FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITY AND COUNTY OF SAN

FRANCISCO; COUNTY OF SANTA

CLARA,

Plaintiffs-Appellees,

v.

UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES, a federal

agency; U.S. DEPARTMENT OF

HOMELAND SECURITY, a federal

agency; CHAD F. WOLF, in his

official capacity as Acting Secretary

of the United States Department of

Homeland Security; KENNETH T.

CUCCINELLI, in his official capacity

as Acting Director of United States

Citizenship and Immigration

Services,

Defendants-Appellants.

No. 19-17213

D.C. No.

4:19-cv-04717-

PJH
2 CITY & CTY. OF SAN FRANCISCO V. USCIS

STATE OF CALIFORNIA; DISTRICT OF

COLUMBIA; STATE OF MAINE;

COMMONWEALTH OF

PENNSYLVANIA; STATE OF OREGON,

Plaintiffs-Appellees,

v.

U.S. DEPARTMENT OF HOMELAND

SECURITY, a federal agency; UNITED

STATES CITIZENSHIP AND

IMMIGRATION SERVICES, a federal

agency; CHAD F. WOLF, in his

official capacity as Acting Secretary

of the United States Department of

Homeland Security; KENNETH T.

CUCCINELLI, in his official capacity

as Acting Director of United States

Citizenship and Immigration

Services,

Defendants-Appellants.

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. Hamilton, Chief District Judge, Presiding
CITY & CTY. OF SAN FRANCISCO V. USCIS 3

STATE OF WASHINGTON;

COMMONWEALTH OF VIRGINIA;

STATE OF COLORADO; STATE OF

DELAWARE; STATE OF ILLINOIS;

STATE OF MARYLAND;

COMMONWEALTH OF

MASSACHUSETTS; DANA NESSEL,

Attorney General on behalf of the

People of Michigan; STATE OF

MINNESOTA; STATE OF NEVADA;

STATE OF NEW JERSEY; STATE OF

NEW MEXICO; STATE OF RHODE

ISLAND; STATE OF HAWAII,

Plaintiffs-Appellees,

v.

U.S. DEPARTMENT OF HOMELAND

SECURITY, a federal agency; CHAD

F. WOLF, in his official capacity as

Acting Secretary of the United States

Department of Homeland Security;

UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES, a federal

agency; KENNETH T. CUCCINELLI, in

his official capacity as Acting

Director of United States Citizenship

and Immigration Services,

Defendants-Appellants.

No. 19-35914

D.C. No.

4:19-cv-05210-

RMP

OPINION
4 CITY & CTY. OF SAN FRANCISCO V. USCIS

Appeal from the United States District Court

for the Eastern District of Washington

Rosanna Malouf Peterson, District Judge, Presiding

Argued and Submitted September 15, 2020

San Francisco, California

Filed December 2, 2020

Before: Mary M. Schroeder, William A. Fletcher, and

Lawrence VanDyke, Circuit Judges.

Opinion by Judge Schroeder;

Dissent by Judge VanDyke

SUMMARY*

Immigration 

In cases in which two district courts issued preliminary

injunctions enjoining implementation of the Department of

Homeland Security’s redefinition ofthe term“public charge,”

which describes a ground of inadmissibility, the panel:

1) affirmed the preliminary injunction of the District Court

for the Northern District of California covering the territory

of the plaintiffs; and 2) affirmed in part and vacated in part

the preliminary injunction of the District Court for the

Eastern District of Washington, vacating the portion of the

injunction that made it applicable nationwide.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
CITY & CTY. OF SAN FRANCISCO V. USCIS 5

Under 8 U.S.C. § 1182(a)(4)(A), any alien who, in the

opinion of the Secretary of Homeland Security, at the time of

application for admission or adjustment of status, is likely at

any time to become a “public charge,” is inadmissible. No

statute has ever defined the term. In 1999, the Immigration

and Naturalization Service issued guidance (Guidance)

defining the term as one who “is or is likely to become

primarily dependent on the government for subsistence.” The

Guidance expressly excluded non-cash benefits intended to

supplement income.

In August 2019, the Department of Homeland Security

(DHS) issued a rule (the Rule) that defines “public charge” to

include those who are likely to participate, even for a limited

period of time, in non-cash federal government assistance

programs. The Rule defines the term “public charge” to

mean “an alien who receives one or more [specified] public

benefits . . . for more than 12 months in the aggregate within

any 36-month period.” Inadmissibility on Public Charge

Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019). The Rule

also directs officials to consider English proficiency in

making the public charge determination.

States and municipalities brought suits in California and

Washington, asserting claims under the Administrative

Procedure Act. The District Court for the Northern District

of California issued a preliminary injunction covering the

territory of the plaintiffs, and the District Court for the

Eastern District of Washington issued a nationwide

injunction. A divided motions panel of this court granted

DHS’s motion for a stay of those injunctions pending appeal.

The panel first concluded that the plaintiffs had

established Article III standing. The plaintiffs are states and
6 CITY & CTY. OF SAN FRANCISCO V. USCIS

municipalities that alleged that the Rule is causing them

continuing financial harm, as lawful immigrants eligible for

federal cash, food, and housing assistance withdraw from

these programs and instead turn to state and local programs. 

The panel concluded that this constituted sufficient injury. 

Addressing whether the injury is apparent or imminent, the

panel explained that: 1) the Rule itself predicts a 2.5 percent

decrease in enrollment in federal programs and a

corresponding reduction in Medicaid payments of over one

billion dollars per year; 2) the Rule acknowledges that

disenrollment will cause other indirect financial harm to state

and local entities; and 3) declarations in the record show that

such entities are already experiencing disenrollment.

Next, the panel concluded that the interest of the plaintiffs

in preserving immigrants’ access to supplemental benefits is

within the zone of interests protected by the “public charge”

statute. The panel rejected DHS’s suggestion that only the

federal government and individuals seeking to immigrate are

within the zone of interest. The panel also rejected DHS’s

suggestion that the purpose of the public charge statute is to

reduce immigrants’ use of public benefits. Addressing

DHS’s contention that the statute’s overall purpose is to

promote self-sufficiency, the panel concluded that providing

access to better health care, nutrition, and supplemental

housing benefits is consistent with precisely that purpose. 

The panel next concluded that the plaintiffs had

demonstrated a high likelihood of success in showing that the

Rule is inconsistent with any reasonable interpretation of the

public charge statute and therefore contrary to law. The

plaintiffs pointed to repeated congressional reenactment of

the provision after it had been interpreted to mean long-term

dependence on government support, noting that the statute
CITY & CTY. OF SAN FRANCISCO V. USCIS 7

had never been interpreted to encompass temporary resort to

supplemental non-cash benefits. The plaintiffs contended that

this repeated reenactment amounted to congressional

ratification of the historically consistent interpretation.

The panel concluded that the history of the provision

supported the plaintiffs’ position, noting that: 1) from the

VictorianWorkhouse through the 1999 Guidance,the concept

of becoming a “public charge” has meant dependence on

public assistance for survival; 2) the term had never

encompassed persons likely to make short-termuse of in-kind

benefits that are neither intended nor sufficient to provide

basic sustenance; and 3) the Rule introduces a lack of English

proficiency. The panel also noted that the opinions of the

Second Circuit and the Seventh Circuit, in affirming

preliminary injunctions of the Rule, agreed that the Rule’s

interpretation was outside any historically accepted or

sensible understanding of the term. 

The panel next concluded that the Rule’s promulgation

was arbitrary and capricious, explaining that DHS: 1) failed

to adequately consider the financial effects of the Rule;

2) failed to address concerns about the Rule’s effect on public

safety, health, and nutrition, as well its effect on hospital

resources and vaccination rates in the general population; and

3) failed to explain its abrupt change in policy from the 1999

Guidance. 

The panel also concluded that the remaining preliminary

injunction factors favored the plaintiffs. The panel explained

that the plaintiffs had established that they likely are bearing

and will continue to bear heavy financial costs because of

withdrawal of immigrants from federal assistance programs

and consequent dependence on state and local programs. The
8 CITY & CTY. OF SAN FRANCISCO V. USCIS

panel also observed that the public interest in preventing

contagion is particularly salient during the current global

pandemic, and noted the financial burdens on the plaintiffs

and the adverse effects on the health and welfare of the

immigrant as well as general population.

Finally, the panel concluded that a nationwide injunction

was not appropriate in this case because the impact of the

Rule would fall upon all districts at the same time, and the

same issues regarding its validity have been and are being

litigated in multiple federal district and circuit courts. 

Accordingly, the panel vacated that portion of the District

Court for the Eastern District of Washington’s injunction

making it applicable nationwide.

