¶¶ 20-21, 33; id. at pp. 358-359, ¶¶ 29, 32. Both the costs of community health epidemics and of uncompensated care are likely to fall particularly hard on CCH, which already provides approximately half of all charity care in Cook County, id. at pp. 335-336, ¶¶ 42-43, including to non-citizens regardless of their immigration status, id. at p. 327, ¶ 11. Indeed, DHS itself recognizes that the Rule will cause
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“[s]tate and local governments … [to] incur costs” stemming from “changes in behavior caused by” the Rule. 84 Fed. Reg. at 41,389; see also id. at 41,300-01 (“DHS estimates that the total reduction in transfer payments from the Federal and State governments will be approximately $2.47 billion annually due to disenrollment or foregone enrollment in public benefits programs by foreign-born non-citizens who may be receiving public benefits.”); id. at 41,469 (“DHS agrees that some entities, such as State and local governments or other businesses and organizations, would incur costs related to the changes.”). DHS specifically noted that “hospital systems, state agencies, and other organizations that provide public assistance to aliens and their households” will suffer financial harm from the Rule’s implementation. Id. at 41,469-70.
Given its operation of and financial responsibility for CCH, that is more than enough to establish Cook County’s standing under the principles set forth in Gladstone, New York, and Matchmaker. DHS’s contrary arguments fail to persuade.
First, DHS suggests that it is “inconsistent” for Cook County to maintain both that immigrants will forgo treatment and that they will come to rely more on uncompensated care from CCH. Doc. 73 at 21. But as Cook County observes, Doc. 80 at 14, there is no inconsistency: immigrants will “avoid seeking treatment for cases other than emergencies,” Doc. 1 at ¶ 109, and the emergency treatment they seek will involve additional reliance on uncompensated care from CCH, Doc. 27-1 at p. 330, ¶ 21 (“When individuals are uninsured, they avoid seeking routine care and instead risk worse health outcomes and use costly emergency services.”). The Rule itself acknowledges as much. 84 Fed. Reg. at 41,384 (“DHS acknowledges that increased use of emergency rooms and emergent care as a method of primary healthcare due to delayed treatment is possible and there is a potential for increases in uncompensated care.”).
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Second, DHS argues that because some non-citizen residents of Cook County have already disenrolled from benefits and are unlikely to re-enroll, the County cannot rely on their disenrollment as showing that others will follow suit. Doc. 73 at 21. That argument ignores the plain logic of Cook County’s position—if the mere prospect of the Rule’s promulgation after the Notice of Proposed Rulemaking in October 2018 prompted some immigrants to disenroll, it is likely that the Rule’s going into effect will prompt others to do so as well. Again, the Rule itself acknowledges that disenrollment is a likely result of the Rule’s implementation. 84 Fed. Reg. at 41,300-01.
Third, DHS argues that Cook County’s invocation of its need to divert resources is a “novel” and unsupported extension of organizational “standing from the private organizations to whom it has always been applied to a local government entity.” Doc. 73 at 22. Even if this argument were correct, it would not speak to the injuries to the County arising from CCH’s provision of uncompensated care. But the argument is wrong, as municipal entities and private organizations alike may rely on the need to divert resources to establish standing. See Matchmaker, 982 F.2d at 1095 (holding that Chicago had Article III standing because its “fair housing agency has to use its scarce resources to ensure compliance with the fair housing laws … [and] cannot perform its routine services … because it has to commit resources against those engaged in racial steering”); see also City of Milwaukee v. Saxby, 546 F.2d 693, 698 (7th Cir. 1976) (“In any case where a municipal corporation seeks to vindicate the rights of its residents, there is no reason why the general rule on organizational standing should not be followed.”).
As for ICIRR, the Supreme Court held in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), that if a private organization shows that a defendant’s “practices have perceptibly impaired” its ability to undertake its existing programs, “there can be no question that the
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organization has suffered injury in fact.” Id. at 379; see also Common Cause Ind., 937 F.3d at 954 (“Impairment of [an organization’s] ability to do work within its core mission [is] enough to support standing.”). ICIRR adduces evidence that its existing programs include efforts within immigrant communities to increase access to care, improve health literacy, and reduce reliance on emergency room care. Doc. 27-1 at pp. 341-342, ¶ 4-10. ICIRR further shows that the Rule is likely to decrease immigrants’ access to health services, food, and other programs. Id. at p. 344-345, ¶¶ 19-20, 23. Indeed, ICIRR already has expended resources to prevent frustration of its programs’ missions, to educate immigrants and staff about the Rule’s effects, and to encourage immigrants not covered by but nonetheless deterred by the Rule to continue enrolling in benefit programs. Id. at pp. 343-345, ¶¶ 14-15, 22. If the Rule goes into effect, those consequences are likely to intensify and ICIRR’s diversion of resources likely to increase. Id. at pp. 343-347, ¶¶ 16, 18, 23-31. ICIRR’s standing is secure. See Common Cause Ind., 937 F.3d at 964 (Brennan, J., concurring) (“[I]f a defendant’s actions compromise an organization’s day-today operations, or force it to divert resources to address new issues caused by the defendant’s actions, an Article III injury exists.”).
In pressing the contrary result, DHS contends that ICIRR “does not allege that the Rule will disrupt any of its current programs,” and therefore that ICIRR is not “required” to alter its activities but instead “simply elected to do so.” Doc. 73 at 22-23. But the evidence adduced by ICIRR suggests a “concrete and demonstrable injury to the organization’s activities,” not “simply a setback to [its] abstract social interests.” Havens, 455 U.S. at 379. That is enough to establish standing, for “[w]hat matters is whether the organization[’s] activities were undertaken because of the challenged law, not whether they were voluntarily incurred or not.” Common Cause Ind., 937 F.3d at 956 (internal quotation marks omitted).
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B. Ripeness DHS next contends that this case is not ripe. Doc. 73 at 23-25. Suits directed at agency action “are appropriate for judicial resolution” where the challenged action is final and the issues involved are legal ones, provided that the plaintiff shows that the action’s impact on it “is sufficiently direct and immediate.” Abbott Labs. v. Gardner, 387 U.S. 136, 149-52 (1967). The challenged agency action here is the Final Rule’s promulgation, the issues involved (as discussed below) are purely legal challenges to DHS’s implementation of the public charge provision enacted by Congress, and—as shown above and addressed below in the discussion of irreparable harm—Cook County and ICIRR allege a direct and immediate impact of the Rule on them. Under these circumstances, the suit is ripe. See OOIDA v. FMCSA, 656 F.3d 580, 586-87 (7th Cir. 2011) (rejecting a federal agency’s ripeness challenge, which posited that the “petitioners [we]re not currently under a remedial directive,” because “the threat of enforcement is sufficient” to show hardship under Abbott Laboratories); id. at 586 (“Where … a petition involves purely legal claims in the context of a facial challenge to a final rule, a petition is presumptively reviewable.”) (internal quotation marks omitted). DHS retorts that this suit will not be ripe until the Rule is applied to actual admissibility or adjustment determinations. Doc. 73 at 23-24. At most, DHS’s argument pertains to any individual non-citizen’s challenge to the Rule. It is far from clear that ripeness would pose an impediment even to claims by affected individuals. See OOIDA, 656 F.3d at 586 (“[T]he threat of enforcement is sufficient” to make a suit ripe “because the law is in force the moment it becomes effective and a person made to live in the shadow of a law that she believes to be invalid should not be compelled to wait and see if a remedial action is coming.”). In any event, certain of Cook County’s and ICIRR’s injuries—like their need to respond to the Rule’s chilling
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effect on benefits enrollment, or to divert resources to educate immigrants about the Rule—result from the Rule’s promulgation. It follows that their claims are ripe.
C. Zone of Interests DHS next argues that Cook County and ICIRR fall outside the “zone of interests” protected by the INA. Doc. 73 at 25-26. “[A] person suing under the APA must satisfy not only Article III’s standing requirements, but an additional test: The interest … assert[ed] must be ‘arguably within the zone of interests to be protected or regulated by the statute’” that the agency action allegedly violated. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012) (quoting Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970)). “Whether a plaintiff comes within the ‘zone of interests’ is an issue that requires [the court] to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014) (internal quotation marks omitted). The question here is whether Cook County and ICIRR “fall[] within the class of plaintiffs whom Congress has authorized to sue under” the relevant statutes. Ibid. “[I]n the APA context, … the [zone of interests] test is not ‘especially demanding.’” Lexmark, 572 U.S. at 130 (quoting Match-E-Be-Nash-She-Wish Band, 567 U.S. at 225). As the Supreme Court explained, it has “always conspicuously included the word ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff” and the test does not require any “indication of congressional purpose to benefit the would-be plaintiff.” Match-E-Be-Nash-SheWish Band, 567 U.S. at 225 (internal quotation marks omitted); see also Lexmark, 572 U.S. at 130 (reaffirming Match-E-Be-Nash-She-Wish Band and distinguishing non-APA cases). Accordingly, the zone of interests test “forecloses suit only when a plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot
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reasonably be assumed that Congress intended to permit the suit.” Math-E-Be-Nash-She-Wish Band, 567 U.S. at 225 (internal quotation marks omitted). The appropriate frame of reference here is not only the public charge provision, but the immigration laws as a whole. See Clarke v. Secs. Indus. Ass’n, 479 U.S. 388, 401 (1987) (holding that the court should “consider any provision that helps [it] to understand Congress’ overall purposes in the” relevant statutes); Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 186 (D.C. Cir. 2012) (“Importantly, in determining whether a petitioner falls within the zone of interests to be protected by a statute, we do not look at the specific provision said to have been violated in complete isolation, but rather in combination with other provisions to which it bears an integral relationship.”) (internal quotation marks omitted). And even if an APA plaintiff is not among “those who Congress intended to benefit,” the plaintiff nonetheless falls within the zone of interests if it is among “those who in practice can be expected to police the interests that the [relevant] statute protects.” Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1075 (D.C. Cir. 1998); see also Amgen, Inc. v. Smith, 357 F.3d 103, 109 (D.C. Cir. 2004) (“[T]he salient consideration under the APA is whether the challenger’s interests are such that they in practice can be expected to police the interests that the statute protects.”) (internal quotation marks omitted); ALPA Int’l v. Trans States Airlines, LLC, 638 F.3d 572, 577 (8th Cir. 2011) (same).
Cook County and ICIRR both satisfy the zone of interests test. As DHS observes, the principal interests protected by the INA’s “public charge” provision are those of “aliens improperly determined inadmissible.” Doc. 73 at 25. ICIRR’s interests in ensuring that health and social services remain available to immigrants and in helping them navigate the immigration process are consistent with the statutory purpose, as DHS describes it, to “ensure[] that only certain aliens could be determined inadmissible on the public charge ground.” Ibid. There is
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ample evidence that ICIRR’s interests are not merely marginal to those of the aliens more directly impacted by the public charge provision. Not only is ICIRR precisely the type of organization that would reasonably be expected to “police the interests that the statute protects,” Amgen, 357 F.3d at 109, but the INA elsewhere gives organizations like ICIRR a role in helping immigrants navigate immigration procedures generally, see, e.g., 8 U.S.C. § 1101(i)(1) (requiring that potential T visa applicants be referred to nongovernmental organizations for legal advice); id. § 1184(p)(3)(A) (same for U visa applicants); id. § 1228(a)(2), (b)(4)(B) (recognizing a right to counsel for aliens subject to expedited removal proceedings); id. § 1229(a)(1), (b)(2) (requiring that aliens subject to deportation proceedings be provided a list of pro bono attorneys and advised of their right to counsel); id. § 1443(h) (requiring the Attorney General to work with “relevant organizations” to “broadly distribute information concerning” the immigration process). Especially given the APA’s “generous review provisions,” Clarke, 479 U.S. at 395 (internal quotation marks omitted), these considerations place ICIRR’s claims “at the least[] ‘arguably within the zone of interests’” protected by the INA, Bank of Am. v. City of Miami, 137 S. Ct. 1296, 1303 (2017) (quoting Data Processing, 397 U.S. at 153).
In pressing the contrary result, DHS relies principally on Justice O’Connor’s in-chambers opinion in INS v. Legalization Assistance Project of Los Angeles County, 510 U.S. 1301 (1993). Doc. 73 at 25-26. That reliance is misplaced. As an initial matter, Justice O’Connor’s opinion is both non-precedential and concededly “speculative.” Legalization Assistance Project, 510 U.S. at 1304. In any event, the opinion predates the Court’s articulation in Match-E-Be-Nash-SheWish Band and Lexmark of the current, more flexible understanding of the zone of interests test in APA cases.
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Cook County satisfies the zone of interests test as well. In City of Miami, the Supreme Court held that Miami’s allegations of “lost tax revenue and extra municipal expenses” placed it within the zone of interests protected by the FHA, which allows “any person who … claims to have been injured by a discriminatory housing practice” to file a civil action for damages. 137 S. Ct. at 1303 (internal quotation marks omitted). Cook County asserts comparable financial harms from the Final Rule. True enough, Cook County is not itself threatened with an improper admissibility or status adjustment determination, but neither did Miami itself suffer discrimination under the FHA. In both City of Miami and here, the consequences of the challenged action generate additional costs for the municipal plaintiff. If such injuries place a municipality within the FHA’s zone of interests in a non-APA case like City of Miami, they certainly do so in this APA case.
D. Chevron Analysis The APA provides for judicial review of final agency decisions. See 5 U.S.C. §§ 702, 706; Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985) (“The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court.”). The question here is whether DHS exceeded its authority in promulgating the Final Rule. Under current precedent, which this court must follow, resolution of that question is governed by the framework set forth in Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984). “At Chevron’s first step, [the court] determine[s]—using ordinary principles of statutory interpretation—whether Congress has directly spoken to the precise question at issue.” Coyomani–Cielo v. Holder, 758 F.3d 908, 912 (7th Cir. 2014). If “Congress has directly spoken to the precise question at issue … the court … must give effect to the unambiguously expressed intent of Congress,” Indiana v. EPA, 796 F.3d 803, 811 (7th Cir. 2015) (quoting Chevron, 467
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U.S. at 842-43) (alterations in original) (internal quotation marks omitted), and end the inquiry there, see Coyomani–Cielo, 758 F.3d at 912. “If, however, ‘the statute is silent or ambiguous with respect to the specific issue,’” Chevron’s second step, at which “a reviewing court must defer to the agency’s interpretation if it is reasonable,” comes into play. Indiana, 796 F.3d at 811 (quoting Chevron, 467 U.S. at 843-44). As shown below, because the pertinent statute is clear, there is no need to go beyond Chevron’s first step.
“When interpreting a statute, [the court] begin[s] with the text.” Loja v. Main St. Acquisition Corp., 906 F.3d 680, 683 (7th Cir. 2018). “Statutory words and phrases are given their ordinary meaning.” Singh v. Sessions, 898 F.3d 720, 725 (7th Cir. 2018); see also United States v. Titan Int’l, Inc., 811 F.3d 950, 952 (7th Cir. 2016). “It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Brumfield v. City of Chicago, 735 F.3d 619, 628 (7th Cir. 2013); see also LaPlant v. N.W. Mut. Life Ins. Co., 701 F.3d 1137, 1139 (7th Cir. 2012) (“We try to give the statutory language a natural meaning in light of its context.”).
Congress has expressed in general terms that “[s]elf-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes,” 8 U.S.C. § 1601(1), that “[t]he immigration policy of the United States” provides that “aliens within the Nation’s borders not depend on public resources to meet their needs,” id. § 1601(2)(A), and that “the availability of public benefits [is] not [to] constitute an incentive for immigration to the United States,” id. § 1601(2)(B). But those provisions express only general policy goals without specifying what it means for non-citizens to be “[s]elf-sufficient” or to “not depend on public resources to meet their needs.” Cf. NAACP v. Am. Family Mut. Ins. Co., 978 F.2d 287, 298 (7th Cir. 1992) (“You cannot discover how far a statute goes by observing the
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direction in which it points. Finding the meaning of a statute is more like calculating a vector (with direction and length) than it is like identifying which way the underlying ‘values’ or ‘purposes’ point (which has direction alone).”) (internal quotation marks omitted). The public charge provision is intended to implement those general policy goals—yet in none of its iterations since its original enactment in 1882 did Congress define the term “public charge.”
This lack of a statutory definition gives rise to the interpretative dispute that divides the parties. Cook County and ICIRR submit that the term “public charge” includes only “those who are likely to become primarily and permanently dependent on the government for subsistence.” Doc. 27 at 15 (emphasis in original). DHS submits that the term is broad enough to include any non-citizen “who receives” a wide range of “designated public benefits for more than 12 months in the aggregate within a 36-month period,” Doc. 73 at 18-19—including, as the Final Rule acknowledges, those who “receive only hundreds of dollars, or less, in public benefits annually” for any twelve months in a thirty-six month period, 84 Fed. Reg. at 41,360-61. As Cook County and ICIRR contend, and as DHS implicitly concedes through its silence, if Cook County and ICIRR are correct about what “public charge” means, the Final Rule fails at Chevron step one, as there would be “no ambiguity for the agency to fill.” Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018).
Settled precedent governs how to ascertain the meaning of a statutorily undefined term like “public charge.” “[I]t’s a fundamental canon of statutory construction that words generally should be interpreted as taking their ordinary … meaning … at the time Congress enacted the statute.” New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019) (alterations in original and internal quotation marks omitted). As noted, the term “public charge” entered the statutory lexicon in 1882 and has been included in nearly identical inadmissibility provisions ever since.
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For this reason, the court agrees with DHS’s foundational point that, given the “unbroken line of predecessor statutes going back to at least 1882 [that] have contained a similar inadmissibility ground for public charges,” Doc. 73 at 16, “the late 19th century [is] the key time to consider” for determining the meaning of the term “public charge,” id. at 27.
Fortunately, the Supreme Court told us just over a century ago what “public charge” meant in the relevant era, and thus what it means today. In Gegiow v. Uhl, 239 U.S. 3 (1915), several Russian nationals brought suit after they were denied admission to the United States on public charge grounds because, the immigration authorities reasoned, they were bound for Portland, Oregon, where the labor market would have made it impossible for them to obtain employment. Id. at 8-9. In holding that the aliens could not be excluded on that ground, the Court observed that in the statute identifying “who shall be excluded, ‘Persons likely to become a public charge’ [we]re mentioned between paupers and professional beggars, and along with idiots, persons dangerously diseased, persons certified by the examining surgeon to have a mental or physical defect of a nature to affect their ability to earn a living, convicted felons, prostitutes, and so forth.” Id. at 10. In light of the statutory text, the Court held that “[t]he persons enumerated … are to be excluded on the ground of permanent personal objections accompanying them irrespective of local conditions unless the … phrase [‘public charge’] … is directed to different considerations than any other of those with which it is associated. Presumably [the phrase ‘public charge’] is to be read as generically similar to the other[ phrase]s mentioned before and after.” Ibid. (emphasis added).
Gegiow teaches that “public charge” does not, as DHS maintains, encompass persons who receive benefits, whether modest or substantial, due to being temporarily unable to support themselves entirely on their own. Rather, as Cook County and ICIRR maintain, Gegiow holds
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that “public charge” encompasses only persons who—like “idiots” or persons with “a mental or physical defect of a nature to affect their ability to make a living”—would be substantially, if not entirely, dependent on government assistance on a long-term basis. That is what Gegiow plainly conveys—DHS does not contend otherwise—and that is how courts of that era read the decision. See United States ex rel. De Sousa v. Day, 22 F.2d 472, 473-74 (2d Cir. 1927) (“In the face of [Gegiow] it is hard to say that a healthy adult immigrant, with no previous history of pauperism, and nothing to interfere with his chances in life but lack of savings, is likely to become a public charge within the meaning of the statute.”); United States ex rel. La Reddola v. Tod, 299 F. 592, 592-93 (2d Cir. 1924) (holding that an alien who “suffer[ed] from an insanity” from which “recovery [was] impossible … was a public charge” while institutionalized, “for he was supported by public moneys of the state of New York and nothing was paid for his maintenance by him or his relatives”); Ng Fung Ho v. White, 266 F. 765, 769 (9th Cir. 1920) (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”), rev’d on other grounds 259 U.S. 276 (1922); Howe v. United States ex rel. Savitsky, 247 F. 292, 294 (2d Cir. 1917) (holding that “Congress meant the act to exclude persons who were likely to become occupants of almshouses for want of means with which to support themselves in the future”); Ex parte Horn, 292 F. 455, 457 (W.D. Wash. 1923) (“The record is conclusive that the petitioner was not likely to become a public charge, in the sense that he would be a ‘pauper’ or an occupant of an almshouse for want of means of support, or likely to be sent to an almshouse for support at public expense.”) (citations omitted).
In an attempt to evade Gegiow’s interpretation of “public charge,” DHS argues that Congress, through amendments enacted in the Immigration Act of 1917, “negated the Court’s
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interpretation in Gegiow.” Doc. 73 at 30-31. That argument fails on two separate grounds. The first is that DHS maintained (correctly) that “the late 19th century [is] the key time to consider” in ascertaining the meaning of the term “public charge,” id. at 27, and therefore cannot be heard to contend that the pertinent timeframe is, on second thought, 1917. The second is that, even putting aside DHS’s arguable waiver, the 1917 Act did not change the meaning of “public charge” in the manner urged by DHS.
As relevant here, the 1917 Act moved the phrase “persons likely to become a public charge” from between the terms “paupers” and “professional beggars” to much later in the (very long) list of excludable aliens. 1917 Act, 39 Stat. at 875-76. The Senate Report states that this change was meant “to overcome recent decisions of the courts limiting the meaning of the description of the excluded class because of its position between other descriptions conceived to be of the same general and generical nature. (See especially Gegiow v. Uhl, 239 U.S., 3.).” S. Rep. No. 64-352, at 5 (1916). The value of any committee report in ascertaining a statute’s meaning is questionable. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (“[J]udicial reliance on legislative materials like committee reports … may give unrepresentative committee members—or, worse yet, unelected staffers and lobbyists—both the power and the incentive to attempt strategic manipulations of legislative history to secure results they were unable to achieve through the statutory text.”); Covalt v. Carey Can. Inc., 860 F.2d 1434, 1438 (7th Cir. 1988) (“Even the contemporaneous committee reports may be the work of those who could not get their thoughts into the text of the bill.”). And the value of this particular Senate Report is further undermined by its opacity, as it does not say in which way its author(s) believed that court decisions had incorrectly limited the statute’s breadth. See Azar v. Allina
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Health Servs., 139 S. Ct. 1804, 1815 (2019) (holding that “murky legislative history … can’t overcome a statute’s clear text and structure”).
Later commentary on the 1917 Act—which DHS cites as authoritative, but the origin of which DHS fails to identify, Doc. 73 at 30—explained that the public charge provision “has been shifted from its position in sec. 2 of the Immigration Act of 1907 to its present position in sec. 3 of this act in order to indicate the intention of Congress that aliens shall be excluded upon said ground for economic as well as other reasons and with a view to overcoming the decision of the Supreme Court in Gegiow v. Uhl, 239 U.S. 3 (S. Rept. 352, 64th Cong., 1st sess.).” U.S. Dep’t of Labor, Immigration Laws and Rules of January 1, 1930 with Amendments from January 1, 1930 to May 24, 1934 (1935), at 25 n.5. This explanation suggests that Congress understood Gegiow, given its exclusive focus on an alien’s economic circumstances, to have held that aliens may be deemed public charges only if there were economic reasons for their dependence on government support, and further that Congress wanted aliens dependent on government support for noneconomic reasons, like imprisonment, to be included as well.
That is precisely how many cases of the era understood the 1917 Act. See United States ex rel. Medich v. Burmaster, 24 F.2d 57, 59 (8th Cir. 1928) (“The fact that the appellant confessed to a crime punishable by imprisonment in the federal prison, and the very fact that he was actually incarcerated for a period of 18 months was sufficient to support the allegation in the warrant of deportation that he was likely ‘to become a public charge.’”); Ex parte Horn, 292 F. at 457 (holding that although “the petitioner was not likely to become a public charge, in the sense that he would be a ‘pauper’ or an occupant of an almshouse for want of means of support, or likely to be sent to an almshouse for support at public expense,” he was, as a convicted felon, a public charge because he was “a person committed to the custody of a department of the
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government by due course of law”) (citations omitted); Ex parte Tsunetaro Machida, 277 F. 239, 241 (W.D. Wash. 1921) (“[A] public charge [is] a person committed to the custody of a department of the government by due course of law.”). Other cases disagreed, holding that noneconomic dependence on the government for basic subsistence did not make one a public charge. See Browne v. Zurbrick, 45 F.2d 931, 932-33 (6th Cir. 1930) (rejecting the proposition “that one who is guilty of crime, and therefore likely to be convicted for it and to be imprisoned at the public expense, is ipso facto likely to become a public charge”); Coykendall v. Skrmetta, 22 F.2d 120, 121 (5th Cir. 1927) (holding that “it cannot well be supposed that the words in question were intended to refer to anything other than a condition of dependence on the public for support,” and therefore that the public charge provision did not include the public expense imposed by imprisonment); Ex Parte Mitchell, 256 F. 229, 232 (N.D.N.Y. 1919) (“The court holds expressly that the words ‘likely to become a public charge’ are meant to exclude only those ‘persons who were likely to become occupants of almshouses for want of means with which to support themselves in the future.’”). The divergence between those two lines of precedent is immaterial here, for DHS cites no case holding that the 1917 Act upended Gegiow’s holding that an alien could be deemed a public charge on economic grounds only if that person’s dependence on public support was of a “permanent” nature. Gegiow, 239 U.S. at 10. Nor does DHS cite any case holding that an alien could be deemed a public charge based on the receipt, or anticipated receipt, of a modest quantum of public benefits for short periods of time.
DHS’s contrary view rests upon an obvious misreading of Ex parte Horn. DHS cites Ex parte Horn for the proposition that post-1917 cases “recognized that” the 1917 Act’s transfer of the public charge provision to later in the list of excludable persons “negated the Court’s interpretation of Gegiow by underscoring that the term ‘public charge’ is ‘not associated with
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paupers or professional beggars.’” Doc. 73 at 30 (quoting Ex parte Horn, 292 F. at 457). But Ex parte Horn involved not an alien whose economic circumstances were less dire than a pauper’s or professional beggar’s and thus who might have needed only modest government benefits for a short period of time; rather, the case involved a person who had committed crimes and was likely to be imprisoned. 292 F. at 458. Thus, in saying that “[t]he term ‘likely to become a public charge’ is not associated with paupers or professional beggars, idiots, and certified physical and mental defectives,” id. at 457, Ex parte Horn held not that the 1917 Act ousted Gegiow’s view regarding the severity and duration of the economic circumstances that could result in an alien being deemed a public charge; rather, it held that the 1917 Act expanded the meaning of “public charge” to include persons who would be totally dependent on the government for noneconomic reasons like imprisonment. See id. at 458 (“When he was convicted he became a public charge, and a tax, duty, and trust was imposed upon the government by his conduct; and at the time of his entry he was likely to become a public charge by reason of the crime which he had committed.”) (internal quotation marks omitted). Ex parte Horn thus faithfully implements the change that, as shown above, DHS’s own historical authority suggests the amendment was intended to effect.
DHS has three other arrows in its quiver, but none hits its mark. The first is a 1929 treatise stating that “public charge” means “any maintenance, or financial assistance, rendered from public funds, or funds secured by taxation.” Arthur Cook et al., Immigration Laws of the United States § 285 (1929). The treatise is wrong. It does not address Gegiow in expressing its understanding of “public charge.” And the sole authority it cites, Ex parte Kichmiriantz, 283 F. 697 (N.D. Cal. 1922), does not support its view. Ex parte Kichmiriantz concerned an alien “committed to the Stockton State Hospital for the insane” for dementia, who, without care,
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“would starve to death within a short time.” Id. at 697-98. Thus, although Ex parte Kichmiriantz observes that “the words ‘public charge,’ as used in the Immigration Act, mean just what they mean ordinarily; … a money charge upon, or an expense to, the public for support and care,” id. at 698 (citation omitted), the context in which the court made that observation shows that it had in mind a person who was totally and likely permanently dependent on the government for subsistence. The case therefore aligns with Cook County and ICIRR’s understanding of the term, not DHS’s.
DHS’s second arrow consists of a mélange of nineteenth century dictionaries and state court cases addressing whether one municipality or another was responsible for providing public assistance to a particular person under state poor laws. Doc. 73 at 29, 32-33. Those authorities, which address the meaning of the words “public,” “charge,” and “chargeable” and the term “public charge,” would be material to the court’s interpretative enterprise but for one thing: The Supreme Court told us in Gegiow what the statutory term “public charge” meant in that era. The federal judiciary is hierarchical, so in deciding here whether the Final Rule faithfully implements the statutory “public charge” provision, this court must adhere to the Supreme Court’s understanding of the term regardless of what nineteenth century dictionaries and state court cases might have said. See Shields v. Ill. Dep’t of Corrs., 746 F.3d 782, 792 (7th Cir. 2014); Reiser v. Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004); Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., 603 F.3d 365, 393 (7th Cir. 2010) (Easterbrook, J., dissenting).
As it happens, the dictionaries and state court cases do not advance DHS’s cause. An 1888 dictionary cited by DHS defines “charge” as “an obligation or liability,” but the only human example it offers of a “charge” is “a pauper being chargeable to the parish or town.”
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Dictionary of Am. and English Law 196 (1888) (emphasis added). An 1889 dictionary defines “charge” in the context of a person as one who is “committed to another’s custody, care, concern, or management,” Century Dictionary of the English Language 929 (1889), and an 1887 dictionary likewise defines “charge” as “[t]he person or thing committed to the care or management of another,” Webster’s Condensed Dictionary of the English Language 85 (3d ed. 1887). Those definitions are consistent with Gegiow’s understanding of “public charge” and do nothing to support DHS’s view that the term is broad enough to include those who temporarily receive modest public benefits. The same holds for state court cases from the era. See Cicero Twp. v. Falconberry, 42 N.E. 42, 44 (Ind. App. 1895) (“The mere fact that a person may occasionally obtain assistance from the county does not necessarily make such person a pauper or a public charge.”); City of Boston v. Capen, 61 Mass. 116, 121-22 (Mass. 1851) (holding that “public charge” refers “not [to] merely destitute persons, who … have no visible means of support,” but rather to those who “by reason of some permanent disability, are unable to maintain themselves” and “might become a heavy and long continued charge to the city, town or state”); Overseers of Princeton Twp. v. Overseers of S. Brunswick Twp., 23 N.J.L. 169 (N.J. 1851) (repeatedly equating “paupers” with being “chargeable, or likely to become chargeable”).
As it did with Ex parte Horn, DHS misreads the state court cases upon which it relies. According to DHS, Poor District of Edenburg v. Poor District of Strattanville, 5 Pa. Super. 516 (1897), held that a person who temporarily received “some assistance” while ill was not “chargeable to” the public solely because she was “without notice or knowledge” that her receiving the assistance would “place[] [her] on the poor book,” and not because the public assistance was temporary. Doc. 73 at 32 (quoting Edenburg, 5 Pa. Super. at 520-24, 527-28). But it is plain that the court’s holding rested in large part on the fact that the person had
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economic means and was only temporarily on the poor rolls. See Edenburg, 5 Pa. Super. at 526 (noting that the person “had for sixteen years been an inhabitant of the borough and for twelve years the undisputed owner by fee simple title of unincumbered real estate, and household goods of the value of $300 in the district,” and that she “had fully perfected her settlement by the payment of taxes for two successive years”). DHS characterizes Inhabitants of Guilford v. Inhabitants of Abbott, 17 Me. 335 (Me. 1840), as holding that a person was “likely to become chargeable” based on his receipt of “‘a small amount’ of assistance” and “‘his age and infirmity.’” Doc. 73 at 33 (quoting Guilford, 17 Me. at 335-36). To be sure, DHS’s brief quotes words that appear in the decision, but as DHS fails to acknowledge, the court observed that the person “for many years had no regular or stated business, … was at one time so furiously mad, that the public security required him to be confined,” had “occasionally since that time, … been deranged in mind,” and at a later time “was insane, roving in great destitution.” Guilford, 17 Me. at 335. DHS describes Town of Hartford v. Town of Hartland, 19 Vt. 392, 398 (Vt. 1847), as holding that a “widow and children with a house, furniture, and a likely future income of $12/year from the lease of a cow were nonetheless public charges.” Doc. 73 at 32. But DHS fails to mention the court’s explanation that the widow’s “mother claimed to own some part of the furniture, … that her brother … claimed a lien upon the cow,” and that the $12 annual lease income—which, incidentally, was for the house, not the cow—was past due for the preceding year with no reason to expect payment in the future. Hartford, 19 Vt. at 394. Accordingly, contrary to DHS’s treatment of those state court cases, they align with Gegiow’s—and Cook County and ICIRR’s—conception of what it means to be a public charge.
DHS’s third arrow is an 1894 floor speech in which Representative Warner, objecting to a bill to support “industrial paupers” or “deadbeat industries”—what today might be called
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corporate welfare—drew a rhetorical comparison with his constituents’ view that, because the immigration laws would bar admission of an alien who “earn[s] half his living or three-quarters of it,” they had “no sympathy … with the capitalist who offers to condescend to do business in this country provided this country will tax itself in order to enable him to make profits.” 26 Cong. Rec. 657 (1894) (statement of Rep. Warner) (cited at Doc. 73 at 29). Representative Warner’s remarks have no value. They only obliquely reference the immigration laws, and he had every incentive to exaggerate the harshness of immigration law to support his opposition to the industrial assistance under consideration.
To sum up: As DHS argues, interpretation of the statutory term “public charge” turns on its meaning in the late nineteenth century. The Supreme Court in Gegiow interpreted the term in a manner consistent with Cook County and ICIRR’s position and contrary to DHS’s position in the Final Rule. The Immigration Act of 1917 did not undermine Gegiow’s understanding of the severity of the economic circumstances that would lead an alien to be deemed a public charge. Contemporaneous dictionaries and state court cases are immaterial and, even if they were material, are consistent with Gegiow. DHS cites no case from any era holding that the public charge provision covers noncitizens who receive public benefits—let alone modest public benefits—on a temporary basis. And against that statutory and case law backdrop, Congress retained the “public charge” language in the INA of 1952 and the IIRIRA of 1996. See Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1762 (2018) (holding that Congress “presumptively was aware of the longstanding judicial interpretation of the phrase [included in a newly enacted statute] and intended for it to retain its established meaning”). It follows, based on the arguments and authorities before the court at this juncture, that Cook County and ICIRR are likely to prevail on the merits of their challenge to the Final Rule.
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II. Adequacy of Legal Remedies and Irreparable Harm Although a party seeking a preliminary injunction must show “more than a mere
possibility of harm,” the harm need not “actually occur before injunctive relief is warranted” or “be certain to occur before a court may grant relief on the merits.” Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044-45 (7th Cir. 2017). “Rather, harm is considered irreparable if it cannot be prevented or fully rectified by the final judgment after trial.” Ibid. (internal quotation marks omitted).
The final relief potentially available to Cook County and ICIRR is circumscribed by the APA’s limited waiver of sovereign immunity: it waives the sovereign immunity of the United States only to the extent that the suit “seek[s] relief other than money damages.” 5 U.S.C. § 702. Thus, if Cook County and ICIRR show that, in the absence of a preliminary injunction, they will suffer injury that would ordinarily be redressed by money damages, that will suffice to show irreparable harm, as “there is no adequate remedy at law” to rectify that injury. Turnell v. CentiMark Corp., 796 F.3d 656, 662 (7th Cir. 2015).
Cook County and ICIRR have made the required showing. As set forth in the discussion of standing, Cook County has shown that the Rule will cause immigrants to disenroll from, or refrain from enrolling in, medical benefits, in turn leading them to forgo routine treatment and rely on more costly, uncompensated emergency care from CCH. Doc. 27-1 at pp. 330-333, 335337, ¶¶ 25, 30-32, 41-50; id. at pp. 344-345, ¶¶ 19-20, 23. In addition, because uninsured persons who forgo public medical benefits are less likely to receive immunizations or to seek diagnostic testing, the Rule increases the entire County’s risk of vaccine-preventable and other communicable diseases. Id. at pp. 329-330, 333, ¶¶ 20-21, 33; id. at pp. 358-359, ¶¶ 29, 32. And as also shown above, ICIRR will have to divert resources away from its existing programs to respond to the effects of the Final Rule. Id. at pp. 343-347, ¶¶ 16, 18, 23-31. Given the
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unavailability of money damages, those injuries are irreparable, satisfying the adequacy of legal remedies and irreparable harm requirements of the preliminary injunction standard. III. Balance of Harms and Public Interest
In balancing the harms, “the court weighs the irreparable harm that the moving party would endure without the protection of the preliminary injunction against any irreparable harm the nonmoving party would suffer if the court were to grant the requested relief.” Valencia v. City of Springfield, 883 F.3d 959, 966 (7th Cir. 2018) (internal quotation marks omitted). As discussed above, Cook County and ICIRR have shown that the Final Rule is likely to impose on them both financial and programmatic consequences for which there is no effective remedy at law. On the other side of the balance, DHS asserts that it has “a substantial interest in administering the national immigration system, a solely federal prerogative, according to the expert guidance of the responsible agencies as contained in their regulations, and that the Defendants will be harmed by an impediment to doing so.” Doc. 73 at 54. A temporary delay in implementing the Rule undoubtedly would impose some harm on DHS. But absent any explanation of the practical consequences of the delay and whether those consequences are irreparable, it is clear—at least on the present record—that the balance of harms favors Cook County and ICIRR.
As for the public interest, DHS makes no argument beyond the public interest in its unimpeded administration of national immigration policy. Id. at 54-55. But at the same time, “[t]here is generally no public interest in the perpetuation of unlawful agency action.” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016). Given the court’s holding that Cook County and ICIRR are likely to succeed on the merits of their challenge to the Final Rule, given that the balance of harms otherwise favors preliminary relief, and bearing in mind the
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public health risks to Cook County if the Final Rule were allowed to take effect, entry of a preliminary injunction satisfies the public interest.
DHS raises two other equitable points. First, it argues that an ongoing challenge to the Final Rule in the Eastern District of Washington in which the State of Illinois is a party, and in which the court last Friday granted a preliminary injunction, see Washington v. U.S. Dep’t of Homeland Sec., No. 19-5210 (E.D. Wash. Oct. 11, 2019), ECF No. 162, renders this case duplicative. Doc. 73 at 52-53. Relatedly, DHS contends that the Eastern District of Washington’s injunction, as well as a nationwide preliminary injunction issued last Friday by the Southern District of New York, see New York v. U.S. Dep’t of Homeland Sec., __ F. Supp. __, 2019 WL 5100372, at *8 (S.D.N.Y. Oct. 11, 2019), renders moot this court’s consideration of the present motion. Doc. 82. While recognizing the federal courts’ general aversion to duplicative litigation, see Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223-24 (7th Cir. 1993), the court concludes that the pendency of those other cases and the preliminary injunction orders entered therein do not moot the present motion or otherwise counsel against its consideration.
Neither the parties nor this court have any power over or knowledge of whether and, if so, when those two preliminary injunctions will be lifted or modified. Even a temporary lag between the lifting of both injunctions and the entry of a preliminary injunction by this court would entail some irreparable harm to Cook County and ICIRR. Indeed, the federal government in other litigation earlier this year maintained, correctly, that “[t]he possibility that [a nationwide] injunction may not persist is sufficient reason to conclude that … appeal” of an injunction entered elsewhere was “not moot.” Supplemental Brief for the Federal Appellants at 152, California v. U.S. Dep’t of Health and Human Servs., No. 19-15072 (9th Cir. May 20, 2019), ECF No. 152.
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Second, DHS argues that Cook County and ICIRR’s “[l]ack of diligence, standing alone,” is sufficient to “preclude the granting of preliminary injunctive relief.” Doc. 73 at 53 (quoting Majorica, S.A. v. R.H. Macy, 762 F.2d 7, 8 (7th Cir. 1982)). Cook County and ICIRR’s delay in bringing this suit relative to when the New York and Washington suits were brought, while not trivial, is not sufficiently severe to justify denying them equitable relief, particularly because any delay “goes primarily to the issue of irreparable harm,” which they have otherwise amply established. See Majorica, 762 F.2d at 8. In any event, because DHS was already preparing substantially similar briefs in the other cases challenging the Final Rule, the effect of the delay on its ability to contest the present motion was minimal.
Finally, DHS asks that any preliminary injunction be limited “to Cook County and specific individual members of ICIRR.” Doc. 73 at 55. But because the record shows that ICIRR “represent[s] nearly 100 nonprofit organizations and social and health service providers throughout Illinois,” Doc. 27-1 at p. 341, ¶ 5 (emphasis added), it is appropriate for the preliminary injunction to cover the entire State.
Conclusion The parties (to a lesser extent) and their amici (to a greater extent) appeal to various public policy concerns in urging the court to rule their way. To be sure, this case has important policy implications, and the competing policy views held by parties and their amici are entitled to great respect. But let there be no mistake: The court’s decision today rests not one bit on policy. The decision reflects no view whatsoever of whether the Final Rule is consistent or inconsistent with the American Dream, or whether it distorts or remains faithful to the Emma Lazarus poem inscribed on the Statue of Liberty. Compare New York, 2019 WL 5100372, at *8 (asserting that the Final Rule “is repugnant to the American Dream of the opportunity for
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prosperity and success through hard work and upward mobility”), with Jason Silverstein, “Trump’s top immigration official reworks the words on the Statue of Liberty,” CBS News (Aug. 14, 2019, 4:25 AM), http://www.cbsnews.com/news/statue-of-liberty-poem-emmalazarus-quote-changed-trump-immigration-official-ken-cuccinelli-after-public-charge-law (quoting the acting director of the Citizenship and Immigration Services suggesting in defense of the Final Rule that the Lazarus poem conveys this message: “Give me your tired and your poor who can stand on their own two feet, and who will not become a public charge.”). The court certainly takes no position on whether, as DHS suggests, the Old Testament sheds light on the historical backdrop of Congress’s enactment of the 1882 Act. Doc. 73 at 28 (citing Deuteronomy 15:7-15:8).
Today’s decision, rather, rests exclusively on a dry and arguably bloodless examination of the authorities that precedent requires courts to examine—and the deployment of the legal tools that precedent requires courts to use—when deciding whether executive action complies with a federal statute. See SAS Inst. Inc. v. Iancu, 138 S. Ct. 1348, 1357-58 (2018) (“Each side offers plausible reasons why its approach might make for the more efficient policy. But who should win that debate isn’t our call to make. Policy arguments are properly addressed to Congress, not this Court. It is Congress’s job to enact policy and it is this Court’s job to follow the policy Congress has prescribed.”). And having undertaken that examination with the appropriate legal tools, the court holds that Cook County and ICIRR are likely to succeed on the merits of their challenge to the Final Rule, that the other requirements for preliminary injunctive
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relief are met, and that the Final Rule shall not be implemented or enforced in the State of Illinois absent further order of court.

