FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

C I T Y A ND C O U N TY O F S A

N F R A N C I S C O ; C O U

N T Y O F S A

N T A C LA R A , Plaintiffs-Appellees
,

v

.

U N I T E D S T A T E S C I T I Z E N S H I P A ND I MM I GR A T I O N S E R V I C E S , a federal agency; U.S. D E P AR

T ME N T O F H O ME LA

ND S E C UR

I T Y , a federal agency; C HAD F. W O L F , in his official capacity as Acting Secretary of the United States Departm ent of Hom eland Security; K E N NE T H T

. C U C C I NE L L I , in his official capacity as Acting Director of United States Citizenship and Im m igration Services, Defendants-Appellants. No. 19-17213

D.C. No. 4:19-cv-04717- PJHC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 2

S T A T E O F C AL I F O R

N I A ; D I S T R

I C T O F C O LUMB I A ; S T A T E O F M A I NE ; C O MM ONWEAL T H O F P E N N S YLV A N I A ; S T A T E O F O R

E G ON , Plaintiffs-Appellees
,

v

.

U.S. D E P AR

T ME N T O F H O ME LA

ND S E C UR I TY , a federal agency; UNI T E D S T A T E S C I T I Z E

N S H I P A ND I MM I GR A T I O N S E R V I C E S , a federal agency; C HAD F. W O L F , in his official capacity as Acting Secretary of the United States Departm ent of Hom eland Security; K E N NE T H T

. C U C C I NE L L I , in his official capacity as Acting Director of United States Citizenship and Im m igration Services, Defendants-Appellants. No. 19-17214

D.C. No. 4:19-cv-04975- PJH

Appeal from

the United States District Court for the Northern District of California Phyllis J. Ham ilton, Chief District Judge, PresidingC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 3

S T A T E O F WA S H I

N G T ON ; C O MM ONWEAL T H O F V I RGI N I A ; S T A T E O F C O L O R

AD O ; S T A T E O F D E LAW AR E ; S T AT E O F I L L I

N O I S ; S T A T E O F M AR

YLA ND ; C O MM ONWEAL T H O F M A S S A C HU S E T T S ; D A N A N E S S E L , Attorney General on behalf of the People of Michigan; S TA T E O F M I N NE S O T A ; S T A T E O F N EV AD A ; S T A T E O F N EW J E R S EY ; S T A T E O F N E W M EX I C O ; S TA T E O F R H O D E I S LA ND ; S T A T E O F H AW

A I I , Plaintiffs-Appellees
,

v

.

U.S. D E P AR

T ME N T O F H O ME LA

ND S E C UR I TY , a federal agency; C HAD F. W O L F , in his official capacity as Acting Secretary of the United States Departm ent of Hom eland Security; U N I T E D S T A T E S C I T I Z E N S H I P A ND I MM I GR A T I O N S E R V I C E S , a federal agency; K E

N NE T H T. C U C C I

NE L L I , in his official capacity as Acting Director of United States Citizenship and Imm igration Services,

Defendants-Appellants. No. 19-35914

D.C. No. 4:19-cv-05210- RMP

OPINIONC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 4

Appeal from

the United States District Court for the Eastern District of W ashington Rosanna Malouf Peterson, District Judge, Presiding

Argued and Subm itted September 15, 2020 San Francisco, California

Filed Decem

ber 2, 2020

Before: Mary M. Schroeder, W illiam A. Fletcher, and Lawrence VanDyke, Circuit Judges.

Opinion by Judge Schroeder; Dissent by Judge VanDyke

SUMMARY *

Immigration

In cases in wh ich two district courts issued prelim inary i n j unctions enjoining im

plem entation of the Departm ent of Hom elan d S e cu

rity ’s red ef

in i tio n o f th e term “public charge,” which de s c ribes a g round o f inadm issibility, the panel: 1) affirm ed the prelim inary injunction of the Distric t Co urt for the North e rn District of California covering the territory of the plaintiffs; and 2) affirm ed in part and vacated i n part th e prelim inary injunction o f the District Court for th e Eastern District of W ashington, vacating the po rt io n of the injunction that m ade it applicable nationwide.

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 5

Under 8 U .S.C. § 1 182(a)(4)(A), any alien who, in the opinion o f the Secretary o f H om eland Security, at the tim e o f application for adm ission or adjustm ent of status, is likely at any tim e to becom e a “public charge,” is inadm iss i b l e

. No
statute has ever defined the term

. In 1999, the Imm i gration and Naturalization Service issue d guidance (Guidance) defining the term a s o n e who “is o r is likely to becom e prim arily dependent o n th e g overnm ent f o r subsistence.” The Guidance expressly excluded non-cash benefits intended t o supplem ent incom e.

In August 2019, the Departm ent o f Hom eland Security (DHS) issued a rule (the Rule) that defines “public charge” to include those who are likely to participate, even for a lim ited period of tim e, in n on-cash federal g overnm ent assistance
program s. T he Rule defines the term “public charge” to

m ean “an alien who receives one or m ore [specified] public benefits

. . . for m ore than 12 m onths in the aggregate within
any 36-m onth period.” I n adm issibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019). The Rule also directs officials to consider English proficiency in

m aking the public charge determ ination.

States and m

unicipalities brought suits in California and W as h ington, asserting claim s under the Adm inistrative Procedure A ct. The District Court f or the Northern District of California issued a prelim inary injunction covering the territory of the plaintiffs, a n d the District Court for the Eastern D istrict of W as hington issued a n ationwide i n j unction. A divided m otions panel of this court gran t e d DHS’s m otion for a stay of those injunctions pending appeal.

The panel first concluded that the plainti ffs h ad established Article III standing. The plaintiffs are states andC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 6

m unicipalities that alleged that the R u l e is causing them continuing f

inancial ha rm , as lawful imm igrants eligible for federal cash, food, and housing assis tance withdraw from these program s and instead turn to state and local program s. The panel concluded that this constituted sufficient injury. Addressing whether the injury is apparent or i mminent, the panel explained that: 1 ) the Rule itself predicts a 2 .5 p ercent decrease in e nrollm ent in f ederal program s and a corresponding reduction in Medicaid paym ents of over o ne billion dollars per year; 2) the Rule acknowledges that disenrollm ent will cause other indirect financial harm to state and local entities; and 3) declarations in the record show that such entities are already experiencing disenrollm ent.

Next, the panel concluded that the interest of the plaintiffs in p reserving imm igrants’ access to supplem ental b enefits is within the zone of interests protected by the “public charge”
statute. The p anel rejected DHS’s suggestion that only the federal governm ent and individuals seeking to imm igrate are within the zone o f interest. The panel also rejected DHS’s suggestion that the purpose of the public charge statute is to reduce imm igrants’ u se o f p ub lic b enefits. Addressing DHS’s contention that the statute’s overall purpose is to prom ote self-sufficiency, the panel concluded that providing

access to better health care, nu trition, and supplem ental housing benefits is consistent with precisely that purpose.

The p anel next concluded that the plaintiffs h ad dem onstrated a high likelihood of success in showing that the Rule is inconsistent with any reasonable interpretation of the public charge statute and therefore contra ry t o l aw. The plain t i ffs pointed to repeated congressional reenactm ent o f the provision after it had been interpreted to m ean long-term dependence on governm ent support, noting that th e s tatuteC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 7

had never b een interpreted to encom pass tem porary resort to

su p p lem ental n o n -cash b en e f its. T h e p l aintiffs contended th at this repeated reenactm ent am ounted to congressional ratification of the historically consistent interpretation.

The panel concluded that the his t o ry of the provision supported the plaintiffs’ positio n , n oting that: 1) from the V icto rian W o rk

h o u se thro u g h the 1999 Guid an ce, t h e c o n cep t of becom ing a “public charge” has m e ant dependence on public assistance for survival; 2) the term had n ev e r

en com passed persons likely to m ake short-term use of in

- k in d benefits that are neither intended nor suffi c i e n t to provide basic sustenance; and 3) the Rule introduces a lack o f English
p ro ficiency. The panel also n oted that the opinions o f t h e Second Circuit and the Seventh C ircui t , i n affirm ing prelim inary injunctions of the Rule, agree d t h at the Rule’s interpre tation was outside any historically accepted o r sensible understanding of the term

.

The panel next conc lu d ed that the Rule’s prom ulgation

was arbitrary and capricious, explaining that DHS: 1) failed
to adequately consider th e financial effects of the Rule; 2) failed to address concerns about the Rule’s effect on public safety, health, and nutrition, as w el l it s e ffect o n hospital

resources and vaccination rates in the general population; and 3) failed to explain its abrupt change in p olicy from the 1999 Guidance.

The p anel also concluded that the rem aining prelim inary injunction factors f

avored the plaintiffs. The panel explained that the plaintiffs had established that they likely are bearing and will continue to bear heavy financial costs bec au s e of withdrawal of imm igrants from federal assistan c e p rogram s and consequent dependence on state and local program s. TheC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 8

p anel also observed that the p ublic interest in prevent i n g contagio n is particularly salient during the current global
pa nd em ic, and noted the financial burdens on the plaintiffs and the adverse effects o n the health and we l fa r e of the imm igrant as well as general p opulation.

Finally, the panel concluded that a nationwide injunction

was not appropriate in this case because t h e im pact of the Rule w ould fa l l up o n all districts at the sam e tim e, and the

sam e issues regarding its validity ha v e been and are being litigated in m

ultiple federal distr i ct and circuit courts. Accordi n g l y , the panel vacated that portion of the District Court fo r the Eastern District of W ashington’s injunction

m aking it applicable nationwide.