Dissenting, Judge VanDyke, wrote that for the reasons

ably articulated by this court in a December 2019 published

opinion in this case, by the Fourth Circuit in CASA de

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

by a dissenting Seventh Circuit judge in Cook County v. Wolf,

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

dissenting)—and implied by the Supreme Court’s multiple

stays this year of injunctions virtually identical to those the

majority today affirms—he must respectfully dissent.
CITY & CTY. OF SAN FRANCISCO V. USCIS 9

COUNSEL

Gerard Sinzdak (argued), Daniel Tenny, Joshua Dos Santos,

and Jack Starcher, Appellate Staff; David L. Anderson and

William D. Hyslop, United States Attorneys; Joseph H. Hunt,

Assistant Attorney General; Civil Division, United States

Department of Justice, Washington D.C.; for DefendantsAppellants.

H. Luke Edwards (argued), Raphael N. Rajendra, Julia B.

Spiegel, and Hannah Kieschnick, Deputy County Counsels;

Laura Trice, Lead Deputy County Counsel; Greta S. Hansen,

Chief Assistant County Counsel; James R. Williams, County

Counsel; Office of the County Counsel, County of Santa

Clara, San Jose, California; Dennis J. Herrera, City Attorney;

Jesse C. Smith, Chief Assistant City Attorney; Ronald P.

Flynn, Chief Deputy City Attorney; Yvonne R. Mere, Chief,

Complex & Affirmative Litigation; Sara J. Eisenberg, Chief

of Strategic Advocacy; Matthew D. Goldberg, Deputy City

Attorney; City Attorney’s Office, San Francisco, California;

for Plaintiffs-Appellees City and County of San Francisco;

County of Santa Clara.

Xavier Becerra,Attorney General; MatthewRodriguez,Chief

Assistant Attorney General; Michael L. Newman, Senior

Assistant Attorney General; Cherokee DM Melton,

Supervising Deputy Attorney General; Jennifer C. Bonilla,

Lisa Cisneros, Rebekah Fretz, Katherine Lehe, Marissa

Malouff, Julia Harumi Mass, Anita Garcia Velasco, Brenda

Ayon Verduzco, and Anna Rich, Deputy Attorneys General;

Office of the Attorney General, Oakland, California; Karl A.

Racine, Attorney General; Loren L. AliKhan, Solicitor

General; Office of the Attorney General, Washington, D.C.;

Aaron M. Frey, Attorney General; Susan P. Herman, Chief
10 CITY & CTY. OF SAN FRANCISCO V. USCIS

Deputy Attorney General; Office of the Attorney General,

Augusta, Maine; Ellen Rosenblum, Attorney General;

Benjamin Gutman, Solicitor General; Nicole DeFever and

Patricia Garcia Rincon, Attorneys; Oregon Department of

Justice, Salem, Oregon; Josh Shapiro, Attorney General;

Michael J. Fischer, Chief Deputy Attorney General; Aimee

D. Thomson, Deputy Attorney General; Office of the

Attorney General, Philadelphia, Pennsylvania; for PlaintiffsAppellees State of California, District of Columbia, State of

Maine, Commonwealth of Pennsylvania and State of Oregon.

Robert W. Ferguson, Attorney General; Noah G. Purcell,

Solicitor General; Tera M. Heintz, Deputy Solicitor General;

Jeffrey T. Sprung, Nathan K. Bays, and Joshua Weissman,

Assistant Attorneys General; Office of the Attorney General,

Seattle, Washington; Mark R. Herring, Attorney General;

Michelle S. Kallen, Deputy Solicitor General; Jessica Merry

Samuels, Assistant Solicitor General; Ryan Spreague Hardy,

Alice Anne Lloyd, and Mamoona H. Siddiqui, Assistant

Attorneys General; Office of the Attorney General,

Richmond, Virginia; Phil Weiser, Attorney General, Eric R.

Olson, Solicitor General; Office of the Attorney General,

Denver, Colorado; Kathleen Jennings, Attorney General;

Aaron R. Goldstein, State Solicitor, Monica A. Horton,

Deputy Attorney General; Department of Justice,

Wilmington, Delaware; Kwame Raoul, Attorney General;

Liza Roberson-Young, Public Interest Counsel; Office of the

Attorney General, Chicago, Illinois; Clare C. Connors,

Attorney General; Lili A. Young, Deputy Attorney General;

Department of the Attorney General, Honolulu, Hawaii;

Brian E. Frosh, Attorney General; Jeffrey P. Dunlap,

Assistant Attorney General; Office of the Attorney General,

Baltimore, Maryland; Maura Healey, Attorney General;

Abigail B. Taylor, Chief, Civil Rights Division; David Ureña,
CITY & CTY. OF SAN FRANCISCO V. USCIS 11

Special Assistant AttorneyGeneral; Angela Brooks,Assistant

Attorney General; Office of the Attorney General, Boston,

Massachusetts; Dana Nessel, Attorney General; Fadwa A.

Hammoud, Solicitor General; Toni L. Harris, First Assistant

AttorneyGeneral; MichiganDepartment ofAttorneyGeneral,

Lansing, Michigan; Keith Ellison, Attorney General; R.J.

Detrick, Assistant Attorney General; Attorney General’s

Office, St. Paul, Minnesota; Aaron D. Ford, Attorney

General; Heidi Parry Stern, Solicitor General; Office of the

Attorney General; Gurbir S.Grewal,Attorney General; Glenn

J. Moramarco, Assistant Attorney General; Office of the

Attorney General, Trenton, New Jersey; Hector Balderas,

Attorney General; Tania Maestas, Chief Deputy Attorney

General; Office of the Attorney General, Santa Fe, New

Mexico; Peter F. Neronha, Attorney General; Lauren E. Hill,

Special Assistant Attorney General; Office of the Attorney

General, Providence, Rhode Island; for Plaintiffs-Appellees

Washington, Virginia, Colorado, Delaware, Illinois,

Maryland, Massachusetts, Michigan, Minnesota, Nevada,

New Jersey, New Mexico, Rhode Island, and Hawaii.

Edward T. Waters, Phillip A. Escoriaza, and Amanda N.

Pervine, Feldesman Tucker Leifer Fidell LLP, for Amici

Curiae Public Health, Health Policy, Medicine, and Nursing

Deans, Chairs, and Scholars; American Public Health

Association; and American Academy of Nursing.

R. Adam Lauridsen, Chessie Thacher, Victor H. Yu, and

Nicholas R. Green, Keker Van Nest & Peters LLP, San

Francisco, California for Amici Curiae National HousingLaw

Project, Food Research & Action Center, and Center for Law

& Social Policy, National EducationAssociation, and Service

Employees International Union.
12 CITY & CTY. OF SAN FRANCISCO V. USCIS

Nicholas Espíritu, Linton Joaquin, Alvaro M. Huerta, Mayra

B. Joachin, and Max S. Wolson, National Immigration Law

Center, Los Angeles, California; Allon Kedem, Graham

White, Jayce Born, Hillary Anderson, Arnold & Porter Kaye

Scholer LLP, Washington, D.C., for Amici Curiae Immigrant

and Healthcare Service Organizations.

Barbara J. Parker, City Attorney; Maria Bee, Chief Assistant

City Attorney; Eric Bernstein, Senior Deputy City Attorney;

Malia McPherson, Deputy City Attorney; Caroline Wilson,

Fellow; Oakland, California; Michael N. Feuer, City

Attorney; Kathleen A. Kenealy, Chief Deputy City Attorney;

Danielle L. Goldstein, Deputy City Attorney, Los Angeles,

California; Vince Ryan, County Attorney; Robert HazeltineShedd, Assistant County Attorney; Harris County, Houston,

Texas; Margaret L. Carter and Daniel R. Suvor, O’Melveny

& Myers LLP, Los Angeles, California; Esteban A. Aguilar

Jr., City Attorney, Albuquerque, New Mexico; Anne L.

Morgan, City Attorney, Austin, Texas; Andre M. Davis, City

Solicitor, Baltimore, Maryland; Mark A. Flessner,

Corporation Counsel; Benna Ruth Solomon, Deputy

Corporation Counsel, Chicago, Illinois; Barbara J. Doseck,

Director of Law; John C. Muston, Chief Trial Counsel,

Dayton, Ohio; Crystal Barnes, Acting City Solicitor,

Holyoke, Massachusetts; Howard Phillip Schneiderman,

Senior Deputy Prosecuting Attorney, King County, Seattle,

Washington; Brian E. Washington, County Counsel, County

of Marin, San Rafael, California; Charles J. McKee, County

Counsel; William M. Litt, Anne K. Brereton, and Marina S.