October 14, 2019

___________________________________ United States District Judge

33

 
 No. 19A-_______ ________________________________________________________________ ________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES _______________
CHAD F. WOLF, ET AL., APPLICANTS v.
COOK COUNTY, ET AL. _______________
APPLICATION FOR A STAY OF THE INJUNCTION ISSUED BY THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS _______________
NOEL J. FRANCISCO Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217
________________________________________________________________ ________________________________________________________________

PARTIES TO THE PROCEEDING Applicants (defendants-appellants below) are Chad F. Wolf, in his official capacity as Acting Secretary of Homeland Security; the United States Department of Homeland Security; Kenneth T. Cuccinelli II, in his official capacity as Senior Official Performing the Duties of the Director of the United States Citizenship and Immigration Services; and the United States Citizenship and Immigration Services, an agency within the United States Department of Homeland Security.* Respondents (plaintiffs-appellees below) are Cook County, Illinois; and Illinois Coalition for Immigrant and Refugee Rights, Inc.

*

The complaint named Kevin K. McAleenan, then the Acting

Secretary of Homeland Security, as a defendant in his official

capacity. Chad F. Wolf has since assumed the role of Acting

Secretary, and has thus been automatically substituted as a party

in place of former Acting Secretary McAleenan. See Fed. R. App.

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

Kenneth T. Cuccinelli II in his role as Acting Director of the

United States Citizenship and Immigration Services.

Mr.

Cuccinelli is now serving as Senior Official Performing the Duties

of the Director, and seeks relief in that capacity.

IN THE SUPREME COURT OF THE UNITED STATES _______________ No. 19A-_______
CHAD F. WOLF, ET AL., APPLICANTS v.
COOK COUNTY, ET AL. _______________
APPLICATION FOR A STAY OF THE INJUNCTION ISSUED BY THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS _______________
Pursuant to Rule 23 of the Rules of this Court and the All Writs Act, 28 U.S.C. 1651, the Solicitor General, on behalf of applicants Chad F. Wolf et al., respectfully applies for a stay of a preliminary injunction issued on October 14, 2019, by the United States District Court for the Northern District of Illinois (App., infra, 34a-35a), pending the consideration and disposition of the government’s appeal from that injunction to the United States Court of Appeals for the Seventh Circuit and, if the court of appeals affirms the injunction, pending the filing and disposition of a petition for a writ of certiorari and any further proceedings in this Court.
This application concerns a Department of Homeland Security (DHS) rule, promulgated through notice-and-comment rulemaking, interpreting a statutory provision stating that an alien is inadmissible if, “in the opinion of” the Secretary, the alien is

2 “likely at any time to become a public charge.” 8 U.S.C. 1182(a)(4)(A); see 84 Fed. Reg. 41,292 (Aug. 14, 2019) (Rule). Whereas a 1999 guidance document had interpreted “public charge” to mean an alien who was at a minimum “primarily dependent” on a limited set of cash benefits from the government, the Rule extends the set of relevant benefits to include certain designated noncash benefits providing for basic needs such as housing and food, and asks whether the alien is likely at any time to receive such benefits for more than 12 months in aggregate within any 36-month period.
This Court recently stayed a pair of preliminary injunctions issued by the United States District Court for the Southern District of New York enjoining the Rule on a nationwide basis. See DHS v. New York, 140 S. Ct. 599 (2020) (No. 19A785). In that case, the government sought a full stay of the injunctions or, in the alternative, a stay of the nationwide effect of the injunctions. See Gov’t Stay Application at 40, New York, supra (No. 19A785). In its stay application there, the government explained that the district court in this case also had preliminarily enjoined the Rule, but only within Illinois, not nationwide, and that a divided Seventh Circuit panel had declined to stay the injunction pending appeal. See id. at 13. The government further explained that if this Court were to stay the nationwide injunctions in their entirety, “the government intends

3 to ask the Seventh Circuit to reconsider its [earlier] denial of a stay pending appeal” in this case. Id. at 13 n.2.
The Court stayed the New York injunctions in their entirety. New York, 140 S. Ct. at 599. In so doing, the Court necessarily concluded that if the court of appeals were to uphold the preliminary injunctions in those cases, the Court likely would grant a petition for a writ of certiorari; there was a fair prospect the Court would rule in favor of the government; the government likely would suffer irreparable harm absent a stay; and, to the extent it was a close case, the balance of equities favored the government. See Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers).
Those same factors govern the stay application here. Yet the Seventh Circuit summarily denied the government’s renewed motion for a stay. See App., infra, 73a. The court of appeals did not explain how its ruling was consistent with this Court’s order in New York; indeed, it did not issue a reasoned opinion or offer any explanation at all. See ibid. The Seventh Circuit thus stands alone in finding a stay unwarranted under these circumstances: the Ninth Circuit stayed materially identical injunctions (including one nationwide and two more limited injunctions) in a published opinion, see City & County of San Francisco v. USCIS, 944 F.3d 773 (2019); the Fourth Circuit also stayed a materially identical nationwide injunction, see Order, Casa de Maryland, Inc.

4 v. Trump, No. 19-2222 (Dec. 9, 2019); and of course this Court stayed the injunctions that currently are pending on appeal to the Second Circuit, see New York, 140 S. Ct. at 599.
This case thus readily meets the standards for a stay. Indeed, this case is materially indistinguishable from New York. Although the injunction here is not nationwide, the Court stayed the New York injunctions in their entirety, thus necessarily determining that there was a fair prospect the Court would agree with the government not just that a nationwide injunction was inconsistent with Article III and equitable principles, but also that challenges to the Rule will be unsuccessful and that even a more limited injunction would impose irreparable harm on the government. That determination controls this case. As explained below, each of the stay factors is met here, for precisely the same reasons as in New York. The government therefore respectfully requests a stay of the district court’s injunction of the Rule pending appeal and any further proceedings in this Court.
STATEMENT 1. a. The INA provides that an alien is “inadmissible” if, “in the opinion of the [Secretary of Homeland Security] at the time of application for admission or adjustment of status, [the alien] is likely at any time to become a public charge.” 8 U.S.C.

5 1182(a)(4)(A).1 That assessment “shall at a minimum consider the alien’s (I) age; (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills.” 8 U.S.C. 1182(a)(4)(B). A separate INA provision states that an alien is deportable if, within five years of entry, the alien “has become a public charge from causes not affirmatively shown to have arisen” since entry. 8 U.S.C. 1227(a)(5).
Three agencies make public-charge inadmissibility determinations under Section 1182(a)(4): DHS for aliens seeking admission at the border and aliens within the country who apply to adjust their status to that of a lawful permanent resident; the Department of State when evaluating visa applications filed by aliens abroad; and the Department of Justice when the question arises during removal proceedings. See 84 Fed. Reg. at 41,294 n.3. The Rule at issue governs DHS’s public-charge inadmissibility determinations. Ibid. DHS indicated in promulgating the Rule that the State Department and Department of Justice were planning to adopt consistent guidance. Ibid.
b. Although the public-charge ground of inadmissibility dates back to the first immigration statutes, Congress has never

1

The statute refers to the Attorney General, but in 2002,

Congress transferred the Attorney General’s authority to make

inadmissibility determinations in the relevant circumstances to

the Secretary of Homeland Security. See 6 U.S.C. 557; 8 U.S.C.

1103; see also 6 U.S.C. 211(c)(8).

6 defined the term “public charge,” instead leaving the term’s definition and application to the Executive Branch’s discretion. In 1999, the Immigration and Naturalization Service (INS) proposed a rule to “for the first time define ‘public charge,’” 64 Fed. Reg. 28,676, 28,689 (May 26, 1999), a term that the INS noted was “ambiguous” and had “never been defined in statute or regulation,” id. at 28,676-28,677. The proposed rule would have provided that in determining whether an alien was “‘likely at any time to become a public charge’” “‘in the opinion of’ the consular officer or Service officer making the decision,” “public charge” would mean an alien “who is likely to become primarily dependent on the Government for subsistence as demonstrated by either: (i) [t]he receipt of public cash assistance for income maintenance purposes, or (ii) [i]nstitutionalization for long-term care at Government expense.” Id. at 28,681 (quoting 8 U.S.C. 1182(a)(4)(A)). When it announced the proposed rule, INS also issued “field guidance” adopting the proposed rule’s definition of “public charge.” Id. at 28,689. The proposed rule was never finalized, leaving only the 1999 field guidance in place. 84 Fed. Reg. at 41,348 n.295.
c. In October 2018, DHS published a new potential approach to public-charge inadmissibility determinations. It did so through a proposed rule subject to notice and comment. 83 Fed. Reg. 51,114 (Oct. 10, 2018). After responding to comments received during the comment period, DHS promulgated the final Rule in August

7 2019. 84 Fed. Reg. at 41,501. The Rule is the first time the Executive Branch has defined the term “public charge,” and established a framework for evaluating whether an alien is likely at any time to become a public charge, in a final rule following notice and comment.
The Rule defines “public charge” to mean “an alien who receives one or more [designated] public benefits * * * for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).” 84 Fed. Reg. at 41,501. The designated public benefits include cash assistance for income maintenance and certain non-cash benefits, including most Medicaid benefits, Supplemental Nutrition Assistance Program benefits, and federal housing assistance. Ibid. As the agency explained, the Rule’s definition of “public charge” differs from the 1999 field guidance in that (1) it incorporates certain non-cash benefits; and (2) it replaces the “primarily dependent” standard with the 12-month/36month measure of dependence. Id. at 41,294-41,295.
The Rule also sets forth a framework the agency will use to evaluate whether, considering the “totality of an alien’s individual circumstances,” the alien is “likely at any time in the future to become a public charge.” 84 Fed. Reg. at 41,369; see id. at 41,501-41,504. Among other things, the framework identifies a number of factors an adjudicator must consider in making a

8 public-charge inadmissibility determination, such as the alien’s age, financial resources, employment history, education, and health. Ibid. The Rule was set to take effect on October 15, 2019. Id. at 41,292.
2. a. Respondents are Cook County, Illinois, and a nongovernmental organization (the Coalition) that provides services to immigrants. In September 2019, they filed suit seeking to enjoin the Rule, in part on the ground that its definition of “public charge” is not a permissible interpretation of the INA. See Complaint ¶¶ 54-65. On respondents’ view, the term unambiguously includes only aliens primarily and permanently dependent on the government for subsistence. See App., infra, 17a.
On October 14, 2019, the district court granted respondents’ request for a preliminary injunction barring the government from implementing the Rule in Illinois, and a stay of the rule under 5 U.S.C. 705. App., infra, 1a-33a, 34a-35a. The court concluded that respondents had standing because the County anticipates that its hospitals will incur greater costs when aliens disenroll from public benefits in response to the Rule, and because the Coalition has focused its educational programming on the Rule. Id. at 5a10a. The court also concluded that respondents were within the zone of interests protected by the public-charge provision because the County would suffer economic injury, and because an advocacy

9 organization like the Coalition is “precisely the type of organization that would reasonably be expected to ‘police the interests that the statute protects.’” Id. at 13a-15a (citation omitted).
On the merits, the district court concluded that respondents were likely to prevail on their claim that the Rule’s definition of “public charge” is inconsistent with the statute. App., infra, 18a-27a. The court thought that “the Supreme Court told us just over a century ago what ‘public charge’ meant in the relevant era.” Id. at 18a. Specifically, the district court read this Court’s 1915 decision in Gegiow v. Uhl, 239 U.S. 3, to mean that a “public charge” is a person who will be primarily and permanently dependent on the government for support. App., infra, 17a-18a. The district court did not address respondents’ claims that the Rule violates various federal statutes and principles of equal protection under the Fifth Amendment, or that the Rule is arbitrary and capricious under 5 U.S.C. 706. Cf. Complaint ¶¶ 150-151, 153, 156-188.
Regarding the other preliminary-injunction factors, the district court concluded that the harms respondents anticipated experiencing as a result of the Rule -- for the County, economic injuries and possible public-health risks; and for the Coalition, diversion of resources away from existing programs -- were irreparable. App., infra, 28a. As to the balance of equities and hardships, the court determined that it “favor[ed]” respondents

10 “on the present record,” even though a “delay in implementing the Rule undoubtedly would impose some harm on DHS.” Id. at 29a. The court also concluded that an injunction was in the public interest because of the public-health risks to Cook County caused by lower alien enrollment in medical benefits, and because, in its view, plaintiffs were likely to succeed in showing that the Rule is unlawful. Id. at 30a. The district court enjoined enforcement of the Rule in Illinois. Id. at 31a.
b. The government appealed the preliminary injunction and moved the district court for a stay of the injunction pending appeal; the court denied the motion on November 14, 2019. App., infra, 60a-71a. The government sought a stay from the court of appeals the following day; a divided panel denied the stay on December 23, 2019, over Judge Barrett’s dissent. Id. at 72a. The court ordered expedited briefing on the appeal and scheduled oral argument for February 26, 2020. See C.A. Docs. 42 and 43 (Dec. 30, 2019).
3. While this case was pending, the government also was litigating challenges to the Rule filed in four other district courts. Three of those district courts (in four cases) issued nationwide injunctions against implementation of the Rule. See Casa de Maryland, Inc. v. Trump, 19-cv-2715 (D. Md.); Washington v. DHS, No. 19-cv-5210 (E.D. Wash.); New York v. DHS, No. 19-cv7777 (S.D.N.Y.); Make the Road New York v. Cuccinelli, No. 19-cv-

11 7993 (S.D.N.Y.). The fourth district court issued more limited injunctions in the two cases before it. See City & County of San Francisco v. USCIS, No. 19-cv-4717 (N.D. Cal.) (injunction limited to plaintiff counties); California v. DHS, No. 19-cv-4975 (N.D. Cal.) (plaintiff States and D.C.).
On December 5, 2019, the Ninth Circuit granted the government’s motions for stays pending appeal of the injunctions entered in the three cases filed in that circuit. City & County of San Francisco v. USCIS, 944 F.3d 773. In a lengthy opinion that canvassed the history of the public-charge provision and related immigration laws, the Ninth Circuit held that “DHS has shown a strong likelihood of success on the merits, that it will suffer irreparable harm, and that the balance of the equities and public interest favor a stay.” Id. at 781. In particular, it held that the statutory term “public charge” was “ambiguous” and “capable of a range of meanings,” id. at 792; that Congress had historically granted the Executive Branch broad discretion to define the term; and that the Executive Branch had, in fact, interpreted the term differently over the previous 150 years, id. at 792-797. The court then held that the Rule was “easily” a reasonable interpretation of the statute, particularly in light of Congress’s express intent that its 1996 welfare-reform and immigration-reform legislation would help ensure that “aliens

12 within the Nation’s borders not depend on public resources to meet their needs.” Id. at 799 (quoting 8 U.S.C. 1601(2)).
On December 9, 2019, the Fourth Circuit likewise granted the government’s motion for a stay pending appeal of the nationwide injunction entered by a district court in Maryland. Order, Casa de Maryland, Inc. v. Trump, No. 19-2222.
On January 8, 2020, contrary to the decisions of the Fourth and Ninth Circuits, the Second Circuit issued a one-paragraph order denying the government’s motions to stay the nationwide injunctions issued by the New York district court. New York v. DHS, Nos. 19-3591 & -3595, 2020 WL 95815. The court noted that it had “set an expedited briefing schedule on the merits of the government’s appeals, with the last brief due on February 14,” and oral argument to “be scheduled promptly thereafter.” Id. at *1.
4. This Court granted a stay of the New York injunctions. DHS v. New York, 140 S. Ct. 599 (2020) (No. 19A785). In its application, the government asked that the Court stay the injunctions in their entirety or, in the alternative, at least limit the injunctions’ scope to aliens served by the plaintiffs in their respective jurisdictions in those cases. See Gov’t Stay Application at 40, New York, supra (No. 19A785). The government argued that the nationwide scope of the injunctions there would have been improper even if the plaintiffs’ challenge to the Rule was likely to succeed, see id. at 32-39, but the government’s

13 primary argument was that any injunction was inappropriate because the Rule is consistent with the Executive Branch’s historically broad and flexible authority over public-charge inadmissibility determinations under the INA, see id. at 18-31. The government also indicated that if the Court were to stay the injunctions in their entirety, the government would “ask the Seventh Circuit to reconsider its [earlier] denial of a stay pending appeal” in this case. Id. at 13 n.2. This Court granted a stay of the injunctions in their entirety. New York, 140 S. Ct. at 599.
5. In accordance with the government’s representation to this Court, the government renewed its motion to the Seventh Circuit seeking a stay pending appeal. C.A. Doc. 92 (Jan. 28, 2020). In its renewed motion, the government explained that “in granting the stay [in New York], th[is] Court necessarily concluded that the government had a likelihood of success on the merits, that the government would suffer irreparable harm in the absence of a stay, and that no other equitable considerations rendered a stay inappropriate.” C.A. Doc. 92-1, at 2 (Jan. 28, 2020). The government explained that “[t]hose same considerations govern [the court of appeals’] determination whether to issue a stay, and should lead to the same conclusion in a case involving the same legal challenge to the same Rule based on the same type of alleged harm.” Ibid.

14 The court of appeals denied the renewed motion in a summary order. App., infra, 73a. The court did not provide any reasoning for the denial, and thus did not explain how its decision was consistent with this Court’s determination in New York that a stay pending appeal was warranted.
ARGUMENT The government respectfully requests that this Court grant a stay of the district court’s preliminary injunction pending completion of further proceedings in the court of appeals and, if necessary, this Court. A stay pending the disposition of a petition for a writ of certiorari is appropriate if there is (1) “a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari”; (2) “a fair prospect that a majority of the Court will conclude that the decision below was erroneous”; and (3) “a likelihood that irreparable harm will result from the denial of a stay.” Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers) (brackets, citation, and internal quotation marks omitted).2 All of those requirements are met here.

2

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

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

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

v. New York, 140 S. Ct. 599 (2020); Trump v. International Refugee

Assistance Project, 138 S. Ct. 542 (2017).

15 Indeed, this Court already determined that all of those requirements were met when it issued a stay in DHS v. New York, 140 S. Ct. 599 (2020) (No. 19A785). That case involved materially identical preliminary injunctions preventing implementation of the Rule as impermissible under the INA, the Administrative Procedure Act (APA), the Rehabilitation Act, and principles of equal protection. The injunctions in New York had nationwide scope, and the Court stayed them in their entirety, as opposed to granting the more limited relief -- which the government requested in the alternative -- of narrowing their scope to the affected plaintiffs. The Court thus necessarily determined that the government had a fair prospect of success not just on its contention that a nationwide injunction was inconsistent with Article III and traditional principles of equity, but also on the merits of its defense of the challenged Rule. That determination is dispositive here.
I. THERE IS A REASONABLE PROBABILITY THAT THIS COURT WOULD GRANT CERTIORARI IF THE COURT OF APPEALS UPHOLDS THE DISTRICT COURT’S INJUNCTION If the court of appeals ultimately upholds the district
court’s preliminary injunction in this case, there is a “reasonable probability” that the Court will grant certiorari. Conkright, 556 U.S. at 1402 (citation omitted). Indeed, by granting the stay pending appeal in New York, supra (No. 19A785), this Court already has determined that it is reasonably probable the Court would grant

16 a petition for a writ of certiorari to review the Rule’s legality in the event a court of appeals affirmed a preliminary injunction against its implementation. As explained below, the Ninth Circuit has concluded in a published decision that “Congress left DHS and other agencies enforcing our immigration laws the flexibility to adapt the definition of ‘public charge’ as necessary,” and held that the definition DHS has adopted “easily” fits within the range of permissible definitions. City & County of San Francisco v. USCIS, 944 F.3d 773, 797, 799 (2019). The Fourth Circuit likewise has concluded that challenges to the Rule are unlikely to succeed. See Order, Casa de Maryland, Inc. v. Trump, No. 19-2222 (Dec. 9, 2019).
A decision by the Seventh Circuit upholding the district court’s preliminary injunction here would thus likely “conflict with the decision of another United States court of appeals on the same important matter.” Sup. Ct. R. 10(a). Such a decision also would “conflict[] with relevant decisions of this Court,” Sup. Ct. R. 10(c): This Court’s decision staying the preliminary injunctions in New York, supra (No. 19A785), necessarily reflected a determination that the government had made “a strong showing that [it] is likely to succeed on the merits” of its claim that the Rule is lawful. Nken v. Holder, 556 U.S. 418, 426 (2009). To affirm the preliminary injunction here, however, the court of appeals would have to find just the opposite -- namely, that

17 respondents are likely to succeed on their claim that the Rule is unlawful. See Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). Under those circumstances, there is at least a “reasonable probability” that the Court would grant certiorari were the court of appeals to affirm.
II. THERE IS AT LEAST A FAIR PROSPECT THAT THE COURT WOULD VACATE THE INJUNCTION There also is at least a “fair prospect” that if this Court
granted a writ of certiorari, it would vacate the preliminary injunction here. Conkright, 556 U.S. at 1402. Again, by granting the stay in New York, supra (No. 19A785), this Court already has determined that the government has demonstrated at least a fair prospect of success on its claim that the Rule is lawful. That determination should be dispositive here.
A. As a threshold matter, like the plaintiffs in New York, respondents here are unlikely to succeed because they have not adequately alleged a cognizable injury within the relevant zone of interests. The district court concluded otherwise with respect to the County because the Rule “will cause immigrants to disenroll from, or refrain from enrolling in, critical public benefits out of fear of being deemed a public charge,” which in the court’s view would cause them to “forgo routine treatment,” including “immunizations” and “diagnostic testing,” resulting in “more costly, uncompensated emergency care down the line” and an increased “risk of vaccine-preventable and other communicable

18 diseases spreading throughout the County.” App., infra, 7a. But the Rule exempts Medicaid coverage for emergency services, and other reductions in benefit-program enrollment are likely to save money for governmental bodies, especially those that fund such programs. See 84 Fed. Reg. at 41,363, 41,300-41,301. And the claim of harm from an increased risk that communicable diseases might spread in the County depends on an “attenuated chain of possibilities,” not the “certainly impending” injury Article III requires. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013).
The district court likewise was incorrect in concluding that the Coalition has organizational standing because, if the Rule goes into effect, it will “expend[] resources to prevent frustration of its programs’ missions, to educate immigrants and staff about the Rule’s effects, and to encourage immigrants not covered by but nonetheless deterred by the Rule to continue enrolling in benefits programs.” App., infra, 10a. This Court has held that merely showing that governmental action would be a “setback to [an] organization’s abstract social interests” is insufficient to establish standing, Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982); and that insufficiency is not cured by an organization’s insistence that it will divert resources to “prevent frustration” of its goals resulting from that setback, App., infra, 10a. Cf. Clapper, 568 U.S. at 418 (finding “selfinflicted injuries” insufficient to establish standing).

19 In any event, even if respondents’ claims of harm were sufficient to satisfy Article III, their asserted interest in maintaining enrollment in public-benefits programs is “inconsistent” with the purpose of the public-charge inadmissibility ground -- namely, to reduce the use of public benefits -- and thus outside the relevant zone of interests. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012). B. As the Ninth Circuit recognized in its published opinion, and as the government explained in its application for a stay in New York, supra (No. 19A785), see Gov’t Stay Application at 18-30, challenges to the Rule also are unlikely to succeed because they lack merit. The INA’s text and structure make clear that receipt of public benefits, including non-cash benefits that are not intended to serve as a primary means of support, is an important consideration in determining whether an alien is inadmissible on the public-charge ground. The Rule thus gives the statute its most natural meaning by specifying that an alien who depends on public assistance for necessities such as food and shelter for extended periods may qualify as a “public charge” even if that assistance is not provided through cash benefits or does not provide the alien’s sole or primary means of support. That interpretation also follows Congress’s direction -- in legislation adopted contemporaneously with the current public-charge

20 inadmissibility provision -- that it should be the official “immigration policy of the United States” to ensure that “availability of public benefits not constitute an incentive for immigration to the United States.” 8 U.S.C. 1601(2). At the very least, the Rule represents a reasonable and lawful exercise of the substantial discretion Congress has long vested in the Executive Branch to make public-charge inadmissibility determinations.
1. The INA renders inadmissible “[a]ny alien who * * * in the opinion of the [Secretary] * * * is likely at any time to become a public charge,” based “at a minimum” on an assessment of specified factors such as “health,” “financial status,” and “education and skills.” 8 U.S.C. 1182(a)(4)(A) and (B). As the Ninth Circuit explained, that statutory text provides four important indicators that Congress intended to give DHS substantial discretion over public-charge inadmissibility determinations.
First, Congress’s reference to the “opinion” of the relevant Executive Branch official “is the language of discretion,” under which “the officials are given broad leeway.” City & County of San Francisco, 944 F.3d at 791; see Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 540 (1979) (recognizing that where a statute specifies that a determination be made “in the opinion of” an agency official, it confers “broad discretion” on the official to make that determination). Second, “the critical term ‘public

21 charge’ is not a term of art. It is not self-defining. * * * In a word, the phrase is ‘ambiguous’ under Chevron; it is capable of a range of meanings.” City & County of San Francisco, 944 F.3d at 792. Third, although the statute provides a non-exhaustive list of factors that the Executive Branch official must take into account “‘at a minimum,’” it “expressly did not limit the discretion of officials to those factors.” Ibid. Fourth, Congress expressly “granted DHS the power to adopt regulations to enforce the provisions of the INA,” indicating that “Congress intended that DHS would resolve any ambiguities in the INA.” Ibid. (citing Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016)).
Related statutory provisions show that Congress also recognized that receipt of public benefits, including non-cash benefits, often could be relevant to determining whether an alien is likely at any time to become a public charge. One such set of provisions requires that many aliens seeking admission or adjustment of status must submit “affidavit[s] of support” executed by sponsors –- such as a petitioning family member or employer –- to avoid a public-charge inadmissibility determination. See 8 U.S.C. 1182(a)(4)(C) and (D). Aliens who fail to submit the required affidavit are treated by operation of law as inadmissible on the public-charge ground, regardless of their individual circumstances. 8 U.S.C. 1182(a)(4). Moreover, Congress specified that the sponsor must agree “to maintain the

22 sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line,” 8 U.S.C. 1183a(a)(1)(A), and Congress granted federal and state governments the right to seek reimbursement from the sponsor for “any means-tested public benefit” the government provides to the alien, 8 U.S.C. 1183a(b)(1)(A), including non-cash benefits. Taken together, those provisions mean that to avoid being found inadmissible on the public-charge ground, a covered alien must have a sponsor who is willing to reimburse the government for any means-tested public benefits the alien receives while the sponsorship obligation is in effect (even if those benefits are only minimal). Congress itself thus provided that the mere possibility that an alien might obtain unreimbursed, means-tested public benefits in the future would in some circumstances be sufficient to render that alien likely to become a public charge, regardless of the alien’s other circumstances.
Likewise supporting the Rule’s consideration of non-cash benefits are INA provisions stating that when making public-charge inadmissibility determinations for certain aliens who have “been battered or subjected to extreme cruelty in the United States,” 8 U.S.C. 1641(c)(1)(A), DHS “shall not consider any benefits the alien may have received,” including various non-cash benefits, 8 U.S.C. 1182(s); see 8 U.S.C. 1611-1613 (specifying the public benefits for which battered aliens and other qualified aliens are

23

eligible, such as “public or assisted housing,” “food assistance,”

and “disability” benefits). The inclusion of that express

prohibition for a narrow class of aliens presupposes that DHS

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

as public housing and food assistance in making public-charge

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

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

reason to create an exception to a prohibition unless the

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

Surrounding statutory provisions also leave no doubt about

why Congress would have intended the Executive Branch to take such

public benefits into account in making public-charge

inadmissibility determinations.