Di ss enting, Judge VanDyke, wrote that f or the reasons ably articulated by this court in a December 2019 published opinion in this case, by th e Fo urth Circuit in CASA de Maryland, Inc. v. Tr u mp , 971 F .3d 220 (4th Cir. 2020), and by a dissenting Seventh C ircuit judge in Cook County v. Wolf
, 962 F.3d 2 08, 234–54 (7th Cir. 20 20) (Barrett, J., dis senting)—and im

plied by the Suprem e Court’s m u ltiple

s ta y s this y ear of injunctions virtually identical to those t h e

m ajority today affirm s—he m u st respectfully dissent.C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 9

C OUNSEL

Gerard S inzdak (argued), Daniel Tenny, Joshua Dos Santos, and Jack S tarcher, Appellate Staff; David L. An d e r son and W illiam D. Hyslop, United S tates Attorneys; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Departm ent of Just i c e, W ashington D.C.; for DefendantsAppellants.

H. Luke Edwards (argued), Raphael N. Rajendra, J u l i a B. Spi egel, and Hannah Kieschnick, Deputy County Counsels; Laura T rice, Lead Deputy County Counsel; Greta S. Hansen, Chief Assistant County Counsel; Jam es R. W illiam s, C ounty Counsel; Office of the County Counsel, County of Santa Clara, S an Jose, California; Dennis J. H errera, City Attorney; Jes s e C. Sm ith, Chief Assistant City Attorney; Ronald P. Flynn, Chief Deputy City Attorney; Yvonne R. Mere, C hief, Com plex & Affirm ative Litigation; Sara J. Eisenberg, Chief of Strategic Advocacy; Matth e w D

. Goldberg, D eputy City Attorney; City Attorney’s Office, San Francisco, C alifornia; for Plaintiffs-Appellees City and County of San Francisco; County of Santa Clara.

Xavier Becerra, A tto rn e y G en eral; Matth ew R o d rigu e z, Chief Ass istant A ttorney G eneral; Michael L

. Newm an, Senior Assistant Attorney General; Cherokee DM Melton, Supervising Deputy Attorney General; Jennifer C. Bonilla, Lisa Cisneros, Rebekah F retz, Katherine Lehe, Marissa Malouff, Julia Harum i Mas s , Anita Garcia Velasco, Brenda Ayon Verduzco, and Anna Rich, Deputy Attorneys G eneral; Office of the Attorney G eneral, O akland, California; Karl A

. Racine, Attorney Genera l ; Loren L. AliKhan, S olicitor General; O ffice of the Attorney General, W ashington, D.C.; Aaron M. Frey
, At torney General; Susan P. Herm an, ChiefC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 10

Deputy A ttorney General; Office of the Attorney General, Augusta, Maine; E llen Rosenblum
, Attorney G eneral; Benjam in Gutm an, S olicitor Gene r a l ; Nicole DeFever and Patricia Garcia Rincon, Attorneys; Oregon Departm ent o f J ustice, Salem
, Oregon; Josh Shapiro, Attorney G enera l ; M ichael J. Fischer, Chief D eputy Attorney General; Aim e e D. Thom son, Deputy Attorney General; Office of the Attorney G eneral, Philadelphia, Pennsylvania; for PlaintiffsAppellees State of California, District of Columbia, State of Maine, C o mm onwealth of Pennsylvania and State of Oregon.

Robert W

. Ferguson, Attorney G eneral; Noah G

. Pur c ell, Solicitor General; Tera M. Heintz, Deputy Solicitor G eneral; Jeffrey T. Sprung, Nathan K. Bays
, a nd Joshua W eissm an, Assistant Attorneys General; O ffice o f the Attorney General, Se attle, W ashington; Mark R. Herring, Attorney G enera l ; Michelle S

. Kallen, Deputy Solicitor General; Jessica Merry Sam uels, Assistant Solicitor General; Ryan Spreague Hardy, Alice Anne L loyd, and Ma m o ona H. Siddiqui, Assistant Att orneys General; Office of the Attorney General, Richm ond, Virginia; Phil W eiser, Attorney General, Eric R. Olson, Solicitor General; Office of the Attorney General, Denver, Colorado; Kathleen Jennings, Atto rn e y G eneral; Aa ron R. Goldstein, State S olicitor, Monica A

. H orton, D e p u t y A t t o r n e y G e n e r a l ; D e p a r t me n t o f J u s t i c e , W ilm ington, Delawar e ; Kwam e R aoul, Attorney G eneral; Liza Roberson-Young, Public Interest Counsel; Office of the Att o rney General, Chicago, Illinois; Clare C. Connors, Attorney General; Lili A. Young, Deputy Attorney G eneral; Departm ent of the Attorney General, Hono l u lu, Hawaii; Brian E. Frosh, A ttorney Ge neral; Jeffrey P. Dunlap, Assistant Attorney General; Office of the Attorney General, Baltim ore, Maryla n d ; Maura Healey, Attorney G eneral; Abigail B. Taylor, Chief, Civil Rights Division; David Ureña,C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 11

S p e cial A ssistan

t A tto rn ey General; An g ela B ro o k s, A ssistan t Attorney General; Office of the Attorney General, B oston, Massachusetts; Dana Nessel, Att o rney General; Fadwa A

. Hamm oud, Solicitor General; Toni L. Harris, First Assistant A tto r n ey G e n eral; Mich ig an D ep a r tm ent o f A tto rn e y G e n eral, Lansing, Michigan; Keith Ellison, Attorney General; R.J

. Detrick, Assistant Attorney General; Attorney General’s Office, St. P aul, Minnesota; Aaron D. Fo r d
, Attorney General; Heidi Parry Stern, Solicitor General; Office of the A ttorney General; Gurb i r S

. G rew al, A tto rn e y G en eral; G len n J. Moram arco, A ssistant Attorney General; Office of the Attorney Gene r a l
, Trenton, N ew Jersey; Hector Balderas, Attorney Ge n eral; Tania Maestas, C hief Deputy Attorney General; Office of the Attorney General, Santa Fe, New Mexico; Peter F. Neronha, Attorney General; Lauren E. Hill, Special A ssistant Attorne y Ge n eral; Office of the Attorney General, Providence, Rhode Island; fo r Plaintiffs-Appellees Wa shington, Virgini a , Co l o r a do
, De l a wa r e , I l l i n o i s , Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Rhode Island, and Hawaii.

Edward T. W aters, Phillip A. Escoriaza, and Am anda N

. Pervine, Feldesm an Tucker Leifer Fidell LLP, for Am ici Curiae P ublic Health, Health Policy, Medicine, and Nursing Deans, Chairs, and Scholars; Am erican Public Hea lt h Association; and Am erican Academy of Nursing.

R. Ad a m Lauridsen, Chessie T hacher, Victor H

. Yu , and Ni ch o l as R

. Green, K eker V an Nest & Peters LLP, Sa n F ran cisco, Califo rn ia f

o r Am ici C uriae N atio n al H o u sin g L aw Project, Food Research & Action C enter, and Center for Law & Social Policy, Nation a l E d u catio n A s so ciation, and Service Em ployees International Union.C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 12

Nicholas Espíritu, Linton Joaquin, Alvaro M. Huerta, Mayra B. Joachin, and Max S. Wo l s o n , National Imm igration Law Center, Los Angeles, California; Al l o n Kedem
, G raham White, Jayce Born, Hillary Anderson, Arnold & Porter Kaye Scholer LLP, W ashington, D.C., for Am ici Curiae Imm igrant and Healthcare Service Organizations.

Barbara J. Parker, City Attorney; Maria Bee, Chief Assistant City A ttorney; Eric B ernstein, S enior Deputy City Attorney; Malia McPherson, Deputy City Attorney; Caroline Wi lson, Fellow; Oakland, California; Michael N. Fe uer, City Attorney; Kathleen A

. Kenealy, Chief Deputy City Attorney; Daniel l e L. Goldstein, Deputy City Attorney, Los Angeles, California; Vince Ryan, County Attorney; Robert HazeltineShedd, Assistant C ounty Attorney; Harris County, Houston, Texas; Margaret L. Carter and Daniel R. Suvor, O’Melveny & Myers LLP, Los Angeles, California; Esteban A. Aguilar J r., City Attorney, Albuquerque, New Mexico; Anne L. Morgan, City Attorney, Austin, Texas; Andre M. Davis, City So l i c i t o r , Ba l t i mo r e , Maryland; Mark A. Fl e ss n e r, Corporation C ounsel; Benna Ruth Solom on, D eputy Corporation Counsel, Chicago, Illinois; Barbara J. Doseck, Director of L aw; John C. Muston, Chief Trial Counsel, Dayton, Ohio; Crystal Barne s, Acting City Solicitor, Holyoke, Massachusetts; Howard Phillip Schneiderma n, Senior Deputy Prosecuting Attorn ey , King C ounty, S eattle, W ashington; B rian E

. W ashington, C ounty C ounsel, C ounty of Marin, San Rafael, California; C harles J. McKee, C ounty Counsel; W illiam M. Litt, Anne K. Brereton, and Marina S. Pantchenko, Deputy County Counsels; C ounty o f Monterey, Salinas, California; Marc. P

. Hansen, County Attorney, Montgom ery County, Rockville, Maryland; Marcel S. Pratt, City S olicitor, Philadelphia, P ennsylvania; Su s a na Alcala W oo d
, C ity A tto rn ey , S acram ento , C alif o rn ia; John C. Beiers,C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 13

County Counsel; D avid A

. Silverm an, Chief Deputy C ounty Counsel; Ilana Parm er Mandelbau m, Deputy C ounty Counsel; County of S an Mateo, Redwood City, C alifornia; Peter S

. H o lm es, C i ty Atto rn ey , S eattle, W ashington; Michael Tubbs, Mayor, Stockton, California; Michael Jen k i n s , City Attorney, W est Hollywood, California; for Am ici Curiae 20 Counties, Cities, and Municipalities.