Pantchenko, Deputy County Counsels; County of Monterey,

Salinas, California; Marc. P. Hansen, County Attorney,

Montgomery County, Rockville, Maryland; Marcel S. Pratt,

City Solicitor, Philadelphia, Pennsylvania; Susana Alcala

Wood,CityAttorney, Sacramento,California; John C. Beiers,
CITY & CTY. OF SAN FRANCISCO V. USCIS 13

County Counsel; David A. Silverman, Chief Deputy County

Counsel; Ilana Parmer Mandelbaum, Deputy County

Counsel; County of San Mateo, Redwood City, California;

Peter S. Holmes,CityAttorney, Seattle,Washington; Michael

Tubbs, Mayor, Stockton, California; Michael Jenkins, City

Attorney, West Hollywood, California; for Amici Curiae 20

Counties, Cities, and Municipalities.

Denny Chan, Justice in Aging, Los Angeles, California;

Regan Bailey and Natalie Kean, Justice in Aging,

Washington, D.C.; Russel L. Hirschhorn and Christopher

Spadaro, Proskauer Rose LLP, New York, New York; for

Amici Curiae Justice in Aging, American Society on Aging,

Caring Across Generations, Jewish Family Service of Los

Angeles, Jewish Federations of North America, National

Asian Pacific Center on Aging, National Council on Aging,

National Hispanic Council on Aging, Mazon, Phi, and Center

for Medicare Advocacy.

Alexandra Wald, Cohen & Gresser LLP, New York, New

York; Elizabeth B. Wydra, Brianne J. Gorod, and Dayna J.

Zolle, Constitutional Accountability Center, Washington,

D.C.; for Amici Curiae Legal Historians.

Simon Sandoval-Moshenberg and KellySalzmann,Legal Aid

Justice Center, Falls Church, Virginia; Ariel Nelson and Chi

Chi Wu, National Consumer Law Center, Boston,

Massachusetts; for Amici Curiae National Consumer Law

Center, Legal Aid Justice Center, Public Citizen Inc.,

Consumer Action, Equal Justice Society, Impact Fund,

Secure Justice, Media Alliance, Americans for Financial

Reform Education Fund, and New Economy Project.
14 CITY & CTY. OF SAN FRANCISCO V. USCIS

Richard L. Revesz, Jack Lienke, and Max Sarinsky, New

York, New York, as and for Amicus Curiae Institute for

Policy Integrity.

Debra Gardner, Monisha Cherayil, Sally Dworak-Fisher, and

Tyra Robinson, Baltimore, Maryland, as and for Amicus

Curiae Public Justice Center.

Paul J. Lawrence and Alanna E. Peterson, Pacifica Law

Group, Seattle, Washington, for Amici Curiae Nonprofit

Anti-Domestic Violence and Sexual Assault Organizations.

Diana Kasdan, Pilar Herrero, Amy Myrick, and Elyssa

Spitzer, New York, New York, as and for Amicus Curiae

Center for Reproductive Rights.

Robert M. Loeb, Thomas M. Bondy, Peter E. Davis, and

Emily Green, Orrick Herrington & Sutcliffe LLP,

Washington, D.C.; Douglas N.Letter,General Counsel; Todd

B. Tatelman, Principal Deputy General Counsel; Megan

Barbero, Josephine Morse, Adam A. Grogg, and William E.

Havemann, Deputy General Counsel; Office of General

Counsel, U.S. House of Representatives, Washington, D.C.,

for Amicus Curiae United States House of Representatives.

Harry Lee, Mary Woodson Poag, Johanna Dennehy, Steptoe

& Johnson LLP, Washington, D.C., for Amici Curiae

Immigration Law Professors.

Emily Tomoko Kuwahara, Crowell & Moring LLP, Los

Angeles, California; Austin J. Sutta, Crowell & Moring LLP,

San Francisco, California; for Amici Curiae Asian Americans

Advancing Justice, Asian American Legal Defense and
CITY & CTY. OF SAN FRANCISCO V. USCIS 15

Education Fund, National Women’s Law Center, and

38 Other Amici Curiae.

Sadik Huseny, Brittany N. Lovejoy, Joseph C. Hansen, Tess

L. Curet, and Alexandra B. Plutshack, Latham & Watkins

LLP, San Francisco, California, for Amici Curiae Fiscal

Policy Institute, President’s Alliance on Higher Education

and Immigration, and 12 Other Amici Curiae.

Susan M. Krumplitsch, Elizabeth Stameshkin, and

Priyamvada Arora, Cooley LLP, Palo Alto, California, for

Amici Curiae American Academy of Pediatrics; American

Medical Association; American College of Physicians;

American College of Obstetricians and Gynecologists;

California Medical Association; American Academy of

Pediatrics, California; American Academy of Pediatrics,

Hawaii Chapter; Alaska Chapter of the American Academy

of Pediatrics; Arizona Chapter of the American Academy of

Pediatrics; and Nevada Chapter, American Academy of

Pediatrics.

Paul W. Hughes, Michael B. Kimberly, and Matthew A.

Waring, McDermott Will & Emery LLP, Washington, D.C.,

for Amici Curiae 105 Businesses and Organizations.
16 CITY & CTY. OF SAN FRANCISCO V. USCIS

OPINION

SCHROEDER, Circuit Judge:

The phrase “public charge” enjoys a rich history in

Anglo-American lore and literature, one more colorful than

our American law on the subject. There have been relatively

few published court decisions construing the phrase, even

though our immigration statutes have barred admission to

immigrants who are likely to become a “public charge” for

more than a century. Until recently, the judicial and

administrative guidance has reflected the traditional

concept—rooted in the English Poor Laws and immortalized

by Dickens in the workhouse of Oliver Twist—of incapacity

and reliance on public support for subsistence. The first

comprehensive federal immigration law barred entry to “any

convict, lunatic, idiot, or any person unable to take care of

himself or herself without becoming a public charge.” 

Immigration Act of 1882, 22 Stat. 214, Chap. 376 § 2 (1882). 

The 1999 Guidance (the Guidance) issued by the Immigration

and Naturalization Service (INS), the predecessor of the

current agency, defined a “public charge” as one who “is or

is likely to become primarily dependent on the government

for subsistence.” See Field Guidance on Deportability and

Inadmissibility on Public Charge Grounds, 64 Fed. Reg.

28,689 (May 26, 1999).

In 2019, the Department of Homeland Security (DHS)

changed direction, however, and issued a rule (the Rule) that

defines the term to include those who are likely to participate,

even for a limited period of time, in non-cash federal

government assistance programs. The programs designated

by the Rule are not intended to provide for subsistence but

instead to supplement an individual’s ability to provide for
CITY & CTY. OF SAN FRANCISCO V. USCIS 17

basic needs such as food, medical care, and housing. 

8 C.F.R. § 212.21(b). Foreseeable participation for an

aggregate of twelve months in any of the federal programs

within a three-year span renders an immigrant inadmissible

as a public charge and ineligible for permanent resident

status. § 212.21(a). In other words, a single mother with

young children who DHS foresees as likely to participate in

three of those programs for four months could not get a green

card.

Litigation followed in multiple district courts against

DHS andU.S.Citizenship and Immigration Services (USCIS)

as states and municipalities recognized that the immediate

effect of the Rule would be to discourage immigrants from

participating in such assistance programs, even though

Congress has made them available to immigrants who have

been in the country for five years. According to the plaintiffs

in those cases, the Rule’s effect would be to increase

assistance demands on state and local governments, as their

resident immigrants’ overall health and welfare would be

adversely affected by non-participation in federal assistance

programs.

The challenges to the Rule in the district courts resulted

in a chorus of preliminary injunctions holding the Rule to be

contrary to law and arbitrary and capricious under the

Administrative Procedure Act (APA). 5 U.S.C. § 706(2)(A). 

These included the two preliminary injunctions before us, one

issued by the District Court for the Northern District of

California (Northern District) covering the territory of the

plaintiffs, and the other by the District Court for the Eastern

District of Washington (Eastern District) purporting to apply

nationwide. Our court became the first federal appeals court

to weigh in when we granted DHS’s motion for a stay of
18 CITY & CTY. OF SAN FRANCISCO V. USCIS

those injunctions pending appeal. City and Cnty. of San

Francisco v. USCIS, 944 F.3d 773, 781 (9th Cir. 2019). 

Preliminary injunctions were also issued by courts in the

Northern District of Illinois and the Southern District of New

York, and they were stayed by the United States Supreme

Court before appeals could be considered by the circuit courts

of appeals.