In legislation passed

contemporaneously with the 1996 enactment of the current public-

charge inadmissibility provision, Congress stressed the

government’s “compelling” interest in ensuring “that aliens be

self-reliant in accordance with national immigration policy.” 8

U.S.C. 1601(5). Congress emphasized that “[s]elf-sufficiency has

been a basic principle of United States immigration law since this

country’s earliest immigration statutes,” 8 U.S.C. 1601(1), and it

“continues to be the immigration policy of the United States that

* * * (A) aliens within the Nation’s borders not depend on public

resources to meet their needs, * * * and (B) the availability of

public benefits not constitute an incentive for immigration to the

24 United States,” 8 U.S.C. 1601(2). Congress equated a lack of “self-sufficiency” with the receipt of “public benefits” by aliens, 8 U.S.C. 1601(3), which it defined broadly to include any “welfare, health, disability, public or assisted housing * * * or any other similar benefit,” 8 U.S.C. 1611(c)(1)(B).
2. Respondents have no persuasive answer to the INA’s text and structure, which make the receipt of public benefits, including non-cash benefits, an important aspect of “public charge” inadmissibility determinations. Respondents argue instead that the Rule’s interpretation is inconsistent with historical usage of the phrase “public charge,” which they contend refers exclusively and unambiguously to aliens “‘who are likely to become primarily and permanently dependent on the government for subsistence.’” App., infra, 17a (citation omitted).
As the Ninth Circuit explained, historical evidence does not support that contention. City & County of San Francisco, 944 F.3d at 792-798. Instead, the common thread through Congress’s enactment of various public-charge provisions has been an intent to preserve Executive Branch flexibility to “adapt” public-charge provisions to “change[s] over time” in “the way in which federal, state, and local governments have cared for our most vulnerable populations.” Id. at 792. In the late nineteenth and early twentieth centuries, for example, those who were not selfsufficient were often “housed in a government or charitable

25 institution, such as an almshouse, asylum, or penitentiary.” Id. at 793. In that context, therefore, it made sense that “the likelihood of being housed in a state institution” would be “considered * * * to be the primary factor in the public-charge analysis.” Id. at 794.
As the “movement towards social welfare” broadened the availability of other types of more limited public benefits over the twentieth century, however, the open-ended phrase allowed the Executive Branch to take into account those changes. City & County of San Francisco, 944 F.3d at 795. For example, both the 1933 and 1951 editions of Black’s Law Dictionary indicated that the term “public charge,” “[a]s used in” the 1917 Immigration Act, meant simply “one who produces a money charge upon, or an expense to, the public for support and care” -- without reference to the type of expense. Black’s Law Dictionary (3d ed. 1933); Black’s Law Dictionary (4th ed. 1951). A 1929 treatise did the same. See Arthur Cook et al., Immigration Laws of the United States § 285 (1929) (noting that “public charge” meant a person who required “any maintenance, or financial assistance, rendered from public funds, or funds secured by taxation”). And as early as 1948, the Board of Immigration Appeals (Board) held that an alien may qualify as a “public charge” for deportability purposes if the alien (or a sponsor or relative) fails to repay a public benefit upon demand by a government agency entitled to repayment, even where the

26 benefits in question are “clothing, transportation, and other incidental expenses.” In re B-, 3 I. & N. Dec. 323, 326-327 (B.I.A. 1948; A.G. 1948); see City & County of San Francisco, 944 F.3d at 795 (discussing In re B-).3
The INA’s statutory and legislative history underscores Congress’s intent to preserve the Executive Branch’s flexibility in this area. In an extensive report that served as a foundation for the original enactment of the INA, the Senate Judiciary Committee recognized that “[d]ecisions of the courts have given varied definitions of the phrase ‘likely to become a public charge,’” and that “‘different consuls, even in close proximity with one another, have enforced [public-charge] standards highly inconsistent with one another.’” S. Rep. No. 1515, 81st Cong., 2d Sess., 347, 349 (1950). Rather than adopt one of those specific standards, the Committee indicated that because “the elements constituting likelihood of becoming a public charge are varied,

3

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

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

state mental hospital because Illinois law did not allow the State

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

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

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

“clothing, transportation, and other incidental expenses,” because

Illinois law made her “legally liable” for repayment of those non-

cash benefits. Ibid.

27 there should be no attempt to define the term in the law.” Id. at 349.
Consistent with that recommended approach, neither the INA nor any subsequent congressional enactment has provided a more specific definition of “public charge.” Instead, Congress has “described various factors to be considered ‘at a minimum,’ without even defining those factors,” making it “apparent that Congress left DHS and other agencies enforcing our immigration laws the flexibility to adapt the definition of ‘public charge’ as necessary.” City & County of San Francisco, 944 F.3d at 797.
3. The district court drew a different conclusion by relying on this Court’s decision in Gegiow v. Uhl, 239 U.S. 3 (1915), for the proposition “that ‘public charge’ encompasses only persons who -- like ‘idiots’ or persons with ‘a mental or physical defect of a nature to affect their ability to make a living’ -would be substantially, if not entirely, dependent on government assistance on a long-term basis.” App., infra, 19a (citation omitted). That contention -- which also was pressed by the plaintiffs in the New York cases, see NY Stay Opp’n at 5, 24, New York, supra (No. 19A785); MTR Stay Opp’n at 6, New York, supra (No. 19A785) -- reflects a misreading of Gegiow.
The Court in Gegiow actually addressed only the “single question” of “whether an alien can be declared likely to become a public charge on the ground that the labor market in the city of

28 his immediate destination is overstocked.” 239 U.S. at 9-10. This Court said no, requiring such determinations to be based on the characteristics of the alien, not his place of destination. Ibid. And while the Court suggested in dicta that “public charge” might be interpreted narrowly in the Immigration Act of 1910 to accord with certain terms (like “paupers” and “professional beggars,” id. at 10) that appeared alongside it in that particular statute, Congress subsequently revised the relevant language specifically to disapprove that inference by distancing “public charge” from those narrower terms, see Immigration Act of 1917, 64th Cong., ch. 29, § 3, 39 Stat. 875-876; S. Rep. No. 352, 64th Cong., 1st Sess. 5 (1916) (“The purpose of this change is to overcome recent decisions of the courts limiting the meaning of the description of the excluded class. * * * (See especially Gegiow v. Uhl, 239 U. S., 3.).”); see also United States ex rel. Iorio v. Day, 34 F.2d 920, 922 (2d Cir. 1929) (L. Hand, J.) (explaining that the public-charge statute “is certainly now intended to cover cases like Gegiow”).
Moreover, even assuming Gegiow’s dictum survived the Immigration Act of 1917, it did not retain any force following Congress’s 1952 overhaul of the immigration laws and 1996 passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546, in which Congress rewrote and reenacted the entire public-charge inadmissibility

29 provision at issue here without any reference to the narrower terms like “pauper” on which Gegiow’s dictum had rested, § 531(a), 110 Stat. 3009-674 to 3009-675.
* * * * * Given Congress’s direction that “the availability of public benefits” should not be “an incentive for immigration to the United States,” 8 U.S.C. 1601(2), and its longstanding history of preserving flexibility in the meaning of “public charge,” the Rule “easily” qualifies as a reasonable interpretation of the statute, City & County of San Francisco, 944 F.3d at 799. Nothing in the statute precludes the agency from considering non-cash benefits or public benefits that do not provide an alien’s sole or primary means of support, and the Rule’s use of the 12-months in 36-months standard establishes a sensible and administrable framework for making individualized public-charge inadmissibility determinations. Respondents are unlikely to succeed in arguing otherwise.
III. THERE IS A LIKELIHOOD THAT IRREPARABLE HARM WILL RESULT FROM THE DENIAL OF A STAY Finally, “irreparable harm will result from the denial of a
stay.” Conkright, 556 U.S. at 1402 (brackets and citation omitted). As with the other factors, by granting a stay in New York, supra (No. 19A785), this Court already has determined that the government will suffer irreparable harm absent a stay. As the Ninth Circuit recognized, “the preliminary injunctions will,” unless stayed, “force DHS to grant status to those not legally

30 entitled to it.” City & County of San Francisco, 944 F.3d at 806. DHS “currently has no practical means of revisiting public-charge determinations once made,” making that harm effectively irreparable. Id. at 805. And given the “compelling” interest that Congress has attached to ensuring self-sufficiency among aliens admitted to the United States, 8 U.S.C. 1601(5), that harm substantially outweighs whatever limited and speculative fiscal injuries respondents claim they will suffer during the pendency of this litigation.
To be sure, the government did not immediately seek relief in this Court from the court of appeals’ initial denial of a stay. At the time the court of appeals initially denied relief in this case, the nationwide injunctions entered by the Southern District of New York remained in effect, and thus obtaining a stay of the Illinois-specific injunction here would have had little practical effect. After the Second Circuit declined to stay those nationwide injunctions several weeks later, the government filed a single stay application with this Court, asking the Court either to stay the injunctions in their entirety or to limit their scope. See Gov’t Stay Application at 40, New York, supra (No. 19A785). The government indicated in that application that once the Court ruled, the government would make any further request for relief in this case -- if appropriate -- to the Seventh Circuit in the first instance. See id. at 13 n.2.

31 That course of action was reasonable and efficient. Rather than burden the Court with parallel stay applications from two different circuits on materially identical issues, the government sought relief from the broader injunctions arising out of the Second Circuit, with the expectation that the Seventh Circuit could address the narrower injunction here if warranted. Had this Court merely narrowed the nationwide injunctions in New York so that they resembled the jurisdiction-specific injunction here, the government would not have renewed its request for a stay of the injunction in this case, thereby avoiding an additional round of litigation. When the Court instead stayed the injunctions in New York in their entirety, the government asked the Seventh Circuit to follow this Court’s lead and stay the injunction in this case as well. It is only because the court of appeals has declined to give effect to this Court’s ruling in New York that the government must now return to the Court for a second time concerning the same Rule.
CONCLUSION This Court should stay the district court’s preliminary injunction pending the completion of further proceedings in the court of appeals and, if necessary, this Court. Respectfully submitted.

FEBRUARY 2020

NOEL J. FRANCISCO Solicitor General

 
 Cite as: 589 U. S. ____ (2020)

1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________
No. 19A905
_________________
CHAD WOLF, ACTING SECRETARY OF HOMELAND SECURITY, ET AL. v. COOK COUNTY, ILLINOIS, ET AL.
ON APPLICATION FOR STAY
[February 21, 2020]
The application for stay presented to JUSTICE KAVANAUGH and by him referred to the Court is granted, and the District Court’s October 14, 2019 order granting a preliminary injunction is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Seventh Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN would deny the application.
JUSTICE SOTOMAYOR, dissenting from the grant of stay. Today’s decision follows a now-familiar pattern. The Government seeks emergency relief from this Court, asking it to grant a stay where two lower courts have not. The Government insists—even though review in a court of appeals is imminent—that it will suffer irreparable harm if this Court does not grant a stay. And the Court yields. But this application is perhaps even more concerning than past ones. Just weeks ago, this Court granted a stay of a different decision involving the same administrative rule at issue here, after the Government professed urgency

2

WOLF v. COOK COUNTY

SOTOMAYOR, J., dissenting
because of the form of relief granted in the prior case—a nationwide injunction. The Government now uses that stay—of a nationwide injunction—to insist that it is entitled to one here. But the injunction in this case is limited to one State, Illinois. The Government cannot state with precision any of the supposed harm that would come from the Illinois-specific injunction, and the Court of Appeals for the Seventh Circuit has scheduled oral argument for next week. The Government’s professed harm, therefore, boils down to an inability to enforce its immigration goals, possibly in only the immediate term, in one of 50 States. It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.
This case concerns a provision of the Immigration and Nationality Act that renders inadmissible any noncitizen who “is likely at any time to become a public charge.” 8 U. S. C. §1182(a)(4)(A). The provision instructs immigration officers to consider, “at a minimum,” a person’s “age; health; family status; assets, resources, and financial status; and education and skills” in determining inadmissibility on this “public charge” basis. §1182(a)(4)(B). For the last 20 years, field guidance has defined “public charge” as a person “primarily dependent on the government for subsistence.” 64 Fed. Reg. 28689 (1999) (internal quotation marks omitted). Per that guidance, immigration officers were not to consider non-cash public benefits in deciding whether a noncitizen met that definition.
In August 2019, the Department of Homeland Security issued a regulation that changed this longstanding definition. This new regulation (the public-charge rule) now defines a “public charge” as “an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).” 84 Fed. Reg. 41292, 41295. The regulation also

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expands the type of benefits that may render a noncitizen inadmissible, including non-cash benefits such as the Supplemental Nutrition Assistance Program (formerly food stamps), most forms of Medicaid, and various forms of housing assistance. Ibid.
Several lawsuits followed, one of which reached this Court last month. See Application for Stay of Injunctions in Department of Homeland Security v. New York, No. 19A785 (New York cases). The Government in no small part insisted that it was entitled to a stay because of the scope of relief awarded below: The District Court in the New York cases imposed a nationwide injunction that “rendered effectively academic” the Government’s successful litigation on the public-charge rule elsewhere. Id., at 4. The Government’s unquestionable focus was the scope of that injunction: Its stay application used the word “nationwide” 34 times.
Over the dissent of four Justices, this Court granted the Government’s application for a stay. Department of Homeland Security v. New York, 589 U. S. ___ (2020). Two Justices concurred in the grant of the stay, emphasizing—as the Government did—the “equitable and constitutional questions raised by the rise of nationwide injunctions.” Id., at ___ (GORSUCH, J., concurring in grant of stay) (slip op., at 5). No Member of the Court discussed the application’s merit apart from its challenges to the injunction’s nationwide scope.
In the meantime, other courts considered the publiccharge rule, and one—the District Court in this case—ruled much more narrowly. The District Court concluded that the plaintiffs in the case before it were entitled to a preliminary injunction, based on self-described “dry and arguably bloodless” legal analysis. Cook County v. McAleenan, ___ F. Supp. 3d ___, ___, 2019 WL 5110267, *14 (ND Ill., Oct. 14, 2019). But it did not award nationwide relief as the New York court had: It merely prevented the Government from

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WOLF v. COOK COUNTY

SOTOMAYOR, J., dissenting
enforcing the public-charge rule in Illinois, where the “ ‘nearly 100 nonprofit organizations and social and health service providers’ ” represented by one of the plaintiffs were located. Ibid.
After the District Court declined to stay enforcement of its injunction pending appeal, the Government asked the Seventh Circuit to intervene and stay the injunction itself. On December 23, 2019, the Seventh Circuit declined, and instead set an expedited briefing schedule to ensure prompt consideration of the issue. As part of that expedited schedule, the Seventh Circuit set oral argument for February 26, 2020—five days from now.
Notably, the Government initially chose not to appeal the Seventh Circuit’s decision denying a stay. Instead, while letting the normal appellate process play out in this case, it urged this Court to review a later issued decision granting a nationwide injunction—in no small part because it was a nationwide injunction. Yet now that this Court acceded to that request, the Government wants more: It asks this Court to grant a stay of the District Court’s considered— and considerably narrower—order below.
One might wonder what the trouble is with granting a stay in this case. After all, by granting a stay in the New York cases, the Court effectively has already allowed the Government to enforce the public-charge rule elsewhere— why not Illinois too? But—even putting aside the dissent of four Justices in the New York cases and the plaintiffs’ weighty arguments on the merits—the Court should not forget the burden the Government must carry to obtain a stay. To warrant this “ ‘extraordinary’ ” relief, Williams v. Zbaraz, 442 U. S. 1309, 1316 (1979) (Stevens, J., in chambers), it is not enough for a party to point to an important legal issue, or even one that is likely to obtain the assent of five Justices on the merits (which is far from certain here). Instead, to justify upending the normal rules of appellate

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procedure, a party must also show a likelihood of irreparable harm. Packwood v. Senate Select Comm. on Ethics, 510 U. S. 1319, 1320 (1994) (Rehnquist, C. J., in chambers). And “[b]ecause this matter is pending before the Court of Appeals, and because the Court of Appeals denied” the Government’s motion for a stay, the Government now bears “an especially heavy burden.” Ibid.
The Government has not made that showing here. Its public-charge rule is set to go into effect in 49 of 50 States next week. The Seventh Circuit is set to consider the Illinois-specific injunction next week as well, with a decision to follow shortly thereafter. And the Government is unable to articulate how many cases—if any—this narrow injunction would affect in the meantime. In sum, the Government’s only claimed hardship is that it must enforce an existing interpretation of an immigration rule in one State—just as it has done for the past 20 years—while an updated version of the rule takes effect in the remaining 49. The Government has not quantified or explained any burdens that would arise from this state of the world. Indeed, until this Court granted relief in the New York cases, the Government itself did not consider this Illinois-specific harm serious enough to warrant asking this Court for relief.
These facts—all of which undermine the Government’s assertion of irreparable harm—show two things, one about the Government’s conduct and one about this Court’s own. First, the Government has come to treat “th[e] exceptional mechanism” of stay relief “as a new normal.” Barr v. East Bay Sanctuary Covenant, 588 U. S. ___, ___ (2019) (SOTOMAYOR, J., dissenting from grant of stay) (slip op., at 5). Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited Court resources in each. And with each successive application, of course, its cries of urgency ring increasingly hollow. Indeed, its behavior relating to the public-charge

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SOTOMAYOR, J., dissenting
rule in particular shows how much its own definition of irreparable harm has shifted. Having first sought a stay in the New York cases based, in large part, on the purported harm created by a nationwide injunction, it now disclaims that rationale and insists that the harm is its temporary inability to enforce its goals in one State.
Second, this Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. Ibid. But make no mistake: Such a shift in the Court’s own behavior comes at a cost.
Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the government.” Application 3.) They demand extensive time and resources when the Court’s intervention may well be unnecessary—particularly when, as here, a court of appeals is poised to decide the issue for itself.
Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Murphy v. Collier, 587 U. S. ___, ___ (2019) (second statement of KAVANAUGH, J.) (slip op., at 4); see also id., at ___ (ALITO, J., joined by THOMAS and GORSUCH, JJ., dissenting from

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grant of stay) (slip op., at 6) (“When courts do not have adequate time to consider a claim, the decisionmaking process may be compromised”); cf. Dunn v. Ray, 586 U. S. ___ (2019) (overturning the grant of a stay of execution). Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances— where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.
I respectfully dissent.

 
 Case: 1:19-cv-06334 Document #: 150 Filed: 05/19/20 Page 1 of 30 PageID #:2311

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

COOK COUNTY, ILLINOIS, an Illinois governmental )

entity, and ILLINOIS COALITION FOR IMMIGRANT )

AND REFUGEE RIGHTS, INC.,

)

)

Plaintiffs,

)

)

vs.

)

)

CHAD F. WOLF, in his official capacity as Acting

)

Secretary of U.S. Department of Homeland

)

Security, U.S. DEPARTMENT OF HOMELAND

)

SECURITY, a federal agency, KENNETH T.

)

CUCCINELLI II, in his official capacity as Senior

)

Official Performing the Duties of the

)

Director of U.S. Citizenship and Immigration Services, )

and U.S. CITIZENSHIP AND IMMIGRATION

)

SERVICES, a federal agency,

)

)

Defendants.

)

19 C 6334 Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

Cook County and Illinois Coalition for Immigrant and Refugee Rights, Inc. (“ICIRR”)

allege in this suit that the Department of Homeland Security’s (“DHS”) final rule, Inadmissibility

on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (“Final Rule” or “Rule”),

violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and ICIRR alleges

that the Rule violates the equal protection component of the Fifth Amendment’s Due Process

Clause. Doc. 1. The court preliminarily enjoined DHS from enforcing the Rule on the ground

that it likely violates the APA—specifically, that it likely is incompatible with the meaning of the

term “public charge” in the governing statute, 8 U.S.C. § 1182(a)(4)(A). Docs. 85, 87, 106

(reported at 417 F. Supp. 3d 1008 (N.D. Ill. 2019)). DHS appealed, Cook Cnty. v. Wolf, No. 19-