Denny Ch a n , Justice in Aging, Los Angeles, C alifornia; Regan B ailey and Natalie Kean, Justice i n Aging, W ashington, D.C.; Russel L. H irschh o rn and Christopher Spadaro, Proskauer Rose LLP, New York, New York; for Am ici Curiae Justice in Aging, Am erican Society on Aging, Caring Across G enerations, Jewish Fa m i ly Service of Los Angeles, Jewish Federations of North Am erica, N ational Asian P acifi c Center on Aging, National Council on Aging, National Hispanic C ouncil on A ging, Mazon, Phi, and Center for Medicare Advocacy.

Ale x a n dr a W ald, Cohen & Gresser LLP, New York, New York; E lizabeth B. Wydra, Brianne J. Go rod, and Dayna J. Zolle, Constitutional Accountability Center, W ashington, D.C.; for Am ici Curiae Legal Historians.

S im o n S an d o v a l-Mo sh en

b erg and Kelly S alzm ann , L eg al A id Justice Center, Falls C hurch, Virginia; Ariel Nelson and C hi Chi Wu, National Consum er Law Center, Bosto n , Mass a ch usetts; for Am ici Curiae National Consum er Law Center, Legal A id Justice Center, Public Citizen Inc., Con s um er A ction, E qual Justice Society, Im pact Fund, Secure Justice, Media A lliance, Am eric a n s for F inancial Reform Education Fund, and New Economy Project.C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 14

Richard L. Revesz, Jack Lienke, and Max Sarinsky
, New York, New York, a s and f or Am icus Curiae Institute for Policy Integrity.

Debra Gardner, Monisha Cherayil, Sally Dworak-Fisher, and Tyra Robinson, Baltim ore, Maryland, as and for Am icus Curiae Public Justice Center.

Paul J. Lawrence and Alanna E. Pe t er son, Pacifica Law Group, Seattle, W ashi n gton, for Am ici Curiae Nonprofit Anti-Dom estic Violence and Sexual Assault Organizations.

Diana Kasdan, Pilar Herrero, Amy Myrick, and Elyssa Spitzer, New York
, Ne w Y ork, as and for Am icus Curiae Center for Reproductive Rights.

Robert M. Loeb, Thom as M. B on dy, Peter E

. Davis, and Emi ly Green, Orrick Herrington & Sutcliffe LLP, W ashington, D .C.; D o u g las N

. L e tter, G eneral Counsel; Todd B. Tatelm an, Principal Deputy General Couns e l ; Megan Barbero, Josephine Morse, Adam A . Grogg, and W illiam E. Havem ann, Deputy Gene ra l Counsel; Office of General Counsel, U.S. House of Representatives, W ashington, D.C., for Am icus Curiae United States House of Representatives.

Harry Lee, Mary W oodson Poag, Johanna Dennehy, Steptoe & Johnson LLP, W ashington, D .C., fo r Amici Curiae Imm igration Law Professors.

Em ily Tom o ko Kuwahara, Crowell & M or ing LLP, Los Angeles, California; Austin J. Sutta, Crowell & Moring LLP, San F ran cisco, California; for Am ici Curiae A sian Am ericans Ad v a n cing Justice, Asian Am erican Legal Defense andC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 15

Education Fund, National W om en’s Law Center, and 38 Other Am ici Curiae.

Sadik Huseny, Brittany N

. Lovejoy, Joseph C

. H ansen, Tess L. Cur e t , and Alexandra B. Plutshack, Latham & W atkins LLP, San F rancisco, California, for Am ici Curiae Fiscal Policy Institute, President’s A lliance on Hi g her Education and Imm igration, and 12 Other Am ici Curiae.

Su s a n M. Krum

p litsch, Elizabeth Stam es h k i n, a n d Priyamv ada Arora, Cooley LLP, Pa l o Alto, California, for Am ici Curiae Am erican Academy of Pe d i a trics; Am erican Medical Association; Am erican College of P hys icians; Am erican Colleg e o f Obstetricians and Gynecologists; California Medical A ssociation; Am erican Academy o f Pediatrics, California; Am erican Academy o f P ediatric s, Hawaii Chapter; Alaska Chapter of the Am erican A cademy of Pediatrics; Arizona Chapter o f the Am erican Academy o f Pediatrics; and Nevada Chapter, Am erican Acad e my o f Pediatrics.

Paul W

. H ughes, Micha e l B. Kim berly, and Matthew A

. W aring, McDerm ott W ill & E m ery LLP, W ashington, D.C., for Am ici Curiae 105 Businesses and Organizations.C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 16

OPINION

SCHROEDER, Circuit Judge:

The phrase “public charge” enjoys a rich h istory in Anglo-Am erican lore and literature, one m ore co l o rful than

our Am erican law on the subject. There have been relatively few published court decisions construing the phrase, e v e n though our imm igr a t i o n statutes have barred adm ission to imm igrants who are likely to becom e a “public charge” for

m ore than a century. Until recentl y, t h e judicial and adm inistrative guidance has reflec t e d the traditional concept—rooted in the English Poor L aws and imm ortalized by Dickens in the workhouse of Oliver Twist —of incapacity and reliance on public supp o rt for subsistence. The first

com prehensive federal imm igration law barred entry to “any convict, luna t ic, idiot, or any person unable to take care o f him self or herself without becom ing a p ublic charge.” Imm igration Act of 1882, 22 Stat. 214, Chap. 376 § 2 (1882). The 1999 Guidance ( th e Gu id ance) issued by the Imm igration and Naturalization Service (INS), th e predecessor of the

curren t agency, d efined a “public charge” as one who “is o r is likely to becom e prim arily dependent on the governm ent for subsi s t e nce.” See Field Guidance o n Deportability and Inadm issibility o n Public Charge Grounds, 64 F ed. R eg. 28,689 (May 26, 1999).

In 2019, the Departm ent of Hom eland Securit y ( DHS) changed direction, however, and issued a rule (the Rule) that defines the term to include those who are likely to p articipate,

even f or a lim ited period of tim e, in non-cas h fe d e ral
governm ent assistance program s. The progra ms designated b y th e Rule are not intended to provide for subsistence bu t ins t e a d to supplem ent an individual’s ability to provide forC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 17

basic needs such as food, m edical care, and housing. 8 C.F.R. § 212.21(b). Fo r es eeable participation for an aggregate of twelve m onths in any of the fe d e r a l p rogram s within a three-year span renders an imm igrant ina dmi ssible

as a public charge and ineligible for perm anent r e s i d e nt status. § 2 12.21(a). In other words, a si n g le m other with
young children who DHS foresees as li kely to participate in three o f those program s for four m onths could not get a green card.

Lit igation followed in m u ltiple district courts against DHS an d U

. S

. C itizen sh ip an d Im m ig ratio n S ervices (USCIS)

as states and m

unicipalities re c o g n ized that the imm ediate effect o f th e Rule would be to discourage imm igrants from participating in such assistance prog r am s, even though Co n gress has m ade them available to imm igrants who ha v e been in the country for five y ears. According to the plaintiffs in those cases, the Rule’ s effect would be to increase assistance dem ands on st at e an d local governm ents, as their resident imm igrants’ overal l health and welfare would be adversely affected by non-participation in federal assistance
program s.

The chall e n ges to the Rule in the district courts resulted in a chorus of prelim inary injunctions holding the R ule to be contrary to law and arbitrary a n d capricious under the Adm inistrative Procedure A ct (APA). 5 U.S.C. § 706(2)(A). These included the two prelim inary injunctio n s b efore us, o ne issued by the District Court for the No rth e rn District o f California (Northern District) covering the t erritory of the plaintiffs, and the o ther by the District Court for the Eastern District of W ashington (Eastern District) purporting to apply nationwide. Our court becam e the first federal appeals court to weigh in when we granted DHS’s mo t i o n for a stay o fC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 18

those injunctions pending appeal. City and Cnty. of San Francisco v. USCI

S
, 9 44 F.3d 773, 781 (9th Cir. 2019). Prelim inary injunctions were also issued by c o urts in the Northern District of Illinois and the Southern District of New Yo rk, and they w ere stayed by the United States Supre me Court before appeals could be considered by the circuit courts of appeals.

W hen the Seventh C ircuit and the Second Circuit did consider those prelim inary injunction ap peals, both courts affirm ed the injunctions. Although their reasoning d i ffe r ed in som e respects, both circuits concluded that the Rule’s definition was both outside any historic or c omm only understood m eaning of “public charge,” and arbi tr a ry and capricious, in concluding that short

- t erm reliance on supplem ental benefits m ade imm igrants dependent o n public assistance within the m eaning of the statutory public charge imm igration bar. Cook C n ty., Ill. v. Wolf

, 962 F.3d 208, 229, 2 32 –3 3 (7th Cir. 2020); New York v. DHS
, 969 F.3d 42, 80–81 (2nd Cir. 2020). The Second Circuit opinion wa s unanim ous, while a d issenting o pinion in the S eventh Circuit agreed with DHS that those who receive s u c h supplem ental benefits coul d be considered p ublic charges because, by receiving som e assistance, they are not com pletely s e l fsufficient. C

ook Cnty.
, 962 F. 3 d a t 250–51 (Barrett, J., dissenting).