When the Seventh Circuit and the Second Circuit did

consider those preliminary injunction appeals, both courts

affirmed the injunctions. Although their reasoning differed

in some respects, both circuits concluded that the Rule’s

definition was both outside any historic or commonly

understood meaning of “public charge,” and arbitrary and

capricious, in concluding that short-term reliance on

supplemental benefits made immigrants dependent on public

assistance within the meaning of the statutory public charge

immigration bar. Cook Cnty., Ill. v. Wolf, 962 F.3d 208, 229,

232–33 (7th Cir. 2020); New York v. DHS, 969 F.3d 42,

80–81 (2nd Cir. 2020). The Second Circuit opinion was

unanimous, while a dissenting opinion in the Seventh Circuit

agreed with DHS that those who receive such supplemental

benefits could be considered public charges because, by

receiving some assistance, they are not completely selfsufficient. Cook Cnty., 962 F.3d at 250–51 (Barrett, J.,

dissenting).

The district court in Maryland also enjoined enforcement

of the Rule and was reversed by a divided decision of the

Fourth Circuit. The majority looked in large measure to the

fact that the Supreme Court had stayed the injunctions in the

Seventh and Second Circuits. CASA de Maryland, Inc. v.

Trump, 971 F.3d 220, 230 (4th Cir. 2020). In dissent, Judge

King viewed the Rule as outside the longstanding meaning of
CITY & CTY. OF SAN FRANCISCO V. USCIS 19

“public charge” and would have affirmed the injunction. He

also disagreed with the majority about the significance of the

Supreme Court’s stay, explaining that “[i]f the Court's

decision to grant a stay could be understood to effectively

hand victory to the government regarding the propriety of a

preliminary injunction, there would be little need for an

intermediate appellate court to even consider the merits of an

appeal in which the Court has granted a stay.” Id. at 281 n.16

(King, J., dissenting) (citing Cook Cnty., 962 F.3d at 234).

To understand the reason for this recent cascade of

litigation after a relatively quiescent statutory and regulatory

history, we review the historical background of the Rule. 

Such a review reveals the extent to which the Rule departs

from past congressional and administrative policies.

A. Statutory and Administrative Background

This country has had a federal statutory provision barring

the admission of persons likely to become a “public charge”

since 1882. The Immigration Act of 1882 barred entry to,

among others, “any convict, lunatic, idiot, or any person

unable to take care of himself or herself without becoming a

public charge.” The Immigration and Nationality Act now

provides that “[a]ny alien who, . . . in the opinion of the

[Secretary of Homeland Security] at the time of application

for admission or adjustment of status, is likely at any time to

become a public charge is inadmissible.” 8 U.S.C.

§ 1182(a)(4)(A). No statute has ever defined the term. For

over a century, agencies have routinely applied these

provisions in determining admissibility and removal as well

as in issuing visas for entry.
20 CITY & CTY. OF SAN FRANCISCO V. USCIS

In 1996, however, Congress amended the statute to add

five factors for agencies to consider in determining whether

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

age; health; family status; assets, resources and financial

status; and education and skills. § 1182(a)(4)(B)(i). 

Congress also included a provision requiring applicants to

produce an affidavit of support. See § 1182(a)(4)(C)–(D)

(requiring most family-sponsored immigrants to submit

affidavits of support); § 1183a (affidavit of support

requirements).

At nearly the same time, Congress enacted major reforms

of public benefit programs that, as relevant here, made only

non-citizens with five or more years of residency in the

United States eligible for public benefits such as

Supplemental Nutrition Assistance Program (SNAP) and

Medicaid. Personal Responsibility and Work Opportunity

Reconciliation Act (PRWORA), Pub. L. No. 104-193, 110

Stat. 2105, 2265 (1996). Previously, lawful immigrants had

generally been eligible for such benefits. Congress thus

simultaneously reduced the number ofimmigrants eligible for

this assistance and spelled out the factors to be considered in

a public charge determination. The fact that Congress

delineated the factors relevant to the public charge

determination at the same time it adjusted certain immigrants’

eligibility to receive specific supplemental assistance strongly

suggests that Congress did not intend for such assistance to be

considered as one of the public charge factors.

Judicial guidance in interpreting the phrase was

apparently not in need or demand: There are relatively few

such decisions. A leading early Supreme Court case resolved

the important question of whether the adverse economic

conditions in the location where the immigrant intends to live
CITY & CTY. OF SAN FRANCISCO V. USCIS 21

can render an immigrant likely to become a “public charge.” 

Gegiow v. Uhl, 239 U.S. 3 (1915). The Supreme Court’s

answer was no because the statute spoke to the permanent

characteristics personal to the immigrant rather than to local

labor market conditions. Id. at 10. We followed Gegiow in

Ex parte Sakaguchi, 277 F. 913 (9th Cir. 1922), where we

held that a person temporarily in need of family assistance

should not have been excluded as likely to become a public

charge. We so held because there was an absence of “any

evidence whatever of mental or physical disability or any fact

tending to show that the burden of supporting the appellant is

likely to be cast upon the public.” Id. at 916. Thus, our court

in Sakaguchi understood the standard for determining

whether someone is a public charge to be whether the

“burden of support” falls on the public.

Administrative decisions followed the Supreme Court’s

lead by looking to the inherent characteristics of the

individual rather than to external circumstances. The Board

of Immigration Appeals thus held that only an individual with

the inherent inability to be self-supporting is excludable as

“likely to become a public charge” within the meaning of the

statute. Matter of Harutunian, 14 I & N. Dec. 583, 589–90

(BIA 1974); Matter of Vindman, 16 I. & N. Dec. 131, 132

(B.I.A. 1977); see also New York, 969 F.3d at 69. There has

been corollary administrative recognition that even if an

individual has been on welfare, that fact does not in and of

itself establish the requisite likelihood of becoming a public

charge. An Attorney General decision collected authorities

indicating that it is the totality of circumstances that must be

considered in order to determine whether “the burden of

supporting the alien is likely to be cast on the public.” Matter

of Martinez-Lopez, 10 I & N. Dec. 409, 421–22 (BIA 1962;

A.G. 1964) (citing Sakaguchi, 277 F. at 916). Likely receipt
22 CITY & CTY. OF SAN FRANCISCO V. USCIS

of some public benefits does not automatically render an

immigrant a public charge because the public does not bear

the “burden of support.”

The 1996 amendments, which added factors to be

considered and created the current public charge statutory

provision, caused some confusion as to how big a change

they represented. The INS, the agency then in charge of

administering immigration, decided a regulatory definition

would be helpful. It adopted the 1999 Guidance, the first

regulatory guidance to interpret the rather ancient notion of

“public charge” in light of the myriad, modern forms of

public assistance. 64 Fed. Reg. 28,269.

The Guidance defined a “public charge” as a non-citizen

who depends on the government for survival, either by receipt

of income or confinement in a public institution. It described

persons “primarily dependent on the government for

subsistence, as demonstrated by either (i) the receipt of public

cash assistance for income maintenance or

(ii) institutionalization for long term care at government

expense.” Id. at 28,689. It thus embodied the traditional

notion of primary dependence on the government for either

income or institutional care.

The Guidance went on to identify the types of public

assistance that would typically qualify as evidence of primary

dependence: (1) Supplemental Security Income (SSI);

(2) Temporary Assistance for Needy Families (TANF); (3)

state and local cash assistance programs; and (4) programs

supporting people institutionalized for long-term care. Id. at

28,692. The Guidance expressly excluded non-cash benefits

intended to supplement income and not to provide primary

support. The explanation lay with the changing times that
CITY & CTY. OF SAN FRANCISCO V. USCIS 23

were bringing benefits to more and more families to improve

their health and welfare. See id. (“[C]ertain federal, state, and

local benefits are increasingly being made available to

families with incomes far above the poverty level, reflecting

broad public policy decisions about improving general public

health and nutrition, promoting education, and assisting

working-poor families in the process of becoming selfsufficient. Thus, participation in such non-cash programs is

not evidence of poverty or dependence.”).

The Guidance actually encouraged non-citizens to receive

supplemental benefits in order to improve their standard of

living and to promote the general health and welfare. The

Guidance drew a sharp distinction between the receipt of such

supplemental benefits and dependence on the government for

subsistence income that would render the individual a “public

charge.” Id. at 28,692–93.

The 2019 Public Charge Rule we review in this case

effectively reversed that policy by making receipt of

supplemental benefits the very definition of a public charge. 

See Inadmissibility on Public Charge Grounds, 84 Fed. Reg.

41,292 (Aug. 14, 2019). The Rule defines the term “public

charge” to mean “an alien who receives one or more

[specified] public benefits . . . for more than 12 months in the

aggregate within any 36-month period (such that, for

instance, receipt of two benefits in one month counts as two

months).” Id. at 41,501. The public benefits specified by the

Rule include most Medicaid benefits, SNAP benefits, Section

8 housing vouchers and rental assistance, and other forms of

federal housing assistance. Id. Any receipt of such a benefit,

no matter how small, will factor into the public charge

determination. The Rule also directs officials to consider
24 CITY & CTY. OF SAN FRANCISCO V. USCIS

English proficiency in making the public charge

determination. Id. at 41,503–04.

