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; KEVIN K. MCALEENAN, in his

official capacity as Acting Secretary of the

United States Department of Homeland

Security; KENNETH T. CUCCINELLI, in

his official capacity as Acting Director of

United States Citizenship and Immigration

Services, 

Defendants-Appellants.

No. 19-17213

D.C. No. 4:19-cv-04717-PJH

Northern District of California, 

Oakland

ORDER

STATE OF CALIFORNIA; DISTRICT

OF COLUMBIA; STATE OF MAINE;

COMMONWEALTH OF

PENNSYLVANIA; STATE OF

OREGON, 

Plaintiffs-Appellees,

No. 19-17214

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

Northern District of California, 

Oakland

FILED

DEC 5 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 v.

U.S. DEPARTMENT OF HOMELAND

SECURITY, a federal agency; UNITED

STATES CITIZENSHIP AND

IMMIGRATION SERVICES, a federal

agency; KEVIN K. MCALEENAN, in his

official capacity as Acting Secretary of the

United States Department of Homeland

Security; KENNETH T. CUCCINELLI, in

his official capacity as Acting Director of

United States Citizenship and Immigration

Services, 

Defendants-Appellants.

STATE OF WASHINGTON;

COMMONWEALTH OF VIRGINIA;

STATE OF COLORADO; STATE OF

DELAWARE; STATE OF ILLINOIS;

STATE OF MARYLAND;

COMMONWEALTH OF

MASSACHUSETTS; DANA NESSEL,

Attorney General on behalf of the People

of Michigan; STATE OF MINNESOTA;

STATE OF NEVADA; STATE OF NEW

JERSEY; STATE OF NEW MEXICO;

STATE OF RHODE ISLAND; STATE

OF HAWAI’I, 

Plaintiffs-Appellees,

 v.

U.S. DEPARTMENT OF HOMELAND

No. 19-35914

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

Eastern District of Washington, 

Richland

2
SECURITY, a federal agency; KEVIN K.

MCALEENAN, 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.

Before: BYBEE, IKUTA, and OWENS, Circuit Judges.

BYBEE, Circuit Judge:

Since 1882, when the Congress enacted the first comprehensive immigration

statute, U.S. law has prohibited the admission to the United States of “any person

unable to take care of himself or herself without becoming a public charge.” Act

of Aug. 3, 1882, ch. 376, § 2, 22 Stat. 214 (1882). Although the precise

formulation of this provision has been amended regularly in the succeeding century

and a quarter, the basic prohibition and the phrase “public charge” remains. Most

recently, in the Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (IIRIRA), Congress amended the Immigration and Nationality Act (INA) to

provide that “[a]ny alien who, in the opinion of the consular officer at the time of

application for a visa, or in the opinion of the Attorney General at the time of

3
application for admission or adjustment of status, is likely at any time to become a

public charge is inadmissible.” 8 U.S.C. § 1182(a)(4)(A). In making this

determination, “the consular officer or the Attorney General shall at a minimum”

take five factors into account: age; health; family status; assets, resources, and

financial status; and education and skills. Id. § 1182(a)(4)(B)(i). Under longstanding practice, consular officers and the Attorney General consider these factors

under a “totality of the circumstances” test. 

In 1999, the Immigration and Naturalization Service (INS), providing

guidance to the public and INS field officers, defined “public charge” as an “alien .

. . who is likely to become . . . primarily dependent on the government for

subsistence” as demonstrated by either “institutionalization for long-term care at

government expense” or “receipt of public cash assistance for income

maintenance.” Field Guidance on Deportability and Inadmissibility on Public

Charge Grounds, 64 Fed. Reg. 28,689, 28,689 (May 26, 1999) (1999 Field

Guidance) (internal quotation marks omitted). Although INS determined that the

receipt of cash benefits received under a public program would be considered a

factor in determining whether an alien was likely to become a public charge, it

stated that non-cash benefits would not be taken into account for public-charge

purposes. Id.

4
In August 2019, following notice and comment, the Department of

Homeland Security adopted a new rule, redefining the term “public charge” to

require a consideration of not only cash benefits, but also certain non-cash

benefits. Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,292

(Aug. 14, 2019) (Final Rule). Under DHS’s Final Rule a public charge is “an alien

who receives one or more public benefits . . . for more than 12 months in the

aggregate within any 36-month period.” Id. at 41,501. In turn, DHS defined

“public benefits.” Consistent with the 1999 Field Guidance, DHS still considers

receipt of cash assistance from Supplemental Security Income (SSI); Temporary

Assistance for Needy Families (TANF); and federal, state, or local general

assistance programs to be public benefits. To that list, DHS added non-cash

assistance received through the Supplemental Nutrition Assistance Program

(SNAP), Section 8 housing assistance, Section 8 project-based rental assistance,

Medicaid (with certain exceptions), and Section 9 public housing. Id. DHS’s rule

exempts public benefits received for emergency medical conditions, benefits

received under the Individuals with Disabilities Education Act, and school-based

services or benefits. Id. It also exempts those benefits received by aliens under 21

years of age, women during pregnancy, and members of the armed forces and their

families. Id. DHS repeated that “[t]he determination of an alien’s likelihood of

5
becoming a public charge at any time in the future must be based on the totality of

the alien’s circumstances.” Id. at 41,502. 