The district court in Maryland also enjoined enforcem ent of the Rule and was reversed by a divi d e d d ecision of the Fourth Circuit. T he m ajority looked in large m easure to the fact that the Suprem e Court had stayed the injunctions in the Seventh and Second Circuits. CASA de Maryland, I nc. v. Trump
, 971 F.3d 220, 230 (4th Cir. 2020). In dissent, Judge King viewed the Rule as outside the longstanding m eaning o fC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 19

“public charge” and would have affirm ed the injunction. He also disagreed with the m ajority about the significance of the Suprem e C o urt’s stay, explaining that “[i]f the C ourt' s decision to grant a stay could be understood to effecti v e l y hand victory to the governm ent regarding the prop r i e t y of a prelim inary injunction, there w ould be little need f or an interm ediate appellate court to even consider the m erits of an appeal in which the Court has g ranted a stay.” Id. at 281 n.16 (King, J., dissenting) (citing Cook Cnty. , 962 F.3d at 234).

To understand the reason for this recent ca s c ade o f litigation after a relatively quiescent statutory and regulatory history, we review the historical background of the Rule. Such a review reveals the ext e n t t o which the Rule departs from past congressional and adm inistrative policies.

A. Statutory and Administrative Background

This country has had a federal statutory provision barring the adm ission of persons likely to becom e a “public charge” since 1882. The Imm ig r a tion Act of 1882 barred entry to,

am ong others, “any convi c t, l unatic, idiot, or any person unable to take care of him self or herself without becom ing a public charge.” The Imm igration and Nationality Ac t n ow provides that “[a]ny alien who,

. . . in the op i n i o n of the [Secretary of Hom eland Security] at the t i me of application for adm ission or adjustm ent of status, is likely at any tim e to becom e a public charge is inadm issible.” 8 U. S .C. § 1182(a)(4)(A). No st a tu t e h as ever defined the term

. For

over a century, agencies have routinely applied these provisions in determ ining adm issibility and rem oval as well as in issuing visas for entry.C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 20

In 1996, however, C ongress am ended the statute to add five factors for agenci e s to consider in determ ining whether

an individual is likely to be a public charge: the non-citizen’s

a ge; health; fam ily status; assets, resources and finan c i al
statu s ; a nd education and skills. § 1 1 82(a)(4)(B)(i). Congress also included a provision requiring applicants to p roduce an affidavit of support. See § 1182(a)(4)( C)

– ( D) (requiring m ost f

am ily-sponsored imm igrants to subm it affidavits of support); § 1183a ( affidavit o f support requirem ents).

At nearly the sam e tim e, Congress enacted m ajor reform s of public benefit p rogram s that, a s r el evant here, m ade only non-citizens with f

ive or m ore years of residen c y i n t he Uni te d States eligible for public benefits such as Suppleme ntal Nutrition A ssistance Program (SNAP) and Medicaid

. Personal Responsibility and W o rk Opportunity Reconciliation Act (PRW O RA), P ub. L. No. 104-193, 110 Stat. 2105, 2265 (1996). Previously, lawful imm igrants h ad generally been eligi b l e fo r such benefits. Congress thus simultaneously red

u ced th e num

b er o f im m igrants eligible for this assistance and spelled out the factors to be considered in

a p ublic charge determ ination. The fact that Congress delineated the factors rele v a n t to the public charge determ ination at th e sam e tim e it adjusted certain imm igrants’ elig ib i lity to receiv e sp ecif ic su p p lem ental assistance stro n g ly suggests that C ongress did not intend for such assistance to be considered as one of the public charge factors.

Judicial guidance in interpreti ng the phrase was apparently not in need or dem and: There are relatively few such decisions. A leading early Suprem e Court case resolved the im portant quest i on of whether the adverse econom ic conditions in the location where the imm igrant intends to liveC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 21

can render an imm igrant likely to b ecom e a “public charge.” Gegiow v. Uhl
, 23 9 U. S. 3 (1915). The Suprem e Court’s

answer was no because the statute spo k e to the perm anent characteristics personal to the imm igrant rather than to local labor m arket conditions. Id. at 10. W e followed Ge g i o w i n Ex p a rte Sakaguchi
, 277 F. 913 (9th Cir. 1922), where we held that a person tem

porarily in nee d o f fam ily assistance should not have been excluded as likely to becom e a public charge. W e so held b ecause there w as an absence of “any evidence whatever of m ental or physical disability or any fact tending to show that the burden of supporting the appellant is likely to be cast upon the public.” Id. at 916. Thus, o ur court in Sakaguchi understood the standard for dete rm i ning whether som eone is a public charge to b e whether the “burden of support” falls on the public.

Adm inistrative dec isions followed the Suprem e Court’s lead by looking to the in h e r e nt characteristics o f the individual rather than to external circum stances. The Board of Imm igration Appeals thus held that o nly an individual with the inherent inabi l i ty to be self-supporting is excludable as “likely to becom e a public charge” w ithin the m eaning of the
statute. M

a t t er of Harutunian
, 14 I & N. Dec. 583, 589–90 (BIA 1974); Matter of Vi nd ma n , 1 6 I. & N. Dec. 131, 132 (B.I.A. 1977); see also New York
, 969 F.3d at 69. There has been corollary adm inistrative re c o g n ition that even if an individual ha s b e e n on welfare, that fact does not in and o f itself establish the requisite likelihood o f becom ing a public charge. An Attorney Ge n eral decision collected authorities indicating that it is the totality of circum stances that m ust be considered in order to determ ine whether “the burden o f supporting the alien is likely to be cast on the public.” Matter

o f Martinez-Lopez
, 10 I & N. Dec. 409, 421–22 (BI A 1 9 6 2 ; A.G. 1964) (citing Sakaguchi , 277 F. at 916). Likely receiptC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 22

of som e p ublic benefits d oes n ot autom atically render an imm igrant a public charge because the public does not bear the “burden of support.”

The 1996 am endm ents, which added factors t o b e considered and created the current public cha r ge statutory provision, caused s om e confusion as to how big a change they repres e n t e d. The INS, the agency then in charge o f adm inistering imm igration, decided a re gulatory definition would be helpful. It adopted the 199 9 Gu i d ance, the first regulatory guidance to interpret the r a th e r ancient notion o f “public charg e ” in light o f the myriad, m odern f orm s o f public assistance. 64 Fed. Reg. 28,269.

The Guidance d efined a “public charge” as a non-citizen who depends on the governm ent for survival, either by receipt of incom e or confinem ent in a p ublic institution. It described
persons “prim arily dependent o n the governme nt for subsistence, as dem onstrated b y either (i) the receipt o f public

c a s h a s s i s t a n c e fo r i n c o m e m a i n t e n a n c e o r (ii) institutio n alization for long term care at governm ent expens e

. ” I

d

. at 28,689. It thus em

b odied the traditional notion of p rim ary dependen c e o n the g overnm ent f or either incom e or institutional care.

The Guidance went o n t o i d entify the types o f public assistance that would typically qualify as evidence of prim ary dependence: (1) Supplem e n t a l Security Incom e (SSI); (2) Tem porary Assi s ta n ce f

or Needy Fam ilies (TANF); (3)
state and local cash assistance program s; and (4) progr a m s supporting p eople institutionalized for long-term care. Id. at 28,692. The Guidance expressly excluded non-cash benefits intended to supplem ent incom e and n ot to provide p rim ary support. The explanation lay w ith the changing t i m es thatC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 23

were bringing benefits to m ore and m o re fam ilies to im prove their health and welfare. See id. (“[C]ertain federal, state, and local benefits are increasingly b e i ng m ade available to fam ilies w ith incom es f

ar above the poverty level, reflecting broad public policy decisions about im proving general public h ealth and nutrition, p rom oting education, and assistin g working-poor fam ilies in the proc ess of becom ing selfsufficient. Thus, participation in such non-cash program s is not evidence of poverty or dependence.”).

T h e Gu id ance actually encourag e d n o n -citizen s to receiv e suppleme n t a l benefits in order to im prove their standard o f living and to prom ote the gener a l h ealth and welfare. The Guidance drew a sharp distinction between the receipt of such supplem ental benefits and dependence on the governm ent for subsistence incom e that would render the individual a “public charge.” Id. at 28,692–93.

The 2019 Public Charge Ru l e we review in this case effectively reversed that policy by m aking receipt o f supplem ental b enefits the very definition of a public charge. See Inadm issibility on Public Charge Grounds, 84 Fed. R eg. 41,292 (Aug

. 1 4, 2 0 19). The Rule d efines the term “public charge” to m ean “an ali en who receives one or m ore [specified] public benefits

. . . for m ore than 12 m onths in the aggregate within an y 36-m onth p eriod (such that, for instance, receipt of two benefits in one m onth counts as two

m onths).” Id. at 41,501. The p ublic benefits specified by the Rule include m ost Medicaid benefits, SNAP benefits, Section 8 housing v ouchers and rental assistance, and other form s o f federal housing assistance. Id. Any receipt of such a benefit,

no m atter how sm all, will factor into the public charge determ ination. The Rule also directs officials to considerC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 24

En g l i sh p r o fi c ie n c y i n m a k i ng the pub l i c c h a r g e determ ination. Id. at 41,503–04.

The Rule was greeted w ith challenges in fed e r a l district
courts throughout the country. W e deal with th o s e i n t his circuit.