The Rule was greeted with challenges in federal district

courts throughout the country. We deal with those in this

circuit.

B. The District Court Injunctions

On appeal are two district court decisions granting

preliminary injunctions barring enforcement of the Rule. The

Northern District considered the challenges of California, the

District of Columbia, Maine, Pennsylvania, and Oregon,

consolidated with the challenges brought by the City and

County of San Francisco, and the County of Santa Clara. The

Eastern District heard the challenges brought by Washington,

Virginia, Colorado, Delaware, Hawaii, Illinois, Maryland,

Massachusetts, Michigan, Minnesota, Nevada, New Jersey,

New Mexico, and Rhode Island. Both district courts agreed

that the plaintiffs had standing because they had shown that

they would likely suffer economic harm and other costs and

that their concerns were within the zone of interests of the

statute. Both held that the new definition of “public charge”

was likely not a permissible interpretation of the statute

because it would depart from the longstanding, settled

understanding that a person does not become a public charge

by receiving short-term aid, and must instead demonstrate an

inherent incapacity to provide subsistence. City and Cnty. of

San Francisco v. USCIS, 408 F. Supp. 3d 1057, 1101 (N.D.

Cal. 2019), Washington v. DHS, 408 F. Supp. 3d 1191, 1219

(E.D. Wash. 2019). Both found the Rule to be likely arbitrary

and capricious because the agency failed to consider the

burdens the Rule would impose on states and municipalities. 
CITY & CTY. OF SAN FRANCISCO V. USCIS 25

The Eastern District issued a nationwide injunction, and the

Northern District declined to do so.

Within a few weeks of the district court rulings, a divided

motions panel of this court, however, stayed both injunctions

pending this appeal. City and Cnty. of SF, 944 F.3d 773. The

panel majority wrote that DHS was likely to prevail because

the Rule would probably be viewed as a reasonable

interpretation of a statute that had no consistent historical

application and gave the agency “considerable discretion.” 

Id. at 796, 799. Judge Owens dissented in part and would

have denied the stay. Id. at 809–10 (Owens, J., dissenting).

The stay was based on a prediction of what this panel

would hold in reviewing the merits of the preliminary

injunctions. The stay in this case was entered at a particularly

early point, less than two months after the district court

injunctions. Almost none of the extensive documentation

relevant to this appeal was before the motions panel. The

brief of the appellant DHS in the Northern District case had

been filed only the day before the panel entered its stay, and

the opening brief in the Eastern District case was not filed

until the day after. Still to come were not only the answering

and reply briefs in both appeals, but two dozen amicus briefs,

many of which we have found very helpful.

At least equally important, no other circuit court opinions

had yet considered the issues. By now we have heard from

three. One of those opinions even discussed and disagreed

with the reasoning of this court’s motions panel stay opinion,

pointing out that it “pinn[ed] the definition of ‘public charge’

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

was no consistent interpretation of the Rule. New York,

969 F.3d at 73 (emphasis in original). The court there said
26 CITY & CTY. OF SAN FRANCISCO V. USCIS

our motions panel thereby went “astray.” Id. This was

because the issue was not whether a “public charge” had

always received similar assistance. Id. The issue should have

been whether the “inquiry” under the statute had been

consistent. Id. The Second Circuit concluded the public

charge inquiry had always been whether the non-citizen “is

likely to depend on that [assistance] system.” Id.

We therefore turn to the appeal before us. We deal first

with DHS’s arguments that the plaintiffs may not maintain

the suit because they lack Article III standing or are outside

the zone of interests of the immigration statute in question.

C. Plaintiffs’ Capacity to Maintain the Action

Plaintiffs are states and municipalities that allege the Rule

is causing them to suffer continuing financial harm, as lawful

immigrants eligible for federal cash, food, and housing

assistance withdraw from these programs to avoid the impact

of the Rule. Plaintiffs allege harm because such immigrants

will instead turn to assistance programs administered by the

state and local entities.

DHS argues that such injuries are speculative and

represent only plausible future injury. There is no question

that to have Article III standing to bring this action, the

plaintiffs must allege that they have suffered, or will

imminently suffer, a “concrete and particularized” injury in

fact. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). 

There is also no question that an increased demand for aid

supplied by the state and local entities would be such an

injury. The only question is whether such demand is, as of

yet, apparent or imminent.
CITY & CTY. OF SAN FRANCISCO V. USCIS 27

That is not a difficult question to answer. The Rule itself

predicts a 2.5 percent decrease in enrollment in public benefit

programs and a corresponding reduction in Medicaid

payments of over one billion dollars per year. Final Rule,

84 Fed. Reg. at 41,302, 41,463. The Rule itself further

acknowledges that disenrollment will cause other indirect

financial harm to state and local entities by increasing the

demand for uncompensated indigent care. Declarations in the

record show that such entities are already experiencing

disenrollment as a result of the Rule. See City and Cnty. of

SF, 408 F. Supp. 3d at 1122.

DHS nevertheless asserts that the Rule will result in a

long-term cost savings after states compensate for the loss of

federal funds by reforming their operations. But such longterm reforms would not remedy the immediate financial

injury to the plaintiffs or the harms to the health and welfare

of those individuals affected. As the Second Circuit

explained, “this simplistic argument fails to account for the

fact that the States allege injuries that extend well beyond

reduced Medicaid revenue and federal funding to the States,

including an overall increase in healthcare costs that will be

borne by public hospitals and general economic harms.” New

York, 969 F.3d at 60. Thus, plaintiffs have established Article

III standing.

Those suing under the APA, must also establish that the

interest they assert is at least “arguably within the zone of

interests to be protected or regulated by the statute” in

question. Match-E-Be-Nash-She-Wish Band of Pottawatomi

Indians v. Patchak, 567 U.S. 209, 224 (2012) (quoting Ass’n

of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150,

153 (1970)). The Supreme Court has described the test as

“not meant to be especially demanding” and as “not
28 CITY & CTY. OF SAN FRANCISCO V. USCIS

requir[ing] any ‘indication of congressional purpose to

benefit the would-be plaintiff.’” Id. at 225 (quoting Clarke v.

Sec. Indus. Ass’n, 479 U.S. 388, 399–40 (1987)). A

plaintiff’s interest need only be “sufficiently congruent with

those of the intended beneficiaries that the litigants are not

‘more likely to frustrate than to further the statutory

objectives.’” First Nat. Bank & Tr. Co. v. Nat’l Credit Union

Admin., 988 F.2d 1272, 1275 (D.C. Cir. 1993) (quoting

Clarke, 479 U.S. at 397 n.12).

The statute in question is, of course, the immigration

statute that renders inadmissible an individual likely to

become a “public charge.” 8 U.S.C. § 1182(a)(4)(A). DHS

appears to contend that the only entities within the zone of

interests are the federal government itself and individuals

seeking to immigrate, because the provision deals with

immigration and only the federal government controls

immigration. If that were to define the zone of interests

regulated by the statute, the scope of permissible immigration

litigation against the government would be so narrow as to

practically insulate it from many challenges to immigration

policy and procedures, even those violating the Constitution

or federal laws.

DHS suggests that the purpose of the public charge

exclusion is to reduce immigrants’ use of public benefits, and

that the plaintiffs’ suit therefore contradicts this purpose by

seeking to make more federal benefits available. But this

assumes that Congress’s statutory purpose was the same as

DHS’s purpose here, which is the very dispute before us. As

the Second Circuit pointed out, “DHS assumes the merits of

its own argument when it identifies the purpose of the public

charge ground as ensuring that non-citizens do not use public

benefits . . . . Understood in context, [the public charge bar’s]
CITY & CTY. OF SAN FRANCISCO V. USCIS 29

purpose is to exclude where appropriate and to not exclude

where exclusion would be inappropriate.”) New York,

969 F.3d at 62–63.

Moreover, DHS maintains that the statute’s overall

purpose is to promote self-sufficiency. Providing access to

better health care, nutrition and supplemental housing

benefits is consistent with precisely that purpose. See Cook

Cnty., 962 F.3d at 220 (access to affordable basic health care

may promote self-sufficiency); Hilary Hoynes, Diane

Whitmore Schanzenbach & Douglas Almond, Long-Run

Impacts of Childhood Access to the Safety Net, 106 Am.

Econ. Rev. 903, 921 (2016) (access to food stamps in

childhood significantly increases economic self-sufficiency

among women). For these reasons, the interests of the

plaintiffs in preserving immigrants’ access to supplemental

benefits is within the zone of interests protected by the

statute.