1

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3169 (7th Cir.) (argued Feb. 26, 2020), and the Supreme Court stayed the preliminary injunction pending appeal, Wolf v. Cook Cnty., 140 S. Ct. 681 (2020) (mem.).
Meanwhile, the case proceeds on the merits here. See Wis. Mut. Ins. Co. v. United States, 441 F.3d 502, 504 (7th Cir. 2006) (“[A]n appeal taken from an interlocutory decision does not prevent the district court from finishing its work and rendering a final decision.”). Before the court are two matters. The first is DHS’s motion under Civil Rules 12(b)(1) and 12(b)(6) to dismiss the suit. Doc. 124. (DHS does not mention Rule 12(b)(1), but that is the proper vehicle for its standing and ripeness arguments. See Swanigan v. City of Chicago, 881 F.3d 577, 582 (7th Cir. 2018).) The second concerns whether ICIRR is entitled to discovery beyond the administrative record for its equal protection claim. Doc. 95 at 6-7; Docs. 111, 113, 118-119, 121, 137, 140-141, 146.
The court denies DHS’s motion to dismiss insofar as it submits that Plaintiffs lack standing or fall outside the pertinent zone of interests, that this suit is not ripe, or that the APA claims fail as a matter of law. The court addressed those issues in its preliminary injunction opinion, 417 F. Supp. 3d at 1016-28, and the Seventh Circuit will have a chance to weigh in when it resolves DHS’s appeal. Until then, this court adheres to the views articulated in its opinion. DHS of course may renew under Rule 12(c) any arguments on those issues once the Seventh Circuit rules. See Fed. R. Civ. P. 12(h)(2)(B).
That leaves DHS’s Rule 12(b)(6) motion to dismiss ICIRR’s equal protection claim and, if the motion is denied, the question regarding extra-record discovery on that claim.
Background In resolving a Rule 12(b)(6) motion, the court assumes the truth of the complaint’s wellpleaded factual allegations, though not its legal conclusions. See Zahn v. N. Am. Power & Gas,
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LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). The court must also consider “documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice,” along with additional facts set forth in ICIRR’s brief opposing dismissal, so long as those additional facts “are consistent with the pleadings.” Phillips v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013) (internal quotation marks omitted); see also Heng v. Heavner, Beyers & Mihlar, LLC, 849 F.3d 348, 354 (7th Cir. 2017) (“Materials or elaborations in [the plaintiff’s] brief opposing dismissal may be considered, so long as those materials or elaborations are consistent with the pleadings.”) (internal quotation marks omitted); Early v. Bankers Life & Cas. Co., 959 F.2d 75, 79 (7th Cir. 1992) (“[A] plaintiff is free, in defending against a motion to dismiss, to allege without evidentiary support any facts he pleases that are consistent with the complaint, in order to show that there is a state of facts within the scope of the complaint that if proved (a matter for trial) would entitle him to judgment.”). The court must set forth the facts as favorably to ICIRR as those materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277 (7th Cir. 2016). In setting forth the facts at the pleading stage, the court does not vouch for their accuracy. See Goldberg v. United States, 881 F.3d 529, 531 (7th Cir. 2018).
A. Statutory and Regulatory Background Before getting to the factual background, a few words are in order about the Final Rule and its governing statute. Section 212(a)(4) of the Immigration and Nationality Act (“INA”) states: “Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” 8 U.S.C. § 1182(a)(4)(A). The public charge provision has a long pedigree, dating back to the
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Immigration Act of 1882, ch. 376, §§ 1-2, 22 Stat. 214, 214, which directed immigration officers to refuse entry to “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” The provision has been part of our Nation’s immigration statutes, in various but nearly identical forms, ever since. See Immigration Act of 1891, ch. 551, § 1, 26 Stat. 1084, 1084; Immigration Act of 1907, ch. 1134, § 2, 34 Stat. 898, 899; Immigration Act of 1917, ch. 29, § 3, 39 Stat. 874, 876; INA of 1952, ch. 477, § 212(a)(15), 66 Stat. 163, 183; Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, § 531(a), 110 Stat. 3009-546, 3009-674 to -675 (1996).
Prior to the rulemaking that yielded the Final Rule, the federal agency charged with immigration enforcement last articulated its understanding of the term “public charge” in a 1999 field guidance document. Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689 (May 26, 1999). The field guidance defined a “public charge” as a person “primarily dependent on the government for subsistence,” and instructed immigration officials to ignore non-cash public benefits in assessing whether a person was “likely at any time to become a public charge.” Id. at 28,689.
In October 2018, DHS published a Notice of Proposed Rulemaking, Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (Oct. 10, 2018). Some ten months later, DHS issued the Final Rule, which addressed comments, revised the proposed rule, and provided analysis to support the Rule. See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. at 41,292. As DHS described it, the Rule “redefines the term ‘public charge’ to mean an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).” Id. at 41,295.
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By adopting a largely duration-based standard, the Rule deems aliens who receive only modest benefits to be public charges so long as they receive those benefits for the requisite time period. As the Rule explains: “DHS may find an alien inadmissible … even though the alien who exceeds the duration threshold may receive only hundreds of dollars, or less, in public benefits annually.” Id. at 41,360-61. The Rule “defines the term ‘public benefit’ to include cash benefits for income maintenance, [the Supplemental Nutrition Assistance Program], most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing.” Id. at 41,295. The Rule sets forth several nonexclusive factors DHS must consider in making a public charge determination, including “the alien’s health,” any “diagnosed … medical condition” that “will interfere with the alien’s ability to provide and care for himself or herself, to attend school, or to work,” and past applications for enumerated public benefits. Id. at 41,50204. The Rule also requires DHS to consider “[w]hether the alien is proficient in English,” and to deem it a “[h]eavily weighted positive factor[]” if the “alien’s household has income, assets, … resources, and support … of at least 250 percent of the Federal Poverty Guidelines.” Id. at 41,504.
The Rule provides that a person found likely to become a public charge is ineligible “for a visa to come to the United States temporarily or permanently, for admission, or for adjustment of status to that of a lawful permanent resident.” Id. at 41,303. The Rule also “potentially affect[s] individuals applying for an extension of stay or change of status because these individuals would have to demonstrate that they have not received, since obtaining the nonimmigrant status they are seeking to extend or change, public benefits for” more than the permitted duration. Id. at 41,493.
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B. ICIRR’s Allegations Concerning the Effect of and Motivation for the Final Rule
“The Final Rule will disproportionately disqualify non-white immigrants from adjusting their status.” Doc. 1 at ¶ 132. “Of the 25.9 million immigrants who will be affected by the Final Rule, 23.3 million are non-white.” Id. at ¶ 133. “The Final Rule’s weighted circumstances test favors white immigrants, and thus disfavors non-white immigrants. Sixty percent of green card applicants from Mexico and Central America and 41 percent from Asia between 2014 and 2016 had two or more negative factors, whereas only 27 percent of immigrants from Europe, Canada, and Oceania (primarily Australia and New Zealand) have two or more negative factors.” Id. at ¶ 136. “Immigrants from Europe, Canada, and Oceania are the least likely to be affected by the Final Rule’s changes to public charge because they are generally wealthier, more educated, and more likely to speak English.” Ibid. “[I]mmigrants from regions with predominantly white populations have the highest proportion of recent lawful permanent residents with family income above 250 percent of the federal poverty guideline,” which, as noted, is “a heavily weighted positive factor under the Final Rule.” Id. at ¶¶ 132, 136.
According to ICIRR, this disparate impact was intentional, with DHS adopting the Rule as part of its “broader agenda to vilify immigrants from majority non-white countries[,] … to suppress immigration and those seeking citizenship from those countries,” and to “exclude certain (predominantly non-white) immigrants.” Id. at ¶¶ 3, 173. “This agenda has manifested” in the President’s “statements that Haiti, El Salvador, and unspecified African nations are ‘s[hit]hole countries,’” descriptions of “Mexican immigrants as ‘drug dealers, criminals, [and] rapists’ and migrants from Central America as ‘animals,’” and suggestion that “40,000 Nigerians would never ‘go back to their huts’ in Africa after seeing the United States.” Id. at ¶ 173. Moreover, in a television interview conducted the day after the Rule’s promulgation, then-Acting
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Director of U.S. Citizenship and Immigration Services (“USCIS”) Kenneth Cuccinelli II—an official capacity defendant who leads the DHS component “primarily responsible for the immigration services functions of the United States”—stated in response to the suggestion that the Rule undermined the values articulated in The New Colossus, the Emma Lazarus poem inscribed on the Statue of Liberty, that “of course that poem was referring back to people coming from Europe.” Id. at ¶¶ 17-18, 174; CNN, Burnett challenges Cuccinelli on new immigration rule, YouTube (Aug. 13, 2019), http://www.youtube.com/watch?v=Ks6t4eTegqU&feature=youtu.be&t=281. Cuccinelli then observed that the poem was written the “same exact time” Congress enacted the first public charge statute in 1882 and was inscribed on the Statue of Liberty the year Congress amended the statute. CNN, Burnett challenges Cuccinelli on new immigration rule, supra.
ICIRR alleges that DHS promulgated the Final Rule knowing that it “would have a disparate impact on Latino immigrants and immigrants of color” and with the “inten[t] to target [such] immigrants … as part of [its] broader effort to reduce immigration by people of color into the United States.” Doc. 1 at ¶ 182. DHS “use[d] facially neutral but pre-textual concerns about self-sufficiency in an effort to cloak [its] discriminatory intent against non-white people. Although people of color account for approximately 36% of the total U.S. population, approximately 90% of those chilled from seeking public services [because of the Rule] would be immigrants of color (70% of whom are Latino).” Id. at ¶ 183. “The purpose of the Final Rule is to discriminate against non-white immigrants. [DHS] knew that the Final Rule would have a targeted, disproportionate impact on people from non-white countries.” Id. at ¶ 184.
ICIRR further alleges that Stephen Miller, the President’s principal immigration advisor, was the “architect of the Final Rule,” id. at ¶ 180, and its “driving” force, Doc. 133 at 48. In a
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June 2018 email to L. Francis Cissna, Cuccinelli’s predecessor at USCIS, Miller asked, “[W]here are we on regs? Public charge? Asylum? Etc.” Emails between Stephen Miller, Senior Policy Advisor to the President, and DHS Officials (June 8, 2018) (on file at http://www.politico.com/f/?id=0000016c-5349-de87-affd-7bc9eff20001). Cissna responded, “I’m told that staff working on the public charge reg”—the rest of Cissna’s email is redacted, but it is clear from context that he said the process would take months—and Miller forwarded Cissna’s response to USCIS’s chief counsel, stating, “Months! This needs to be days or weeks!!” Ibid. The chief counsel wrote to Miller, “We’ll do what we can to quickly move it back up to the Department and then OMB (hopefully this month),” and Miller replied, “Mick [Mulvaney] promised the president.” Ibid. In another email to Cissna that day, this time copying then-Office of Management and Budget (“OMB”) Director Mick Mulvaney and thenDHS Chief of Staff (and current DHS Secretary) Chad Wolf, Miller wrote:
Francis -- the timeline on public charge is unacceptable. The public charge reg has been in the works for a year and a half. This is time we don’t have. I don’t care what you need to do to finish it on time. … It’s an embarrassment that we’ve been here for 18 months and USCIS hasn’t published a single major reg. Adding Mick [Mulvaney] and Chad [Wolf] to this email. Ibid. As ICIRR sees it, Miller’s role as the Rule’s “architect” confirms the complaint’s allegation that it was designed to discriminate against nonwhite immigrants. Doc. 133 at 48-49. In 2015, shortly before joining the President’s presidential campaign, Miller sent emails that “repeatedly cited to materials from websites espousing white nationalist and anti-immigration viewpoints, including the portrayal of non-white immigrants as violent or threatening.” Doc. 111 at 5. Miller sent those emails to Katie McHugh, who wrote anti-immigration pieces from a white
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nationalist perspective for Breitbart. See, e.g., Katie McHugh, ‘Mohammed,’ ‘Juan’ Most Likely Names to Donate to Hillary Clinton, Breitbart (Apr. 21, 2016), http://www.breitbart.com/politics/2016/04/21/mohammed-juan-likely-names-donate-hillaryclinton (“Beginning with the 1965 Immigration and Nationality Act, the nation’s population has shifted far from its British settler roots and successive waves of non-British European migrants. Federal policy now welcomes Third World migration waves … .”); Katie McHugh, Imported Rape Culture: Somalian Refugee Charged with Rape of 10-Year-Old Girl, Breitbart (Oct. 13, 2015), http://www.breitbart.com/politics/2015/10/13/imported-rape-culture-somalian-refugeecharged-with-rape-of-10-year-old-girl (“Transplanting Somalis en-masse has only perpetuated the rape crisis, and worse, made it average Americans’ problem. … Islam … endorses the rape of infidels and since its founding has engaged in centuries-long, continents-wide account of nonstop sexual predation … .”) (alteration and internal quotation marks omitted).
In an email expressing concern that persons from Mexico would receive temporary protected status in the United States due to Hurricane Patricia, Miller sent McHugh a link to a piece from VDARE on the subject and urged her to make the issue “the weekend’s BIG story” on Breitbart. Trump immigration adviser Stephen Miller linked to white nationalist views in new emails, Chi. Trib. (Nov. 14, 2019), http://www.chicagotribune.com/nation-world/ct-nw-stephenmiller-racism-20191114-rncu7iihujcqbpu65ymdtwdfpq-story.html. VDARE is a website, founded and edited by Peter Brimelow, that promotes a white nationalist perspective on immigration. See Peter Brimelow, Trump’s Immigration Patriotism, His High-Concept Campaign, Pascal’s Wager: Peter Brimelow Talks to Alan Colmes, VDARE (Sept. 3, 2016), http://vdare.com/articles/trump-s-immigration-patriotism-his-high-concept-campaign-pascal-swager-peter-brimelow-talks-to-alan-colmes (“Well, I think the U.S. is a white nation. It was a
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white nation when it was founded and it still remains a state that represents a white majority. So, when you have a situation like you have now with the 1965 Immigration Act, where the government is essentially Electing A New People, importing a whole new cast of characters, who are going to drive the whites into a minority by 2040 … .”). The VDARE piece Miller sent McHugh lamented that the hurricane could result in the federal government “invit[ing] into the United States a lot of Mexicans.” Steve Sailer, Never Let a Crisis Go to Waste: Mexico’s Hurricane Patricia and ‘Temporary Protected Status’, VDARE (Oct. 23, 2015), http://vdare.com/posts/never-let-a-crisis-go-to-waste-mexico-s-hurricane-patricia-andtemporary-protected-status.
In another email, Miller commended The Camp of the Saints to McHugh in the course of a discussion regarding nonwhite students’ standardized test scores and the Pope’s encouragement of Western nations to accept more refugees. Trump immigration adviser Stephen Miller linked to white nationalist views in new emails, Chi. Trib., supra. The Camp of the Saints is a dystopian French novel, popular among white nationalists, whose plot centers on a flotilla of nonwhite refugees from India—led by an individual called the “turd eater”—who descend on France, are naively welcomed by the French, and proceed to rampage, kill, and wreak general havoc. See Shikha Dalmia, The dystopian, anti-immigration book The Camp of the Saints is really racist, The Week (Mar. 17, 2016), http://tinyurl.com/yaqs3jwa. The success of the Indians in France emboldens people from China and Pakistan to move in large numbers to other Western nations, resulting (by the author’s lights) in the subjugation of white persons by nonwhite persons and the destruction of white civilization and culture. Ibid.
The authenticity of Miller’s emails to McHugh—those discussed above are just two examples of many plausibly tinged with white nationalist sentiment—is undisputed. McHugh,
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who has since renounced her white nationalist views and who was responsible for the emails’ public release, stated that when she was introduced to Miller, “[i]t was understood that I would take editorial direction from him.” Former Breitbart Editor Katie McHugh On Stephen Miller And White Supremacy, Nat’l Pub. Radio (Dec. 15, 2019), http://www.npr.org/2019/12/15/788195178/former-breitbart-editor-katie-mchugh-on-stephenmiller-and-white-supremacy. For his part, Miller stated that “[t]here’s nothing wrong in any of my emails [to McHugh], there’s nothing wrong in anything I said,” adding that, for those who criticized his emails, “being pro-American … is a thought crime.” Fox Business, Stephen Miller responds to white nationalism allegations against him, YouTube (Dec. 30, 2019), http://www.youtube.com/watch?v=IE1bkeisPZ0.
Discussion I. DHS’s Motion to Dismiss ICIRR’s Equal Protection Claim
As ICIRR acknowledges, the Final Rule is facially neutral, meaning that it does not draw express distinctions based on race or ethnicity. Because “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause,” a facially neutral law “will not be held unconstitutional solely because it results in a racially disproportionate impact.” Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977). Rather, “[a] facially neutral law … warrants strict scrutiny [under the Equal Protection Clause] only if it can be proved that the law was motivated by a racial purpose or object, or if it is unexplainable on grounds other than race.” Hunt v. Cromartie, 526 U.S. 541, 546 (1999) (citations and internal quotation marks omitted). “Discriminatory purpose means more than simple knowledge that a particular outcome is the likely consequence of an action; rather, discriminatory purpose requires a defendant to have selected a particular course of action at least in part because of … its adverse
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effects upon an identifiable group.” Alston v. City of Madison, 853 F.3d 901, 907 (7th Cir. 2017) (internal quotation marks omitted) (alteration in original). “The task of assessing … motivation … is not a simple matter; on the contrary, it is an inherently complex endeavor, one requiring the trial court to perform a ‘sensitive inquiry into such circumstantial and direct evidence of intent as may be available.’” Hunt, 526 U.S. at 546 (quoting Arlington Heights, 429 U.S. at 266).
In seeking dismissal, DHS does not dispute ICIRR’s allegation that the Final Rule will have a disproportionate negative impact on nonwhite immigrants. Indeed, DHS effectively acknowledged as much. See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. at 41,369 (“DHS recognizes that it is possible that the inclusion of benefits such as SNAP and Medicaid may impact in greater numbers communities of color, including Latinos and [Asian Americans and Pacific Islanders], … and therefore may impact the overall composition of immigration with respect to these groups.”). Instead, DHS argues that “ICIRR’s allegations do not suggest that DHS issued the Rule ‘because of’ any alleged ‘adverse effects upon an identifiable’ racial or ethnic group.” Doc. 126 at 51.
DHS’s argument fails, as ICIRR expressly and plausibly alleges that DHS issued the Rule knowing and intending that it would have a disproportionate negative impact on nonwhite immigrants. Doc. 1 at ¶¶ 132-133, 136, 182-184. To support the allegation’s plausibility, ICIRR points to statements by the President that reasonably could be understood as expressing animus toward nonwhite immigrants. Id. at ¶ 173. ICIRR points as well to then-USCIS Acting Director Cuccinelli’s statements, made while defending the Rule from the charge that it runs contrary to the values conveyed by the Lazarus poem, that the poem “of course … was referring back to people coming from Europe” and that the poem’s origins and history are enmeshed with those of the public charge statute. Id. at ¶ 174; CNN, Burnett challenges Cuccinelli on new immigration
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rule, supra. At this stage, ICIRR is entitled to the reasonable inference that Cuccinelli’s statements revealed (perhaps inadvertently) his understanding that the Rule was intended to favor white immigrants and disproportionately harm nonwhite immigrants. See Robinson v. PPG Indus., Inc., 23 F.3d 1159, 1164-65 (7th Cir. 1994) (denying summary judgment where the decisionmaker’s statements were susceptible to both discriminatory and benign interpretations, reasoning that their meaning and significance presented a question “for the finder of fact”).
ICIRR also points to Miller’s central role in pressing for and crafting the Rule. Doc. 1 at ¶ 180; Doc. 133 at 48-49. ICIRR is entitled at this stage to the reasonable inference that Miller’s having recently recommended white nationalist content like The Camp of the Saints to a white nationalist commentator—and his characterizing his messages to her as “pro-American”— reflects his belief that nonwhite immigration to the United States should be suppressed. ICIRR is entitled to the further reasonable inference that Miller, having become the President’s principal immigration advisor, would seek to advance his beliefs by pressing for a regulation that suppresses nonwhite immigration. See City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 196-97 (2003) (“[S]tatements made by decisionmakers or referendum sponsors during deliberation over a referendum may constitute relevant evidence of discriminatory intent in a challenge to an ultimately enacted initiative.”); Arlington Heights, 429 U.S. at 268 (recognizing that “contemporary statements by members of the decisionmaking body” are “highly relevant” to determining whether the body acted with discriminatory intent); Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 945 F.3d 83, 111 (2d Cir. 2019) (“[E]vidence [of discriminatory purpose] may include the series of events leading up to a … decision, the context in which the decision was made, … [and] statements made by the decisionmaking body … .”) (internal quotation marks omitted).
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Given all this, ICIRR’s allegation that the Final Rule’s disproportionate impact on nonwhite immigrants motivated its promulgation is eminently plausible. ICIRR’s equal protection claim accordingly survives dismissal.
Citing Trump v. Hawaii, 138 S. Ct. 2392 (2018), DHS contends that the Rule is subject to only rational basis review—not strict scrutiny—because it concerns immigration. Doc. 126 at 51; Doc. 144 at 32. DHS’s contention overreads Hawaii. The Court in Hawaii held that the “plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications” for an executive order restricting entry into the United States by nationals of certain predominately Muslim countries was “inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere.” Hawaii, 138 S. Ct. at 2409. The statute in question was Section 212(f) of the INA, which provides for expansive discretion to be exercised by the President. See 8 U.S.C. § 1182(f) (“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”); Hawaii, 138 S. Ct. at 2408 (“By its terms, § 1182(f) exudes deference to the President in every clause.”). The Final Rule, by contrast, arises from an agency’s interpretation of Section 212(a)(4), which is not entitled to the expansive discretion given the President under Section 212(f). See Abourezk v. Reagan, 785 F.2d 1043, 1051 (D.C. Cir. 1986) (“[Section 212(a)] does not commit to unguided agency discretion the decision to exclude an alien. … [T]he Immigration Act emphatically did not commit the decision to exclude an alien to standardless agency discretion; the statute lists thirty-three distinctly delineated categories that conspicuously provide standards to guide the
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Executive in its exercise of the exclusion power.”) (citing 8 U.S.C. § 1182(a)), aff’d by an equally divided court, 484 U.S. 1 (1987).
Of equal if not greater importance, the Court in Hawaii held that the “sphere” in which executive power is shielded from “searching inquiry” is “the President[’s] adopt[ion of] ‘a preventive measure … in the context of international affairs and national security,’” not the entire realm of immigration law. Hawaii, 138 S. Ct. at 2409 (alteration in original) (quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 35 (2010)); see also id. at 2419 (“[The] narrow standard of review [articulated in Kleindienst v. Mandel, 408 U.S. 753 (1972),] has particular force in admission and immigration cases that overlap with the area of national security.”) (internal quotation marks omitted); id. at 2422 (“While we of course ‘do not defer to the Government’s reading of the First Amendment,’ the Executive’s evaluation of the underlying facts is entitled to appropriate weight, particularly in the context of litigation involving ‘sensitive and weighty interests of national security and foreign affairs.’”) (quoting Humanitarian Law Project, 561 U.S. at 33-34). By contrast to the President’s national security and international relations justifications for the executive order in Hawaii, DHS justified and continues to justify the Final Rule solely on economic grounds. See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. at 41,294-95 (“DHS is revising its interpretation of ‘public charge’ to … better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient, i.e., do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations.”); Doc. 126 at 51 (DHS arguing: “The Rule’s preamble … thoroughly explains the Rule’s non-discriminatory justifications, including the need to facilitate self-sufficiency among immigrants.”). Hawaii
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therefore does not warrant displacing Arlington Heights-style strict scrutiny in this case with the rational basis review deployed in Hawaii.
DHS next argues that the Final Rule passes equal protection muster because it was promulgated after “an extensive notice-and-comment process” and is supported by a preamble offering “non-discriminatory justifications.” Doc. 126 at 51-52; see also Doc. 144 at 32-33. When ruling on a Rule 12(b)(6) motion, the court must “draw all reasonable inferences in [the plaintiff’s] favor.” Pierce, 818 F.3d at 277. DHS’s articulation of nondiscriminatory grounds for the Rule does not render unreasonable the contrary inferences, set forth above, that ICIRR asks the court to draw regarding the motivation behind the Rule. Accordingly, although it is possible that DHS ultimately may show that the Rule was motivated solely by nondiscriminatory goals, it cannot prevail on that ground at this stage. See Jesus Christ Is the Answer Ministries, Inc. v. Baltimore Cnty., 915 F.3d 256, 263 (4th Cir. 2019) (“So long as a plaintiff alleges a plausible prima facie claim of discrimination, a court may not dismiss that claim—even if the defendant advances a nondiscriminatory alternative explanation for its decision, and even if that alternative appears more probable.”); Doe v. Miami Univ., 882 F.3d 579, 594 (6th Cir. 2018) (“At the pleading stage, [the plaintiff’s] allegations need only create the plausible inference of intentional … discrimination; although alternative non-discriminatory explanations for the defendants’ behavior may exist, that possibility does not [warrant dismissal].”); Woods v. City of Greensboro, 855 F.3d 639, 649 (4th Cir. 2017) (“The question is not whether there are more likely explanations for the City’s action, … but whether the City’s impliedly proffered reason … is so obviously an irrefutably sound and unambiguously nondiscriminatory and non-pretextual explanation that it renders [the plaintiff’s] claim of pretext implausible.”).
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Finally, DHS argues that because ICIRR’s equal protection challenge “relies almost exclusively on alleged public statements by non-DHS officials that have no express connection to the Rule,” ICIRR cannot explain “how these statements reveal that DHS harbored an improper motive in implementing the Rule.” Doc. 126 at 52-53. As a general rule, statements of public officials bear on whether a “discriminatory purpose was a motivating factor” for government action only if the statements are made “by members of the decisionmaking body.” Arlington Heights, 429 U.S. at 268. One of the persons whose statements ICIRR cites, Cuccinelli, was the official who led the DHS component (USCIS) responsible for promulgating and implementing the Final Rule, so his statements are unquestionably pertinent in evaluating whether ICIRR has a plausible equal protection claim.
The President and Miller are two other persons whose statements are cited by ICIRR. DHS does not deny that the President and Miller made the statements attributed to them, nor, for purposes of its motion to dismiss, does DHS deny ICIRR’s allegation that those statements show that the President and Miller harbor discriminatory animus toward nonwhite immigrants. Instead, DHS contends that because the President and Miller are “non-DHS personnel,” their statements “have no bearing on why DHS issued the Rule.” Doc. 144 at 33. That contention cannot be reconciled with ICIRR’s allegations, which DHS does not contest for purposes of this motion, that Miller was the Final Rule’s “architect,” Doc. 1 at ¶ 180, and “driving” force, Doc. 133 at 48. Nor can DHS’s contention be reconciled with Miller’s emails to Cissna (Cuccinelli’s predecessor) inquiring about progress on the public charge regulation and, when the answer displeased him, demanding quicker action and criticizing what he saw as unacceptable delay. There is no need to draw inferences in ICIRR’s favor to deduce from those emails who answered to whom. As for the President’s involvement, Miller copied OMB Director Mulvaney on an
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email criticizing Cissna and, in an exchange where the USCIS chief counsel promised to “do
what we can to quickly move it back up to the Department and then OMB,” Miller stated that
Mulvaney had “promised the President.”
DHS’s contention that Miller’s and the President’s statements are irrelevant to the
motivation behind the Rule also cannot be reconciled with the Government’s understanding of
how the Executive Branch works. As the Solicitor General explained in a Supreme Court brief
filed less than a month before DHS filed the present motion to dismiss:
Article II of the Constitution provides that “[t]he executive Power shall be vested” in the President alone, U.S. Const. Art. II, § 1, Cl. 1, who is obligated to “take Care that the Laws be faithfully executed,” Art. II, § 3. “The insistence of the Framers upon unity in the Federal Executive—to ensure both vigor and accountability—is well known.” Printz v. United States, 521 U.S. 898, 922 (1997). The Framers “sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.” Clinton v. Jones, 520 U.S. 681, 712 (1997) (Breyer, J., concurring in the judgment). “Energy in the executive,” Hamilton explained, “is a leading character in the definition of good government,” and is essential to “the steady administration of the laws.” The Federalist No. 70, at 471 (Hamilton) (Jacob Ernest Cooke ed., 1961). Unity of authority is a necessary “ingredient[].” Id. at 472. And the Constitution vests that unified authority in an elected President to ensure that a “dependence on the people” is the “primary controul on the government.” The Federalist No. 51, at 349 (Madison) (Jacob Ernest Cooke ed., 1961).
Brief for Respondent Supporting Vacatur at 10-11, Seila Law LLC v. CFPB (U.S. 2019) (No. 19-
7), 2019 WL 6727094, at *10-11 (alterations in original); accord Attorney General William P.
Barr, 19th Annual Barbara K. Olson Memorial Lecture at the Federalist Society’s 2019 National
Lawyers Convention (Nov. 15, 2019), http://www.justice.gov/opa/speech/attorney-general-
william-p-barr-delivers-19th-annual-barbara-k-olson-memorial-lecture (stating that “the
Executive’s powers of internal management … are the powers necessary for the President to
superintend and control the Executive function,” and that “[t]he idea of the unitary executive …
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is that, whatever the Executive powers may be, they must be exercised under the President’s supervision”).
Given what the Solicitor General, speaking to the Supreme Court on the Government’s behalf, described as the President’s unitary role in supervising the Executive Branch, DHS’s argument that the views of the President and his principal immigration advisor “have no bearing on why DHS issued the Rule,” Doc. 144 at 33, cannot be credited. And putting aside as-yet unanswered questions regarding the outer bounds of the President’s Article II authority, the Supreme Court has made clear that the President exercises ultimate control over the actions of agencies like DHS. See Kisor v. Wilkie, 139 S. Ct. 2400, 2413 (2019) (holding that “agencies … are subject to the supervision of the President”); Free Enterprise Fund v. PCAOB, 561 U.S. 477, 501 (2010) (“The President has been given the power to oversee executive officers; he is not limited, as in Harry Truman’s lament, to ‘persuad[ing]’ his unelected subordinates ‘to do what they ought to do without persuasion.’ In its pursuit of a ‘workable government,’ Congress cannot reduce the Chief Magistrate to a cajoler-in-chief.”) (citation omitted) (alterations in original); see also Mistretta v. United States, 488 U.S. 361, 417 n.2 (1989) (Scalia, J., dissenting) (“An executive agency can, of course, be created with no power other than the making of rules, as long as that agency is subject to the control of the President and the President has executive authority related to the rulemaking. In such circumstances, the rulemaking is ultimately ancillary to the President’s executive powers.”). It necessarily follows that DHS cannot brush off the President’s and Miller’s statements regarding nonwhite immigrants as irrelevant to the motivation behind the Final Rule. See Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1732 (2018) (considering government decisionmakers’ “expressions of hostility to religion” in deciding whether their action violated the Free Exercise Clause).
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II. ICIRR’s Request for Extra-Record Discovery on Its Equal Protection Claim If there were only APA claims and no equal protection claim in this case, the rules
governing discovery would be clear. “In reviewing agency action [under the APA], a court is ordinarily limited to evaluating the agency’s contemporaneous explanation in light of the existing administrative record.” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2573 (2019). “That principle reflects the recognition that further judicial inquiry into ‘executive motivation’ represents ‘a substantial intrusion’ into the workings of another branch of Government and should normally be avoided.” Ibid. (quoting Arlington Heights, 429 U.S. at 268 n.18). However, there is a “narrow exception to the general rule against inquiring into the mental processes of administrative decisionmakers. On a strong showing of bad faith or improper behavior, such an inquiry may be warranted and may justify extra-record discovery.” Id. at 2573-74 (internal quotation marks and citation omitted).
Neither the Supreme Court nor the Seventh Circuit has articulated the rules governing discovery where, as here, a plaintiff brings a substantive constitutional challenge to agency action. Other courts have split on that question. Some courts hold that the ordinary rules for APA claims apply, with discovery limited to the administrative record unless the plaintiff meets the “strong showing of bad faith or improper behavior” standard. See, e.g., Chang v. USCIS, 254 F. Supp. 3d 160, 161-62 (D.D.C. 2017); N. Arapaho Tribe v. Ashe, 92 F. Supp. 3d 1160, 1171 (D. Wyo. 2015). Other courts hold that extra-record discovery is presumptively available, at least where the constitutional challenge does not mirror or substantially overlap with an APA challenge. See, e.g., J.L. v. Cissna, 2019 WL 2224851, at *1 (N.D. Cal. Mar. 8, 2019); Grill v. Quinn, 2012 WL 174873, at *2 (E.D. Cal. Jan. 20, 2012); Tafas v. Dudas, 530 F. Supp. 2d 786, 802 (E.D. Va. 2008).
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DHS incorrectly argues that the Supreme Court resolved that split in Department of Commerce v. New York, supra. Doc. 118 at 4-5. The plaintiffs there challenged on both APA and equal protection grounds the Department of Commerce’s addition of a citizenship question to the 2020 census questionnaire. See New York v. U.S. Dep’t of Commerce, 315 F. Supp. 3d 766 (S.D.N.Y. 2018). The district court allowed extra-record discovery, reasoning that the plaintiffs “had made a strong preliminary or prima facie showing that they will find material beyond the Administrative Record indicative of bad faith.” New York v. U.S. Dep’t of Commerce, 339 F. Supp. 3d 144, 147 (S.D.N.Y. 2018) (internal quotation marks omitted). On review of the district court’s judgment that the Department violated the APA, the Supreme Court held that while the district court “should not have ordered extra-record discovery when it did,” material later added to the administrative record satisfied the “strong showing” standard, thereby justifying that discovery. Dep’t of Commerce, 139 S. Ct. at 2574.
Contrary to DHS’s submission, Doc. 113 at 3-7; Doc. 118 at 4-7, the Supreme Court did not hold, either explicitly or implicitly, that ordinary APA discovery rules govern constitutional challenges to agency action. As the above-quoted passage of the district court’s opinion makes clear, the district court granted extra-record discovery not on the ground that discovery for the equal protection claim is not subject to the “strong showing” standard for APA claims, but on the ground that the plaintiffs had satisfied that standard. Dep’t of Commerce, 339 F. Supp. 3d at 147; see also New York v. U.S. Dep’t of Commerce, No. 18-CV-2921 (S.D.N.Y. July 20, 2018), ECF No. 205 at 82 (“Finally, I agree with the plaintiffs that there is a solid basis to permit discovery of extra-record evidence in this case. To the extent relevant here, a court may allow discovery beyond the record where ‘there has been a strong showing in support of a claim of bad faith or improper behavior on the part of agency decision-makers.’ National Audubon Society v.
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Hoffman, 132 F.3d 7, 14 (2d Cir. 1997). Without intimating any view on the ultimate issues in this case, I conclude that plaintiffs have made such a showing here for several reasons.”). Having concluded that the plaintiffs ultimately satisfied the “strong showing” standard, the Supreme Court had no occasion to, and in fact did not, expressly address whether extra-record discovery could have been justified on the ground that the plaintiffs had brought an equal protection claim along with their APA claim. Indeed, by the time the case reached the Court, the equal protection claim had been dismissed. See New York v. U.S. Dep’t of Commerce, 351 F. Supp. 502, 669-71 (S.D.N.Y. 2019). That sequence of events likely is why DHS’s attorney acknowledged on the record here that the Supreme Court’s discussion of extra-record discovery in Department of Commerce pertained only to the APA claim. Doc. 109 at 13 (“THE COURT: But [the Supreme Court’s discussion of extra-record discovery] was only for – the discovery was for purposes of the APA claim, and there was no equal protection claim? [DHS Counsel]: Yes, your Honor.”).
DHS next argues that Section 706(2)(B) of the APA provides that ordinary APA discovery rules govern constitutional challenges like ICIRR’s equal protection claim. Doc. 118 at 2-3. Section 706(2)(B) provides that a party may challenge agency action as “contrary to constitutional right, power, privilege, or immunity,” 5 U.S.C. § 706(2)(B), and requires a court addressing such a challenge to “review the whole record or those parts of it cited by a party,” 5 U.S.C. § 706. The statute does not advance DHS’s cause, for its text conveys merely that the court should review the administrative record in evaluating a constitutional challenge, not that the court (subject to the “strong showing” exception) may review only the administrative record. See Matter of Am. Reserve Corp., 840 F.2d 487, 492 (7th Cir. 1998) (“Why should we infer from
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the list of ways to do something that there are no others? … A list of four ways may imply only that Congress has yet to consider whether there should be others.”).
Because neither Department of Commerce nor the APA’s text expressly answers whether the “strong showing” standard governs discovery for constitutional challenges to agency action, the question turns on whether the Supreme Court’s rationale for that standard applies here. In the course of addressing whether extra-record discovery was justified in Department of Commerce, the Supreme Court began by observing that, “in order to permit meaningful judicial review, an agency must disclose the basis of its action.” Dep’t of Commerce, 139 S. Ct. at 2573 (internal quotation marks omitted). The Court then noted that, “in reviewing agency action, a court is ordinarily limited to evaluating the agency’s contemporaneous explanation in light of the existing administrative record.” Ibid. “That principle,” the Court explained, “reflects the recognition that further judicial inquiry into ‘executive motivation’ represents ‘a substantial intrusion’ into the workings of another branch of Government and should normally be avoided.” Ibid. (quoting Arlington Heights, 429 U.S. at 268 n.18). The Court added:
[A] court may not reject an agency’s stated reasons for acting simply because the agency might also have had other unstated reasons. Relatedly, a court may not set aside an agency’s policymaking decision solely because it might have been influenced by political considerations or prompted by an Administration’s priorities. Agency policymaking is not a rarified technocratic process, unaffected by political considerations or the presence of Presidential power. Such decisions are routinely informed by unstated considerations of politics, the legislative process, public relations, interest group relations, foreign relations, and national security concerns (among others). Ibid. (internal quotation marks and citations omitted). The Court’s rationale in Department of Commerce for presumptively limiting discovery to the administrative record sounds in the register of a prototypical APA challenge to agency action on the ground that it is arbitrary and capricious, an abuse of discretion, or unsupported by
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the evidence. See also Camp v. Pitts, 411 U.S. 138, 142 (1973) (in a case examining whether an agency decision “was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’” holding that “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court”) (quoting 5 U.S.C. § 706(2)(A)). That rationale is a mismatch for an equal protection challenge alleging that an agency adopted a regulation that, while facially race-neutral, is intended to disadvantage certain races and succeeds in doing so.
Most people know by now that the quiet part should not be said out loud. See Smith v. Town of Clarkton, 682 F.2d 1055, 1064 (4th Cir. 1982) (“[O]fficials acting in their official capacities seldom, if ever, announce on the record that they are pursuing a particular course of action because of their desire to discriminate against a racial minority.”). Racial animus is not among the “political considerations” or “Administration[] priorities” that, being permitted to “routinely inform[]” agency “policymaking,” lay beyond a court’s proper scrutiny. Dep’t of Commerce, 139 S. Ct. at 2573; see Arlington Heights, 429 U.S. at 265-66 (“[I]t is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified.”). So if a facially neutral agency action is motivated by racial animus, that animus almost certainly will not be “disclose[d]” in the agency’s “contemporaneous explanation” for that action. Dep’t of Commerce, 139 S. Ct. at 2573. And because evidence of racial animus (if any) will reside outside the administrative record, presumptively limiting discovery to the record can allow the racial motivations
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underlying racially motivated policymaking to remain concealed. Given all this, and particularly given that its equal protection claim survives dismissal, ICIRR is entitled to discovery on that claim regardless of whether it can satisfy the “strong showing” standard applicable to APA claims. Cf. Kuang v. U.S. Dep’t of Defense, 2019 WL 293379, at *3 (N.D. Cal. Jan. 23, 2019) (applying the “strong showing” standard because “the gravamen of Plaintiffs’ claim is that the [agency] policy lacks a rational basis, not that it was motivated by xenophobic animus”).
ICIRR satisfies the “strong showing” standard in any event. That standard has been “variously described as a strong, substantial, or prima facie showing … that [the plaintiff] will find material in the agency’s possession indicative of bad faith or an incomplete record.” Air Transp. Ass’n of Am. v. Nat’l Mediation Bd., 663 F.3d 476, 487-88 (D.C. Cir. 2011); accord Citizens for Appropriate Rural Rds. v. Foxx, 815 F.3d 1068, 1081-82 (7th Cir. 2016) (“An exception exists [to the rule limiting discovery in APA cases to the administrative record] if a plaintiff seeking discovery can make a significant showing that it will find material in the agency’s possession indicative of bad faith or an incomplete record.”) (citing Air Transp. Ass’n, 663 F.3d at 487-88). The Supreme Court in Department of Commerce held that the standard was met by materials suggesting that the rationale stated in the administrative record for adding a citizenship question to the census questionnaire was a pretext, not the Department’s true rationale. See Dep’t of Commerce, 139 S. Ct. at 2574.
The circumstances here present at least as strong a case for extra-record discovery as the case presented in Department of Commerce. Although DHS found it important enough in the Final Rule to reference its communications with officials outside DHS, see Inadmissibility on Public Charge Grounds, 84 Fed. Reg. at 41,324 (“DHS is working and will continue to work with [the State Department] to ensure consistent application of the public charge ground of
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inadmissibility.”); id. at 41,460 (“Interagency discussions are a part of the internal deliberative process associated with the rulemaking.”); id. at 41,461 (“DHS is collaborating with other departments and agencies with regard to the regulatory changes promulgated by this final rule[].”), and although Miller’s emails with high-ranking DHS officials show his involvement with the Rule, the administrative record includes no such communications. DHS’s attorney could not offer a plausible explanation for this gap in the record, Doc. 121, and no such explanation is apparent. ICIRR therefore has made “a significant showing that it will find material in [DHS’s] possession indicative of … an incomplete record,” which entitles it to extrarecord discovery. Citizens for Appropriate Rural Rds., 815 F.3d at 1081-82; see also Air Transp. Ass’n of Am., 663 F.3d at 487-88. This is so regardless of whether there is a causal link between (i) the absence of any communications to or from Miller in the administrative record, which was filed on December 3, 2019, Doc. 110, and (ii) the public release three weeks earlier of Miller’s emails to McHugh.
Although ICIRR’s strong showing of an incomplete administrative record suffices to justify extra-record discovery, ICIRR also makes a strong showing that DHS’s stated reason for promulgating the Final Rule—protecting the fisc—obscures what ICIRR alleges is the real reason—disproportionately suppressing nonwhite immigration. It is far from fanciful for ICIRR to submit that Miller’s emails to McHugh commending white nationalist content like The Camp of the Saints reflect animus toward nonwhite immigration, or that the President’s statements, quoted above, reflect a similar animus. The same holds for ICIRR’s submission that Miller was the Rule’s “architect,” a submission finding strong support in his June 2018 emails with highranking USCIS officials, which reflect a keen interest—both his and the President’s—in what would become the Rule and a deep impatience with what he viewed as delay in its development.
26

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And the same holds for ICIRR’s submission that Cuccinelli’s remarks regarding the Lazarus poem revealed his understanding that the Rule was intended to favor white immigrants and disproportionately suppress nonwhite immigration.
Given what has been unearthed thus far, ICIRR makes a strong showing that the Rule was developed and promulgated “at least in part because of” a substantial and impermissible reason not reflected in the administrative record—the Rule’s disproportionate “adverse effects upon” nonwhite immigrants. Alston, 853 F.3d at 907; see also Arlington Heights, 429 U.S. at 265-66 (“[The Equal Protection Clause] does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the ‘dominant’ or ‘primary’ one. … When there is a proof that a discriminatory purpose has been a motivating factor in the decision, … judicial deference is no longer justified.”). Extra-record discovery is justified on this ground as well. See Dep’t of Commerce, 139 S. Ct. at 2574-75 (holding that materials suggesting that the agency’s action was motivated by concerns not reflected in the administrative record justified extra-record discovery); Valley Citizens for a Safe Env’t v. Aldridge, 886 F.2d 458, 460 (1st Cir. 1989) (Breyer, J.) (“The fact that review sometimes or often focuses on the initial administrative record does not mean it must, or always, will do so. It could happen that a particular instance of judicial review of an [agency action] raises a ‘genuine’ and ‘material’ dispute of facts that requires a trial: Did the agency know, for example, about some important matter that the [administrative record] ignored … [?] Or, did the agency improperly rely upon some other important, but secret information not part of the record?”) (citations omitted). (DHS does not
27

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argue in the alternative that, in lieu of allowing extra-record discovery, the court should order that the administrative record be supplemented, thereby forfeiting the point.)
In pressing the opposite result, DHS contends that ICIRR relies on “only generic statements by various Government officials, none of which specifically reference the Rule.” Doc. 113 at 5. But as already noted, Cuccinelli expressly referenced the Rule in his statements. DHS retorts that Cuccinelli’s statements are irrelevant because the Rule “was promulgated by the DHS Secretary.” Doc. 113 at 3. That argument fails: The Rule’s docket number is USCIS2010-0012; its caption lists USCIS as the DHS component responsible for the Rule; and it states that the proposed rule was published by “DHS, USCIS.” Inadmissibility on Public Charge Grounds, 84 Fed. Reg. at 41,292, 41,304. Thus, although the DHS Secretary issued the Rule as a formal matter, ICIRR makes a strong showing that Cuccinelli, as USCIS Acting Director, played a substantial role in its development.
As for Miller, DHS contends that “there is no indication that [his] viewpoints materially influenced the Rule’s design.” Doc. 118 at 9. To the contrary, and as also already noted, there is a strong indication from Miller’s June 2018 email traffic with DHS officials that he took a deep interest in the Rule, so much so that he pointedly criticized Cuccinelli’s predecessor for delays in its development and took care to note that the matter was on the President’s radar. The premise underlying DHS’s contention—that the President’s principal immigration advisor would have no substantive input into the Rule—is weak. This is particularly so given that Miller’s emails to McHugh, sent shortly before he joined the President’s staff, arguably manifest significant hostility toward nonwhite immigration, and that, as all parties agree at this stage, the Rule will have a disproportionate negative impact on nonwhite immigrants.
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Taking issue with this assessment, DHS maintains that although Miller’s emails to McHugh may cite white nationalist content, they “do not indicate that [he] himself harbors th[o]se viewpoints.” Doc. 118 at 9. True enough, the mere fact that somebody shares material written by others does not necessarily imply endorsement of that material. So, if Miller’s emails had manifested some level of disagreement or discomfort with the white nationalist content he sent McHugh, DHS might have had a point. But Miller’s emails on their face embrace without reservation the white nationalist content he sent McHugh. In one email, Miller urged McHugh to “point out the parallels to Camp of the Saints” when suggesting that she write about the Pope’s encouraging Western nations to accept more refugees. Trump immigration adviser Stephen Miller linked to white nationalist views in new emails, Chi. Trib., supra. In another email, Miller forwarded McHugh a VDARE article in urging her to make “the weekend’s BIG story” on Breitbart the prospect of temporary protective status for people from Mexico fleeing Hurricane Patricia. Ibid. (Again, those two emails are illustrative of many others he sent to McHugh.) Given how Miller presented the white nationalist materials to McHugh, the court at this stage cannot accept DHS’s submission that his emails do not indicate that he shared the viewpoints reflected in those materials.
Conclusion DHS’s motion to dismiss is denied, and ICIRR is entitled to extra-record discovery on its equal protection claim. DHS’s request for a discovery stay pending its appeal of the preliminary injunction, Doc. 118 at 10 n.7, is denied. The appeal concerns only Plaintiffs’ APA claims— recall that the preliminary injunction rests solely on the APA challenge—and ICIRR’s equal protection claim may proceed regardless of the APA claims’ merits. See Webster v. Doe, 486 U.S. 592, 601-04 (1988) (holding that the APA did not “preclude consideration of colorable
29

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constitutional claims arising out of” government actions taken under Section 102(c) of the National Security Act of 1947, even though the discretionary “language and structure” of Section 102(c) “preclude[d] judicial review … under the APA”). Granted, there are two issues on appeal that could impact the equal protection claim—ICIRR’s standing to challenge the Final Rule, and ripeness—but, in the court’s view, there is little chance of reversal on those issues in light of governing Seventh Circuit precedent. 417 F. Supp. 3d at 1018-19 (citing, e.g., Common Cause Ind. v. Lawson, 937 F.3d 944 (7th Cir. 2019), and OOIDA v. FMCSA, 656 F.3d 580, 586-87 (7th Cir. 2011)); Doc. 109 at 27.
Two observations before concluding. First, as to DHS’s motion to dismiss the equal protection claim, the court holds only that the claim survives dismissal, not that ICIRR is entitled to judgment. Second, as to extra-record discovery on that claim, the court has not addressed the nature and extent of the discovery to which ICIRR is entitled. See Webster, 486 U.S. at 604 (holding that “the District Court has the latitude to control any discovery process which may be instituted so as to balance [the plaintiff’s] need for access to proof which would support a colorable constitutional claim against” the agency’s legitimate interests and needs).

May 19, 2020

____________________________________ United States District Judge

30

 
 962 F.3d 208 (2020)
COOK COUNTY, ILLINOIS, et al., Plaintiffs-Appellees, v.
Chad F. WOLF, Acting Secretary of Homeland Security, et al., Defendants-Appellants.
No. 19-3169. United States Court of Appeals, Seventh Circuit.
Argued February 26, 2020. Decided June 10, 2020.
Rehearing En Banc Denied August 12, 2020.[*] Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 19 C 6334, Gary Feinerman, Judge.
Juan C. Arguello, Steven A. Levy, David E. Morrison, A. Colin Wexler, Takayuki Ono, Attorneys, Goldberg Kohn LTD., Chicago, IL, Lauren Elizabeth Miller, Jessica M. Scheller, Attorneys, Office of the Cook County State's Attorney, Chicago, IL, for Plaintiff-Appellee Cook County, Illinois.
Meghan P. Carter, Attorney, Oak Park, IL, Caroline Chapman, Nanshelmun Dashan, Attorneys, Legal Council for Health Justice, Chicago, IL, Tacy Fletcher Flint, David A. Gordon, Marlow Svatek, Attorneys, Sidley Austin LLP, Chicago, IL, Robert Velevis, Attorney, Sidley Austin LLP, Dallas, TX, Militza M. Pagan, Katherine Elizabeth Walz, Attorneys, Shriver Center on Poverty Law, Chicago, IL, for Plaintiff-Appellee Illinois Coalition for Immigrant and Refugee Rights.
Joshua Dos Santos, Gerard Sinzdak, Daniel Tenny, Attorneys, Department of
214 *214 Justice, Civil Rights Division, Washington, DC, Joshua M. Kolsky, Attorney, Office of the United States Attorney, Civil Division, Washington, DC, for Defendants-Appellants.
Mark Steven Venezia, Attorney, Immigration Reform Law Institute, Washington, DC, for Amicus Curiae Immigration Reform Law Institute.


 
   
 
 
 
 
 
 
 
 
 
 
 
  

Alanna Peterson, Attorney, Pacifica Law Group, Seattle, WA, for Amicus Curiae Nonprofit Anti-Domestic Violence and Sexual Assault Organizations.
Laurie Carr Mims, Attorney, Keker, Van Nest & Peters LLP, San Francisco, CA, for Amicus Curiae National Housing Law Project.
Elizabeth B. Wydra, Attorney, Constitutional Accountability Center, Washington, DC, for Amicus Curiae Legal Historians.
Ariel Claire Nelson, Attorney, National Consumer Law Center, Boston, MA, for Amicus Curiae National Consumer Law Center, Incorporated.
Matthew J. Owens, Attorney, Miner, Barnhill & Galland, Chicago, IL, Kristyn DeFilipp, Attorney, Foley Hoag LLP, Boston, MA, for Amicus Curiae Health Law Advocates.
Harry Lee, Attorney, Steptoe & Johnson LLP, Washington, DC, for Amicus Curiae Immigration Law Professors.
Sadik Harry Huseny, Attorney, Latham & Watkins LLP, San Francisco, CA, for Amicus Curiae Fiscal Policy Institute.
Douglas Neal Letter, William E. Havemann, Attorneys, United States House of Representatives, Office of General Counsel, Washington, DC, Robert Mark Loeb, Attorney, Orrick, Herrington & Sutcliffe LLP, Washington, DC, for Amicus Curiae United States House of Representatives.
Benna Ruth Solomon, Attorney, City of Chicago Law Department, Chicago, IL, for Amicus Curiae City of Chicago.
Priyamvada Arora, Esq., Cooley LLP, Palo Alto, CA, Susan Krumplitsch, Attorney, DLA Piper LLP (US), East Palo Alto, CA, for Amici Curiae American Academy of Pediatrics, American Medical Association, American College of Physicians, and American College of Obstetricians and Gynecologists.
Kyle A. Virgien, Charles F. Sprague, Attorneys, Latham & Watkins LLP, San Francisco, CA, Tyce R. Walters, Attorney, Latham & Watkins LLP, Washington, DC, for Amicus Curiae American Civil Liberties Union.


 
 
 
 
 
 
 
 
 
 


Paul Whitfield Hughes, Attorney, McDermott, Will & Emery, Washington, DC, for Amicus Curiae 5300 N 33rd St. LLC.
Before WOOD, Chief Judge, and ROVNER and BARRETT, Circuit Judges.
213 *213 WOOD, Chief Judge.
Like most people, immigrants to the United States would like greater prosperity for themselves and their families. Nonetheless, it can take time to achieve the American Dream, and the path is not always smooth. Recognizing this, Congress has chosen to make immigrants eligible for various public benefits; state and local governments have done the same. Those benefits include subsidized health insurance, supplemental nutrition benefits, and housing assistance. Historically, with limited exceptions, temporary receipt of these supplemental benefits did not jeopardize an immigrant's chances of one day adjusting his status to that of a legal permanent resident or a citizen.
Recently, however, the Department of Homeland Security (DHS) issued a new rule designed to prevent immigrants whom
215 *215 the Executive Branch deems likely to receive public assistance in any amount, at any point in the future, from entering the country or adjusting their immigration status. The Rule purports to implement the "publiccharge" provision in the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (4). States, cities, and nonprofit groups across the country have filed suits seeking to overturn the Rule.
Cook County, Illinois, and the Illinois Coalition for Immigrant and Refugee Rights, Inc. (ICIRR) brought one of those cases in the Northern District of Illinois. They immediately sought a preliminary injunction against the Rule pending the outcome of the litigation. Finding that the criteria for interim relief were satisfied, the district court granted their motion. We conclude that at least Cook County adequately established its right to bring its claim and that the district court did not abuse its discretion by granting preliminary injunctive relief. We therefore affirm.