B. The District Court Injunctions

On appeal are two d i strict court decisions granting prelim inary injunctions barring enforcem ent of the Rule. The Northern District considered the challenges of California, the District o f Colum

b ia, Maine, Pennsylvania, and Oregon, consolidated with the challenges brought by the Ci t y and County of San Francisco, and the County of Santa Clara. The Eastern District heard the challenges brought by W ashington, Virginia, Colo r a d o, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Mic h i g an, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island. Both district courts agreed that the plaintiffs had st anding because they had shown that they would likely suffer econom ic harm and other costs and tha t th ei r concerns were within the zone of interests of the
statute. Both held that the new d efinition of “public charge”

was likel y not a perm issible interpretation of the statute because it w ould depart from the longstanding, settled understanding that a person does not becom e a public charge by receiving short-term aid, and m ust instead dem onstrate an inherent incapacity to provide subsistence. City and Cnty. of San F rancisco v. USCIS
, 4 0 8 F. Supp. 3d 1057, 1101 (N.D. Cal. 2019), Washington v. DHS
, 4 08 F. Supp. 3d 1191, 1219 (E.D. W ash. 2019). B oth found the Rule to be likely arbitrary and capricious because the agency failed to consider the burdens the Rule would im p ose on states and m

unicipalities.C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 25

The Eastern District issued a nat ionwide injunction, and the Northern District declined to do so.

W ithin a few weeks of the district court rulings, a divided

m otions panel of this court, however, stayed both injunctions pending this appeal. C

ity a nd C nty. of SF
, 944 F.3d 773. The panel m ajority wrote that D HS was likely to prevail because the Rule would probably b e vi ewed as a reasonable int erpretation of a statute that had no consistent h istorical application and gave the agency “cons i derable discretion.” Id

. at 7 9 6
, 799. Judge Owens dissented in part and would have denied the stay. Id. at 809–10 (Owens, J., dissenting).

The stay was base d o n a prediction of what this panel would hold in reviewing the m erits of the prelim inary injunctions. The stay in this case was entered at a particularly early point, less than two m onths after the district court injunctions. Alm ost n one o f the extensive d ocum entation relevant to this ap p e a l wa s before the m otions panel. The brief of the appellant DHS i nthe N orthern District case h ad been f iled only the day before the p anel entered its stay, and the o p e ni n g b rief in the Eastern District case was not filed until the day after. Still to com e were not only the answering and reply briefs in both appeals, but two dozen am icus briefs,

m any of which we have found very helpful.

At least equally im

portant, n o other circuit court o p inions had yet considered the issues. By n o w we h a v e heard from
th ree. One of those opinions even d iscussed and disagree d with the reasoning of this court’s m o tions panel stay opinion, pointing out that it “pinn[ed] the definition of ‘public charge’

on the form of public care provided” in concluding that there

was no consistent interpretation of the Rule. Ne w York
, 969 F .3d at 73 (em

phasis in original). T he court there saidC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 26

our m otions p a n e l thereby went “astray.” Id. This was because the issue was n o t wh ether a “public charge” h ad always received sim ilar assistance. Id. T he issue should have been whether the “inquiry” under the statute had b e en consistent. Id. T he Second Circuit concluded t h e public charge inquiry had always been whether the no n-citizen “is likely to depend on that [assistance] system .” Id.

We th e r e fore turn to the appeal b efore us. W e deal fir s t wi th DHS’s argum ents that the plaintiffs m ay not m aintain the suit because they l a ck Article III standing or are outside the zone of interests of the im m igration statute in question.

C. Plaintiffs’ Capacity to Maintain the Action

Plaintiffs are states and m

unicipalities that allege the Rule is causing them to suffer continuing financial h arm , as lawful imm igrants eligibl e fo r federal cash, food, and housing assistance withdraw from these program s to avoid the im pact of the Rule. Plaintiffs allege harm because such imm igrants will instead turn to assistance p rogram s adm inistered by the state and local entities.

DHS argues that such injuries a r e speculative and represent o nly plausibl e future injury. T here is no question that to have Article III standing to brin g t his action, the plaintiffs m

ust allege that they have suffered, or wi l l immi n e n tly suffer, a “concrete and particularized” injury in fact. Lujan v. Defs. of Wildlife
, 504 U.S. 5 55, 560 ( 1 992). There is also no question that an increased dem and f or aid supplied by the state and local entities wo u ld be such an injury

. The only question is whether such dem and is, as o f yet, apparent or im m inent.C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 27

That is not a difficult question to answer. The R ule itself predicts a 2.5 percent decrease in enrollm ent in p ublic benefit
program s and a corresponding reduction in M e di c aid
paym ents of over one billion dollars p er year. Final Ru le, 8 4 Fed. Reg. at 41,302, 41,463. The Rule itself fu rth e r acknowledges that disenrollm ent will cause other i ndirect financial harm to state and local e n ti t ies by increasing the dem and for uncom

p ensated in digent care. Declarations in the record show that such entities are alr e a dy experiencing disenrollm ent as a result of the Rule. See City a n d Cnty. of SF , 408 F. Supp. 3d at 1122.

DHS nevertheless asserts that the Rule will result in a long-term cost savings after states com pensate for the loss o f federal f unds by reform ing their operations. But such longt e rm reform s would not rem edy the imm ediate financial injury to the plaintiffs or the harm s to the health and welfare of those individuals affected. A s th e Second Circuit explained, “this sim

plistic argum ent fails to account for the fact that the S tates al l e g e injuries that extend well b eyond reduced Medicaid revenue and federal f unding to the States, including an overall increase in healthcare costs that will be borne by public hospitals and general econom ic harm s.” New York
, 969 F.3d at 60. Thus, plaintiffs have established Article III standing.

Those suing under the APA, m ust also establish that the interest they assert is at least “arguably wi t h i n the zone o f interests to b e protected or regulated b y the statute” in question. Match-E-Be-Nash-She-Wish Band o f Pottawatomi Indians v. Patchak
, 567 U .S. 2 09, 224 (2012) (quoting Ass’n of D ata Processing Serv. O rgs., Inc. v. Camp
, 397 U.S. 150, 153 (1970)). The Suprem e Court has described t he t est as “not m eant to b e especi a lly dem anding” and as “notC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 28

requir[ing] a n y ‘indication of congressional purpose to benefit the would-be plaintiff.’” Id. at 225 (quoting Clarke v. Sec. Indus. Ass’n
, 479 U.S. 388, 3 99– 4 0 (1987)). A plaintiff’s interest need only be “sufficiently congruent with those of the intended beneficiaries that the litigants are not ‘m ore li kely to frustrate than to further the statutory objectives.’” First Nat. Bank & Tr. Co. v. Nat’l Credit Union Admin.
, 988 F .2 d 1272, 1275 (D.C. C ir. 1993) (quoting Clarke , 479 U.S. at 397 n.12).

The statute in q

uestion is, of cour s e, the imm igration
statu te that renders inadm issible an individual likely to becom e a “public charge.” 8 U.S.C. § 1182(a)(4)(A). DHS
appears to contend that th e only entities within the zone o f interests are the f

ederal g overnm ent itself and i n dividuals seeking to imm igrate, because the provision deals with imm igration and only the fede r a l governm ent controls imm igration. If that we r e to d efine the zone o f interests regulated by the statute, the scope of perm issible imm igration litigation agains t the governm ent would be so narrow as to practically i n s u late it from m any challenges to imm igration policy and procedures, even those violating the Constitution or federal laws.

DHS s u ggests that the purpose of the public charge exclusion is to reduce imm igrants’ use of public benefits, and that the plaintiffs’ suit therefor e co ntradicts this p urpose by

s ee ki n g to m ake m ore federal benefits available. But this

assum es that Congress’s statutory purp o se was the sam e as DHS’s purpose here, which is the very dispute before us. A s the Second Circuit pointed out, “DHS assum es the m erits o f its own argum ent when it identifies the purpose of the public charge ground as ensuring that non-citizens do not use public benefits

. . . . Understood in context, [the public charge b ar’s]C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 29

p urpose is to exclude where appropriate and to not excl u d e where exclu s i o n would be inappropriate.”) N ew York
, 969 F.3d at 62–63.

Mor e o ver, DHS m aintains that the statute’s overall
purpose is to prom o te self-sufficiency. Pr oviding access to better health care, nutrition and supplem ental housing benefits is consi s t en t with precisely that purpose. See Cook Cnty.
, 9 62 F.3d at 2 20 (access to affordable basic health care

m ay prom ote sel f-sufficiency); Hilary Hoynes, Diane Whitm ore Schanzenbach & Dougl a s A lm ond, Long-Run I mpacts of C

h ildhood Access to the S a fety Net
, 10 6 Am. Econ. Rev. 903, 9 2 1 (2016) (access to food st amp s i n childhood significantly increases econom ic self-sufficiency

am ong wom en). For these reasons, the i n t erests of the plaintiffs in preserving imm igrants’ acces s to supplem ental benefits is wi th i n the zone of interests protected b y the
statute.

W e therefore conclude that the district courts correctly determ ined th a t th e p laintiffs are entitled to m aintain this action. All o f the circuits to consider the validity o f this Rule have reached a sim ilar conclusion. See Cook Cnty.
, 962 F.3d
at 219–20, CASA de Maryland
, 971 F.3d a t 240–241, New Yor k
, 9 69 F.3d at 62–63. W e now turn to the question whether they were entitled to th e pr elim inary injunctions entered by the district courts.