We therefore conclude that the district courts correctly

determined that the plaintiffs are entitled to maintain this

action. All of the circuits to consider the validity of this Rule

have reached a similar conclusion. See Cook Cnty., 962 F.3d

at 219–20, CASA de Maryland, 971 F.3d at 240–241, New

York, 969 F.3d at 62–63. We now turn to the question

whether they were entitled to the preliminary injunctions

entered by the district courts.

D. Contrary to Law

Both district courts concluded that the plaintiffs are likely

to prevail in their contention that the Rule violates the

statute’s public charge provision, and that such a conclusion

supports the entry of preliminary injunctions. See Winter v.
30 CITY & CTY. OF SAN FRANCISCO V. USCIS

Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). On

appeal, DHS contends, as it has throughout the litigation, that

the Rule is a permissible interpretation of the statute. The

plaintiffs maintain that the Rule violates the statute because

the Rule is not a reasonable interpretation of the meaning of

“public charge.”

History is a strong pillar supporting the plaintiffs’ case. 

Plaintiffs point to repeated congressional reenactment of the

provision after it had been interpreted to mean long-term

dependence on government support, and had never been

interpreted to encompass temporary resort to supplemental

non-cash benefits. Plaintiffs contend that this repeated

reenactment amounts to congressional ratification of the

historically consistent interpretation. DHS disagrees, arguing

that the repeated reenactments reflect congressional intent to

have a flexible standard subject to various executive branch

interpretations.

Our review of the history of the provision in our law

suggests the plaintiffs have the better part of this dispute. 

From the Victorian Workhouse through the 1999 Guidance,

the concept of becoming a “public charge” has meant

dependence on public assistance for survival. Up until the

promulgation of this Rule, the concept has never

encompassed persons likely tomake short-termuse of in-kind

benefits that are neither intended nor sufficient to provide

basic sustenance. The Rule also, for the first time, introduces

a lack of English proficiency as figuring into the equation,

despite the common American experience of children

learning English in the public schools and teaching their

elders in our urban immigrant communities. 8 C.F.R.

§ 212.22(b)(5)(ii)(D). Indeed, in Gegiow, 239 U.S. 3, the

Supreme Court found that the individuals in that case were
CITY & CTY. OF SAN FRANCISCO V. USCIS 31

not likely to become public charges even though they spoke

only Russian.

In New York, 969 F.3d 42, the Second Circuit essentially

agreed with plaintiffs’ historical analysis. The court

recognized and explained the line of settled judicial and

administrative interpretations of a public charge as one who

is primarily dependent on the government for subsistence. Id.

at 65–70. The court traced that history in far more detail than

we have outlined and was “convinced” that there was a wellsettled meaning of “public charge” even before congressional

passage of the Illegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA) in 1996, and that was a person

“unable to support herself, either through work, savings, or

family ties.” Id. at 71. Receipt of cash benefits may be

considered in deciding whether a person is dependent on the

government but has never been determinative. The Second

Circuit persuasively summarized:

The Plaintiffs do not argue, and we do not

hold, that the receipt of various kinds of

public benefits is irrelevant to the

determination of whether a non-citizen is

likely to become a public charge. But

defining public charge to mean the receipt,

even for a limited period, of any of a wide

range of public benefits – particularly . . . ones

that are designed to supplement an

individual's or family's efforts to support

themselves, rather than to deal with their

likely permanent inability to do so – is

inconsistent with the traditional understanding
32 CITY & CTY. OF SAN FRANCISCO V. USCIS

of what it means to be a “public charge,”

which was well-established by 1996.

Id. at 78 (emphasis removed).

A few months earlier, the Seventh Circuit had come to a

similar conclusion that the Rule violates the statutory

meaning of public charge. Cook Cnty., 962 F.3d 208. The

Seventh Circuit differed somewhat in its analysis. After a

historical survey of court decisions and secondary sources, it

determined that the phrase “public charge” was susceptible to

various interpretations. Id. at 226. It concluded, however,

that DHS’s interpretation, quantifying the definition to mean

receipt of twelve months’ worth of benefits within three

years, represented an understanding of its authority to define

the phrase that “has no natural limitation.” Id. at 228–29. If

DHS’s interpretation were to be accepted, then there is

nothing in the statutory text that would prevent a zerotolerance rule, where foreseeable receipt of a single benefit on

one occasion would bar entry or adjustment of status. The

majority forcefully rejected such an interpretation, stating:

We see no warrant in the Act for this

sweeping view. Even assuming that the term

“public charge” is ambiguous and thus might

encompass more than institutionalization or

primary, long-term dependence on cash

benefits, it does violence to the English

language and the statutory context to say that

it covers a person who receives only de

minimis benefits for a de minimis period of
CITY & CTY. OF SAN FRANCISCO V. USCIS 33

time. There is a floor inherent in the words

“public charge,” backed up by the weight of

history.

Id. at 229.

Although the opinions of the Second Circuit in New York

and the Seventh Circuit in Cook County reflect some

disagreement over whether there was any historically

established meaning of the phrase “public charge,” they

agreed that the Rule’s interpretation of the statute was outside

any historically accepted or sensible understanding of the

term. In commenting on the difference between its historical

review in New York and that of the Seventh Circuit in Cook

County, the Second Circuit noted that the Seventh Circuit had

not included the significant administrative rulings that

preceded the 1996 statute. New York, 969 F.3d at 74.

The New York opinion was unanimous, but the Cook

County opinion was not. The lengthy dissenting opinion in

Cook County focused on other statutory provisions aimed at

preventing entry of persons who could become dependent on

the government. The most significant of these provisions is

the requirement that family-sponsored immigrants, and

employment-sponsored immigrants whose employment is

tied to a family member, must furnish an affidavit from the

sponsor. 8 U.S.C. §§ 1182(a)(4)(C)–(D). In the affidavit, the

sponsor must agree to support the immigrant at annual

income of at least 125 percent of the poverty level and pay

back the relevant governmental entity in the event the

immigrant receives “any means-tested public benefit.” 

8 U.S.C. § 1183a(a)(1)(b).
34 CITY & CTY. OF SAN FRANCISCO V. USCIS

The dissent focused on the fact that the affidavit provision

forces sponsors to bear responsibility for “any means-tested

public benefit” that an immigrant may receive. It concluded

that the affidavit provision reflects Congress’s view that

“public charge” may encompass receipt of supplemental

benefits as well as primary dependence. See Cook Cnty.,

962 F.3d at 246 (Barrett, J., dissenting).

In its focus on the provisions in a related but different

section of the statute, the dissent did not address the

significance of the history of the public charge provision

itself, nor did it address the majority’s objection to the

duration of the receipt of benefits as a standard having no

limiting principle. The dissent concluded only that the choice

of an aggregate of twelve months is “not unreasonable.” Id.

at 253. Moreover, the dissent’s interpretation of the affidavit

requirement’s application here seems to suggest that it would

approve a public charge rule excluding individuals who

received “any means-tested benefit,” no matter how small, as

in line with congressional intent.

In this appeal, DHS also relies upon the affidavit of

support provisions to contend that the Rule is consistent with

the statutory public charge bar. The public charge bar and

affidavit of support provisions were parts of two separate

acts. The two have no historic or functional relationship to

each other. The public charge bar dates back to the 19th

century, embodying an age-old concept of excluding those

who may become primarily dependent on the government. 

Congress enacted the affidavit of support provision, however,

in 1996 as part of more recent specific immigration reforms

including the financial responsibilities of families and

employers sponsoring individual immigrants. See PRWORA,

Pub. L. No. 423, 110 Stat. 2271 (1996); IIRIRA, Pub. L. No.
CITY & CTY. OF SAN FRANCISCO V. USCIS 35

104-208, 110 Stat. 3009 (1996). The section of the affidavit

provision that refers to public benefits serves as a postadmission remedy to help local and federal governments

recoup funds. § 1183a(b). The changes to the affidavit

provisions were aimed at problems with the unenforceability

of such affidavits prior to 1996. Michael J. Sheridan, The

New Affidavit of Support and Other 1996 Amendments to

Immigration and Welfare Provisions Designed to Prevent

Aliens from Becoming Public Charges, 31 Creighton L. Rev.

741, 743-44, 752-53 (1998) (article by INS Associate General

Counsel).

DHS also points to the provision that permits entry of

battered women without regard to receipt of “any benefits.” 

See 8 U.S.C. § 1182(s). DHS argues that this reflects

Congress’s belief that the receipt of any public benefits would

be a consideration in admission for most other public charge

determinations. Had Congress intended to make non-cash

benefits a factor for admission or permanent residence, it

would have done so directly and not through this ancillary

provision. See Whitman v. Am. Trucking Ass’ns, 531 U.S.