 
 
 
 
 
 
 
 


I. The Setting
A. The Public-Charge Rule
The Immigration and Nationality Act (INA, or "the Act") provides that a noncitizen may be denied admission or adjustment of status if she "is likely at any time to become a public charge." 8 U.S.C. § 1182(a)(4)(A). The statute does not define the term "public charge," nor has it ever done so. Instead, the Act calls for a "totality-of-the-circumstances" analysis, though it singles out several factors to be considered "at a minimum": age; health; family status; assets, resources, and financial status; education and skills; and any affidavit of support under section 1183a. Id. § 1182(a)(4)(B). The statute does not specify how officials should weigh the listed factors and any others that appear to be relevant.
On August 14, 2019, following a notice and comment period, DHS issued a rule interpreting this provision. In it, DHS defines as a "public charge" any noncitizen (with some exceptions) who receives certain cash and noncash government benefits for more than "12 months" in the aggregate in a 36month period. Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41292-508 (Aug. 14, 2019) ("Rule"). It applies to all legally admitted immigrants; we are not concerned here with those in the country unlawfully. The Rule is not limited to federal benefits; instead, it sweeps in any federal, state, local, or tribal cash assistance for income maintenance; Supplemental Nutrition Assistance Program (SNAP) benefits; most forms of Medicaid; Section 8 Housing Assistance under the Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and certain other forms of subsidized housing. Id. at 41295, 41501. Each benefit received, no matter how small, is counted separately and stacked, such that receipt of multiple benefits in one month is considered receipt of multiple months' worth of benefits. Id. at 41295. For example, an immigrant who receives any amount of SNAP benefits, Medicaid, and housing assistance, and nothing else for four months in a three-year period, will be considered a public charge and likely denied adjustment of status. The



 


stacking rule means that a person can use up her "12 months" of benefits in a far shorter time than a quick reading of the Rule would indicate.
The Rule also explains what facts DHS will consider with respect to an applicant's age, health, family status, financial status, and education and skills. Id. at 41502-04. "Heavily weighted negative factors" include the following: lack of current employment or reasonable prospect of future employment; previous receipt or approval for receipt of 12 months' worth of public benefits in a three-year period; diagnosis
216 *216 of a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the ability to provide for oneself, attend school, or work, along with lack of insurance and no prospect of obtaining private health insurance, and insufficient financial resources to pay for reasonably foreseeable medical costs related to such medical condition; and prior determination of inadmissibility or deportability on public-charge grounds. Id. at 41504.
The "heavily weighted positive factors" are exclusively monetary. They include the following: a household income, assets, resources, or support amounting to at least 250 percent of the Federal Poverty Guidelines for the household size; current employment with an annual income of at least 250 percent of the Federal Poverty Guidelines for the household size; and private health insurance other than subsidized insurance under the Affordable Care Act. Id. To put this in perspective, recall that the Federal Poverty Guideline in 2020 for a family of four is $26,200 in annual income. Poverty Guidelines, www.aspe.hhs.gov. An annual income 250 percent of that number is $65,500, which is very close to the median U.S. income of $63,179 (the 2018 number reported by the U.S. Census on Sept. 10, 2019, see Income, Poverty and Health Insurance Coverage in the United States: 2018, www.census.gov).
Other factors include whether an immigrant is younger than 18 or older than 61 (bad); household size (smaller is better); whether an immigrant's household annual gross income is at least 125 percent of the Federal Poverty Guidelines; past receipt of any amount of public benefits (bad); level of education (good); English language proficiency; and credit history and credit score. Id. at 41502-04.


 
 

 
 


The Rule represents a striking departure from the previous administrative guidance—one with a potentially devastating impact on those to whom it applies.[1] That guidance, issued in 1999 by the Immigration and Naturalization Service (the predecessor of today's U.S. Citizenship and Immigration Services), defines as a public charge a noncitizen who is "primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense." Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689 (May 26, 1999) ("1999 Field Guidance") (emphasis added); see also Proposed Rule: Inadmissibility and Deportability on Public Charge Grounds, 64 Fed. Reg. 28676 (May 26, 1999). Drawing on both dictionary definitions and the development of immigration law since the 1880s, the proposed rule accompanying the 1999 Field Guidance explained that "a person becomes a public charge when he or she is committed to the care, custody, management, or support of the public," and that the term is best understood to signify "a complete, or nearly complete, dependence on the Government rather than the mere receipt of some lesser level
217 *217 of financial support." 64 Fed. Reg. at 28677.
B. Procedural History
DHS's new rule was scheduled to go into effect in October 2019. Before it did so, plaintiffs filed this suit against DHS and related entities for declaratory and injunctive relief. The complaint presents several theories: (1) the Rule violates the Administrative Procedure Act (APA), 5 U.S.C. § 706, because it exceeds DHS's statutory authority; (2) the Rule violates APA section 706 because it is not in accordance with law; (3) the Rule violates APA section 706 because it is arbitrary and capricious; and (4) the Rule violates the Fifth Amendment's Equal Protection guarantee because it discriminates against non-white immigrants.



 
 
 


Focusing on the APA theories, plaintiffs moved for a preliminary injunction, which the district court granted on October 14, 2019. (Following plaintiffs' lead, we do not discuss the Equal Protection theory.) The injunction is geographically limited to Illinois. The district court concluded that both Cook County and ICIRR have constitutional standing to sue—Cook County primarily because of the added costs its health and hospital system is absorbing and will have to absorb as a result of decreased immigrant enrollment in government-provided health care coverage, and ICIRR because it is expending and will continue to expend additional resources to educate immigrant communities about the Rule and ensure they are able to obtain necessary health services. The court also determined that both the County and ICIRR fall within the "zone of interests" protected by the INA, for largely the same reasons they have constitutional standing. On the merits, the court concluded that DHS's reinterpretation of the term is likely impermissible. The court found the statute to be clear and to require more substantial, sustained dependence on government assistance than the Rule demands before a noncitizen may be considered a public charge. This showed, the court held, that plaintiffs are likely to succeed on their claims. Finally, the court ruled that plaintiffs had shown a likelihood of irreparable harm and that the balance of harms favored them, such that a preliminary injunction is warranted.
DHS filed an immediate appeal and moved to stay the preliminary injunction pending resolution of its appeal. We denied the stay and a renewed motion for a stay, but on February 21, 2020, the Supreme Court granted a stay. Chad Wolf, et al. v. Cook County, et al., ___ U.S. ___, 140 S. Ct. 681, 206 L.Ed.2d 142 (2020).
As we write, parallel cases are being litigated in New York, Maryland, California, and Washington. New York v. U.S. Dep't of Homeland Sec., No. 19-cv-7777 (S.D.N.Y.); Make the Road New York v. Cuccinelli, No. 19cv-7993 (S.D.N.Y.); Casa de Maryland, Inc. v. Trump, No. 19-cv-2715 (D. Md.); California v. U.S. Dep't of Homeland Sec., No. 19-cv-4975 (N.D. Cal.); La Clinica De La Raza v. Trump, No. 19-cv-4980, 2019 WL 5497654 (N.D. Cal.); Washington v. U.S. Dep't of Homeland Sec., No. 19-cv-5210 (E.D. Wash.). The district courts in each of those cases also issued preliminary injunctions, though with nationwide effect. DHS appealed the preliminary injunctions and requested stays pending appeal. The Ninth and Fourth Circuits granted DHS's stay requests. City and Cnty. of San Francisco v. U.S. Citizenship & Immigration Servs., 944 F.3d 773 (9th Cir.





2019); Casa de Maryland, Inc. v. Trump, No. 19-2222 (4th Cir. Dec. 9, 2019). The Second Circuit declined to issue a stay, but the Supreme Court granted one pending further proceedings. Dep't of Homeland Sec., et al. v.
218 *218 New York, et al., ___ U.S. ___, 140 S. Ct. 599, 206 L.Ed.2d 115 (2020).
Rather than discussing these opinions point-by-point, we think it better to spell out our own analysis of these issues.
II. Right To Sue
Plaintiffs invoked the district court's jurisdiction under 28 U.S.C. § 1331 for their claims under the APA. DHS responds that they lack standing to sue under Article III of the Constitution. The district court rejected that argument. It also concluded that plaintiffs had adequately raised a claim within the "zone of interests" of the INA. We review the legal question of standing de novo and the factual findings underlying the district court's determination of standing for clear error. Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008).
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. For there to be a justiciable case or controversy, the party invoking the power of the court must have standing to sue. Hollingsworth v. Perry, 570 U.S. 693, 700, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). To assert standing for injunctive relief, a plaintiff must show that it is under an actual or imminent threat of suffering a concrete and particularized injury-in-fact; that this injury is fairly traceable to the defendant's conduct; and that it is likely


 
 
 

 
 


that a favorable judicial decision will prevent or redress the injury. Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009).
Municipalities generally have standing to challenge laws that result (or immediately threaten to result) in substantial financial burdens and other concrete harms. See, e.g., Dep't of Commerce v. New York, ___ U.S. ___, 139 S. Ct. 2551, 2565, 204 L.Ed.2d 978 (2019) ("diminishment of political representation, loss of federal funds, degradation of census data, and diversion of resources" were sufficient to give states and municipalities standing to sue over the proposed inclusion of a citizenship question on the 2020 census); Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 110-11, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979) (municipality had standing based on the effect of racial steering in housing on the municipality's tax base and social stability).
The district court found that Cook County has standing based on the financial harms the County will incur if and when the Rule goes into effect. The Rule is likely to cause immigrants to forgo routine treatment, immunizations, and diagnostic testing, resulting in more costly, uncompensated emergency care and an increased risk of communicable diseases spreading to the general public. Indeed, DHS conceded this harm in its commentary on the Rule, acknowledging "that increased use of emergency rooms and emergent care as a method of primary healthcare due to delayed treatment is possible and there is a potential for increases in uncompensated care in which a treatment or service is not paid for by an insurer or patient." 84 Fed. Reg. at 41384. The district court determined that "[b]oth the costs of community health epidemics and of uncompensated care are likely to fall particularly hard on [the Cook County health system], which already provides approximately half of all charity care in Cook County, including to noncitizens regardless of their immigration status." The district court found that these financial and health burdens were sufficient.
The district court also concluded that ICIRR has Article III standing based on
219 *219 the effect of the Rule on its ability to perform its core mission and operate its existing programs. The court found that the Rule would impair the organization's ability to achieve its mission of increasing access to care,


 
 
 
 


improving health literacy, and reducing reliance on emergency room care in immigrant communities. The Rule already has caused ICIRR to divert resources from its core programs to new efforts designed to educate immigrants and staff about the Rule's effects and to mitigate the Rule's chilling impact on immigrants who are not covered by the Rule but who nonetheless fear immigration consequences based on their receipt of public benefits.
Under Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) and Common Cause Indiana v. Lawson, 937 F.3d 944 (7th Cir. 2019), this is enough. In Havens, the Supreme Court found that a nonprofit organization focused on equal housing access had standing to sue an apartment owner under the Fair Housing Act for racial discrimination, based on the negative impact of the defendant's racial steering practices on the organization's ability to provide counseling and referral services for low- and moderate-income home-seekers. 455 U.S. at 379, 102 S.Ct. 1114. And in Common Cause, we relied on Havens in concluding that the plaintiff voting rights organizations had standing to challenge an Indiana law designed to remove certain people from the voter rolls, because the law caused the organizations to divert their limited resources from core programs to ameliorating the effects of the law. 937 F.3d at 950-52.
We agree with the district court that Cook County and ICIRR have established cognizable injuries. Their alleged injuries are predictable, likely, and imminent. And the Rule—not independent third-party decision-making —is the but-for cause of these injuries. Plaintiffs thus have constitutional standing to challenge the Rule.
B. Statutory Coverage
The next question is whether the interests Cook County and ICIRR assert are among those protected or regulated by the INA. A statute "ordinarily provides a cause of action only to plaintiffs whose interests fall within the zone of interests protected by the law invoked." Bank of America Corp. v.


 
 
 


City of Miami, ___ U.S. ___, 137 S. Ct. 1296, 1302, 197 L.Ed.2d 678 (2017).
The zone-of-interests test is not "especially demanding" in the APA context. Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 130, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014). This is because it was "Congress's evident intent when enacting the APA to make agency action presumptively reviewable." Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225, 132 S.Ct. 2199, 183 L.Ed.2d 211 (2012). The plaintiffs' interests must only arguably fall within the zone of interests of the statute. And the emphasis on the word "arguably" is not ours: the Supreme Court has "always conspicuously included the word `arguably' in the test to indicate that the benefit of any doubt goes to the plaintiff." Id. It is not necessary to demonstrate any "indication of congressional purpose to benefit the would-be plaintiff." Id. Suit is foreclosed "only when a plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." Id.
1. Cook County
The district court concluded that Cook County satisfies the zone-ofinterests test
220 *220 based on the financial burdens the County will incur as a result of the Rule. It drew an analogy to City of Miami, in which the Supreme Court held that Miami's allegations of lost tax revenue and extra municipal expenses placed it within the zone of interests protected by the Fair Housing Act.
DHS takes issue with these conclusions. It argues that the County does not fall within the INA's zone of interests because its asserted interests are inconsistent with the statutory purpose. DHS sees a tension between the County's efforts to provide services to immigrants and the supposed aim of the public-charge provision, which it understands as a command to reduce


 
 
 

 


and penalize immigrants' receipt of public benefits. DHS also contends that the district court misread City of Miami, and that the INA does not give any third party a judicially enforceable interest in the Executive Branch's immigration decisions.
DHS has overshot the mark. Indeed, its own arguments undermine such an absolutist position. DHS admits that one purpose of the public-charge provision is to protect taxpayer resources. In large measure, that is the same interest Cook County asserts. DHS tries to distinguish itself from Cook County by saying that it is focused on reducing the burden on federal taxpayers, but the Rule itself covers not just federal, but also state, local, and tribal assistance. Even if the effect of the Rule is some reduction in the burden on federal taxpayers, Cook County has plausibly alleged that at the same time, the Rule will increase the burden on those same people in their capacity as state and local taxpayers, who will have to suffer the adverse effects of a substantial population with inadequate medical care, housing, and nutrition.
Furthermore, though the purpose of the public-charge provision is to screen for and promote "self-sufficiency" among immigrants, it is not obvious what self-sufficiency means. Subsidies abound in the modern world, from discounted or free transportation for seniors, to public snow removal, to school lunches, to childhood vaccinations, and much more. Cf. Danilo Trisi, Administration's Public Charge Rules Would Close the Door to U.S. Immigrants Without Substantial Means, Ctr. on Budget and Policy Priorities (Nov. 11, 2019) (noting that in a single year, one in four U.S.-born citizens, and 15 percent of all residents, receives a benefit included in the Rule's public charge definition). Ensuring that immigrants have access to affordable basic health care, for example, may promote their greater selfsufficiency in other domains, including income, housing, and nutrition. It also protects the community at large from highly contagious diseases such as COVID-19. Cook County's interest in ensuring lawful immigrants' access to authorized federal and state public benefits is not plainly inconsistent with the text of the statute. Its financial interests thus suffice to bring it within the zone of interests of the public-charge provision.
2. ICIRR


 

 


The court also found that ICIRR fits within the INA's zone of interests, explaining that there is "ample evidence that ICIRR's interests are not merely marginal to those of the aliens more directly impacted by the public charge provision" and that "ICIRR [is] precisely the type of organization that would reasonably be expected to `police the interests that the statute protects.'"
Because only one plaintiff need demonstrate that it has stated a claim within the zone of interests of the statute, we elect to pass over ICIRR without much comment. We recognize that it asserts that it has suffered a financial burden directly
221 *221 attributable to the Rule. And we accept that ICIRR helps immigrants navigate the INA's various requirements, including the public-charge rule, and it has an interest in ensuring that immigrants are not improperly denied adjustment of status or removed from the country because of confusion over DHS's Rule. But the link between these injuries and the purpose of the public-charge part of the statute is more attenuated, and thus it is harder to say that the injury ICIRR has asserted meets the "zone-of-interests" test.
Given Cook County's presence in the case, we need not resolve ICIRR's status definitively, and so we limit our discussion in the remainder of the opinion to Cook County. The central question is whether the district court abused its discretion in preliminarily enjoining the Rule for the State of Illinois?
III. The Preliminary Injunction
To obtain a preliminary injunction, a plaintiff must establish that: (1) she is likely to succeed on the merits, (2) she is likely to suffer irreparable harm in the absence of preliminary relief; and (3) legal remedies are inadequate. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); Eli Lilly & Co. v. Arla Foods, Inc., 893 F.3d 375, 381 (7th Cir. 2018). "If the moving party makes this showing, the court


 
 
 

 


balances the harms to the moving party, other parties, and the public." Eli Lilly, 893 F.3d at 381. The standard is the same for an application for a stay under section 705 of the APA. Cronin v. U.S. Dep't of Agric., 919 F.2d 439, 446 (7th Cir. 1990).
The district court concluded that Cook County is likely to succeed on the merits and that the other requirements for preliminary injunctive relief have been met. We review the issuance of a preliminary injunction under the deferential abuse-of-discretion standard, reviewing legal issues de novo and factual findings for clear error. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017).
A. Likelihood of Success
The pivotal question in this case, as in many involving preliminary relief, is likelihood of success on the merits. We therefore devote the bulk of our analysis to this issue, understanding that the litigation is still in an early stage and anything we say may change as the record develops further.
The APA provides for judicial review of final agency decisions. 5 U.S.C. §§ 702, 706. The overriding question is whether the agency's interpretation of the relevant statute is one the text will permit. We approach this inquiry through the two-step framework set forth in Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The first issue is "whether Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. If Congress has done so unambiguously, then that is the end of it: the agency and courts alike are bound by what Congress wrote. Id. at 842-43, 104 S.Ct. 2778. If Congress has not spoken clearly, then we move on to step two, in which we consider whether the agency's interpretation reflects a permissible construction of the statute. Id. at 843, 104 S.Ct. 2778. We defer to the agency's reading "unless it appears from the statute or its legislative history that the accommodation [of conflicting policies] is not one that Congress would have sanctioned." Id. at 845, 104 S.Ct. 2778; see also Indiana v. EPA, 796 F.3d 803, 811 (7th Cir. 2015).


 
 

 


222 *222 Statutory interpretation is not the end of the matter, however. We also must assess the agency's policymaking to ensure that it is not "arbitrary and capricious," as the APA uses those terms. 5 U.S.C. § 706(2)(A). This review, guided by Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), focuses not on the facial validity of the agency's interpretation, but rather on the soundness of the process by which it reached its interpretation. See Encino Motorcars, LLC v. Navarro, ___ U.S. ___, 136 S. Ct. 2117, 2125, 195 L.Ed.2d 382 (2016) ("[W]here a proper challenge is raised to the agency procedures, and those procedures are defective, a court should not accord Chevron deference to the agency interpretation.").
1. Chevron Step One
We begin our analysis of DHS's Rule with an analysis of the text of the INA. In conducting this analysis, we consider the words of the public-charge provision, its place in the over-all statutory scheme, the relation of the INA to other statutes, and "common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000).
As we noted at the outset, the INA contains no formal definition of what it takes to be a "public charge." It merely lists several broad factors that are relevant to the determination. 8 U.S.C. § 1182(a)(4)(B). It does not provide weights for either the listed factors or any others that might exist in a given case. Instead, it relies on the discretion of the responsible consular official or the Attorney General. Id. § 1182(a)(4)(A). It also authorizes the Secretary of Homeland Security to promulgate rules to guide those determinations. Id. § 1103(a)(3).
In defense of its Rule, DHS relies heavily on the 1996 amendments to the INA. There Congress stated that "self-sufficiency has been a basic principle of United States immigration law since this country's earliest immigration


 

 
 


statutes." 8 U.S.C. § 1601(1). Congress also announced its intent 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"; and that "the availability of public benefits [should] not constitute an incentive for immigration to the United States." 8 U.S.C. § 1601(2).
Both parties also cite various other statutory provisions that they believe shed light on the meaning of the public-charge provision, including the requirement for some immigrants to obtain affidavits of support from sponsors, 8 U.S.C. § 1183a; an exception to the public-charge provision for immigrants who are victims of domestic violence and receive benefits in that capacity, id. §§ 1182(a)(4)(E), 1641(c); and several other statutes that extend, with varying conditions, certain benefits to immigrants, see, e.g., id. §§ 1611, 1621. We do not find these provisions to be particularly helpful; each is susceptible to more than one reasonable reading.
Cook County argues that long-established judicial decisions, ratified by Congress, point us to only one possible interpretation —that is, the one that it urges. But in our view, the historical record is not so clear. The parties agreed in the district court that the understanding of the term "public charge" around the time it first entered federal immigration law in 1882 is particularly relevant. See New Prime Inc. v. Oliveira, ___ U.S. ___, 139 S. Ct. 532, 539, 202 L.Ed.2d 536 (2019) ("It's a fundamental
223 *223 canon of statutory construction that words generally should be interpreted as taking their ordinary meaning at the time Congress enacted the statute."). But that is where the harmony ends.
Enter the dueling dictionaries. In Cook County's corner, we have the Century Dictionary, defining a "charge" as a person who is "committed to another's custody, care, concern or management," Century Dictionary 929 (William Dwight Whitney, ed., 1889) (emphasis added); and Webster's Dictionary, likewise defining a "charge" as a "person or thing committed to the care or management of another," Webster's Condensed Dictionary of the English Language 84 (Dorsey Gardner, ed., 1884). These suggest primary, long-term dependence. In DHS's corner, we have dictionaries defining a "charge" as "an obligation or liability," as in a "pauper being chargeable to the parish or town," Dictionary of Am. and English Law 196 (Stewart Rapalje & Robert Lawrence, eds., 1888); and as a "burden,


 
 
 
 


incumbrance, or lien," Glossary of the Common Law 56 (Frederic Jesup Stimson, ed., 1881). These definitions can be read to indicate that a lesser reliance on public benefits is enough. Finding no clarity here, we move on.
Cook County contends that from the outset Congress distinguished between, on the one hand, those who were permitted to "land" and receive short-term support from government agencies, and, on the other hand, those who were excluded as public charges. Under the 1882 Immigration Act, the set of people who could be prevented from landing included convicts, "lunatics," "idiots," and any other person "unable to take care of himself or herself." An Act to Regulate Immigration, ch. 376, § 2, 22 Stat. 214 (1882). The 1882 Act authorized the Secretary of the Treasury, who was responsible for supervising immigration, to enter into contracts with state entities "to provide for the support and relief of such immigrants therein landing as may fall into distress or need public aid, under the rules and regulations to be prescribed by said Secretary." Id. Cook County stresses this distinction between excludable public charges and immigrants who (less drastically) "may fall into distress or need public aid."
This argument has some intuitive merit. DHS responds however, that the general revenues were not at risk under the 1882 Act for immigrants who were not self-sufficient upon arrival. The 1882 Act directed the Secretary of the Treasury to levy an entry tax on all noncitizens arriving by ship to cover both the cost of regulating immigration and that of temporary assistance. 1882 Act, ch. 376, § 1. It also specified that "no greater sum shall be expended for the purposes hereinbefore mentioned, at any port, than shall have been collected at such port." Id. In other words, federal funding was available only to the extent the funds matched collections from the vessels. This general feature is no longer part of the law (putting to one side the special case of sponsored immigrants).
Congress tinkered with the language in 1891, 1903, and 1907. See An Act in Amendment to the Various Acts Relative to Immigration and the Importation of Aliens Under Contract or Agreement to Perform Labor, ch. 551, 26 Stat. 1084, 1086 (1891); An Act to Regulate the Immigration of Aliens into the United States, ch. 1012, 32 Stat. 1213, 1213-1214 (1903); An Act to Regulate the Immigration of Aliens into the United States, ch. 1134, 34 Stat. 898, 898-899, 904-905 (1907). Never, however, did it define "public charge" or explain what degree of reliance on government aid brands someone as such a person.


 
 



Federal district court and state-court cases from this period point in different
224 *224 directions. For example, in In re Feinknopf, 47 F. 447 (E.D.N.Y. 1891), a district court distinguished between the primary dependence of persons who live in almshouses and the lesser dependence of those who merely receive public support. Around the same time, a North Dakota court indicated that temporary aid is actually a means of averting public dependence, insofar as it can keep those "destitute of means and credit from becoming a public charge." Yeatman v. King, 2 N.D. 421, 51 N.W. 721 (1892). On the other hand, the question in Yeatman was whether an obligation to repay the county the value of received temporary public assistance counted as a tax, and so the decision is of limited value.
The district court did not find these and other early decisions to be dispositive. Instead, it thought that the Supreme Court's decision in Gegiow v. Uhl, 239 U.S. 3, 36 S.Ct. 2, 60 L.Ed. 114 (1915), resolved the issue. But there, too, the question presented was a narrow one. The Court said that it was addressing the "single question ... whether an alien can be declared likely to become a public charge on the ground that the labor market in the city of his immediate destination is overstocked." Id. at 9-10, 36 S.Ct. 2. It answered in the negative, saying that "[t]he persons enumerated, in short, are to be excluded on the ground of permanent personal objections accompanying them irrespective of local conditions...." Id. at 10, 36 S.Ct. 2. The district court in our case understood Gegiow as holding that the term "public charge" encompasses only persons who are substantially, if not entirely, dependent on government assistance on a long-term basis.
While there is language in Gegiow that supports that reading, we are not persuaded that the Supreme Court necessarily ruled so broadly. The Court went out of its way to say that the question presented was the one we noted above. The Acting Commissioner of Immigration, in deciding to deport the persons at issue, mentioned in addition to local labor conditions "the amount of money possessed and ignorance of our language." But the Court brushed off these considerations as mere "makeweights." Id. at 9, 36 S.Ct. 2. It thus had no need to address directly the immigrants' financial resources and education.
In context, the Court's reference to "permanent personal objections" might have simply reflected a distinction between the individualized


 
 
 
 


characteristics of an immigrant and external factors such as a local labor market. The terse opinion is silent about any distinction between people whose need for public assistance is temporary and minimal, and those whose need is likely to be substantial or permanent. We thus agree with DHS that the case before us cannot be resolved exclusively by reference to Gegiow.
Circuit court decisions in the aftermath of Gegiow add little clarity to this picture. For example, in Wallis v. United States ex rel. Mannara, 273 F. 509 (2d Cir. 1921), the Second Circuit defined a person likely to become a public charge as "one whom it may be necessary to support at public expense by reason of poverty, insanity and poverty, disease and poverty, idiocy and poverty." Id. at 511. It did so in a case in which the immigrant family's primary breadwinner was "certified for senility" and thus would never be "capable of continued self-support." Id. at 510. The court noted that the family had "insufficient [means] to provide for their necessary wants any reasonable length of time" and no private sources of support. Id. On the other hand, in Ex parte Hosaye Sakaguchi, 277 F. 913 (9th Cir. 1922), the Ninth Circuit held that an immigrant woman with the skills to support herself was not likely to become a public charge. Id. at 916. It ruled that the
225 *225 government had to present evidence of "mental or physical disability or any fact tending to show that the burden of supporting the [immigrant] is likely to be cast upon the public." Id. How much of a burden was left undefined. See also United States ex rel. De Sousa v. Day, 22 F.2d 472, 473-74 (2d Cir. 1927) ("In the face of [Gegiow] it is hard to say that a healthy adult immigrant, with no previous history of pauperism, and nothing to interfere with his chances in life but lack of savings, is likely to become a public charge within the meaning of the statute.").
The parties and amici also call our attention to later actions by the Executive Branch, but we find these also to be inconclusive. See, e.g., Matter of B-, 3 I. & N. Dec. 323, 326 (BIA & AG 1948) (stating that the longstanding test for whether an immigrant could be deemed a public charge had three components: (1) the state must charge for the service it renders; (2) it must make a demand for payment; and (3) the immigrant must fail to pay).


 
 

 


What we can say is that in 1952 Congress amended the Act in a way that uses the language of discretion: it deems inadmissible immigrants "who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission, are likely at any time to become public charges." An Act to Revise the Laws Relating to Immigration, Naturalization, and Nationality; and for Other Purposes, Pub. L. No. 414, § 212, 66 Stat. 163, 183 (1952) (emphasis added). This language clarifies the temporal dimension of the public-charge determination, but it says nothing about the degree or duration of assistance. The Immigration Act of 1990, Pub. L. No. 101-649, § 601, 104 Stat. 4978, also lacks a clear definition of "public charge."
In the 1996 Immigration Act, Congress for the first time provided guidance on what the Executive Branch must consider when determining whether an immigrant is likely to become a public charge. As we noted earlier, immigration officials were instructed "at a minimum" to look at age, health, family status, financial situation, and education and skills. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, § 531, 110 Stat. 3009 (1996). They also could consider whether an immigrant had an affidavit of support from a third party. Id. Congress rejected a proposal to define "public charge" to cover "any alien who receives [means-tested public benefits] for an aggregate of at least 12 months." 142 Cong. Rec. 24313, 24425 (1996).
Contemporaneously, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. 104-193, 110 Stat. 2105 (1996), commonly known as the "Welfare Reform Act." DHS places great weight on language in that statute's expression of Congress's desire that immigrants be self-sufficient and not come to the United States with the purpose of benefitting from public welfare programs. See 8 U.S.C. § 1601(1). The INA (with that amendment) pursues that goal by restricting most noncitizens from eligibility for many federal and state public benefits. It grants lawful permanent residents access to means-tested public benefits only after they have spent five years as a lawful permanent resident. Id. §§ 1611, 1613, 1621. But the exclusions are not absolute. Congress specified instead that immigrants may at any time receive emergency medical assistance; immunizations and testing for communicable diseases; shortterm, in-kind emergency disaster relief; various in-kind services such as short-term shelter and crisis counseling; and certain housing and community development assistance. Id.



 


226 *226 The INS summarized its understanding of the 1996 legal regime in the 1999 Field Guidance, which defined as a public charge those who are "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." 64 Fed. Reg. at 28689. Following an earlier 1987 interpretive rule, see Adjustment of Status for Certain Aliens, 52 Fed. Reg. 16205, 16211-12, 16216 (May 1, 1987), the 1999 Field Guidance said that "officers should not initiate or pursue public charge deportation cases against aliens who have not received public cash benefits for income maintenance or who have not been institutionalized for long-term care." 64 Fed. Reg. at 28689. It directed officers "not [to] place any weight on the receipt of non-cash public benefits (other than institutionalization) or the receipt of cash benefits for purposes other than for income maintenance with respect to determinations of admissibility or eligibility for adjustment on public charge grounds." Id.
Later enactments lightened some of the statutory restrictions, in order to allow additional categories of immigrants to qualify for certain benefits without a five-year waiting period. See Farm Security and Rural Investment Act of 2002, Pub. L. 107-171, § 4401, 116 Stat. 134 (2002); Children's Health Insurance Program Reauthorization Act of 2009, Pub. L. 11-3, § 214, 123 Stat. 8 (2009).
This is where things stood when DHS developed the Rule. What should we make of this historical record? As the district court recognized, there is abundant evidence supporting Cook County's interpretation of the publiccharge provision as being triggered only by long-term, primary dependence. But the question before us is not whether Cook County has offered a reasonable interpretation of the law. It is whether the statutory language unambiguously leads us to that interpretation. We cannot say that it does. As our quick and admittedly incomplete overview of this byzantine law has shown, the meaning of "public charge" has evolved over time as immigration priorities have changed and as the nature of public assistance has shifted from institutionalization of the destitute and sick, to a wide variety of cash and in-kind welfare programs. What has been consistent is the delegation from Congress to the Executive Branch of discretion, within bounds, to make public-charge determinations.