D. Contrary to Law

Both district courts concluded that the plaintiffs are likely
to prevail in their contention that the Rule v i o l ates the statute’s p ublic charge provision, and that such a conclusion supports the entry of prelim inary injunctions. See Winter v.C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 30

Nat. Res. Def. Council, I n c

. , 5 5 5 U.S. 7, 20 (2008). On appeal, D HS contends, as it h as throughout the litigation, that the Rule is a perm issible i n t erpretation of the statute. The plaintiffs m aintain tha t the Rule violates the statute because the Rule is not a reasonable interpretation o f the m eaning of “public charge.”

History is a strong pillar supporting the plaintiffs’ case. Plaintiffs point to repeated congressional reenactm ent of the
p rovision after it had been interpreted to m ean long-term d ep e ndence on governm ent support, and had never been interpreted to encom

p ass tem porary resort to supplem ental

non-ca s h b e nefits. Plaintiffs contend that this repeated
reenactm ent am ounts to congressional ratificati o n of the h isto rically consistent interpretation. DHS d isagrees, argu in g that the repeated reenactm ents reflect congressional intent to have a flexible standard subject to various executive b r a n c h interpretations.

Our review of the h i st ory of the provision in our law suggests the plain tiffs have the better part of this dispute. Fro m the Victorian W orkhouse through the 1999 Guidance, the concept of b ecom ing a “public charge” has meant d ependence on public assistance for survival. Up unt i l t h e prom ulgation of this Rule, the co n c e p t has never

encom passed persons lik ely to m ak e short-term use of in-kind benefits that a r e neither intended nor sufficient to provide basic sustenance. The Rule also, for the first tim e, introduces

a lack of English proficiency as f iguring into the equ ation, des pite the comm o n Am erican experience of children learning English in the public schools and t e aching their elders in our urban imm igrant comm unities. 8 C. F. R. § 212.22(b)(5)(ii)(D). Indeed, in Gegiow
, 2 39 U. S. 3, the Suprem e Court found that the individuals in that case wereC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 31

not likely to becom e public charges even though they spoke only Russian.

In New York
, 969 F .3d 42, the Second Circuit essentially agreed with plaintiffs’ h istorical analysis. The cou rt recognized and explained the line of settled judi c i a l and adm inistrative interpretations of a public charge as one who is prim arily dependent on the governm ent for subsistence. Id.
at 65–70. The court traced that history in far m ore detail than

we have outlined and was “convinced” that there w as a wellsettled m eaning of “public charge” even b efore congressional
passage of th e Illegal Imm igration R eform and Imm igrant Responsibility Act (IIRIRA) in 1996, and that w as a person “unable to support hers e lf, either through work, savings, o r fam ily ties.” Id. at 71. R eceipt of cash benefits m ay be considered in deciding whether a person is dependent on the
governm ent but has never been determ inative. The S econd Circuit persuasively sum m arized:

The P laintiffs d o not argue, and we do no t hold, that the receipt of vario u s kinds o f
p u b l i c b e n e f

i t s i s i r r e l e v a n t t o t h e determ ination of whether a non-citizen is likely to becom e a p ublic charge. B ut defining public charge to m ean the rece ipt,

even for a l imi t ed period, o f any of a w ide
range of public benefits – particularly

. . . ones t h a t a r e d e s i g n e d t o s up p l e me n t a n individual' s o r fam ily' s efforts to support the mselves, rather than to deal with their likely perm an ent inability to do so – is in co n sistent w ith th e traditio n al u n d erstan d in gC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 32

o f wh at it m eans to b e a “public charge, ” which was well-established by 1996.

Id. at 78 (em

phasis rem oved).

A few m onths earlier, the Seventh C ircuit h ad com e to a sim ilar conclusion th a t the Rule violates the statutory

m eaning o f public charge. Cook Cnty.
, 962 F.3d 208. The Seventh Circuit differed s o m e wh at in its analysis. After a historical survey of court decisions and secondary sources, it determ ined that the phrase “public charge” was susceptible to various interpretation s

. Id. at 226. It concluded, h owever, that DHS’s interpretation, quantifying the definition to m ean receipt of twelve m onths’ worth of benefits wit h i n t h ree years, represented an understanding o f its authority to define the phrase that “has no natural lim itation.” Id. at 228–29. If DHS’s in terpretation w ere to be accepted, then there is nothing in the s t a tu to ry text that would prevent a zerotolerance rule, where foreseeable receipt of a s in gle benefit on

one occasion woul d bar entry or adjustm ent of status. The

m ajority forcefully rejected such an interpretation, stating:

W e see no warrant i n the A ct for this sweeping view. Even assum ing that the term “public charge” is am

biguous and thus m ight

encom pass m ore than institutionalization o r prim ary, long-term dep e n dence on cash benefits, it does violence to the English language and the statutory context to say that it covers a person who receives o n l y de

m inim is benefits for a de m inim is period o fC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 33

tim e. There is a floor inherent in the words “public charge,” backed up b y the weig ht o f history.

Id. at 229.

Although the o pinions of the Second Circuit in New York and the Sevent h Ci r c uit in C ook County reflect som e disagreem ent over whether there was any historically established m eaning of the p hrase “public charge,” they agreed that the Rule’s interpretation of the statute was outside
any historically accepted or sens i ble understanding of the
term

. In comm enting o n the d ifference between its h istorical review in N

ew York and that o f the Seventh C ircuit in Cook County
, the Second Circuit noted that the Seventh Circuit h ad
not included the significant adm inistrative rulings that preceded the 1996 statute. New York, 969 F.3d at 74.

The New York opinion was unanim ous, but the Co o k County opinion wa s n o t. The lengthy dissenting opinion in Cook County focused on other statutory provisions aim ed at preventing entry of persons who could becom e d ependent on the governm ent. The m o st significant of these provisions is the requirem ent that fam ily-sponsored i mm igrants, and

em ploym ent-sponsored imm igrants whose em ploym ent is tied to a fam ily m em

ber, m ust furnish an a ffi d avit from the
sponsor. 8 U.S.C. §§ 1182(a)(4)(C)–(D). In the affidavit, the
spon s o r m

u st agree to support the imm igrant at annual incom e of at least 125 pe rcent o f the p overty level and p ay back the relevant governm ental en ti ty in the event the imm ig rant receives “any m eans-tested public benefit.” 8 U.S.C. § 1183a(a)(1)(b).C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 34

The dissent focused on the f act that the affidavit provision forces sponsors to bear r e sponsibility for “any m eans-tested public benefit” that an imm igrant m ay receive. It concluded that the affidavit provision reflects Congress’s v i e w that “public charge” m ay encom pass receipt of supplem ental b en e fits as well as p rim ary dependence. See Cook Cnty.
, 962 F.3d at 246 (Barrett, J., dissenting).

I n its focus on the provisions in a related b ut d iffere n t section of the statute, the dissent did not addr es s t h e significance of the history of the p ub l ic charge provision itself, nor did it address the m a j o r i ty ’s objection to the dur a t ion of the receipt of benefits as a standard h aving no lim iting principle. T he dissent concluded only that the choice of an aggregate o f twelve m onths is “not unreasonable.” Id.
at 2 5 3. Moreover, the dissent’s interpretation o f the affidavit requirem ent’s application here seem s to suggest that it would
approve a public charge rule excluding individuals who received “any m eans-tested b enefit,” no m atter how sm all, as in line with congressional intent.

In th i s appeal, DHS also relies upon the affidavit o f support provisions to contend that the Rule is consistent with the statutory public charge bar. The public charge b ar and affidav i t of support provisions were parts of two separate acts. Th e two have no historic or functional relationship to each other. T he public charge bar d a te s back to the 19th century, em

b odying a n age-old concept of excluding those who m ay b ecom e prim ari l y d ependent on the governm ent. Congress enacted the affidavit of support provision, h owever, in 1996 as pa rt o f m o re recent specific imm igration reform s including the financial responsibilities of fam ilies and

em p lo y ers sp o n so ring individual imm igrants. See PRW ORA, Pub. L. No. 423, 110 Stat. 2 271 (1996); IIRIRA, Pub. L. No.C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 35

104-208, 110 Stat. 3009 (1996). The section of the affidavit provision that refers to public benefits serves as a postadm ission rem edy to h elp local a n d federal governm ents recoup funds. § 1183a(b). The changes to t h e affidavit provisions were aim ed at problem s w ith the unenforceability of such affidavits prior to 1996. Michael J

. Sh e r idan, The New A ffidavit of Support and Other 1996 Amendments t o Immigration and Welfare Provisions D esigned to Pr e vent Aliens from B ecoming Public Charges
, 31 Creighton L. R ev. 741
, 7 4 3 -4 4
, 7 5 2 -53 (1998) (article by INS Associate General Counsel).

DHS also p oints to the provision that perm its entry o f battered wom en without regard to receipt of “any benefits.” See 8 U.S.C. § 1182(s). DHS argues t h a t t h i s reflects Congress’s belief that the receipt of any p ublic benefits would be a consideration in adm ission for m ost other public charge determ inations. Ha d Congress intended to m ake non-cash benefits a factor fo r adm ission or p erm anent residence, it would have done s o d ir ectly and not through this ancillary provision. See Whitman v. Am. Tr ucking Ass’ns
, 531 U.S. 45 7
, 468 (2001) (Congress does not “hide elephants in

mo u se ho les”). It is m ore likely that Congress created this
p ro v ision in order to provide sweeping protections for battere d mi g rant wom en, as it did throughout Section 1182. See § 1182(a)(6)(ii), (a)(9)(B)(iii)(IV).