457, 468 (2001) (Congress does not “hide elephants in

mouseholes”). It is more likely that Congress created this

provision in order to provide sweeping protections for

battered migrant women, as it did throughout Section 1182. 

See § 1182(a)(6)(ii), (a)(9)(B)(iii)(IV).

For these reasons we conclude the plaintiffs have

demonstrated a high likelihood of success in showing that the

Rule is inconsistent with any reasonable interpretation of the

statutory public charge bar and therefore is contrary to law.
36 CITY & CTY. OF SAN FRANCISCO V. USCIS

E. Arbitrary and Capricious

Both district courts also ruled that the plaintiffs were

likely to succeed in their contention that the Rule is arbitrary

and capricious. The APA standard in this regard is inherently

deferential. The task of the courts is to ensure that the

agency’s action relied on appropriate considerations,

considered all important aspects of the issue, and provided an

adequate explanation for its decision. The Supreme Court

summed it up in its leading decision, Motor Vehicle Mfrs.

Ass'n, Inc. v. State Farm Mut. Auto. Ins. Co. (“State Farm”),

463 U.S. 29 (1983). The Court explained the general rule:

Normally, an agency rule would be arbitrary

and capricious if the agency has relied on

factors which Congress has not intended it to

consider, entirely failed to consider an

important aspect of the problem, offered an

explanation for its decision that runs counter

to the evidence before the agency, or is so

implausible that it could not be ascribed to a

difference in view or the product of agency

expertise.

Id. at 43.

The plaintiffs argue that DHS failed the test in three

principal respects: It failed to take into account the costs the

Rule would impose on state and local governments; it did not

consider the adverse effects on health, including both the

health of immigrants who might withdraw fromprograms and

the overall health of the community; and it did not adequately

explain why it was changing the policy that was thoroughly

explained in the 1999 Guidance.
CITY & CTY. OF SAN FRANCISCO V. USCIS 37

1. Disenrollment and Financial Costs

We first turn to DHS’s consideration of the financial

impact of the proposed Rule. During the comment period,

there was repeated emphasis on the financial burdens that

would befall state and local governments because immigrants

fearing application of the Rule would disenroll from the

supplemental programs, even if the Rule did not apply to

them. DHS’s response was a generality coupled with an

expression of uncertainty. It said that, despite these effects,

the Rule’s “overriding consideration” of self-sufficiency

formed “a sufficient basis to move forward.” 84 Fed. Reg. at

41,312. DHS added that there was no way of knowing with

any degree of exactitude how many individuals would

disenroll or how much of a burden it would place on the state

and local governments. Id. at 41,312–13.

DHS provided no analysis of the effect of the Rule on

governmental entities like the plaintiffs in these cases. As the

Northern District found, DHS had not “grapple[d] with

estimates and credible data explained in the comments.” City

and Cnty. of SF, 408 F. Supp. 3d at 1106.

Our law requires more from an agency. A bald

declaration of an agency’s policy preferences does not

discharge its duty to engage in “reasoned decisionmaking”

and “explain the evidence which is available.” State Farm,

463 U.S. at 52. The record before DHS was replete with

detailed information about, and projections of, disenrollment

and associated financial costs to state and local governments. 

See, e.g., Ninez Ponce, Laurel Lucia, & Tia Shimada, How

Proposed Changes to the ‘Public Charge’ Rule Will Affect

Health, Hunger and the Economy in California, 32 (Nov.

2018), https://healthpolicy.ucla.edu/newsroom/Documents/
38 CITY & CTY. OF SAN FRANCISCO V. USCIS

2018/public-charge-seminar-slides-nov2018.pdf (estimating

over 300,000 disenrollments from Medicaid in California

alone); Fiscal Policy Institute, Only Wealthy Immigrants

Need Apply: The Chilling Effects of “Public Charge,”

5 (Nov. 2019), http://fiscalpolicy.org/wp-content/uploads/2

019/11/FINAL-FPI-Public-Charge-2019-MasterCopy.pdf

(estimating over $500 million combined in lost state tax

revenue). DHS was required to “reasonably reflect upon” and

“grapple with” such evidence. Fred Meyers Stores, Inc. v.

NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017). But DHS made

no attempt to quantify the financial costs of the Rule or

critique the projections offered.

Similarly, DHS’s repeated statements that the Rule’s

disenrollment impacts are “difficult to predict” do not satisfy

its duty to “examine the relevant data” before it. State Farm,

463 U.S. at 43. The Supreme Court held in State Farm that

an agency may not, without analysis, cite even “‘substantial

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

see also Ctr. for Biological Diversity v. NHTSA, 538 F.3d

1172, 1200 (9th Cir. 2008) (rejecting as arbitrary and

capricious agency’s characterization of greenhouse gas

reductions as “too uncertain to support their explicit valuation

and inclusion” in analysis). DHS’s analysis thus fell short of

the standard established by the Supreme Court and

recognized by our circuit. DHS did not adequately deal with

the financial effects of the Rule.

2. Health Consequences

Although DHS wrote the Rule was intended to make

immigrants healthier and stronger, commenters stressed the

Rule’s likely adverse health consequences for immigrants and

the public as a whole, including infectious disease outbreaks
CITY & CTY. OF SAN FRANCISCO V. USCIS 39

and hospital closures. While acknowledging these comments,

DHS concluded, without support, that the Rule “will

ultimately strengthen public safety, health, and nutrition.” 

84 Fed. Reg. at 41,314. The Northern District aptly found

that DHS impermissibly “simply declined to engage with

certain, identified public-health consequences of the Rule.” 

City and Cnty. of SF, 408 F. Supp. 3d at 1111–12.

Commenters provided substantial evidence that the Rule

would in fact harm public safety, health, and nutrition. DHS

itself repeatedly acknowledged that hospitals might face

financial harms as a result of the Rule, but DHS repeatedly

declined to quantify, assess, or otherwise deal with the

problem in any meaningful way. See, e.g., 84 Fed. Reg. at

41,313–14, 41,384, 41,475, 41,476. This is inadequate and

suggests that DHS’s position was intractable. As the D.C.

Circuit has observed, making some mention of evidence but

then coming to a contrary, “unsupported and conclusory”

decision “add[s] nothing to the agency’s defense of its thesis

except perhaps the implication that it was committed to its

position regardless of any facts to the contrary.” Chem. Mfrs.

Ass’n. v. EPA, 28 F.3d 1259, 1266 (D.C. Cir. 1994). DHS

responded by excluding certain programs for children and

pregnant women from the ambit of the Rule, but never

addressed the larger concerns about the Rule’s effect on

health as well as on hospital resources.

There were other serious health concerns. For example,

comments demonstrated that the Rule would endanger public

health by decreasing vaccination rates in the general

population. DHS insisted that vaccines would “still be

available” toMedicaid-disenrolled individuals because “local

health centers and state health departments” would pick up

the slack, id. at 41,385, despite objections voiced by such
40 CITY & CTY. OF SAN FRANCISCO V. USCIS

local health centers and state health departments themselves

showing that the Rule will put the populations they

serve—citizens and non-citizens alike—in danger. See, e.g.,

Mass. Dep’t of Pub. Health, Comments on Inadmissibility on

Public Charge Grounds (Dec. 2018), https://www.regulations.

gov/document?D=USCIS-2010-0012-45697; HilltownCmty.

Health Ctr., Comments on Inadmissibility on Public Charge

Grounds (Dec. 2018), https://www.regulations.gov/docume

nt?D=USCIS-2010-0012-45675. A decision that “runs

counter to the evidence” or “is so implausible that it could not

be ascribed to a difference in view or the product of agency

expertise” is arbitrary and capricious. State Farm, 463 U.S.

at 43. The promulgation of this Rule is such a decision. DHS

claims no expertise in public health, unlike the scores of

expert commenters who weighed in against the Rule.

3. Reversal of Position

Above all, DHS failed to explain its abrupt change in

policy from the 1999 Guidance. An agency reversing a prior

policy “must show that there are good reasons for the new

policy” and provide “a reasoned explanation . . . for

disregarding facts and circumstances that underlay or were

engendered by the prior policy.” FCC v. Fox Television

Stations, Inc., 556 U.S. 502, 515–16 (2009). The district

courts below found that DHS had failed to satisfy this

standard. City and Cnty. of SF, 408 F. Supp. 3d at 1111–12;

Washington v. DHS, 408 F. Supp. 3d at 1220.

The 1999 Guidance had been issued after the 1996

statutory amendments setting out the general factors to be

taken into account in making a public charge determination. 