 
 



Thus, this case cannot be resolved at Chevron step one. But that does not end the analysis, because we may affirm the district court's issuance of a preliminary injunction on any basis in the record. See Valencia v. City of Springfield, Ill., 883 F.3d 959, 967 (7th Cir. 2018). We therefore proceed to step two.
2. Chevron Step Two
At step two of the Chevron analysis, we consider "whether the agency's answer is based on a permissible construction of the statute." 467 U.S. at 843, 104 S.Ct. 2778. Our review is deferential; we accord "considerable weight ... to an executive department's construction of a statutory scheme it is entrusted to administer." Id. at 844, 104 S.Ct. 2778; see also Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005).
A court may strike down an agency's interpretation of a law if, for example, the agency's reading disregards the statutory context, see, e.g., Michigan v. EPA, 576 U.S. 743, 135 S. Ct. 2699, 2708, 192 L.Ed.2d 674 (2015); its rule is based on an unreasonable interpretation of legislative
227 *227 history, see, e.g., Council for Urological Interests v. Burwell, 790 F.3d 212, 223 (D.C. Cir. 2015); or its new position "would bring about an enormous and transformative expansion in [the agency's] regulatory authority without clear congressional authorization", Util. Air Reg. Grp. v. EPA, 573 U.S. 302, 324, 134 S.Ct. 2427, 189 L.Ed.2d 372 (2014).
Cook County offers several reasons why DHS's interpretation founders here. First, it contends that the Rule conflicts with at least two statutes: the SNAP statute and the Rehabilitation Act of 1973. Second, it urges that the DHS position creates internal inconsistencies in the immigration laws themselves. We address these points in turn.
The SNAP statute prohibits the government from considering SNAP benefits as "income or resources for any purpose under any Federal, State, or local laws." 7 U.S.C. § 2017(b). But DHS is not trying to characterize


 
 
 
 
 



these benefits as income or resources held by the immigrant in question. The Rule merely notes that receipt of the benefits is an indicium of a lack of self-sufficiency. Whatever else one might say about that position, it is not one that the SNAP law forbids.
The Rehabilitation Act of 1973 prohibits the government from excluding from participation in, denying the benefits of, or subjecting to discrimination under any federally funded program or activity, a person with a disability "solely by reason of her or his disability." 29 U.S.C. § 794(a). An agency violates the Act if it (1) intentionally acts on the basis of the disability; (2) refuses to provide a reasonable modification; or (3) takes an action or adopts a rule that disproportionately affects disabled people. A.H. ex rel. Holzmueller v. Ill. High Sch. Ass'n, 881 F.3d 587, 592-93 (7th Cir. 2018). An aggrieved person must demonstrate that "but for" her disability, she would have been able to access the desired benefits. Id. at 593.
DHS frankly acknowledges that it takes disability into account in its publiccharge analysis, and it does so in an unfavorable way. 84 Fed. Reg. at 41383 ("DHS considers any disability or other medical condition in the public charge inadmissibility determination to the extent the alien's health makes the alien more likely than not to become a public charge at any time in the future."). Indeed, the Rule brands as a heavily weighted negative factor a medical condition that is likely to require extensive medical treatment or interfere with the person's ability to provide for herself, attend school, or work. Id. at 41504. DHS does not say what amounts to "extensive medical treatment" or what it means for a condition to "interfere with [an immigrant's] ability to provide for herself, attend school, or work." The Rule leaves the interpretation of these terms to immigration officials. It is therefore unclear what sorts of disabilities DHS will place into this category.
As several amici curiae point out, the Rule ignores the fact that private insurers do not cover many home- and community-based services, and so denial of benefits is effectively denial of access to programs or activities. See id. at 41382. DHS responded to this criticism, as it applies to Medicaid Buy-in for those with disabilities, with the comment that "[a]liens should be obtaining private health insurance other than Medicaid in order to establish self-sufficiency." Id. But that is chimerical. Private insurance in the United States typically excludes these benefits, and so persons with disabilities are able to obtain essential services, including personal-care services,


 



specialized therapies and treatment, habilitative and rehabilitative services, and medical equipment, only by participating in the Medicaid Buy-in program. With this assistance,
228 *228 they are able to work and thus can avoid becoming a public charge, which is DHS's purported goal.
The conclusion is inescapable that the Rule penalizes disabled persons in contravention of the Rehabilitation Act. All else being equal—education and skills, work history and potential, health besides disability, etc.—the disabled are saddled with at least two heavily weighted negative factors directly as a result of their disability. Even while DHS purports to follow the statutorily-required totality of the circumstances test, the Rule disproportionately burdens disabled people and in many instances makes it all but inevitable that a person's disability will be the but-for cause of her being deemed likely to become a public charge.
We do not mean to suggest that the Rehabilitation Act repealed the "health" criterion in the public-charge provision by implication. There is no need to do that, if the two statutes can be reconciled—and it is our duty to see if that can be accomplished. See Epic Sys. Corp. v. Lewis, ___ U.S. ___, 138 S. Ct. 1612, 1624, 200 L.Ed.2d 889 (2018) ("[T]his Court is not at liberty to pick and choose among congressional enactments and must instead strive to give effect to both."). And they can live together comfortably, as long as we understand the "health" criterion in the INA as referring to things such as contagious disease and conditions requiring long-term institutionalization, but not disability per se. That interpretation is also historically grounded.
DHS's interpretation also creates serious tensions, if not outright inconsistencies, within the statutory scheme. It conflicts with Congress's affirmative authorization for designated immigrants to receive the benefits the Rule targets. See 8 U.S.C. §§ 1611, 1621 (allowing immigrants to receive emergency medical assistance, immunizations and contagious disease testing, and some public housing assistance); Farm Security and Rural Investment Act of 2002, Pub. L. No. 107-171, § 4401, 116 Stat. 134 (authorizing supplemental nutrition benefits for certain categories of immigrants, and Medicaid and children's health insurance for noncitizen children and pregnant women). Cook County is largely correct when it accuses the Rule of "set[ting] a trap for the unwary" by penalizing people


 
 
 
 


for accepting benefits Congress made available to them. Although the Rule does not punish immigrants for using the designated benefits, in the sense of imposing a fine, its heavily negative consideration of such use is an even worse penalty for someone seeking a lawful path to staying in the United States. Furthermore, the preliminary injunction record shows that many immigrants are not sophisticated enough to know which benefits they may safely accept and which not.
Congress drew the balance between acceptance of benefits and preference for self-sufficiency in the statutes, and it is DHS's duty to respect that outer boundary. The Welfare Reform Act achieved its stated goal of reducing immigrant reliance on public assistance by barring receipt of any benefits by some classes of noncitizens and authorizing receipt by other classes only after a five-year waiting period. The statute did not create a regime that permitted self-sufficiency to trump all other goals, nor did it modify the public-charge provision to penalize receipt of non-cash as well as cash assistance. DHS is correct that its Rule is not worded as an outright prohibition against an immigrant's receipt of benefits to which Congress has entitled him. The latter would exceed DHS's authority. But the record before us indicates that it may have the same effect.
Our concerns are heightened by the fact that DHS's interpretation of its statutory
229 *229 authority has no natural limitation. Although it chose a rule that quantified the benefits used to 12 months' worth over a 36-month period, nothing in its interpretation requires even that limit. There is nothing in the text of the statute, as DHS sees it, that would prevent the agency from imposing a zero-tolerance rule under which the receipt of even a single benefit on one occasion would result in denial of entry or adjustment of status.
We see no warrant in the Act for this sweeping view. Even assuming that the term "public charge" is ambiguous and thus might encompass more than institutionalization or primary, long-term dependence on cash benefits, it does violence to the English language and the statutory context to say that it covers a person who receives only de minimis benefits for a de minimis period of time. There is a floor inherent in the words "public charge," backed up by the weight of history. The term requires a degree of


 
 

 


dependence that goes beyond temporary receipt of supplemental in-kind benefits from any type of public agency.
DHS also runs into trouble as a result of its decision to stack benefits and disregard monetary value. Under its Rule, the receipt of multiple benefits in one month, no matter how slight, counts as multiple months of benefits. DHS acknowledges that the Rule's 12-months-in-36 tolerance would actually run out in four months if an immigrant received non-emergency Medicaid, any SNAP benefit, and housing assistance, or even sooner if she additionally received any amount of cash income assistance through a federal, state, local, or tribal program. Paradoxically, the Rule provides no opportunity for an immigrant to repay the value of the benefits received once she is back on her feet. This is another way in which it unreasonably imposes substantially disproportionate consequences for immigrants, compared to the supposed drain on the public fisc they cause.
The ambiguity in the public-charge provision does not provide DHS unfettered discretion to redefine "public charge." We find that the interpretation reflected in the Rule falls outside the boundaries set by the statute.
3. Arbitrary and Capricious Review
Our conclusion that the Rule likely does not meet the standards of Chevron step two is enough to require us to move on to the remainder of the preliminary-injunction analysis. But even if we are wrong about step two, one more inquiry remains: whether the Rule is arbitrary and capricious, as the APA uses those terms. See 5 U.S.C. § 706(2)(A). That requires an examination of DHS's policymaking process.
When conducting rulemaking, an 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." Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. at 43, 103 S.Ct. 2856. It may not "rel[y] on factors which Congress has not intended it to consider, entirely fail[] to consider an important aspect of the problem, [or] offer[] 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. Furthermore, when an agency changes course, as DHS did here when it adopted a radically different understanding of the term "public charge" compared to the 1999 Field Guidance, it "must show that there are good reasons for the new policy." FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). In explaining a change in policy, "an agency must also
230 *230 be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account." Encino Motorcars, 136 S. Ct. at 2126. This is because a "settled course of behavior embodies the agency's informed judgment that, by pursuing that course, it will carry out the policies committed to it by Congress." State Farm, 463 U.S. at 41-42, 103 S.Ct. 2856. Thus, "a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy." Fox Television Stations, 556 U.S. at 516, 129 S.Ct. 1800.
The review called for by State Farm is narrow in scope and does not permit us to substitute our own policy judgment for that of the agency. We ask only whether the agency's "decision was based on a consideration of the relevant factors" and was not "a clear error of judgment." 463 U.S. at 43, 103 S.Ct. 2856.
In response to its notice of proposed rulemaking, DHS received a whopping 266,077 comments, the vast majority of which opposed the proposed rule. In the preamble to the final rule, DHS summarized significant issues raised by the comments and changes it made in the final rule. We assess the validity of DHS's decision-making process based on this record.
Cook County urges that the Rule is arbitrary and capricious in a number of ways: (1) DHS failed meaningfully to evaluate and address significant potential harms from the Rule, including its substantial chilling effect on immigrants not covered by the Rule; (2) DHS failed to give a logical rationale for the duration-based standard; and (3) DHS added factors to the totality-of-the-circumstances analysis that are "unsupported, irrational and at odds with the Final Rule's purported purpose." Numerous amici underscored these points and explained how the Rule will lead to arbitrary results, cause both direct and indirect economic harms,



 
 
 


burden states and localities that have to manage fallout from the Rule, and disproportionately harm the disabled and children.
We look first at DHS's dismissal of concerns about the Rule's chilling effect on legal immigrants and family members who fall outside its scope. DHS acknowledged a "plausible connection" between the Rule and needless disenrollment by exempt noncitizens (including refugees, asylees, and victims of domestic violence) in covered public benefits, and by covered immigrants in noncovered benefit programs. 84 Fed. Reg. at 41313. DHS also said that it "appreciates ... the potential nexus between public benefit enrollment reduction and food insecurity, housing scarcity, public health and vaccinations ... and increased costs to states and localities." Id. Nonetheless, it brushed off these impacts as "difficult to predict" and refused to "alter this rule to account for such unwarranted choices." Id. Even though these consequences are foreseeable, the Rule does not literally compel them, and so DHS asserted that they could be addressed through additional public guidance.
DHS may think that these responses are unwarranted, but it does not deny that they are taking place and will continue to do so. Moreover, the record indicates that the target population is responding rationally. DHS's system of counting and stacking benefits is hardly transparent, and so a rational person might err on the side of caution and refrain from seeking medical care, or food, or housing, even from a city, state, or tribe rather than the federal government. And the risk that the Rule may become more stringent at any time and operate retroactively against the use of benefits already used is a real one. DHS trumpets its view that the Rule stops short of its lawful authority and that it could
231 *231 promulgate a more restrictive rule if it so chooses. In response to comments on the proposed rule, DHS used discretionary language: "DHS believes it is a reasonable approach to only designate Medicaid at this time," id. at 41381 (emphasis added); and "DHS will not consider [Healthy Start] benefits at this time," id. at 41390 (emphasis added). It warned that it may "updat[e] the list of benefits through future regulatory action." Id. at 41387. Immigrants thus reasonably anticipate that their receipt of benefits that are currently not covered could eventually hurt them if DHS alters the Rule in the future.



 
 
 


It was not enough for DHS simply to nod at this argument; it called for a serious explanation. The importance of the chilling effect is not the number of disenrollments in the abstract, but the collateral consequences of such disenrollments. DHS failed adequately to grapple with the latter. For example, commenters predicted that disenrollment and under-enrollment in Medicaid, including by immigrants not covered by the Rule, would reduce access to vaccines and other medical care, resulting in an increased risk of an outbreak of infectious disease among the general public. To recognize the truth in that prediction, one need only consider the current outbreak of COVID-19—a pandemic that does not respect the differences between citizens and noncitizens.
There is also the added burden on states and local governments, which must disentangle their purely state-funded programs from covered federal programs. The federal government has no interest in the way that states and localities choose to spend their money. There is no reason why immigrants should not continue to benefit from the state programs without being penalized at the federal level. The Rule will force states to make their own public welfare programs more robust to compensate for a reduction in the availability of federal programs. DHS touts the savings to the federal government from the Rule, primarily through a significant reduction in transfer payments to the states (including, it should be noted, for persons who disenroll unnecessarily because of the chilling effect), but at the same time it expects the states to fill the gaps and continue to provide critical services such as preventive healthcare. See, e.g., id. at 41385 ("In addition, local health centers and state health departments provide preventive services that include vaccines that may be offered on a sliding scale fee based on income. Therefore, DHS believes that vaccines would still be available for children and adults even if they disenroll from Medicaid."). It assumes this while simultaneously denying that the Rule will have "substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government." Id. at 41481.
Cook County also asserts that DHS failed to give a logical rationale for its chosen durational threshold. In its notice of proposed rulemaking, DHS proposed an array of thresholds that would apply before benefits can be counted against a noncitizen in the public charge analysis. Those lines came under sharp criticism for being arbitrary, confusing, and an unacceptable proxy for undue reliance on public support. Id. at 41357-58.



 


In the final Rule, DHS opted for the single threshold for both monetizable and nonmonetizable benefits of 12 months (stacked) over a 36-month period. It touted this approach as "particularly responsive to public comments that communicated concerns about the complexity of the bifurcated standard and lack of certainty." Id. at 41358. It also asserted that the 12/36 standard "is consistent with DHS's interpretation
232 *232 of the term `public charge.'" Id. at 41359. DHS equates the term "public charge" with a lack of "self-sufficiency" and it regards anyone who fails its test as not self-sufficient. Id. It defends its stacking mandate on the theory that it "ensures that aliens who receive more than one public benefit (which may be more indicative of a lack of self-sufficiency, with respect to the fulfillment of multiple types of basic needs) reach the 12-month limit faster." Id. at 41361. DHS concluded that the bright-line rule "provides meaningful guidance to aliens and adjudicators, ... accommodates meaningful short-term and intermittent access to public benefits, and ... does not excuse continuous or consistent public benefit receipt that denotes a lack of self-sufficiency." Id.
This explains how DHS incorporated its understanding of "self-sufficiency" into the Rule. But we still have a textual problem. The INA does not call for total self-sufficiency at every moment; it uses the words "public charge." DHS sees "lack of complete self-sufficiency" and "public charge" as synonyms: in its view, receipt of any public benefit, particularly one related to core needs such as health care, housing, and nutrition, shows that a person is not self-sufficient. See id. at 41356. This is an absolutist sense of self-sufficiency that no person in a modern society could satisfy; everyone relies on nonmonetary governmental programs, such as food safety, police protection, and emergency services. DHS does not offer any justification for its extreme view, which has no basis in the text or history of the INA. As we explained earlier, since the first federal immigration law in 1882, Congress has assumed that immigrants (like others) might face economic insecurity at some point. Instead of penalizing immigrants by denying them entry or the right to adjust status, Congress built into the law accommodations for that reality. Also, as numerous commenters on the Rule pointed out, the benefits it covers are largely supplemental and not intended to be, or relied upon as, a primary resource for recipients. Many recipients could get by without them, though as a result they would face greater health, nutrition,



 


and housing insecurity, which in turn would likely harm their work or educational attainment (and hence their ability to be self-sufficient).
Finally, Cook County contends that the Rule adds irrational factors into the public-charge assessment, including family size, mere application for benefits, English-language proficiency, lack of disability, and good credit history. With respect to language, we note the obvious: someone whose English is limited on the date of entry may be entirely competent five years later, when the person first becomes eligible for benefits under the Welfare Reform Act and related laws. In almost all cases, an immigration official making a determination about whether someone is likely to become a public charge will be speculating about that person's family size, linguistic abilities, credit score, and the like no fewer than five years in the future.
Even if we grant that these new factors carry some minimal probative value, it is unclear to us, and DHS nowhere explains, how immigration officials are supposed to make these predictions in a nonarbitrary way. Worse, for many people the relevant time is not five years—it is eternity, because the Rule calls for officials to guess whether an immigrant will become a public charge at any time. There is a great risk that officials will make their determination based on stereotype or unsupported assumptions, rather than on the type of objective facts called for by the Act (age, present health, family status, financial situation, and education or skills).
233 *233 DHS also never explains why it chose not to take into account the possibility that an immigrant might, at some point in the future, be able to repay the value of public benefits received. Someone who seeks to adjust status will be penalized for having previously received public benefits without being given the opportunity to refund the government the cost of those benefits. This is new: the regulations governing deportation on public-charge grounds require a demand and a failure to pay. See 64 Fed. Reg. at 28691.
All of this convinces us that this Rule is likely to fail the "arbitrary and capricious" standard. The Rule has numerous unexplained serious flaws: DHS did not adequately consider the reliance interests of state and local governments; did not acknowledge or address the significant, predictable collateral consequences of the Rule; incorporated into the term "public charge" an understanding of self-sufficiency that has no basis in the statute


 
 
 



it supposedly interprets; and failed to address critical issues such as the relevance of the five-year waiting period for immigrant eligibility for most federal benefits.
B. Other Criteria for Preliminary Injunction
We have spent most of our time on likelihood of success on the merits, because that is the critical factor here. We add only a few words about the other requirements for preliminary relief. Cook County had to show that it is likely to suffer irreparable harm in the absence of preliminary relief; that legal remedies are inadequate; and that the balance of equities tips in their favor. The district court found that it did so.
As we noted earlier, Cook County has shown that the Rule will cause immigrants, including those not covered by the Rule, to disenroll from, or refrain from enrolling in, federal Medicaid and state-level public health programs. This already has led to reduction in rates of preventive medicine and caused immigrants to rely on uncompensated emergency care from Cook County's hospital system; the record supports the prediction that those harms will only get worse. The result for the County will be a significant increase in costs it must bear and a higher county-wide risk of vaccine-preventable and other communicable diseases for its population as a whole. The record also supports the district court's finding that Cook County will have to divert resources away from existing programs to respond to the effects of the Rule.
The district court was also on solid ground in finding that Cook County lacks adequate legal remedies for the injuries imposed by the Rule. The APA provides a limited waiver of the United States' sovereign immunity and supports a claim for a challenge to agency action, but only to the extent that the plaintiffs "seek relief other than money damages." 5 U.S.C. § 702. There is thus no post-hoc legal remedy available to Cook County to redress the financial harms it stands to suffer as a result of the Rule. It is injunctive relief or nothing.


 
 
 
 


With respect to the balance of harms, we must take account of the Supreme Court's decision to stay the preliminary injunction entered by the district court. The Court's stay decision was not a merits ruling. To succeed in obtaining a stay from the Supreme Court, an applicant "must demonstrate (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction; (2) a fair prospect that a majority of the Court will conclude that the decision below was erroneous; and (3) a likelihood that irreparable
234 *234 harm will result from the denial of a stay." Conkright v. Frommert, 556 U.S. 1401, 1402, 129 S.Ct. 1861, 173 L.Ed.2d 865 (2009) (Ginsburg, J., in chambers). Stays, the Court tells us, are "granted only in extraordinary cases." Id. We do not know why the Court granted this stay, because it did so by summary order, but we assume that it abided by the normal standards. Consequently, the stay provides an indication that the Court thinks that there is at least a fair prospect that DHS should prevail and faces a greater threat of irreparable harm than the plaintiffs.
The stay thus preserves the status quo while this case and others percolate up from courts around the country. There would be no point in the merits stage if an issuance of a stay must be understood as a sub silentio disposition of the underlying dispute. With the benefit of more time for consideration and the complete preliminary injunction record, we believe that it is our duty to evaluate each of the preliminary injunction factors, including the balance of equities. In so doing, we apply a "sliding scale" approach in which "the more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor." Valencia v. City of Springfield, 883 F.3d at 966. We also consider effects that granting or denying the preliminary injunction would have on the public. Id.
In our view, Cook County has shown that it is likely to suffer (and has already begun to suffer) irreparable harm caused by the Rule. Given the dramatic shift in policy the Rule reflects and the potentially dire public health consequences of the Rule, we agree with the district court that the public interest is better served for the time being by preliminarily enjoining the Rule.


 
 
 



IV. Conclusion
While we disagree with the district court that this case can be resolved at step one of the Chevron analysis, we agree that at least Cook County has standing to sue. We make no ruling on ICIRR's standing, and so we have based the remainder of our opinion on Cook County's situation only. The district court did not abuse its discretion or err as a matter of law when it concluded that Cook County is likely to succeed on the merits of its APA claims against DHS. Nor did the district court's handling of the balance of harms and lack of alternative legal remedies represent an abuse of discretion. We therefore AFFIRM the district court's order entering a preliminary injunction.
Barrett, Circuit Judge, dissenting.
The plaintiffs have worked hard to show that the statutory term "public charge" is a very narrow one, excluding only those green card applicants likely to be primarily and permanently dependent on public assistance. That argument is belied by the term's historical meaning—but even more importantly, it is belied by the text of the current statute, which was amended in 1996 to increase the bite of the public charge determination. When the use of "public charge" in the Immigration and Nationality Act (INA) is viewed in the context of these amendments, it becomes very difficult to maintain that the definition adopted by the Department of Homeland Security (DHS) is unreasonable. Recognizing this, the plaintiffs try to cast the 1996 amendments as irrelevant to the meaning of "public charge." That argument, however, flies in the face of the statute—which means that despite their best efforts, the plaintiffs' interpretive challenge is an uphill battle that they are unlikely to win.
235 *235 I therefore disagree with the majority's conclusion that the plaintiffs' challenge to DHS's definition of "public charge" is likely to succeed at Chevron step two. I express no view, however, on the majority's analysis of the plaintiffs' other challenges to the rule under the Administrative Procedure Act. The district court did not reach them, and the plaintiffs barely briefed them. The preliminary injunction was based solely on the district court's interpretation of the term "public charge." Because its


 
 

 


analysis was flawed, I would vacate the injunction and remand the case to the district court, where the plaintiffs would be free to develop their other arguments.
I.
There is a lot of confusion surrounding the public charge rule, so I'll start by addressing who it affects and how it works. The plaintiffs emphasize that the rule will prompt many noncitizens to drop or forgo public assistance, lest their use of benefits jeopardize their immigration status. That's happening already, and it's why Cook County has standing: noncitizens who give up government-funded healthcare are likely to rely on the countyfunded emergency room. But it's important to recognize that immigrants are dropping or for-going aid out of misunderstanding or fear because, with very rare exceptions, those entitled to receive public benefits will never be subject to the public charge rule. Contrary to popular perception, the force of the rule does not fall on immigrants who have received benefits in the past. Rather, it falls on nonimmigrant visa holders who, if granted a green card, would become eligible for benefits in the future.
To see why, one must be clear-eyed about the fact that federal law is not particularly generous about extending public assistance to noncitizens. That is not a function of the public charge rule; it is a function of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (1996), commonly referred to as the "Welfare Reform Act." Under the Act, undocumented noncitizens are ineligible for benefits. So are nonimmigrant visa holders, a category that encompasses noncitizens granted permission to be in the United States for a defined period—think of tourists, students, and temporary workers. See 8 U.S.C. §§ 1611(a), 1621(a), 1641(b) (excluding undocumented noncitizens and nonimmigrant visa holders from the list of noncitizens "qualified" for government benefits).[1] Because of these restrictions, many noncitizens are altogether ineligible
236 *236 for the benefits relevant to a public charge determination.


 
 
 
 



Only two major groups are statutorily eligible to receive the benefits that the public charge rule addresses, and the rule has little to no effect on either. The first group is certain especially vulnerable populations —refugees and asylees, among others. Congress has entitled these vulnerable noncitizens to public assistance, 8 U.S.C. § 1641(b), and exempted them from the public charge exclusion, id. §§ 1157(c)(3), 1159(c). That means that their need for aid is not considered when they are admitted to the United States, nor is their actual receipt of aid considered in any later adjustment-of-status proceeding. The public charge rule is entirely irrelevant to the most vulnerable.
The second group eligible for benefits is lawful permanent residents, often referred to as green card holders, and the rule is almost entirely irrelevant to them too. Here's why: The public charge exclusion applies to noncitizens at the admission stage or an adjustment-of-status proceeding. Id. § 1182(a) (4)(A). ("Admission" is a term of art referring to "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." Id. § 1101(a)(13)(A).) Lawful permanent residents have already been admitted to the United States, and they already possess the most protected immigrant status. They are therefore not subject to the public charge exclusion unless they jeopardize their lawful permanent residency. See id. § 1101(a)(13)(C) (describing the narrow circumstances in which lawful permanent residents are considered to be "seeking an admission"). Most relevant here, a green card holder who leaves the country for more than 180 days puts her residency in question and might need to "seek[] an admission" upon returning to the United States. Id. § 1011(a)(13)(C)(iii). If she used benefits prior to her departure, then her use of those benefits might count against her at reentry. But this consequence is easy to avoid by keeping trips abroad shorter than six months. It's also worth noting that a lawful permanent resident is eligible to receive very few benefits until she has been here for five years—which is the point at which she is eligible for citizenship. Id. § 1427(a). Naturalization eliminates even the small risk that a lawful permanent resident would ever face the admission process again. Notably, the rule doesn't apply at the naturalization stage. See id. § 1429.
The upshot is that the public charge rule will rarely apply to a noncitizen who has received benefits in the past.[2] Indeed, in the Second Circuit case challenging this same rule, both the government and the plaintiffs conceded as much. When pressed to identify who could be penalized





under the public charge rule for using benefits, neither side identified any example other than the 180-day departure of a lawful permanent resident. See Oral Argument at 36:06-38:47, 1:03:45-1:04:40, New York v. U.S. Dep't of Homeland Sec., Nos. 19-3591, 19-3595 (2d Cir. Mar. 2, 2020), https://www.cspan.org/video/?469804-1/oral-argument-trumpadministration-public-charge.
Notwithstanding all of this, many lawful permanent residents, refugees, asylees, and even naturalized citizens have disenrolled from governmentbenefit programs since the public charge rule was announced.
237 *237 Given the complexity of immigration law, it is unsurprising that many are confused or fearful about how the rule might apply to them. Still, the pattern of disenrollment does not reflect the rule's actual scope. Focusing on the source of Cook County's injury can therefore be misleading.
That does not mean, however, that the rule has no effect. Even though it is almost entirely inapplicable to those currently eligible for benefits, it significantly affects a different group: nonimmigrant visa holders applying for green cards. Recall that non-immigrant visa holders, unlike lawful permanent residents and those holding humanitarian-based visas, are ineligible for the relevant benefits in their current immigration status. If granted lawful permanent residency, though, they would become eligible for these benefits in the future. The public charge rule is concerned with what use a green card applicant would make of this future eligibility. As a leading treatise puts it, the public charge determination is a "prophetic" one. 5 CHARLES GORDON ET AL., IMMIGRATION LAW AND PROCEDURE § 63.05[3] (2019). If DHS predicts that an applicant is likely to rely too heavily on government assistance, it will deny her lawful permanent residency on the ground that she is likely to become a public charge. This case is about whether DHS has defined "public charge" too expansively and is therefore turning too many noncitizens away.
There are four major routes to obtaining the status of lawful permanent resident: humanitarian protection (refugees and asylees), the sponsorship of a family member, employment, and winning what is known as the green card lottery.[3] See U.S. DEP'T OF HOMELAND SEC., OFFICE OF IMMIGRATION STATISTICS, ANNUAL FLOW REPORT: LAWFUL PERMANENT RESIDENTS 3-4 (2018), https://www.dhs.gov/sites/default/ files/publications/Lawful_Permanent_Residents_2017.pdf. Those seeking



 
 
 


humanitarian protection are not subject to the statutory provision rendering inadmissible any "alien who ... is likely at any time to become a public charge," 8 U.S.C. § 1182(a)(4)(A), and only a subset of those in the remaining three categories will be subject to the DHS rule. That is because DHS only handles the applications of noncitizens who apply from within the United States; the State Department processes the applications of noncitizens who apply from abroad.[4] This division of authority means that, as a practical matter, the regulation applies to those present in the United States on nonimmigrant visas who seek to adjust their status to that of lawful permanent residents. And because the green card lottery is processed almost entirely by the State Department, the DHS rule applies primarily to employment-based applicants and family-based applicants (by far the larger of these two groups).[5]
238 *238 As nonimmigrant visa holders, these applicants have not previously been eligible for the benefits designated by DHS's rule—so the determination is not a backward-looking inquiry into whether they have used such benefits in the past. Instead, it is a forward-looking inquiry into whether they are likely to use such benefits in the future. The rule guides this forward-looking inquiry. Under the 1999 Guidance, an applicant was excluded only if she was likely to be institutionalized or primarily dependent on government cash assistance for the long term. Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689 (Mar. 26, 1999). Now, DHS considers the applicant's potential usage not only of cash assistance for income maintenance (including Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), and state cash assistance), but also of the Supplemental Nutrition Assistance Program (SNAP), the Section 8 Housing Choice Voucher Program, Section 8 project-based rental assistance, housing benefits under Section 9, and Medicaid (with some explicit exceptions). 8 C.F.R. § 212.21. And if DHS concludes that an applicant is likely to use more than 12 months' worth of these benefits —with the use of 2 benefits in 1 month counting as 2 months—it will deem her "likely to become a public charge" and deny the green card. Id.
This heightened standard for admissibility is a significant change—but it's not the one that the plaintiffs' emphasis on disenrollment suggests. Evaluating the rule requires a clear view of what it actually does; so, with the rule's scope in mind, I turn to the merits.


 

 


II.
While I agree with the majority's bottom-line conclusion at Chevron step one that "public charge" does not refer exclusively to one who is primarily and permanently dependent on government assistance, I have a little to add to the history and a lot to add to the statutory analysis. In my view, the majority takes several wrong turns in analyzing the statute that skew its thinking about Chevron step two. For purposes of this Part, the most significant is that the majority accepts the plaintiffs' view that the 1996 amendments to the public charge provision were irrelevant. In what follows, I'll lay out my own analysis of the plaintiffs' arguments, which will explain why I wind up in a different place than the majority does on the reasonableness of DHS's interpretation of the statute.
The plaintiffs advance three basic arguments as to why the term "public charge" refers exclusively to one who is "primarily and permanently" dependent on government assistance. First, they say that the term had that meaning when it first appeared in the 1882 federal statute. Second, they contend that even if the term was unsettled in the late nineteenth century, subsequent judicial and administrative decisions narrowed it, and later amendments to the statute ratified these interpretations. Third, they argue that interpreting the term "public charge" to encompass anything short of primary and permanent dependence conflicts with Congress's choice to make supplemental government benefits available to immigrants. I'll take these arguments in turn.
A.
The plaintiffs first argue that in the late nineteenth century, "public charge" meant
239


 
 
 
 
 


*239 primary and permanent dependence. See New Prime Inc. v. Oliveira, ___ U.S. ___, 139 S. Ct. 532, 539, 202 L.Ed.2d 536 (2019) ("[I]t's a `fundamental canon of statutory construction' that words generally should be `interpreted as taking their ordinary... meaning ... at the time Congress enacted the statute.'" (citation omitted)). Evaluating this argument requires careful consideration of a term with a long history. The term "public charge" was borrowed from state "poor laws," which were in turn modeled on their English counterparts. HIDETAKA HIROTA, EXPELLING THE POOR: ATLANTIC SEABOARD STATES AND THE NINETEENTH-CENTURY ORIGINS OF AMERICAN IMMIGRATION POLICY 43-47 (2017). Early poor laws used "public charge" synonymously with "public expense," referring to any burden on the public fisc. Thus, when someone sought assistance from a city or county overseer of the poor, the cost of the relief provided was entered on the overseer's books as a public charge—that is, an expense properly chargeable to, and therefore funded by, the public. Over time, the term "public charge" came to refer (at least in the context of poor relief and immigration laws) not only to expenditures made under the poor laws, but also to the people who depended on these expenditures.[6]
State legislatures, worried about the burden that destitute immigrants might place on programs to aid the needy, coopted the poor-law language into immigration legislation. In 1847, New York created an administrative apparatus for dealing with the influx of immigrants. The new "Commissioners of Emigration" were tasked with examining incoming passengers to determine if "there shall be found among such passengers, any lunatic, idiot, deaf and dumb, blind or infirm persons ... who, from attending circumstances, are likely to become permanently a public charge"—language, incidentally, that suggests that one could be a public charge either temporarily or permanently. Act of May 5, 1847, ch. 195, § 3, 1847 N.Y. Laws 182, 184. These individuals were permitted to land in the state upon payment of a bond by the vessel's master "to indemnify... each and every city, town and county within this state, from any cost or charge... for the maintenance or support of the person ... within five years." Id. The bonds paid for the landing of these immigrants were then used to pay for the state immigration infrastructure, including the provision of some temporary aid to new arrivals. Two years later, the state expanded the category of people for whom a bond was required. Still excluded were those "likely to become permanently a public charge" but also those "who have been paupers in any other country, or who from sickness or disease, existing at the time of departing from the foreign port, are or are likely to




soon become a public charge." Act of Apr. 11, 1849, ch. 350, § 3, 1849 N.Y. Laws 504, 506. By 1851, the New York statute contained the language which would be included in both the 1882 and 1891 federal statutes. Gone was the reference to those "likely to become permanently a public charge," replaced by phrases referring to someone "unable to take care of himself or herself without becoming a public charge" and someone "likely to become a public charge." Act of July 11, 1851, ch. 523, § 4, 1851 N.Y. Laws 969, 971. In the event that a bond was unpaid, New
240 *240 York—and Massachusetts, which enacted a substantially similar law— ordered the exclusion of those immigrants deemed "likely to soon become a public charge." HIROTA, supra, at 71-72.
The bond system was held unconstitutional by the U.S. Supreme Court on the ground that that the power to tax incoming foreign passengers "has been confided to Congress by the Constitution." Henderson v. Mayor of New York, 92 U.S. 259, 274, 23 L.Ed. 543 (1876). The decision threw the state systems into uncertainty and created demand for federal legislation, largely to reenact the defunct state policies and to replace the lost funding. Since the states could no longer fund their immigration systems using state bonds, the 1882 federal statute levied "a duty of fifty cents for each and every passenger not a citizen of the United States" arriving by sea; this was to "constitute a fund ... to defray the expense of regulating immigration ... and for the care of immigrants arriving in the United States, for the relief of such as are in distress." Act of Aug. 3, 1882, ch. 376, § 1, 22 Stat. 214, 214. The first federal statute therefore filled the space left by the nowineffective state laws: it used funds raised from the immigrants or their carriers to provide some care for the newly arrived, while describing criteria for excluding those likely to financially burden state and local governments. Because the term "public charge" had been pulled directly from the state statutes, it presumably had the same meaning that it had come to have under the state laws: someone who depended, or would likely depend, on poor-relief programs.
But when the term "public charge" was imported into federal law, it was unclear how much state aid qualified someone as a "public charge." Neither state poor laws nor state immigration laws defined "public charge," and no clear definition emerged in judicial opinions or secondary sources, either. Early efforts to enforce the 1882 statute bear out the uncertainty



 
 


surrounding the term. In 1884, an association of ten steamship companies asked the Secretary of the Treasury, on whom responsibility for immigration fell at the time, to "specifically define ... the circumstances which shall constitute `a person unable to take care of himself or herself without becoming a public charge,' and who shall not be permitted to land under ... the [1882] act." SYNOPSIS OF THE DECISIONS OF THE TREASURY DEPARTMENT ON THE CONSTRUCTION OF THE TARIFF, NAVIGATION, AND OTHER LAWS FOR THE YEAR ENDED DECEMBER 31, 1884, at 365 (1885). (The steamship companies had a stake because they were on the hook for the noncitizen's return ticket if she was rejected as a likely public charge.) The Secretary demurred, answering that "the determination of the liability of arriving immigrants to become public charges is vested ... in the commissioners of immigration appointed by the State in which such immigrants arrive," and thus "this Department must decline to interfere in the matter." Id. One year later, Treasury continued to recognize that "difficulties have arisen in regard to the construction of so much of section 2 of [the 1882 act]... as refers to the landing of convicts, lunatics, idiots, or persons unable to take care of themselves without becoming a public charge," though it still refused to offer clarification. SYNOPSIS OF THE DECISIONS OF THE TREASURY DEPARTMENT ON THE CONSTRUCTION OF THE TARIFF, NAVIGATION, AND OTHER LAWS FOR THE YEAR ENDING DECEMBER 31, 1885, at 359 (1886).
The term was not necessarily clarified in 1891, when immigrationenforcement authority was placed directly in the hands of federal officials. (From 1882 until Congress enacted the Immigration Act of 1891, states had continued to administer immigration enforcement, albeit under authority
241 *241 conferred by the federal statute.) With the change in administration, the steamship companies continued to express confusion, informing Treasury officials that the phrase "was somewhat indefinite and [that they] desired to have a more specific explanation of its meaning." 1 LETTER FROM THE SECRETARY OF THE TREASURY, TRANSMITTING A REPORT OF THE COMMISSIONERS OF IMMIGRATION UPON THE CAUSES WHICH INCITE IMMIGRATION TO THE UNITED STATES 109 (1892). At this point, Treasury offered an answer, but it was hardly clarifying. Pressed by Congress to describe the standards used by officials to determine whether an immigrant was "likely to become a public charge," the Assistant Secretary in 1892 responded that "written instructions and an



 


inflexible standard would be inapplicable and impracticable ... and the sound discretion of the inspection officer, subject to appeal as prescribed by law, must be the chief reliance." H.R. REP. No. 52-2090, at 4 (1892).
Rather than conveying something narrow and definite, the term "public charge" seemed to refer in an imprecise way to someone who lacked selfsufficiency and therefore burdened taxpayers. Explanations of the term offered in a congressional hearing by John Weber, the first commissioner of immigration at Ellis Island, illustrate the point. He explained that "[t]he appearance of the man, his vocation, his willingness to work, his apparent industry, and the demand for the kind of work that he is ready to give, is what governs" whether an individual was likely to become a public charge. Id. at 359. When asked whether an immigrant would be considered likely to become a public charge if "it is necessary that a private charity shall furnish food and lodging ... for a period long or short after landing," Weber responded that such a person would likely be considered a public charge, but that it would not violate the statute to allow him to land so long as it was obvious that he would be "supported on private charity only up to the time when [he got] employment, which may only be until the next day." Id. at 425.
The repeated requests for clarification from steamship operators and Congress, coupled with Treasury's reluctance to provide a concrete answer, indicate that the term did not have a definite and fixed meaning. That is unsurprising in the context of the time: it would have been difficult to have a one-size-fits-all definition of how much aid was too much, because there was not a one-size-fits-all system of welfare. Poor relief was largely handled by towns and counties, which made their own choices about how to deliver aid. Most localities deployed "outdoor relief"—inkind and cash support without institutionalization. See MICHAEL B. KATZ, IN THE SHADOW OF THE POORHOUSE: A SOCIAL HISTORY OF WELFARE IN AMERICA 37 (1986) ("[P]oorhouses did not end public outdoor relief. With a few exceptions, most towns, cities, and counties helped more people outside of poorhouses than within them."). Other areas were more reliant on "indoor" relief in the form of poorhouses. Id. at 16-18. Some used a mixed system, adjusting the provision of indoor and outdoor relief as poorhouse populations ebbed and flowed. Id. at 39. And while the plaintiffs treat residence in a poorhouse as a proxy for primary and permanent dependence, that's not how poorhouses worked—they housed a mix of the permanently and temporarily dependent, serving as "both a short-term





refuge for people in trouble and a home for the helpless and elderly." Id. at 90.
The bottom line is that in the closing decades of the nineteenth century, several different forms of public relief existed contiguously. And when nineteenth-century immigration officials determined whether someone was "likely to become a public
242 *242 charge," dependence on a particular kind or amount of relief does not appear to have been dispositive. Rather than serving as shorthand for a certain type or duration of aid, the term "public charge" referred to a lack of self-sufficiency that officials had broad discretion to estimate. Neither state legislatures nor Congress pinned down the term any more than that.
B.
The plaintiffs have a backup argument: even if the term was unsettled in the late nineteenth century, they claim that it became settled in the twentieth. According to the plaintiffs, courts and administrative agencies repeatedly held that "public charge" meant one who is "primarily and permanently dependent" on the government, and Congress ratified this settled meaning in its many reenactments of the public charge provision. See WILLIAM N. ESKRIDGE JR., INTERPRETING LAW: A PRIMER ON HOW TO READ STATUTES AND THE CONSTITUTION app. at 421 (2016) ("When Congress reenacts a statute, it incorporates settled interpretations of the reenacted statute."). Thus, the plaintiffs say, whatever uncertainty may have surrounded the term in 1882, there was no uncertainty when Congress reenacted the provision. And because Congress reenacted the provision many times—in 1891, 1907, 1917, 1952, 1990, and 1996—the plaintiffs canvass a century's worth of judicial and administrative precedent in an effort to show that a consensus existed before at least one of these reenactments.
The bar for establishing a settled interpretation is high: at the time of reenactment, the judicial consensus must have been "so broad and