For these reasons we c onclude the plaintiffs have dem onstrated a high likelihood of success in showing that the Rule is inconsistent with any reasonable interpretation of the statutory public charge bar and therefore is contrary to law.C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 36

E. Arbitrary and Capricious

Both district courts also ruled that th e p laintiffs were likely to succeed in their contention that the Rule is arbitrary and capricious. The APA standard in this regard is inherently deferential. The task of the courts is to en s ur e t h a t the agency’s action relied on appropriate considerations, considered all im

portant aspects of the issue, and provided an

a d e qu ate explanation for its decision. T he Suprem e Court

s umme d it up in its leading decision, Motor Vehicle Mfrs. Ass'n, Inc. v. S

tate Farm Mut. A u to. Ins. Co. (“ State Farm ”), 463 U.S. 29 (1983). The Court explained the general rule:

Norm ally, an agency rule would be arbitrary

a n d capricious if the agency has reli e d o n factors which C o ngress has not intended it to consider, entirely f

ailed to cons i d er an im portant aspect of the problem
, offered an explanation for its decision that runs coun te r to the e v idence before the agency, or is so im plausible that it could not be ascribed t o a difference in view o r the product of a g e n cy expertise.

Id. at 43.

The plaintiffs argue that DHS failed the te st in three principal respects: It failed to take into account the costs the Rule would im

pose on state and local governm ents; it did not consider the adverse effects on h ealth, including both the health of imm igrants who m ight withdraw fro m program s and the overall health of the comm unity; and it did not adequately explain why it was changing the policy that was t h o roughly explained in the 1999 Guidance.C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 37

1. Disenrollment and Financial Costs

W e first turn to DHS’s consider a t i o n of the financial im pact of the proposed Rule. During the comm ent period, there was repeated em

p hasis on the financial burdens that would befall state and local governm ents because imm igrants feari n g ap p lication of the Rule would disenroll from the supplem enta l p r o g r am s, even if the R u le did not apply to them

. DHS’ s response was a g enerality coupled with an expression o f uncertain ty

. It said that, despite these effects, th e Rule’s “overriding consideration” of self-sufficiency form ed “a sufficient basis to m ove forward.” 8 4 Fed. Reg. at 41,312. DHS added that there was no way of knowing with
any degree o f exa c ti tude how m any individuals would disenroll or how m

uch o f a burden it would place on the state and local governm ents. Id. at 41,312–13.

DHS provided no analysis of the effe c t o f t he Rule on governm ental entities like the p laintiffs in these cases. As the Northern D istrict fo und, DHS had not “grapple[d] with estim ates and credible data explained in the comm ents.” City and Cnty. of SF

, 408 F. Supp. 3d at 1106.

Our law requires m ore from an agency. A bald declaration of a n agency’s policy preferences does not discharge its duty to engage in “ reasoned decisionm aking” and “explain the evidence which is a v a i l ab le.” State F a rm , 463 U.S. at 52. The record before DHS was replete with detailed inform ation about, and projections of, disenrollm ent and associated financial costs to state and local governm ents. See, e.g., Ninez Ponce, Laurel Lucia, & Tia Shim ada, How Proposed C h anges to the ‘Public Charge’ Rul e W ill Affect Health, Hunger and the Economy in California, 3 2 (Nov. 2018), https://healthpolicy.ucla.edu/newsroom /Docum ents/C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 38

2018/public-charge-sem inar-slides-nov2018.pdf (estim ating

over 3 00,000 disenrollme n t s f rom Medicaid in California alone); Fiscal Policy Institute, Only W ealthy Imm igrants Nee d Ap p ly: The Chilling Effects of “Public Charge,” 5 (Nov. 2019), http://fiscalpolicy.org/wp-content/uploads/2 0 1 9 / 1 1 / F I N A L

- F P I

- P u b l i c

- C h a r g e

- 2 0 1 9

- M a s t e r C o p y

. p d f (esti ma t i n g over $500 m illion com bined in lost state tax revenue). DHS was requ ired to “reasonably reflect upon” and “grapple with” such evidence. Fred Mey e rs Stores, Inc. v. NLRB
, 8 65 F

. 3d 630, 638 (D.C. Cir. 2017). But DHS m ade

no a t tem pt to quantify the financial costs o f the Rule o r critique the projections offered.

Sim ilarly, DHS’ s repeated statem ents that the Rule’s disenrollm ent im

pacts are “difficult to predict” do not satisfy its duty to “exam ine the relevant data” before it. State F a rm , 463 U .S. at 43. The Sup rem e Court held in State Farm that

an agency m ay not, without analysis, cite even “‘substantial
uncerta i n ty’

. . . as a justification for its actions.” Id. at 52;

see also Ctr. for Bi o l og ic a l Diversity v. NHTSA
, 538 F.3d 1172, 1200 (9 th Cir. 2008) (rejecting as arbitrary and capricious agency’s charact e r ization of greenhouse gas reductio n s as “too uncertain to support their explicit v aluation and inclusion” in analysis). DHS’s analysis thus fell short o f the standard established b y the Suprem e Court and recognized by our circuit. DHS did not adequately deal with the financial effects of the Rule.

2. Health Consequences

Although D HS wrote th e Ru le was intended to m ake imm igrants healthier and stronger, comm enters stressed the Rule’s likely a dv erse h ealth co n seq u en ces for imm igrants and the public as a whole, including infectious disease outbreaksC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 39

and hospital clo su

res. Wh i le a ck

n o w led g in g th ese c o mm ents, DHS conclud e d, without support, that the R ule “will ultim ately str e ngthen public safety, health, and nutrition.” 84 Fed. R eg. at 41,314. The Northern District aptly f ound that DHS im

perm issibly “sim

ply declined to engage with certain, identified public-health consequen ces of the Rule.” City and Cnty. of SF, 408 F. Supp. 3d at 1111–12.

Comm enters provided substantial evidence that the Rule would in f

act harm public safety, h ealth, and nutrition. D HS itself repeatedly acknowledge d that hospitals m ight face financial harm s as a result o f the Rule, but D HS repeatedly declined to quantify, assess, o r otherwis e deal with the problem in any m eaningful way

. See, e.g. , 84 Fed. Reg. at 41,313–14, 41,384, 41,475, 4 1
, 4 76. This is inadequate and suggests that DHS’s posit i on was intractable. As the D.C. Circuit has observed, m aking som e m ention of evidence but then com ing to a co n trary, “unsupported and conclusory” decision “add[s] nothing to the agency’s defense of its thesis except perhaps the i mp l ication that it was comm itted to its position regardless of any facts to the contrary.” Chem. Mfrs. Ass’n. v. EPA
, 28 F.3d 1259, 1266 (D.C. Cir. 1994). D HS responded by excluding certain program s for c h i ldren and pregnant wom en from the am bi t of the Rule, but never

a d dr e ssed the larger concerns about the Rule’s effect on health as well as on hospital resources.

There were other serious health concerns. For exam ple,

comm ents dem onstrated that the Rule would endanger public health by d ecreasing vaccination rates in the g eneral population. D HS insisted that vaccine s would “still be

av ailab le” t o Med i caid -d isen rolled individuals b ecau se “ lo cal health centers and state h ealth d epartm ents” woul d pick up the slack, id. at 41,385, despite objections voiced by suchC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 40

local health centers and state health departm ents them selves showing tha t the Rule will put the populations they serve—citizens and non-citizens alike—in danger. See, e.g. , Mass. Dep’t of Pub. Health, Comm ents on Inadm issibility on P u b lic C h arg e G ro un d s (D ec. 2 0 1 8 ), http s://w ww

. re gu l at i o n s

. g o v / d o c u m e nt ?D = U S C I S

- 2 0 1 0

- 0 0 1 2 -4 5 6 9 7 ; H illto wn C m t y

. Health Ctr., Comm ents on Inadm issibility on Public Charge Grounds (Dec. 2018), https://www.regulations.gov/docum e nt? D=USCIS-2010-0012-45 6 7 5. A decision that “runs
counter to the evidence” o r “is so im plausible that it could not be ascribed to a difference in view or the product of agency expertise” is arbitrary and capricious. State Farm , 463 U.S.
at 43. The prom

ulgation of this Rule is such a decision. D HS claim s no expertise in public h e al th, unlike the scores o f expert comm enters who weighed in against the Rule.

3. Reversal of Position

Ab o v e all, DHS f

ailed to explain its abrupt change in policy from the 1999 Guidance. An agency reversing a p rior policy “m

ust show that there are good reasons for the new po l i cy” and p rovide “a reasoned explanation

. . . for disregardin g fa cts and circum stances that underlay or were engendered by the p rior p olicy.” FCC v. F ox Television Station s , I

n c. , 556 U.S. 5 02, 5 15–16 (2009). The district
courts b elow found that DHS h a d failed to satisfy this standard. C

ity and Cnty. of SF

, 4 08 F

. Supp. 3d at 1111–12; Washington v. DHS , 408 F. Supp. 3d at 1220.

The 1999 Guidance had been issu e d after the 1996 statutory am endm ents setting out the general factors t o b e taken into account in m aking a p ublic charge determ ination. The Guidance c o n sidered all o f the different types o f public assistance governm ents o ffe r e d
, i n c l u d i n g p r o g ra m sC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 41

p ro v id i n g s ub s istence incom e and t h o s e p r o v i d i n g supplem ental benefits. T h e Gu id an ce expressly provided that

re c eipt of supplem ental assistance for food, healthcare and housing were not to be considered in assessing an i mm igrant’s likelihood o f b ecom ing a public charge. As discussed above, this provision was consisten t wi t h over a century of judicial and adm inis trative decisions interpreting the public charge bar. The Rule, however, provides that the prospect of receiving those sam e supplem ental benefits, for

even a few m onths, renders an individual inadm issible. This is directly contrary to the 1999 Guidance.