The Guidance considered all of the different types of public

assistance governments offered, including programs
CITY & CTY. OF SAN FRANCISCO V. USCIS 41

providing subsistence income and those providing

supplemental benefits. The Guidance expressly provided that

receipt of supplemental assistance for food, healthcare and

housing were not to be considered in assessing an

immigrant’s likelihood of becoming a public charge. As

discussed above, this provision was consistent with over a

century of judicial and administrative decisions interpreting

the public charge bar. The Rule, however, provides that the

prospect of receiving those same supplemental benefits, for

even a few months, renders an individual inadmissible. This

is directly contrary to the 1999 Guidance.

Yet DHS promulgated the Rule without any explanation

of why the facts found, and the analysis provided, in the prior

Guidance were now unsatisfactory. This is a practice the

Supreme Court has rejected: an agency about-face with no

“reasoned explanation . . . for disregarding” the findings

underlying the prior policy. Fox, 556 U.S. at 516. Here is an

illustration of the about-face. The 1999 Guidance had found

that deterring acceptance of “important health and nutrition

benefits” had yielded “an adverse impact . . . on public health

and the general welfare.” 64 Fed. Reg. at 28,692. In contrast,

DHS now says that the new Rule “will ultimately strengthen

public safety, health, and nutrition.” 84 Fed. Reg. at 41,314. 

DHS provides no basis for this conclusion or for its departure

from the empirical assessments underlying the prior policy.

In light of this policy change, coupled with the “serious

reliance interests” engendered by over two decades of

reliance on the Guidance, DHS was required to provide a

“more detailed justification” for the Rule. Fox, 556 U.S.

at 515. DHS provides no justification, other than the repeated

conclusory mantra that the new policy will encourage selfsufficiency. DHS in effect says that by creating a
42 CITY & CTY. OF SAN FRANCISCO V. USCIS

disincentive for immigrants to use available assistance, the

Rule will “ensur[e] that [admitted immigrants] be selfsufficient and not reliant on public resources.” 84 Fed. Reg.

at 41,319. DHS does not substantiate, and the record does not

support, this empirical prediction. See, e.g., Hilary Hoynes,

Diane Whitmore Schanzenbach & Douglas Almond, LongRun Impacts of Childhood Access to the Safety Net, 106 Am.

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

stamps during childhood leads to “significant improvement

in adult health” and “increases in economic self-sufficiency,”

including decreased welfare participation). Plaintiffs urge

that their experience is contrary to DHS’s conclusion. Also

to the contrary is the experience related in multiple amicus

briefs. See, e.g., Brief for the Institute for Policy Integrity as

Amicus Curiae Supporting Petitioners at 9 (citing evidence

that reductions in SNAP participation increase homelessness);

Brief for National Housing Law Project et al. as Amici Curiae

Supporting Petitioners at 13 (citing evidence that Medicaid

made it easier for recipients to work and find work).

4. Arbitrary and Capricious

In sum, DHS adopted the Rule, reversing prior,

longstanding public policy, without adequately taking into

account its potential adverse effects on the public fisc and the

public welfare. We must conclude that the Rule’s

promulgation was arbitrary and capricious as well as contrary

to law within the meaning of the APA. 5 U.S.C. § 706(2)(A).
CITY & CTY. OF SAN FRANCISCO V. USCIS 43

F. Remaining Injunction Factors

1. Irreparable Harm

Plaintiffs have shown a likelihood of success on the

merits of their claim that the Rule violates the standards of

the APA in that it is both contrary to law and arbitrary and

capricious. To support entry of an injunction, Plaintiffs must

also show a likely threat of irreparable injury in the absence

of an injunction. Winter, 555 U.S. at 22. Plaintiffs have

established that they likely are bearing and will continue to

bear heavy financial costs because of withdrawal of

immigrants from federal assistance programs and consequent

dependence on state and local programs.

There is no dispute that such economic harm is sufficient

to constitute irreparable harm because of the unavailability of

monetary damages. See California v. Azar, 911 F.3d 558,

581 (9th Cir. 2018); 5 U.S.C. § 702 (providing for relief

“other than monetary damages”). DHS counters that such

harm in this case is speculative, amounting to no more than

the possibility of future injury. See Park Vill. Apartment

Tenants Ass’n v. Mortimer Howard Tr., 636 F.3d 1150, 1160

(9th Cir. 2011).

We have, however, already seen that in this case such

harm is more than speculative. Plaintiffs have presented

evidence that they are already experiencing harm and DHS

itself has projected significant disenrollment from federal

programs, likely leading to enrollments in state and local

ones. The district courts both made factual findings as to

harm that DHS does not refute with citations to the record.
44 CITY & CTY. OF SAN FRANCISCO V. USCIS

2. Balance of Equities and Public Interest

There was no error in finding that the balance of equities

and public interest support an injunction. The Northern

District pointed to the need for “continuing the provision of

medical services through Medicaid to those who would

predictably disenroll absent an injunction” in light of the

explanations given by “parties and numerous amici . . . [of

the] adverse health consequences not only to those who

disenroll, but to the entire populations of the plaintiff states,

for example, in the formof decreased vaccination rates.” City

and Cnty. of SF, 408 F. Supp. 3d at 1127. The public interest

in preventing contagion is particularly salient during the

current global pandemic.

Although DHS nevertheless argues that it is harmed by

not being able to implement its new definition of public

charge, if it is ultimately successful in defending the merits of

the Rule, the harm will amount to no more than a temporary

extension of the law previously in effect for decades. Given

the financial burdens that plaintiffs have persuasively

demonstrated will befall them as a result of disenrollment

from federal programs, coupled with adverse effects on the

health and welfare of the immigrant as well as general

population, we cannot say the district courts abused their

discretion in finding that the balance of equities and public

interest weigh in favor the injunction.

G. Propriety of a Nationwide Injunction

The Northern District issued a preliminary injunction

limited to the territory of the plaintiff state and local entities

before it. The Eastern District issued a nationwide injunction,

explaining that a more limited injunction would not prevent
CITY & CTY. OF SAN FRANCISCO V. USCIS 45

all the harms alleged. The court was concerned about

protecting immigrants fromharmif they moved outside of the

plaintiff jurisdictions, about the economic impact on plaintiff

states if immigrants moved to them to evade the

consequences of the Rule, and about lawful immigrants being

subject to the Rule at points of entry after travel abroad. 

Washington, 408 F. Supp. 3d at 1223.

The appropriateness of nationwide injunctions in any case

has come under serious question. See, e.g., DHS v. New York,

140 S Ct. 599, 599–601 (2020) (Gorsuch, J., concurring);

Trump v. Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas,

J., concurring). In explaining the limited scope of its

injunction, the Second Circuit questioned the propriety of one

court imposing its will on all:

It is not clear to us that, where contrary views

could be or have been taken by courts of

parallel or superior authority entitled to

determine the law within their own

geographical jurisdictions, the court that

imposes the most sweeping injunction should

control the nationwide legal landscape.

New York, 969 F.3d at 88.

Whatever the merits of nationwide injunctions in other

contexts, we conclude a nationwide injunction is not

appropriate in this case. This is because the impact of the

Rule would fall upon all districts at the same time, and the

same issues regarding its validity have been and are being

litigated in multiple federal district and circuit courts.
46 CITY & CTY. OF SAN FRANCISCO V. USCIS

Accordingly, we vacate that portion of the Eastern

District’s injunction making it applicable nationwide, but

otherwise affirm it.

H. Rehabilitation Act

The plaintiffs also contend that the Rule violates the

Rehabilitation Act, which bans discrimination on the basis of

disabilities. 29 U.S.C. § 794(a). The Seventh Circuit looked

favorably on this contention, and the Second Circuit

expressly did not address it. Cook Cnty., 962 F.3d at 228,

New York, 969 F.3d at 64 n.20. Because we have held that

the Rule violates the APA as contrary to law and arbitrary

and capricious, we similarly do not address the Rehabilitation

Act.

I. Conclusion

The order of the District Court for the Northern District

of California is AFFIRMED. The order of the District Court

for the Eastern District of Washington is AFFIRMED in

part and VACATED in part. Costs are awarded to the

plaintiffs.

VANDYKE, Circuit Judge, dissenting:

For the reasons ably articulated by our court in a

December 2019 published opinion,1by the Fourth Circuit in

1 City & County of San Francisco v. USCIS, 944 F.3d 773 (9th Cir.

2019).
CITY & CTY. OF SAN FRANCISCO V. USCIS 47

an August 2020 opinion,2and by a dissenting Seventh Circuit

judge in a June 2020 opinion (particularly notable for its

erudition)3—and implied by the Supreme Court’s multiple

stays this year of injunctions virtually identical to those the

majority today affirms

4—I must 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 (2020); Wolf

v. Cook County, 140 S. Ct. 681 (2020).