 
 
 
 
 


unquestioned that we must presume Congress knew of and endorsed it." Jama v. Immigration & Customs Enf't, 543 U.S. 335, 349, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005). The plaintiffs rely heavily on Gegiow v. Uhl, 239 U.S. 3, 36 S.Ct. 2, 60 L.Ed. 114 (1915), to establish this consensus, but I share the majority's view that Gegiow doesn't do the work that the plaintiffs want it to. In that case, the Court did not define "public charge" other than to say that it cannot be defined with reference to labor conditions in the city in which an immigrant intends to settle. The Court concluded that immigrant arrivals "are to be excluded on the ground of permanent personal objections accompanying them irrespective of local conditions unless the one phrase before us [public charge] is directed to different considerations than any other of those with which it is associated." Id. at 10, 36 S.Ct. 2. In other words, classifying someone as a likely "public charge" does not depend on whether he is bound for Portland or St. Paul. The Court did not define the degree of reliance that renders someone a "public charge," because that was not the question before it. Thus, Gegiow neither binds us nor offers a definition that Congress could have ratified.[7]
Without Gegiow, the plaintiffs face an uphill battle because satisfying the requirements of the reenactment canon typically requires at least one Supreme Court
243 *243 decision. See, e.g., Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 244 n.11, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009); Cannon v. Univ. of Chi., 441 U.S. 677, 699, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). And for the reasons that the majority gives, this is not the rare case in which lower court and administrative decisions are enough to demonstrate a consensus. See Maj. Op. at 224-25; see also William N. Eskridge, Jr., Interpreting Legislative Inaction, 87 MICH. L. REV. 67, 83 (1988) ("[T]he Court often will not incorporate lower court decisions into a statute through the reenactment rule."); cf. Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 135 S. Ct. 2507, 2520, 192 L.Ed.2d 514 (2015) (applying the reenactment canon in light of "the unanimous holdings of the Courts of Appeals") (emphasis added).
In any event, the reenactment canon requires more than a judicial consensus—it applies only if Congress reenacted the provision without making material changes. Jama, 543 U.S. at 349, 125 S.Ct. 694; see also Holder v. Martinez Gutierrez, 566 U.S. 583, 593, 132 S.Ct. 2011, 182



 
 


L.Ed.2d 922 (2012) ("[T]he doctrine of congressional ratification applies only when Congress reenacts a statute without relevant change."). Whatever one thinks of earlier changes to the public charge provision, there can be no doubt that the 1996 amendments were material.
The INA is notoriously complex, and these amendments are no exception. Making matters worse, the amendments came from two separate acts, themselves incredibly complex, that were passed a month apart: the Welfare Reform Act, Pub. L. No. 104-193, 110 Stat. 2105 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009-546 (1996) (IIRIRA). But because the plaintiffs challenge the materiality of these amendments to the meaning of the term "public charge," it is necessary to step through them at a level of detail that is, unfortunately, excruciating.
Congress enacted IIRIRA, which made sweeping changes to the INA, in September of 1996. Among its changes were several material amendments to the public charge provision. For the first time in the provision's 114-year history, Congress required the Executive to consider an itemized list of factors in making the public charge determination, thereby ensuring that the inquiry was searching rather than superficial. See 8 U.S.C. § 1182(a)(4)(B) (i) (providing that "the consular officer or the Attorney General shall at a minimum consider" the noncitizen's age; health; family status; assets, resources, and financial status; and education and skills). Even more significantly, it added a subsection to the public charge provision rendering most family-sponsored applicants automatically inadmissible on public charge grounds unless they obtained an enforceable affidavit of support from a sponsor (usually the family member petitioning for their admission). Id. § 1182(a)(4)(C) (rendering a family-sponsored noncitizen "inadmissible under this paragraph" unless the sponsor executes an "affidavit of support described in [8 U.S.C. § 1183a] with respect to such alien").[8] The affidavit provision had been inserted into the INA weeks earlier by the Welfare Reform Act. See Welfare Reform Act § 423. In addition to making the affidavit of support mandatory under the public charge provision, IIRIRA significantly expanded
244 *244 8 U.S.C. § 1183a by spelling out what the affidavit of support requires.
The affidavit provision is meant to establish that the applicant "is not excludable as a public charge." 8 U.S.C. § 1183a(a)(1). To that end, it



 
 
 


empowers the federal government, as well as state and local governments, to demand reimbursement from the sponsor for any means-tested public benefit received by the sponsored noncitizen.[9] Id. § 1183a(b)(1)(A). A "means-tested public benefit" is one available to those whose income falls below a certain level. The provision explicitly excludes certain benefits, regardless of whether they are means tested, from the sponsor's reimbursement obligation; by implication, receipt of every other meanstested benefit is included. See id. § 1183a note.[10] If the sponsor doesn't pay upon request, the government can sue the sponsor. Id. § 1183a(b)(2). If the sponsor doesn't keep "the Attorney General and the State in which the sponsored alien is currently a resident" apprised of any change in the sponsor's address, she is subject to a civil penalty—and that penalty is higher if she fails to update her address "with knowledge that the sponsored alien has received any means-tested public benefits" other than those described in three cross-referenced provisions of the Welfare Reform Act. Id. § 1183a(d).[11] The affidavit is generally enforceable for ten years or until the sponsored noncitizen is naturalized. Id. § 1183a(a)(2).[12]
Notwithstanding IIRIRA's obvious—and obviously significant—amendments to the public charge provision, the plaintiffs insist, and the majority agrees, that its amendments reveal nothing about the scope of the term "public charge." Yet as I will explain below, the 1996 amendments were not only material, but they also increased the bite of the public charge exclusion.
The plaintiffs characterize the affidavit provision as having nothing to do with admissibility; as they see it, the provision merely reinforces restrictions on government benefits for lawful permanent residents. They offer two basic arguments in support of that position: first, that the supportingaffidavit requirement appears in a different provision than does the public charge exclusion (8 U.S.C. § 1183a, as opposed to § 1182(a)(4)), and second, that the supporting-affidavit requirement doesn't apply to everyone who is subject to the public charge exclusion.
The first argument is totally unpersuasive. The public charge provision explicitly
245 *245 cross-references the affidavit provision, thereby tying the two together, and it makes obtaining an affidavit of support a condition of admissibility. Id. § 1182(a)(4)(C)(ii). What's more, the affidavit provision expressly states that the point of the affidavit is "to establish that an alien is not excludable


 
 
 



as a public charge under section 1182(a)(4)." Id. § 1183a(a)(1). Because a family-sponsored applicant is inadmissible as a public charge without the affidavit, the coverage of the affidavit is very strong evidence of the nature of the burden with which the public charge exclusion is concerned.[13]
The plaintiffs' second argument fails too. As an initial matter, the affidavit provision—which, it bears repeating, is tied by cross-reference to the public charge exclusion—uses the term "public charge," and we "do[] not lightly assume that Congress silently attaches different meanings to the same term in the same or related statutes." Azar v. Allina Health Servs., ___ U.S. ___, 139 S. Ct. 1804, 1812, 204 L.Ed.2d 139 (2019); see also Desert Palace, Inc. v. Costa, 539 U.S. 90, 101, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (explaining that as a general rule, "identical words used in different parts of the same act are intended to have the same meaning" (citation omitted)). The plaintiffs don't specify what different meaning the term "public charge" might have in the affidavit provision; they just vaguely assert that the provision is getting at something else. They presumably don't want to embrace the logical implication of their position: that the term "public charge" means something more stringent for family-based immigrants, who need to produce an affidavit, than it does for the others, who don't.
In any event, this argument assumes that if the affidavit were tied to the standard of admissibility, Congress would have required one from everyone subject to the exclusion. Its choice to require an affidavit only from familybased immigrants, the logic goes, means that the affidavit provision can't shed any light on the admissibility provision, which is more generally applicable.
This argument is misguided. There is an obvious explanation for why Congress required supporting affidavits from family-based immigrants and not from employment-based immigrants or green card lottery winners: that is the only context in which it makes sense to demand this assurance. A connection to a citizen or lawful permanent resident is the basis for a family-based green card. 8 U.S.C. §§ 1151(b)(2), 1153(a). The same is not true for immigrants who obtain diversity or employment-based green cards, neither of which is based on a personal relationship—much less a relationship close enough that someone would be willing to take on ten years' worth of potentially significant liability. Moreover, in the context of an employment-based green card, a supporting affidavit would add little. The


 
 


affidavit is a means of providing the Executive with assurance that the green card applicant will not become a public charge if admitted. The stringent criteria for an employment-based green card provide similar assurance. Employment-based green cards are reserved largely for those with "extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim"; "outstanding professors and researchers" who are "recognized internationally";
246 *246 "multinational executives and managers"; those who hold advanced degrees and have job offers; and entrepreneurs prepared to invest a minimum of $1,000,000 in a venture that will benefit the United States economy and employ "not fewer than 10 United States citizens or [lawful permanent residents]." Id. § 1153(b)(1)-(5). Someone who meets these criteria is unlikely to have trouble supporting herself in the future. That said, if an employment-based applicant will be working for a relative, and therefore has a family connection, the statute still requires her to obtain a supporting affidavit—demonstrating that the affidavit is not uniquely applicable to those applying for family-based green cards. See id. § 1182(a)(4)(D).
Despite the plaintiffs' effort to show otherwise, it doesn't make sense to treat the affidavit provision as an anomalous carve-out rather than compelling evidence of the scope of the public charge inquiry. In fact, trying to categorize the supporting affidavit as limited by virtue of its application to family-based immigrants is a sleight of hand, because, as the plaintiffs surely know, the family-based category is not simply one among several to which the public charge exclusion applies. As a practical matter, it is the category for which the exclusion matters most. The number of lottery winners is considerably smaller than the number of family-based immigrants, and employment-based immigrants—also a smaller category than the family based—have other means of demonstrating self-sufficiency.
In short, the 1996 amendments to the public charge provision—most notably, the addition of factors to guide the public charge determination and the insertion of the affidavit requirement—were material. What's more, the affidavit provision reflects Congress's view that the term "public charge" encompasses supplemental as well as primary dependence on public assistance. To establish that a family-based applicant is not excludable as


 
 



a public charge, a sponsor must promise to pay for the noncitizen's use of any means-tested benefit outside the itemized exclusions. Without such an affidavit, the noncitizen is inadmissible. Congress's attempt to aggressively protect the public fisc through the supporting-affidavit requirement is at odds with the view that it used the term "public charge" to refer exclusively to primary and permanent dependence.
C.
Switching gears, the plaintiffs—with the support of the House of Representatives, appearing as amicus curiae—advance a creative structural argument for why the term "public charge" must be interpreted narrowly: they say that interpreting the term to include the receipt of supplemental benefits is inconsistent with Congress's choice in the Welfare Reform Act to make such benefits available to lawful permanent residents. According to the plaintiffs, Congress would not have authorized lawful permanent residents to receive supplemental benefits if it did not expect them to use those benefits. And it is inconsistent with Congress's generosity to deny someone a green card because she is likely to take advantage of benefits for which Congress has made her eligible. The statutory scheme therefore forecloses the possibility of interpreting "public charge" to mean anything other than primary and permanent dependence.
There are several problems with this argument. To begin with, its logic would read the public charge provision out of the statute. The premise of the public charge inquiry has always been that immigrants in need of assistance would have access to it after their arrival—initially through state poor laws and later through modern
247 *247 state and federal welfare systems. Indeed, it is difficult to imagine how someone could become a public charge under any conception of the term if it were impossible to receive public aid. For example, on the plaintiffs' logic, DHS could not exclude an applicant even if it predicted that the applicant would eventually become permanently reliant on government benefits, because the future use of those benefits would, after all, be authorized.


 
 
 
 


Barring the Executive from considering a green card applicant's potential use of authorized benefits would render the statutory public charge exclusion a dead letter.
Moreover, the plaintiffs' position assumes that tension exists between the public charge exclusion and the availability of benefits to lawful permanent residents—and that this tension can be resolved only by limiting the scope of the exclusion. In fact, the public charge exclusion and the availability of benefits are easily reconcilable. Immigration law has long distinguished between one who becomes a public charge because of a condition preexisting her arrival and one who becomes a public charge because of something that has happened since. See, e.g., id. § 1227(a)(5) ("Any alien who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable."); Act of Mar. 3, 1891, ch. 551, § 11, 26 Stat. 1084, 1086 ("[A]ny alien who becomes a public charge within one year after his arrival in the United States from causes existing prior to his landing therein shall be deemed to have come in violation of law and shall be returned as aforesaid."). Providing benefits to immigrants who have been here for a designated period of time—generally five years under current law—takes care of immigrants in the latter situation. Life contains the unexpected: for instance, a pandemic may strike, leaving illness, death, and job loss in its wake. A lawful permanent resident who falls on hard times can rely on public assistance to get back on her feet. Congress's willingness to authorize funds to help immigrants who encounter unexpected trouble is perfectly consistent with its reluctance to admit immigrants whose need for help is predictable upon arrival.
In any event, the plaintiffs' argument is inconsistent not only with the statutory exclusion, but also with the Welfare Reform Act. As the plaintiffs tell it, Congress has generously supported noncitizens, thereby implicitly instructing the Executive to ignore a green card applicant's potential usage of supplemental benefits in the admissibility determination. But that is a totally implausible description of the Welfare Reform Act. The stated purpose of the Act is to ensure that noncitizens "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," and that "the availability of public benefits not constitute an incentive for immigration to the United States." 8 U.S.C. § 1601(2). To this end, the Act renders lawful permanent residents ineligible





for most benefits until they have lived in the United States for at least five years. Id. § 1613(a). The Act's dramatic rollback of benefits for noncitizens sparked vociferous criticism. See Isabel Sawhill et al., Problems and Issues for Reauthorization, in WELFARE REFORM AND BEYOND: THE FUTURE OF THE SAFETY NET 20, 27 (Isabel Sawhill et al. eds., 2002) (referring to the five-year aid eligibility restriction as one of the Act's "most contentious features"). It blinks reality to describe the Welfare Reform Act as a "grant" of benefits, as the plaintiffs do, or to say that the Act took an immigrant's potential use of supplemental benefits off the table for purposes
248 *248 of the admissibility determination.[14]
* * *
Given the length and complexity of my analysis of the plaintiffs' arguments at Chevron step one, a summary may be helpful. In my view, the plaintiffs can't show that the term "public charge" refers narrowly to someone who is primarily and permanently dependent on government assistance. The term "public charge" was broad when it entered federal immigration law in 1882, and it has not been pinned down since. IIRIRA, Congress's latest word on the public charge provision, cuts in the opposite direction of the plaintiffs' argument, as does the Welfare Reform Act, which, contrary to the plaintiffs' argument, hardly reflects a congressional desire that immigrants take advantage of available public assistance. In fact, the amendments that IIRIRA and the Welfare Reform Act together made to the INA reflect more than Congress's view that the term "public charge" is capacious enough to include supplemental dependence on public assistance. They reflect its preference that the Executive consider even supplemental dependence in enforcing the public charge exclusion.
III.


 
 
 
 
 


While the term "public charge" is indeterminate enough to leave room for interpretation, DHS can prevail only if its definition is reasonable. The majority holds that DHS is likely to lose on the merits of that argument; I disagree. My dissent from the majority on this score is inevitable, given how differently we analyze the statute at Chevron step one. The majority seems to understand "public charge" to mean something only slightly broader than "primarily and permanently dependent," but I understand it to be a much more capacious term—not only as a matter of history, but also by virtue of the 1996 amendments to the public charge provision. On my reading, in contrast to the majority's, the statute gives DHS relatively wide discretion to specify the degree of benefit usage that renders someone a "public charge." Thus, the majority and I approach Chevron step two from different starting points.
The plaintiffs challenge the reasonableness of the rule's definition in two respects. First, they object to the particular benefits that DHS has chosen to designate in its definition of "public charge." According to the plaintiffs, DHS has unreasonably interpreted the statute insofar as the rule counts inkind aid. Second, they argue that DHS has set the relevant benefit usage so low that the definition captures people who cannot reasonably be characterized as "public charges." I will address these arguments in turn.
A.
The plaintiffs don't contest DHS's authority to account for the receipt of state and federal cash assistance (like SSI and TANF) in the definition of "public charge." But they insist that in-kind benefits (like
249 *249 SNAP, public housing, and Medicaid) are off-limits. Their argument in support of that position is difficult to grasp. In their brief, the plaintiffs vaguely assert that inkind benefits shouldn't be counted because they are categorically different from cash payments; they imply that the term "public charge" does not encompass someone who relies on in-kind public assistance. At oral argument, the plaintiffs wisely abandoned that position. For one thing, they could not articulate why it mattered whether the


 
 
 
 


government chose to give someone $500 for groceries or $500 worth of food. For another, that argument is inconsistent with history: everyone agrees that someone living permanently in a late nineteenth-century poorhouse qualified as a public charge, and shelter in a poorhouse is inkind relief.
At least rhetorically, a great deal of the plaintiffs' argument involves their repeated emphasis on the fact that the 1999 Guidance directed officers "not [to] place any weight on the receipt of non-cash public benefits (other than institutionalization) or the receipt of cash benefits for purposes other than for income maintenance." 1999 Guidance, 64 Fed. Reg. at 28,689. The implication is that the 1999 Guidance reflects the only reasonable interpretation of the statute.
Of course, the fact that a prior administration interpreted a statute differently does not establish that the new interpretation is unreasonable— the premise of Chevron step two is that more than one reasonable interpretation of the statute exists. See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 863-64, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ("An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis."). Moreover, the focus on cash benefits in the 1999 Guidance flowed from the Immigration and Naturalization Service's decision to interpret "public charge" to mean "primarily dependent on the government for subsistence." 1999 Guidance, 64 Fed. Reg. at 28,692. As the Guidance explained, INS had decided "that the best evidence of whether an alien is primarily dependent on the government for subsistence is either (i) the receipt of public cash assistance for income maintenance, or (ii) institutionalization for long-term care at government expense." Id. DHS has now taken a different approach—it has decided that projected reliance on government benefits need not be primary to trigger the public charge exclusion. And once DHS made that baseline choice, a broader range of benefits became relevant. Thus, the plaintiffs' fundamental objection to the counting of benefits like Medicaid, housing, and SNAP—that they are supplemental—is really just a re-packaging of their argument under Chevron step one.
The plaintiffs also advance a legislative-inaction argument: in 2013—twenty years after Congress enacted IIRIRA—the Senate Judiciary Committee, while debating the Border Security, Economic Opportunity, and Immigration


 



Modernization Act, voted down a proposal to require applicants for lawful permanent resident status "to show they were not likely to qualify even for non-cash employment supports such as Medicaid, the SNAP program, or the Children's Health Insurance Program (CHIP)." S. REP. NO. 113-40, at 42 (2013). But the failure of this proposal is neither here nor there. As the Supreme Court has cautioned, "Congressional inaction lacks `persuasive significance' because `several equally tenable inferences' may be drawn from such inaction, `including the inference that the existing legislation already incorporated the offered change.'" Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S.
250 *250 633, 650, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) (citation omitted). This rejected proposal—which would have overridden the 1999 Guidance —is a case in point: the rejection is as consistent with the choice to leave the matter within the Executive's discretion as it is with the choice to force the Executive's hand. The plaintiffs' argument has other problems too. Why should the views of the 2013 Senate Judiciary Committee be attributed to Congress as a whole? See Thompson v. Thompson, 484 U.S. 174, 191-92, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988) (Scalia, J., concurring in the judgment) ("Committee reports, floor speeches, and even colloquies between Congressmen, are frail substitutes for bicameral vote upon the text of a law and its presentment to the President." (citation omitted)). And how could the unenacted views of the 2013 Congress settle the meaning of language chosen by a different Congress at a different time? See United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 4 L.Ed.2d 334 (1960) ("[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.").
Thus, the plaintiffs are wrong to insist that DHS is barred from considering the receipt of a particular benefit simply because the benefit is in-kind rather than cash. There is no such bar. Rather, the list of designated benefits is reasonable if receiving them is consistent with the lack of selfsufficiency conveyed by the term "public charge."
Answering this question requires fleshing out what it means to lack selfsufficiency for purposes of the public charge exclusion. As the majority observes, no one is self-sufficient in an "absolutist" sense because everyone relies on some nonmonetary government services—for example, public snow removal and emergency services. Maj. Op. at 220, 232.



 
 


Importantly, the term "public charge" does not implicate self-sufficiency in this absolutist sense. Throughout its centuries-long history, "public charge" has always been associated with dependence on a particular category of government programs: those available based on financial need. In the nineteenth and early twentieth centuries, these were "poor relief" programs; now, they are the need-based programs of the modern welfare system. And what has always been implicit in the term "public charge" was made explicit by the 1996 amendments. The statutory exclusion requires the Executive to consider the non-citizen's age; health; family status; assets, resources, and financial status; and education and skills—factors plainly designed to determine whether a noncitizen will be able to support herself, not whether she will use generally available services like snow removal. In the same vein, the sponsor's reimbursement obligation covers only those benefits that are "means tested"—that is, available to those whose income falls below a certain threshold. As a matter of both history and text, a "public charge" lacks self-sufficiency in the sense that she lacks the financial resources to provide for herself.
The benefits designated in DHS's definition are all consistent with this concept of self-sufficiency. Recall that DHS has designated the following benefits: cash assistance for income maintenance (including SSI, TANF, and state cash assistance), SNAP, the Section 8 Housing Choice Voucher Program, Section 8 project-based rental assistance, housing benefits under Section 9, and Medicaid (with some explicit exceptions). 8 C.F.R. § 212.21. These benefits are all means tested; they are also squarely within the Welfare Reform Act's definition of "public benefit." 8 U.S.C. §§ 1611(c), 1621(c) (defining "public benefit" to include welfare, food, health, and public-housing benefits funded by the federal,
251 *251 state, or local governments). It is consistent with the term "public charge" to consider the potential receipt of cash, food, housing, and healthcare benefits—all of which fulfill fundamental needs—in evaluating whether someone is likely to depend on public assistance to get by.
It is also worth noting some of the benefits that the rule does not include: significantly, the rule's definition accommodates the reimbursement limitations in the affidavit provision. Under the affidavit provision, the following benefits, even if means tested, are not subject to reimbursement: certain forms of emergency medical assistance; short-term, in-kind


 

 


emergency disaster relief; school-lunch benefits; benefits under the Child Nutrition Act of 1966; public-health assistance for immunization, as well as treatment for the symptoms of communicable disease; certain foster-care and adoption payments; certain in-kind services such as soup kitchens and crisis counseling; student assistance for higher education; benefits under the Head Start Act; means-tested programs under the Elementary and Secondary Education Act of 1965; and certain job-training benefits. Id. § 1183a note.[15]
These exemptions under the affidavit provision are excluded from the rule too. The rule's definition provides "an exhaustive list of public benefits," Inadmissibility on Public Charge Grounds, 84 Fed. Reg. at 41,296, so any benefit not mentioned in the list is by implication excluded from the definition. And the list does not mention any of the benefits exempted in the affidavit provision of the statute. 8 C.F.R. § 212.21; see also Inadmissibility on Public Charge Grounds, 84 Fed. Reg. at 41,312 (noting that the rule's "definition does not include benefits related exclusively to emergency response, immunization, education, or social services"); id. at 41,482 (explaining that the rule's definition "does not include emergency aid, emergency medical assistance, or disaster relief"); id. at 41,389 (excluding benefits under the National School Lunch Act, the Child Nutrition Act, and the Head Start Act). Indeed, to highlight just how carefully the rule tracks the statutory exemptions to the affidavit of support, consider the rule's exclusion of Medicaid for those under the age of 21 and pregnant women. Id. at 41,367. These benefits do not appear in the list of exemptions to the affidavit of support, but they are exempted from the sponsor's reimbursement obligations under a different statutory provision. 42 U.S.C. § 1396b(v)(4)(B). The rule captures that exclusion even though it appears elsewhere; in other words, DHS did not simply copy and paste the statutory note.
In sum, the designated benefits are not only consistent with the term "public charge," but they also fit neatly within the statutory structure. Considering the potential receipt of these benefits to gauge the likelihood that a noncitizen will become a public charge is therefore not an unreasonable interpretation of the statute.
B.


 
 
 


The closer question is whether DHS's benefit-usage threshold stretches the meaning of "public charge" beyond the breaking point. The rule defines "public charge" to mean a noncitizen who receives one or more of the designated benefits "for more than twelve months in the aggregate
252 *252 within any 36-month period." One month of one benefit counts toward the twelve. As a result, an applicant expected to live in Section 8 housing for a year would be denied admission as someone who is likely to become a public charge, as would an applicant who is expected to receive three months' worth of housing, TANF, Medicaid, and SNAP.
The plaintiffs have a legislative-inaction argument for this feature of the rule too. They point out that during the enactment of IIRIRA, the Senate Judiciary Committee, while negotiating the House-passed version of the bill, dropped language that "would have clarified the definition of `public charge'" in the deportation provision to provide for deportation if a noncitizen "received Federal public benefits for an aggregate of 12 months over a period of 7 years." 142 Cong. Rec. S11,872, S11,882 (daily ed. Sept. 30, 1996) (statement of Sen. Kyl). Thus, they say, Congress has foreclosed the possibility that 12 months' worth of benefit usage renders someone a public charge. Whatever the statutory floor is, it must be higher than that.
I've already identified some of the problems with legislative-inaction arguments, so I won't belabor them here. It's worth noting, though, that this legislative-inaction argument is even worse than the plaintiffs' other. So far as the plaintiffs' citation reveals, the proposal dropped out of the statute in the course of committee negotiations, not by a vote, and there is no explanation for why it did. See Thompson, 484 U.S. at 191, 108 S.Ct. 513 (Scalia, J., concurring in the judgment) ("An enactment by implication cannot realistically be regarded as the product of the difficult lawmaking process our Constitution has prescribed."). Moreover, the dropped proposal involved the public charge deportation provision, not the public charge admissibility provision. See 8 U.S.C. § 1227(a)(5). Drawing general conclusions from a committee's decision to drop this language in a context with much higher stakes is a particularly dubious proposition. Despite the plaintiffs' effort to demonstrate otherwise, the statute doesn't draw a bright


 
 



line requiring something more than 12 months of benefit usage to meet the definition of "public charge."
At oral argument, DHS declined to identify any limit to its discretion, implying that it could define public charge to include someone who took any amount of benefits, no matter how small. It may have been grounding its theory in the affidavit provision, which triggers the sponsor's liability once the noncitizen receives "any means-tested public benefit" that falls within the sponsor's reimbursement obligation. Id. § 1183a(b)(1)(A) (emphasis added).
That may well overread the affidavit provision, which does not purport to define "public charge." Enforcement of the public charge exclusion has waxed and waned over time in response to economic conditions, immigration policy, and changes in the programs available to support the poor. The amendments made by IIRIRA and the Welfare Reform Act, including the affidavit provision, reflect Congress's interest in vigorous enforcement. Yet Congress left the centuries-old term in the statute, and that term has always been associated with a lack of self-sufficiency. So that's the principle that governs here: if it's reasonable to describe someone who takes one or more of the designated benefits "for more than twelve months in the aggregate within any 36-month period" as lacking in selfsufficiency, then DHS's definition falls within the permissible range.
In deciding this question, it is wrong to focus exclusively on the durational requirement—duration must be viewed in the context of the benefits measured. Three features
253 *253 are particularly important in this regard: the designated benefits are means tested, satisfy basic necessities, and are major welfare grants. To see the importance of these features, consider how different the durational threshold would look without them—for example, if the rule measured the usage of benefits that are not means tested (e.g., public education), that are means tested but don't satisfy a basic necessity (e.g., Pell grants), or that satisfy a basic necessity but are not major welfare grants (e.g., needbased emergency food assistance). Relying on the government to provide a year's worth of a basic necessity (food, shelter, medicine, or cash assistance for income maintenance) implicates self-sufficiency in a way that funding a year of college with the help of a Pell grant does not.


 
 
 
 
 


The plaintiffs particularly object to the rule's stacking mechanism, which can reduce the durational requirement from 12 months to as little as 3 months. But here, too, the context matters: all of the designated benefits supply basic necessities, and the reduction is triggered in proportion to the degree of reliance on the government. The more supplemental the reliance, the longer it can go on before crossing the "public charge" threshold. The briefest durational threshold—three months of benefit usage—meets the definition only when the recipient relies on the government for all basic necessities (food, shelter, medicine, and cash assistance for income maintenance). In other words, such short-term reliance only counts if it's virtually total. The rule measures self-sufficiency along a sliding scale rather than by time alone.
It is not unreasonable to describe someone who relies on the government to satisfy a basic necessity for a year, or multiple basic necessities for a period of months, as falling within the definition of a term that denotes a lack of self-sufficiency. To be sure, the rule reaches dependence that is supplemental and temporary rather than primary and permanent. But the definition of "public charge" is elastic enough to permit that. The rule's definition is exacting, and DHS could have exercised its discretion differently. The line that DHS chose to draw, however, does not exceed what the statutory term will bear.
IV.
This case involves more than the definition of "public charge." The plaintiffs raised a host of objections to the rule in their complaint, and the majority addresses some of them. It concludes that the plaintiffs are likely to succeed in their challenge to the factors that DHS uses to implement its definition (the list of factors includes health, family size, and English proficiency), as well as in their argument that the rule is arbitrary and capricious. See 5 U.S.C. § 706(2)(A); Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (explaining that the agency must "articulate a satisfactory explanation for its action including a `rational connection between the facts found and the choice made'" (citation omitted)).


 

 


I wouldn't reach these issues. The district court didn't address them, and on appeal, the parties devoted their briefs almost entirely to the definition of "public charge." Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) ("It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below."); see also Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108, 111 (D.C. Cir. 2012) (remanding to the district court for arbitrary-and-capricious review when the district court resolved a case at Chevron step one without reaching the issue and when
254 *254 the agency's position was not well developed). And while it's generally prudent to refrain from deciding difficult issues without the benefit of arguments from the parties, the procedural posture of this case offers a particularly good reason to stop where the parties did. We are reviewing the issuance of the "extraordinary remedy" of a preliminary injunction. Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017). Based on the record developed thus far, the plaintiffs have not shown that they are entitled to this extraordinary remedy. I would remand so that the district court can assess whether the plaintiffs' remaining challenges to the rule are likely to succeed.
* * *
The many critics of the "public charge" definition characterize it as too harsh. But the same can be said—and has been said—of IIRIRA and the Welfare Reform Act. The latter dramatically rolled back the availability of aid to noncitizens, and both statutes linked those cuts to the public charge provision by making the affidavit of support a condition of admissibility. The definition in the 1999 Guidance tried to blunt the force of these changes; now, DHS has chosen to exercise the leeway that Congress gave it. At bottom, the plaintiffs' objections reflect disagreement with this policy choice and even the statutory exclusion itself. Litigation is not the vehicle for resolving policy disputes. Because I think that DHS's definition is a


 
 



reasonable interpretation of the statutory term "public charge," I respectfully dissent.
[*] Judge Joel M. Flaum and Judge Amy J. St. Eve did not participate in the consideration of this matter.
[1] The dissent emphasizes the fact that the Rule will not affect certain people, such as those for whom a sponsor has furnished an affidavit of support. But those are not the people who concern Cook County—it must deal with those who bear the brunt of the Rule. Cf. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 894, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ("Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects.... The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant."). The dissent concedes, as it must, that the affected group is not the null set.
[1] There are some narrow exceptions, but they are irrelevant to the "public charge" determination. All noncitizens, including the undocumented, are eligible to receive short-term, inkind emergency disaster relief; certain forms of emergency medical assistance; public-health assistance for immunization, as well as treatment for the symptoms of communicable disease; other in-kind services such as soup kitchens and crisis counseling; and housing benefits to the extent that the noncitizen was receiving public housing prior to 1996. 8 U.S.C. §§ 1611(b), 1621(b). Other than the housing benefits, none of this aid counts under the rule's definition of a "public benefit," so none has any effect on any future adjustment-of-status proceeding. See 8 C.F.R. § 212.21; see also Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,313 (Aug. 14, 2019) (noting that the rule's "definition does not include benefits related exclusively to emergency response, immunization, education, or social services"); id. at 41,482 (explaining that the rule's definition "does not include emergency aid, emergency medical assistance, or disaster relief"). And while housing benefits are covered by the public charge rule, 8 C.F.R. § 212.21, they are largely irrelevant because the number of noncitizens still within the grandfathering provision has presumably dwindled dramatically in the quarter century since the Welfare Reform Act was passed.
[2] Hence the majority is wrong to treat the rule as unreasonable because it "set[s] a trap for the unwary." Maj. Op. at 228. Because those eligible for the designated benefits are not subject to the rule—except in very rare circumstances—it does not "penaliz[e] people for accepting benefits Congress made available to them." Id.
[3] The diversity visa, commonly referred to as the green card lottery, is awarded to foreign nationals from underrepresented countries in an effort to increase diversity within the United States. See 8 U.S.C. § 1153(c).
[4] The State Department has adopted the interpretation set forth in this rule, but its implementation of the public charge exclusion is not at issue in this case. See Visas: Ineligibility on Public Charge Grounds, 84 Fed. Reg. 54,996, 55,000 (Oct. 11, 2019).
[5] In 2019, approximately 572,000 noncitizens adjusted their status to that of lawful permanent residents. The largest group—roughly 330,000—were family based, and the majority of those (over 217,000) were spouses of U.S. citizens. About 111,000 were employment based, and only about 1,000 were lottery winners. The vast majority of the remaining 130,000 noncitizens— refugees and asylees, among others—were exempt from the public charge rule. See Legal Immigration and Adjustment of Status Report Data Tables: FY 2019, U.S. DEP'T HOMELAND SECURITY tbl.1B (Jan. 15, 2020), https://www.dhs.gov/immigration-statistics/readingroom/ special/LIASR#.