Yet DHS prom

ulgated the Rule without any explanation of why the facts found, and the analysis provided, in the p rior Guidance were now unsatisfactory. This is a practice the Sup r e me Court has rejected: an agency about-face with no “reasoned explanation

. . . f or disregarding” the findings underlying the prior policy. Fox
, 5 56 U.S. at 516. Here is an illustration of the about-face. The 1999 Guidance had f ound that d eterring acceptan ce of “im portant health and nutrition benefits” had y ielded “an adverse im pact

. . . on public health and the general welfare.” 64 Fed. Reg. at 28,692. In contrast, DHS n ow says that the new Rule “will ultim ately strengthen public safety, h ealth, and nutrition.” 8 4 Fed. Reg. at 41,314. DHS provides no basis for this conclusion or for its departure from the em pirical assessm ents underlying the prior policy.

In light of this policy change, coup l e d with the “serious reliance interests” en g endered by over two decades o f reliance on the Guidance, DHS w as required to provide a “m ore detailed justification” for the Rule. Fox
, 556 U. S.
at 515. DHS provides no justification, other than the repeated conclusory m antra that the new policy w ill encour a g e s e lfsufficiency. DHS in effect says that b y creating aC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 42

disincentive f

or imm igrants to us e available assistance, the Rule will “ensur[e] tha t [ adm itted imm igrants] be selfsufficient and not reliant on public resources.” 8 4 Fed. R eg. at 41,319. DHS does not substantiate, and the record does not support, this empirical prediction. See, e.g. , Hilary Hoynes, Diane Whitm or e Schanzenbach & Douglas Alm o nd, LongRun Impacts of Childhood A ccess to the Safety Net
, 1 06 Am

. Econ. Rev. 903, 930 (finding that having access to food

s ta m ps during childhood leads to “significant im provem e n t in adult health” and “increases in econom ic self-sufficiency,” including decreased welfare participation). Plaintiffs urge that their experience is contrary to DHS’s c o n c l u sion. Also
to the contrary is the experience related in m ultiple am icus briefs. See, e.g. , Brief for the Institute for Policy Integrity as Am icus Curiae Supporting Pe t itioners at 9 (citing evidence th at red u ctio n s in S N A P p ar

t i c i p at i o n in crease h o m elessn e ss); Brief f or National Housing Law Project et al. as Am ici Curiae Supporting Petitioners at 13 (citing evidence that Medicaid

m ade it easier for recipients to work and find work).

4. Arbitrary and Capricious

In sum , DHS adopted the Rule, reversing p r ior, longstanding public policy, without adequately taking into
account its potential adverse effects on the public f isc and the public welfare. W e m u st conclude that the Rule’s
prom ulgation was arbitrary and capricious as well as contrary to law w ithin the m eaning of the APA. 5 U.S.C. § 706(2)(A).C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 43

F. Remaining Injunction Factors

1. Irreparable Harm

Plaintiffs h ave shown a likelihood of success on the

m erits of their claim that the Rule violates t h e s tandards o f the APA in that it is both contra ry t o law and arbitrary and capricious. T o support entry of an injunction, Plaintiffs m ust also show a likely threat of irreparable injury in the absence of an injunction. W

i n t e r , 5 55 U.S. at 22. Plaintiffs have established that they likely are bearing and will continue to bear heavy financial costs because of withdrawal o f imm igrants from federal assistance program s and consequent dependence on state and local program s.

There is no dispute that such econom ic harm is sufficient
to constitute irreparable harm because of the unavailability o f

m onetary dam age s

. See California v. Azar
, 911 F.3d 558, 581 (9th Cir. 2018 ) ; 5 U. S.C. § 702 (providing for relief “other than m onetary d am ages”). DHS c o un ters that such harm in this c a s e is speculative, am ounting to n o m ore than the po ssibility of future injury. See Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Tr.
, 636 F.3d 1 150, 1160 (9th Cir. 2011).

W e have, however, alr e a dy seen that in this case such harm is m ore than speculative. Pl ai n t iffs have presented evidence that they a re already experiencing harm and D HS itself has projected si g n i f icant disenrollm ent from federal
p rogram s, likely leading to enrollm ents in state and lo c al

ones. The d istrict courts both m ade f actual findings as to harm that DHS does not refute with citations to the record.C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 44

2. Balance of Equities and Public Interest

There was no error in finding that the balance of equities and public interest support an injunction. Th e Northern District pointed to the need for “continuing the provision of

m edical services through Medicaid to those who wo u ld predictably disenroll absent an injun c tion” in light o f the explanations given b y “parties a nd num erous am ici

. . . [of the] adve r s e health consequences n ot only to those who disenroll, but to the entire populations of the plaintiff states, for exam ple, in the form of d ecreased vaccination rates.” City and C nty. of SF
, 408 F

. Supp. 3d at 1127. The public interest in preventing contagion is part i cularly salient during the current global pandem ic.

Al th ough DHS nevertheless argues that it is harm ed by
not being able to im

plem ent its new d efinition of public charge, if it is u ltim ately successful in defending the m erits o f the Rule, the h arm will am ount to no m ore than a tem porary extension of the law p reviously in effect for decades. Given the financial burdens that plaintiffs have persuasively dem onstrated will befall them as a result o f disenrollm ent from f ederal program s, coupled with adverse effects on the health and welfare of the imm igrant as well as g eneral populat i o n, we cannot say the district courts abused their discretio n i n finding that the balance o f equities and public interest weigh in favor the injunction.

G. Propriety of a Nationw ide Injunction

The No rth ern District issued a prelim inary injunction lim ited to the territory of the plaintiff state and local entities before it. The Eastern District issued a nationwide injunction, explaining that a m ore lim ited injunction would not preventC I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 45

a l l the harm s alleged. The court was concerned ab o u t protecting imm igrants from harm if they m oved outside of the plaintiffjurisdictions, about the econom ic im pact on plaintiff
states if imm igrants mo ved to them to evade the
consequences o f the Rule, and about lawful imm igrants being subject to the Rule at points of entry afte r travel abroad. Washington
, 408 F. Supp. 3d at 1223.

T h e ap p ro p riateness of nationwide injunctions in any case has com e under serious question. See, e.g. , DHS v. New York
, 140 S Ct. 599, 599–601 (2020) (Gorsuch, J., concurring); Trump v. Hawaii
, 138 S. Ct. 2 392, 2 424–29 (2018) (Thom as, J., concurring). In explaining the lim it ed scope o f its injunction, the Second Circuit questioned the propriety of o ne court imposing its will on all:

It is not clear to us that, where contrary v iews could be or have been taken b y courts o f parallel or superior authority en t itled to d e t e rmi n e th e l aw wi th i n t h e i r o w n geographical jurisdictions, the court that im poses the m ost sweeping injunction should control the nationwide legal landscape.

New York, 969 F.3d at 88.

Whatever the m erits of n ationwide injunctio ns in other contexts, we c o n clude a nationwide injunction is not appropriate in this case. This is because the im pact o f t h e Rule w ould fall upon all districts at the s a me ti me, and the

sam e issues regarding its validity have been and are being litigated in multiple federal district and circuit courts.C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 46

Accordingly, we v acate that portion of the Eastern District’s injunction m aking it applicable nationwide
, b u t otherwise affirmit.

H. Rehabilitation Act

The plaintiffs also contend that th e Rule violates the Rehabilitation Act, which bans d iscrim ination on the basis o f disabilities. 29 U.S.C. § 794(a). The Seventh Circuit looked favorably on this contention, and the Second Circuit expressly d id not address it. Cook Cnty.
, 962 F.3d at 228, New Yo rk
, 969 F.3d at 6 4 n.20. Because we h ave held that the Rule v iolates the APA as co n tr a ry t o law and arbitrary and capricious, we sim ilarly do not address the Rehabilitation Act.

I. Conclusion

The order of the Di st r i c t Court for the Northern District of C alifornia is AFFIRMED

. The order of the District Court for the Eastern District of W ashingto n is AFFIRMED in part a nd VACATED in pa rt

. Costs are awarded to the plaintiffs.

VANDYKE, Circuit Judge, dissenting:

For the reasons ably art i c u l a ted by our court in a Decem b er 2019 published opinion, 1 by the Fourth Circuit in

1 City & County of San F rancisco v. USCIS
, 944 F.3d 773 (9th Cir. 2019).C I T Y & C T Y

. O F S A N F R A N C I S C O V

. USCIS 47

an August 2020 opinion, 2 and b y a dissenting Seventh Circuit j udge in a June 2020 opinion (particularly notable fo r i t s erudition) 3 —and im

plied by the Suprem e C ourt’s m u ltiple stays this year of injunctions virtu al l y i d entical to those the

m ajority today affirm s 4 —I m u st respectfully dissent.

2 CASA de Maryland, Inc. v. Trump , 971 F.3d 220 (4th Cir. 2020).

3 Cook County v. Wolf

, 962 F.3d 208, 234–54 (7th Cir. 2020) (Barrett, J., dissenting).

4 Dep’t of Homeland Sec. v. New York
, 140 S. Ct. 599 (20 2 0 ); Wolf v. Cook County , 140 S. Ct. 681 (2020).