 
 
 
 
 
 
 


[6] This is why nineteenth-century dictionary definitions of "charge" are unhelpful. The words "public" and "charge" comprise a unit that must be understood in the context of the laws that used the phrase. Cf. Yates v. United States, 574 U.S. 528, 135 S. Ct. 1074, 1082, 191 L.Ed.2d 64 (2015) ("[A]lthough dictionary definitions of the words `tangible' and `object' bear consideration, they are not dispositive of the meaning of `tangible object'....").
[7] It is worth noting that even after Gegiow, state and local governments took varied positions on what it meant for an immigrant to be a public charge. For instance, in the 1920s, Los Angeles worked closely with charitable institutions to report as public charges immigrants who were receiving outdoor relief. Cybelle Fox, The Boundaries of Social Citizenship: Race, Immigration and the American Welfare State, 1900-1950, at 266-67 (May 7, 2007) (unpublished Ph.D. dissertation, Harvard University). But other jurisdictions rarely reported immigrants who were receiving only outdoor relief—for example, as early as the 1920s, Cook County developed its own local policy to not "deport when the necessity for public care [was] only temporary." Id. at 278.
[8] IIRIRA originally provided that a family-based applicant was "excludable" without the affidavit. IIRIRA § 531(a). A subsequent amendment to the INA changed the terminology from "excludable" to "inadmissible."
[9] It also requires the sponsor "to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line." 8 U.S.C. § 1183a(a)(1)(A).
[10] I discuss these exemptions, which are narrow, in my analysis at Chevron step two.
[11] This list of exempted benefits in the change-of-address penalty section largely track those in the "benefits subject to reimbursement" section.
[12] IIRIRA contained another provision relevant to the "public charge" ground of inadmissibility: section 564 of the Act directed the Attorney General to establish a pilot program "to require aliens to post a bond in addition to the affidavit requirements under [8 U.S.C. § 1183a]." IIRIRA § 564(a)(1). The bond covered the cost of benefits described in the affidavit provision—that is, any means-tested benefit other than those described in three cross-referenced provisions of the Welfare Reform Act. Id. Congress instructed the Attorney General to set the bond at "an amount that is not less than the cost of providing [the relevant benefits] for the alien and the alien's dependents for 6 months." Id. § 564(b)(2). If an admitted noncitizen used a covered benefit, the government could bring suit either on the bond or against the sponsor pursuant to 8 U.S.C. § 1183a. IIRIRA § 564(a)(2). Congress allowed this pilot program to sunset after three years. Id. § 564(e).
[13] The same is true of IIRIRA's pilot bond program. The required bond protected the government against the risk that the noncitizen would become a public charge, so the scope of its coverage is a window into the meaning of the term at the time of the 1996 amendments.
[14] As the plaintiffs point out, Congress softened some of these restrictions in subsequent legislation. Perhaps most notably, in 2002 Congress passed the Farm Security and Rural Investment Act, which made adults eligible for SNAP after 5 years of residency (it had previously been 10) and children eligible for SNAP immediately after becoming lawful permanent residents. Pub. L. No. 107-171, § 4401, 116 Stat. 134, 333 (2002) (codified as amended at 8 U.S.C. § 1612(a)(2)). Yet these minor adjustments, even if slightly more generous than the original restrictions, did not overhaul immigration policy—nor, as I have already explained, is it unreasonable in any event for the Executive to consider whether a green card applicant is likely to use benefits if she is permitted to stay. That's the point of the public charge determination.


 
 
 
 
 
 
 
 


[15] By virtue of a notice issued by the Department of Housing and Urban Development, housing benefits are excluded from the reimbursement obligation. See 8 C.F.R. § 213a.1; Eligibility Restrictions on Noncitizens, 65 Fed. Reg. 49,994 (Aug. 16, 2000). But that exemption is not statutory, and here, I'm concerned only with DHS's interpretation of the statute.




 
 Case: 1:19-cv-06334 Document #: 222 Filed: 11/02/20 Page 1 of 14 PageID #:3018

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

COOK COUNTY, ILLINOIS, an Illinois governmental )

entity, and ILLINOIS COALITION FOR IMMIGRANT )

AND REFUGEE RIGHTS, INC.,

)

)

Plaintiffs,

)

)

vs.

)

)

CHAD F. WOLF, in his official capacity as Acting

)

Secretary of U.S. Department of Homeland

)

Security, U.S. DEPARTMENT OF HOMELAND

)

SECURITY, a federal agency, KENNETH T.

)

CUCCINELLI II, in his official capacity as Acting

)

Director of U.S. Citizenship and Immigration Services, )

and U.S. CITIZENSHIP AND IMMIGRATION

)

SERVICES, a federal agency,

)

)

Defendants.

)

19 C 6334 Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

Cook County and Illinois Coalition for Immigrant and Refugee Rights, Inc. (“ICIRR”)

allege in this suit that the Department of Homeland Security’s (“DHS”) final rule, Inadmissibility

on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (“Final Rule” or “Rule”), is

unlawful. Doc. 1. Plaintiffs claim that the Rule violates the Administrative Procedure Act

(“APA”), 5 U.S.C. § 701 et seq., because (1) it exceeds DHS’s authority under the public charge

provision of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(4)(A); (2) is not

in accordance with law; and (3) is arbitrary and capricious. Doc. 1 at ¶¶ 140-169. ICIRR also

claims that the Rule violates the equal protection component of the Fifth Amendment’s Due

Process Clause. Id. at ¶¶ 170-188.

On October 14, 2019, this court preliminarily enjoined DHS from enforcing the Final

Rule in the State of Illinois, reasoning that the Rule likely violates the APA because it interprets

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the term “public charge” in a manner incompatible with its statutory meaning. Docs. 85, 87, 106 (reported at 417 F. Supp. 3d 1008 (N.D. Ill. 2019)). DHS appealed. The Seventh Circuit denied DHS’s motion to stay the preliminary injunction pending appeal, No. 19-3169 (7th Cir. Dec. 23, 2019), but the Supreme Court issued a stay, 140 S. Ct. 681 (2020) (mem.). Meanwhile, DHS moved to dismiss the suit under Civil Rules 12(b)(1) and 12(b)(6). Doc. 124. This court denied DHS’s motion and granted ICIRR’s request for extra-record discovery on its equal protection claim. Docs. 149-150 (reported at 461 F. Supp. 3d 779 (N.D. Ill. 2020)). And this court denied DHS’s motion to certify under 28 U.S.C. § 1292(b) an interlocutory appeal of the denial of its motion to dismiss the equal protection claim. Docs. 183-184 (reported at 2020 WL 3975466 (N.D. Ill. July 14, 2020)).
Shortly after this court denied DHS’s motion to dismiss, the Seventh Circuit affirmed the preliminary injunction, reasoning that the Final Rule likely violates the APA. 962 F.3d 208 (7th Cir. 2020). Armed with the Seventh Circuit’s decision, Plaintiffs move for summary judgment on their APA claims. Doc. 200. They seek a partial judgment under Civil Rule 54(b)—one that would vacate the Rule pursuant to the APA and allow continued litigation on ICIRR’s equal protection claim. Docs. 217-218. Plaintiffs’ motion is granted. A Rule 54(b) judgment is entered, the Final Rule is vacated, DHS’s request to stay the judgment is denied, and ICIRR’s equal protection claim may proceed in this court.
Discussion The pertinent background is set forth in this court’s opinions and the Seventh Circuit’s opinion, familiarity with which is assumed. I. Plaintiffs’ Summary Judgment Motion DHS forthrightly concedes that the Seventh Circuit’s opinion affirming the preliminary injunction effectively resolves the APA claims on the merits in Plaintiffs’ favor. Doc. 209 at 7
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(“Defendants do not dispute that the Seventh Circuit’s legal conclusions concerning the Rule
may justify summary judgment for Plaintiffs on their APA claims here.”); Doc. 219 at 1
(“Plaintiffs have argued, and Defendants do not dispute, that the Court may grant Plaintiffs’
pending [summary judgment motion] in light of the Seventh Circuit’s decision affirming the
Court’s preliminary injunction order.”). That concession is appropriate given the Seventh
Circuit’s conclusion that the Final Rule is both substantively and procedurally defective under
the APA. 962 F.3d at 222-33.
As for substance, the Seventh Circuit held in pertinent part as follows:
… Even assuming that the term “public charge” is ambiguous and thus might encompass more than institutionalization or primary, long-term dependence on cash benefits, it does violence to the English language and the statutory context to say that it covers a person who receives only de minimis benefits for a de minimis period of time. There is a floor inherent in the words “public charge,” backed up by the weight of history. The term requires a degree of dependence that goes beyond temporary receipt of supplemental in-kind benefits from any type of public agency.
* * *
The ambiguity in the public-charge provision does not provide DHS unfettered discretion to redefine “public charge.” We find that the interpretation reflected in the Rule falls outside the boundaries set by the statute. Id. at 229.* As for procedure, and in the alternative, the Seventh Circuit held that the Rule was
“likely to fail the ‘arbitrary and capricious’ standard” due to “numerous unexplained serious
* Although the Seventh Circuit reached its conclusion under step two of Chevron and this court stopped at step one, there is less dissonance between the two opinions than meets the eye. Adopting the methodological approach urged by DHS—which it has since abandoned—that “‘the late 19th century [is] the key time to consider’ for determining the meaning of the term ‘public charge,’” 417 F. Supp. 3d at 1023 (quoting DHS’s brief in opposition to Plaintiffs’ motion for preliminary injunction), this court concluded from an examination of contemporaneous court decisions, dictionaries, and commentary that “an alien [cannot] be deemed a public charge based on the receipt, or anticipated receipt, of a modest quantum of public benefits for short periods of time,” id. at 1026. See id. at 1022-29 (analyzing the cases, dictionaries, and commentary). And as just noted, the Seventh Circuit held that “[t]here is a
3

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flaws: DHS did not adequately consider the reliance interests of state and local governments; did not acknowledge or address the significant, predictable collateral consequences of the Rule; incorporated into the term ‘public charge’ an understanding of self-sufficiency that has no basis in the statute it supposedly interprets; and failed to address critical issues such as the relevance of the five-year waiting period for immigrant eligibility for most federal benefits.” Id. at 233. Given these holdings, DHS is right to acknowledge that this court should grant summary judgment to Plaintiffs on their APA claims.
The parties disagree, however, about the appropriate remedy. Plaintiffs ask this court to vacate the Final Rule. Doc. 201 at 35-37. DHS contends that this court should vacate the Rule only insofar as it affects Plaintiffs, meaning that the vacatur should be limited to the State of Illinois. Doc. 209 at 27-29. Plaintiffs are correct.
The APA provides in pertinent part that “[t]he reviewing court shall … hold unlawful and set aside agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “[A]gency action” includes “the whole or a part of an agency rule.” Id. § 551(13). By the APA’s plain terms, then, an agency rule found unlawful in whole is not “set aside” just for certain plaintiffs or geographic areas; rather, the rule “shall” be “set aside,” period. See Murphy v. Smith, 138 S. Ct.
floor inherent in the words ‘public charge,’” and that “[t]he term requires a degree of dependence that goes beyond temporary receipt of supplemental in-kind benefits from any type of public agency.” 962 F.3d at 229. Both opinions rest on a common premise: whatever play in the joints the statutory term “public charge” might enjoy, it cannot be stretched to cover the full measure of noncitizens deemed by the Final Rule to be public charges. See generally Matthew C. Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 Va. L. Rev. 597, 599 (2009) (“[Chevron] artificially divides one inquiry into two steps. The single question is whether the agency’s construction is permissible as a matter of statutory interpretation; the two Chevron steps both ask this question, just in different ways. As a result, the two steps are mutually convertible.”); id. at 602 (“Congress’ intention may be ambiguous within a range, but not at all ambiguous as to interpretations outside that range, which are clearly forbidden.”).
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784, 787 (2018) (“[T]he word ‘shall’ usually creates a mandate, not a liberty, so the verb phrase ‘shall be applied’ tells us that the district court has some nondiscretionary duty to perform.”) (quoting 42 U.S.C. § 1997e(d)(2)); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (“[T]he mandatory ‘shall’… normally creates an obligation impervious to judicial discretion.”) (quoting 28 U.S.C. § 1407(a)).
Precedent confirms that the APA’s text means what it says. For example, in Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988), the Supreme Court affirmed the D.C. Circuit’s decision to set aside an agency rule concerning Medicaid reimbursement costs. Rather than limit relief to the “group of seven hospitals” that had filed suit, the Court declared the Rule “invalid.” Id. at 207, 216. There is nothing unusual about this result, for that is simply what courts do when they determine that an agency action violates the APA. See, e.g., DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1901 (2020) (holding that DHS’s rescission of the Deferred Action for Childhood Arrivals program “must be vacated” due to the agency’s violation of the APA); Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998) (“Courts enforce [arbitrary and capricious review] with regularity when they set aside agency regulations which … are not supported by the reasons that the agencies adduce.”); H & H Tire Co. v. U.S. Dep’t of Transp., 471 F.2d 350, 355-56 (7th Cir. 1972) (“When an administrative decision is made without consideration of relevant factors it must be set aside.”) (internal quotation marks omitted); Empire Health Found. ex rel. Valley Hosp. Med. Ctr. v. Azar, 958 F.3d 873, 886 (9th Cir. 2020) (“[W]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.”) (internal quotation marks omitted); Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (same).
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DHS cites Johnson v. United States Office of Personnel Management, 783 F.3d 655 (7th Cir. 2015), for the proposition that the APA authorizes courts to limit the vacatur of agency action to a defined geographic area. Doc. 209 at 27. True enough, Johnson held that “partial vacatur is sometimes an appropriate remedy” for an APA violation. 783 F.3d at 663. But by “partial vacatur,” the Seventh Circuit meant a circumstance where a court invalidates the unlawful parts of an agency action and leaves the valid parts in place. See ibid. (citing Sierra Club v. Van Antwerp, 719 F. Supp. 2d 77 (D.D.C. 2010), where the district court invalidated only part of a Clean Water Act permit). The Seventh Circuit did not mean that an agency rule can be vacated only as to certain plaintiffs or certain States. Nor could the court possibly have meant that. As Judge Moss has aptly observed: “As a practical matter, … how could [a] [c]ourt vacate [a challenged] Rule with respect to the … plaintiffs in [a] case without vacating the Rule writ large? What would it mean to ‘vacate’ a rule as to some but not other members of the public? What would appear in the Code of Federal Regulations?” O.A. v. Trump, 404 F. Supp. 3d 109, 153 (D.D.C. 2019).
DHS retorts that an order vacating the Final Rule without any geographic limitation would be akin to entering the kind of nationwide injunction that the Fourth Circuit and two Justices have criticized in other cases involving APA challenges to the Rule. Doc. 209 at 27-30; see DHS v. New York, 140 S. Ct. 599, 599-601 (2020) (Gorsuch, J., joined by Thomas, J., concurring in the grant of stay); CASA de Md., Inc. v. Trump, 971 F.3d 220, 255-63 (4th Cir. 2020). DHS’s analogy is inapt. As an initial matter, the two cases cited by DHS arose in the preliminary injunction posture—the district courts there could not have vacated the Rule at that early juncture, so the only question concerned the appropriate scope of preliminary relief. Here, by contrast, Plaintiffs ask this court to vacate the Rule after a judgment on the merits. Although
6

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vacatur will prevent DHS from enforcing the Rule against nonparties, that is a consequence not of the court’s choice to grant relief that is broader than necessary, but of the APA’s mandate that flawed agency action must be “h[e]ld unlawful and set aside.” 5 U.S.C. § 706(2).
Moreover, DHS’s analogy fails to recognize that the two remedies—vacatur of a rule, and a nationwide injunction against its implementation—have significant differences. A nationwide injunction is a “drastic and extraordinary remedy” residing at the outer bounds of the judicial power. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165-66 (2010) (“An injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course. If a less drastic remedy (such as partial or complete vacatur of [the agency’s] deregulation decision) was sufficient to redress [the challengers’] injury, no recourse to the additional and extraordinary relief of an injunction was warranted.”). Vacatur, by contrast, is the ordinary remedy—again, precisely the remedy demanded by the APA’s text when a rule is held to violate the APA. See 5 U.S.C. § 706(2) (providing that the court “shall” “set aside” the challenged “agency action” if it is adopted “in excess of statutory … authority” or is “arbitrary [and] capricious”); see also Humane Soc’y of U.S. v. Zinke, 865 F.3d 585, 614 (D.C. Cir. 2017) (“A common remedy when we find a rule invalid is to vacate.”). As Judge Randolph has explained:
Once a reviewing court determines that the agency has not adequately explained its decision, the [APA] requires the court—in the absence of any contrary statute—to vacate the agency’s action. The [APA] states this in the clearest possible terms. Section 706(2)(A) provides that a “reviewing court” faced with an arbitrary and capricious agency decision “shall”—not may— “hold unlawful and set aside” the agency action. Setting aside means vacating; no other meaning is apparent. Often we do this simply as a matter of course. Checkosky v. SEC, 23 F.3d 452, 491 (D.C. Cir. 1994) (opinion of Randolph, J.) (citation omitted).
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In sum, the Final Rule is vacated, and the vacatur is not limited to the State of Illinois. II. Rule 54(b) Judgment
With the APA claims resolved in Plaintiffs’ favor, the question becomes whether the court should enter judgment under Rule 54(b) or, rather, under Rule 58—and, relatedly, what should happen to ICIRR’s equal protection claim. Plaintiffs urge this court to enter a Rule 54(b) judgment on their APA claims and allow ICIRR to continue litigating its equal protection claim. Docs. 217-218. DHS does not expressly address whether a Rule 54(b) or Rule 58 judgment should be entered, but argues in its brief—and reiterated last week at oral argument, Doc. 220— that the court should stay further proceedings on the equal protection claim if judgment is entered on the APA claims. Doc. 219 at 1, 4-5. The court will enter a Rule 54(b) judgment and, given the particular facts and circumstances of this suit and parallel suits pending elsewhere, will not stay litigation on the equal protection claim.
“When a case involves more than one claim, Rule 54(b) allows a federal court to direct entry of a final judgment on ‘one or more, but fewer than all, claims,’ provided there is no just reason for delay.” Peerless Network, Inc. v. MCI Commc’ns Servs., Inc., 917 F.3d 538, 543 (7th Cir. 2019) (quoting Fed. R. Civ. P. 54(b)). “A proper Rule 54(b) order requires the district court to make two determinations: (1) that the order in question was truly a ‘final judgment,’ and (2) that there is no just reason to delay the appeal of the claim that was ‘finally’ decided.” Gen. Ins. Co. of Am. v. Clark Mall Corp., 644 F.3d 375, 379 (7th Cir. 2011) (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 434-37 (1956)). Plaintiffs satisfy both requirements.
As to the “final judgment” requirement, “a judgment must be final in the sense that it is an ultimate disposition of an individual claim entered in the course of a multiple claims action.” Ibid. (internal quotation marks omitted). A judgment is not “truly final” if “there is too much factual overlap with claims remaining in the district court.” Peerless Network, 917 F.3d at 543.
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When “multiple claims arise from the same set of facts,” the court must “consider whether they are based on entirely different legal entitlements yielding separate recoveries or different legal theories aimed at the same recovery—the latter of which makes Rule 54(b) partial final judgment improper.” Ibid. (internal quotation marks omitted).
The final judgment requirement is satisfied here. The APA claims concern whether the Final Rule properly implements the INA’s public charge provision and whether DHS’s rulemaking was arbitrary and capricious, Doc. 1 at ¶¶ 140-169; 962 F.3d at 222-33, while the equal protection claim concerns whether the Rule is motivated by the impermissible discriminatory purpose of favoring white immigrants over nonwhite immigrants, Doc. 1 at ¶¶ 170-188; 461 F. Supp. 3d at 784-92. Other than their common attack on the Rule itself, there is minimal factual (or legal) overlap between those claims. See Marseilles Hydro Power, LLC v. Marseilles Land & Water Co., 518 F.3d 459, 465 (7th Cir. 2008) (holding that tort and property law claims arising from the collapse of a water canal had “some overlapping historical facts” but nonetheless were “sufficiently distinct” for purposes of Rule 54(b)); Ty, Inc. v. Publ’ns Int’l Ltd., 292 F.3d 512, 515-16 (7th Cir. 2002) (upholding the entry of a Rule 54(b) judgment on a copyright claim because “the only facts before [the court] on … appeal” were “unlikely to be at issue” in the trademark claim that remained in the district court). Granted, a portion of one of Plaintiffs’ APA claims alleges that the economic justifications articulated by DHS for the Rule are a pretext for racial discrimination, Doc. 1 at ¶ 166; 2020 WL 3975466, at *2, but the Seventh Circuit’s opinion did not rely on pretext, and this court’s grant of summary judgment on the APA claims likewise does not rely on pretext given that it rests exclusively on the Seventh Circuit’s opinion. See Lawyers Title Ins. Corp. v. Dearborn Title Corp., 118 F.3d 1157, 1163 (7th Cir. 1997) (“[S]ome overlap between the facts in the retained and the appealed claims is not fatal.”).
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Moreover, the APA and equal protection claims are not “different legal theories aimed at the same recovery.” Peerless Network, 917 F.3d at 543 (internal quotation marks omitted). The only remedy Plaintiffs seek under the APA is vacatur of the Final Rule. Doc. 201 at 35-37; Doc. 213 at 2-6; Doc. 217 at 3; Doc. 218 at 1. For its equal protection claim, ICIRR seeks a declaration that the Rule violates the Fifth Amendment and, more importantly, a permanent injunction enjoining DHS and its officials from implementing and enforcing the Rule, Doc. 1 at pp. 58-59, which could entail a requirement that, until a new rule is promulgated, DHS resume applying its 1999 field guidance, Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689 (May 26, 1999). As noted, the Supreme Court in Monsanto Co. made clear that “complete vacatur of [an agency’s] … decision” is a “less drastic remedy” than the “additional and extraordinary relief of an injunction.” 561 U.S. at 165-66. It follows that victory for ICIRR on its equal protection claim may yield relief in addition to the relief the court is granting on Plaintiff’s APA claims. See Nat’l Ski Areas Ass’n v. U.S. Forest Serv., 910 F. Supp. 2d 1269, 1288 (D. Colo. 2012) (in addition to vacating a Forest Service administrative directive, granting injunctive relief against the agency’s enforcement thereof “to ensure good faith between the parties while the [directive] runs through APA procedural process on remand”). Whether ICIRR will prevail on its equal protection claim, whether injunctive relief would be appropriate to remedy an equal protection violation, and what that relief might entail remain to be seen and cannot be answered at this juncture, when the parties have only recently commenced discovery and have not sought judgment on that claim. See Marie v. Mosier, 196 F. Supp. 3d 1202, 1216 (D. Kan. 2016) (collecting cases in which district courts in the wake of Obergefell v. Hodges, 576 U.S. 644 (2015), enjoined state laws banning same sex marriage, and
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rejecting the argument that the unlikelihood that those laws might be enforced made a permanent injunction unnecessary).
As to the “no just reason to delay the appeal” requirement, “a district court must take into account judicial administrative interests as well as the equities involved.” Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980). Regarding the judicial system’s interests, the “goal … is to prevent ‘piece-meal appeals’ involving the same facts.” Peerless Network, 917 F.3d at 543 (quoting Curtiss-Wright Corp., 446 U.S. at 10). Entry of a Rule 54(b) judgment is fully consistent with that aim because, as noted, the APA claims on which the court grants summary judgment have little overlap with ICIRR’s equal protection claim. And regarding the equities, the Seventh Circuit has held that continued operation of the Final Rule will inflict ongoing harms on Cook County and on immigrants, 962 F.3d at 233, and this court has held that the same is true of ICIRR, 417 F. Supp. 3d at 1029-30. Because a Rule 54(b) judgment would give immediate effect to this court’s vacatur of the Rule—which DHS resumed implementing in September, see Public Charge Fact Sheet, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/news/public-charge-fact-sheet (last updated Sept. 22, 2020)—there is no just reason for delaying the entry of judgment or DHS’s appeal thereof.
In sum, the entry of a Rule 54(b) final judgment on the APA claims is proper. The question remains whether this court should allow litigation to proceed on ICIRR’s equal protection claim. In urging a stay of litigation on that claim, DHS invokes the constitutional avoidance doctrine, arguing that “courts ‘will not decide a constitutional question if there is some other ground upon which to dispose of the case,’ especially if the other ground ‘afford[s] [a plaintiff] all the relief it seeks.’” Doc. 219 at 3 (quoting Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. 193, 205 (2009)) (alterations by DHS). DHS’s argument fails because, as
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noted, ICIRR’s equal protection claim provides a basis for injunctive relief, which Plaintiffs do not seek—and would have faced an uphill battle obtaining—on their APA claims. See Monsanto Co., 561 U.S. at 165-66; O.A., 404 F. Supp. 3d at 153-54.
DHS argues in the alternative that this court should stay litigation on ICIRR’s equal protection claim because discovery on that claim “could consume significant resources of both the Court and the parties.” Doc. 219 at 5. If this case were the only challenge to the Final Rule pending in federal court, DHS’s argument would have significant weight. But as DHS confirmed at argument, Doc. 220, discovery is proceeding on equal protection claims brought in two parallel public charge cases. See Washington v. U.S. DHS, No. 19 C 5210 (E.D. Wash.); New York v. U.S. DHS, No. 19 C 7777 (S.D.N.Y.). Proceeding with discovery on ICIRR’s equal protection claim here therefore is unlikely to impose on DHS much work in addition to the work it is already doing in those other cases. III. Stay of Judgment Pending Appeal
While acknowledging that, given the Seventh Circuit’s ruling, summary judgment should be granted to Plaintiffs on the APA claims, DHS asks this court to stay its judgment pending appeal. Doc. 209 at 29-30. “The standard for granting a stay pending appeal mirrors that for granting a preliminary injunction. … To determine whether to grant a stay, [the court] consider[s] the moving party’s likelihood of success on the merits, the irreparable harm that will result to each side if the stay is either granted or denied in error, and whether the public interest favors one side or the other.” In re A & F Enters., Inc. II, 742 F.3d 763, 766 (7th Cir. 2014); see also Venckiene v. United States, 929 F.3d 843, 853 (7th Cir. 2019) (same).
The hierarchical structure of the judiciary makes this a straightforward decision for a district court. The Seventh Circuit held in the cases just cited that the standard for granting a stay pending appeal mirrors that for granting a preliminary injunction, and held in this case that
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the criteria for a preliminary injunction have been met. 962 F.3d at 221-34. Accordingly,
because (as the Seventh Circuit held) Plaintiffs are entitled to a preliminary injunction, DHS is
not entitled to a stay pending appeal.
DHS counters with the argument that the Supreme Court, in staying this court’s
preliminary injunction order, “‘necessarily conclud[ed]’ that Plaintiffs were unlikely to succeed
on the merits” and “necessarily … determin[ed] that the balance of the harms and the public
interest support a stay.” Doc. 209 at 29 (quoting CASA de Md., 971 F.3d at 230) (first alteration
in original). But the Seventh Circuit effectively rejected that line of reasoning in affirming the
preliminary injunction:
With respect to the balance of harms, we must take account of the Supreme Court’s decision to stay the preliminary injunction entered by the district court. The Court’s stay decision was not a merits ruling. … We do not know why the Court granted this stay, because it did so by summary order, but we assume that it abided by the normal standards. Consequently, the stay provides an indication that the Court thinks that there is at least a fair prospect that DHS should prevail and faces a greater threat of irreparable harm than the plaintiffs.
The stay thus preserves the status quo while this case and others percolate up from courts around the country. There would be no point in the merits stage if an issuance of a stay must be understood as a sub silentio disposition of the underlying dispute. With the benefit of more time for consideration and the complete preliminary injunction record, we believe that it is our duty to evaluate each of the preliminary injunction factors, including the balance of equities. In so doing, we apply a ‘sliding scale’ approach in which “the more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor.” Valencia v. City of Springfield, 883 F.3d [959,] 966 [(7th Cir. 2018)]. We also consider effects that granting or denying the preliminary injunction would have on the public. Ibid.
In our view, Cook County has shown that it is likely to suffer (and has already begun to suffer) irreparable harm caused by the Rule. Given the dramatic shift in policy the Rule reflects and the potentially dire public health consequences of the Rule, we agree with the district court that the public interest is better served for the time being by preliminarily enjoining the Rule.
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962 F.3d at 233-34. In reaching that decision, the Seventh Circuit also had the benefit of a Ninth Circuit opinion holding that the Final Rule likely complied with the APA, see City and Cnty. of San Francisco v. USCIS, 944 F.3d 773 (9th Cir. 2019), and necessarily rejected the Ninth Circuit’s approach. Given the Seventh Circuit’s holding that, despite the Supreme Court’s stay, the Final Rule was substantively and procedurally invalid under the APA and preliminary injunctive relief was appropriate, this court will not stay its vacatur of the Rule.
Conclusion Plaintiffs’ summary judgment motion is granted. The court enters a Rule 54(b) judgment vacating the Final Rule, to take effect immediately. Litigation may proceed in this court on ICIRR’s equal protection claim.

November 2, 2020

___________________________________ United States District Judge

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 Case: 1:19-cv-06334 Document #: 184 Filed: 07/14/20 Page 1 of 5 PageID #:2640

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

COOK COUNTY, ILLINOIS, an Illinois governmental )

entity, and ILLINOIS COALITION FOR IMMIGRANT )

AND REFUGEE RIGHTS, INC.,

)

)

Plaintiffs,

)

)

vs.

)

)

CHAD F. WOLF, in his official capacity as Acting

)

Secretary of U.S. Department of Homeland

)

Security, U.S. DEPARTMENT OF HOMELAND

)

SECURITY, a federal agency, KENNETH T.

)

CUCCINELLI II, in his official capacity as Senior

)

Official Performing the Duties of the

)

Director of U.S. Citizenship and Immigration Services, )

and U.S. CITIZENSHIP AND IMMIGRATION

)

SERVICES, a federal agency,

)

)

Defendants.

)

19 C 6334 Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

Cook County, Illinois and Illinois Coalition for Immigrant and Refugee Rights, Inc.

(“ICIRR”) allege in this suit that the Department of Homeland Security’s (“DHS”) final rule,

Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (“Final Rule”

or “Rule”), violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and

ICIRR alleges that the Rule violates the equal protection component of the Fifth Amendment’s

Due Process Clause. Doc. 1. The court preliminarily enjoined DHS from enforcing the Rule on

the ground that it likely violates the APA. Docs. 85, 87, 106 (reported at 417 F. Supp. 3d 1008

(N.D. Ill. 2019)). The Seventh Circuit affirmed, 962 F.3d 208 (7th Cir. 2020), though the

preliminary injunction has been stayed, 140 S. Ct. 681 (2020) (mem.).

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While the preliminary injunction appeal was before the Seventh Circuit, DHS moved under Civil Rules 12(b)(1) and 12(b)(6) to dismiss this suit, re-raising certain arguments resolved against it in this court’s preliminary injunction opinion and seeking dismissal of ICIRR’s equal protection claim, Doc. 124, and ICIRR asked the court to rule that it is entitled to extra-record discovery, Doc. 111. The court denied DHS’s motion to dismiss and allowed ICIRR to take limited extra-record discovery. Docs. 149-150 (reported at __ F. Supp. 3d __, 2020 WL 2542155 (N.D. Ill. May 19, 2020)). The court then granted in part ICIRR’s motion for expedited discovery, permitting ICIRR to serve on DHS four document production requests. Doc. 170.
DHS now moves under 28 U.S.C. § 1292(b) to certify for interlocutory appeal the court’s denial of its motion to dismiss the equal protection claim. Doc. 162. A district court may certify an order for interlocutory appeal only if it determines that the order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). “There are four statutory criteria for the grant of a section 1292(b) petition to guide the district court: there must be a question of law, it must be controlling, it must be contestable, and its resolution must promise to speed up the litigation. … Unless all these criteria are satisfied, the district court may not and should not certify its order … for an immediate appeal under section 1292(b).” Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 675-76 (7th Cir. 2000) (emphasis omitted). DHS’s motion fails in many respects to satisfy these criteria, but it is necessary to address only one: the interlocutory appeal DHS seeks will not materially advance or speed up the termination of this suit.
DHS argues that its requested interlocutory appeal will speed the litigation by allowing the court and the parties to avoid “contentious discovery disputes raising difficult issues of
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executive privilege.” Doc. 163 at 11. In so arguing, DHS points to the court’s ruling that ICIRR may take extra-record discovery concerning whether “DHS’s stated reason for promulgating the Final Rule—protecting the fisc—obscures what ICIRR alleges is the real reason— disproportionately suppressing nonwhite immigration.” 2020 WL 2542155, at *11. If the Seventh Circuit held on interlocutory review that the equal protection claim should be dismissed, DHS submits, the parties and the court could “avoid imminent ‘constitutional confrontation’ [arising from that extra-record discovery] by significantly narrowing the scope of this litigation and eliminating the need for discovery altogether.” Doc. 163 at 13.
DHS’s argument fails because, even if ICIRR’s equal protection claim were dismissed, Plaintiffs still would be entitled to take precisely the same discovery in connection with their APA claims. As the Supreme Court ruled last year, a federal agency violates the APA when it provides an “explanation for [its] action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process”—that is, when the agency presents a “contrived” or “pretextual” rationale for the challenged action. Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2573-76 (2019). Among the many facets of Plaintiffs’ APA claims here is just such a challenge: “The Final Rule is arbitrary and capricious because it is a pretext for discrimination. While the Final Rule purports to identify individuals who will be public charges, its adoption of factors that bear no reasonable relationship to that inquiry demonstrates Defendants’ intent to reduce immigration by immigrants of color.” Doc. 1 at ¶ 166.
As in Department of Commerce, then, Plaintiffs allege that a federal agency (DHS) offered Rationale X (protecting the fisc) for the action in question (promulgating the Final Rule) when in fact the agency’s real and undisclosed motivation was Impetus Y (suppressing nonwhite immigration). Whether or not Impetus Y amounts to an equal protection violation is immaterial;
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all that matters for purposes of the APA claim is the alleged “mismatch” between Rationale X and Impetus Y. Dep’t of Commerce, 139 S. Ct. at 2575. Moreover, as in Department of Commerce, “a strong showing” has been made to justify extra-record discovery into the actual motivation behind the Final Rule. In fact, two strong showings have been made, the first being that the administrative record is “incomplete,” and the second being that the Rule was promulgated for a “reason not reflected in the administrative record—the Rule’s disproportionate adverse effects upon nonwhite immigrants.” 2020 WL 2542155, at *11-12 (internal quotation marks omitted). As the court explained, those two showings provide separate and independent grounds for allowing extra-record discovery under the standard governing discovery in APA suits. Ibid.; see Dep’t of Commerce, 139 S. Ct. at 2574-75 (holding that materials suggesting that the agency’s action was motivated by concerns not reflected in the administrative record justified extra-record discovery); Citizens for Appropriate Rural Rds. v. Foxx, 815 F.3d 1068, 1081-82 (7th Cir. 2016) (holding that extra-record discovery is permitted when an APA plaintiff “can make a significant showing that it will find material in the agency’s possession indicative of … an incomplete record”).
Because the discovery to which Plaintiffs are entitled on their APA claims encompasses whatever discovery ICIRR may take on its equal protection claim, allowing an interlocutory appeal of the court’s denial of DHS’s motion to dismiss the equal protection claim would not materially advance the termination of this litigation in the manner DHS posits. To the contrary, such an appeal would serve only to create unnecessary work for the parties and impose an unnecessary burden on the Seventh Circuit. See Ahrenholz, 219 F.3d at 676 (observing that certifying an interlocutory appeal when all criteria are not met “is merely to waste [the Seventh
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Circuit’s] time and delay the litigation in the district court”). It follows that DHS has not satisfied the standard necessary to warrant an interlocutory appeal under § 1292(b).
There is one possible fly in the ointment: when the court held that extra-record discovery was appropriate, it did so on ICIRR’s request for discovery on its equal protection claim. 2020 WL 2542155, at *13. That the discovery issue reached the court through that vehicle, however, turns out to be of no moment. First, the four document production requests the court permitted ICIRR to serve on DHS, Doc. 157-2 at 2-11, are as pertinent to the above-referenced facet of Plaintiffs’ APA claims as they are to ICIRR’s equal protection claim—and, as noted, the “strong showing” standard governing extra-record discovery for APA claims has been satisfied. The same will hold for whatever additional extra-record discovery (if any) Plaintiffs will be permitted to take. Second, although the Seventh Circuit left open whether ICIRR falls within the zone of interests under the APA, it held that Cook County falls within that zone, 962 F.3d at 219-20, and Cook County is entitled to join in ICIRR’s document production requests as its co-plaintiff on the APA claims, see Fed. R. Civ. P. 26(b)(1), 34(a)(1). If Cook County does not join ICIRR’s document production requests, DHS may renew its § 1292(b) motion.

July 14, 2020

____________________________________ United States District Judge

5