Prior to the Final Rule taking effect in October 2019, various states,

municipalities and organizations brought suits in California and Washington

seeking a preliminary injunction against the implementation of the rule. In Nos.

19-17213 and 19-17214, California, Maine, Oregon, Pennsylvania, and the District

of Columbia; the City and County of San Francisco and the County of Santa Clara;

and various organizations brought suit in the Northern District of California against

the United States under the Due Process Clause of the Fifth Amendment; the

Administrative Procedure Act (APA), 5 U.S.C. § 706; and the Declaratory

Judgment Act, 28 U.S.C. §§ 2201–02. The district court granted a preliminary

injunction on the basis of the APA, effective against implementation of the rule in

the plaintiff states. City & Cty. of San Francisco v. U.S. Citizenship &

Immigration Servs., 2019 WL 5100718 (N.D. Cal. Oct. 11, 2019). In No. 19-

35914, thirteen states—Washington, Virginia, Colorado, Delaware, Hawai‘i,

Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico,

and Rhode Island—filed suit in the Eastern District of Washington against DHS

under the Due Process Clause of the Fifth Amendment and the APA. The district

court granted a preliminary injunction on the basis of the APA claims and issued a

6
nationwide injunction. Washington v. U.S. Dep’t of Homeland Sec., 2019 WL

5100717 (E.D. Wash. Oct. 11, 2019). 

DHS seeks a stay of both preliminary injunctions.1 Our authority to issue a

stay of a preliminary injunction is circumscribed. Nevertheless, for the reasons

explained below, we will grant the stay. DHS has shown a strong likelihood of

success on the merits, that it will suffer irreparable harm, and that the balance of

the equities and public interest favor a stay. See Nken v. Holder, 556 U.S. 418, 434

(2009).

I. BACKGROUND AND PROCEDURE

We begin with the governing statutory framework, the proposed change to

this framework, and the proceedings below.

A. Statutory Framework

The INA requires all aliens who seek lawful admission to the United States,

or those already present but seeking to become lawful permanent residents (LPRs),

to prove that they are “not inadmissible.” 8 U.S.C. § 1361; see also id. §§ 1225(a),

1255(a). Section 212 of the INA lists the grounds on which an alien may be

adjudged inadmissible. Id. § 1182(a)(1)–(10). One of the grounds for

1

 For clarity, we will refer to the plaintiffs below as “the States” and the

defendants as “DHS.”

7
inadmissibility is a determination that the alien is likely to become a “public

charge.” Id. § 1182(a)(4). Section 212(a)(4) of the INA reads as follows:

(4) PUBLIC CHARGE. —

(A) IN GENERAL.—Any alien who, in the opinion of

the consular officer at the time of application for a visa,

or in the opinion of the Attorney General at the time of

application for admission or adjustment of status, is

likely at any time to become a public charge is

inadmissible.

(B) FACTORS TO BE TAKEN INTO ACCOUNT.—

(i) In determining whether an alien is inadmissible under

this paragraph, the consular officer or the Attorney

General

[2]

 shall at a minimum consider the alien’s—

(I) age;

(II) health;

(III) family status;

(IV) assets, resources, and financial status; and

(V) education and skills.

(ii) In addition to the factors under clause (i), the consular

officer or the Attorney General may also consider any

2

 The Homeland Security Act of 2002 transferred much of the Attorney

General’s immigration authority to the newly created office of the Secretary of

Homeland Security. See In re D-J-, 23 I. & N. Dec. 572, 573–74 & n.2 (Op. Att’y

Gen. 2003) (citing Homeland Security Act of 2002, Pub. L. No. 108-7, 117 Stat.

531 (2003)). Though the Attorney General retains authority over the Executive

Office for Immigration Review, id. n.3, the Secretary of Homeland Security is now

responsible with the general administration and enforcement of immigration law,

id. n.2. 

8
affidavit of support[3]

 under section 1183a of this title for

purposes of exclusion under this paragraph.

Id. 

This provision is applied at different times by different government

agencies. When an alien seeks a visa to travel to the United States, a Department

of State (DOS) consular officer must make an admissibility determination. See 84

Fed. Reg. at 41,294 n.3. When an alien arrives at a port of entry without a visa,

DHS makes that determination. Id. An alien may also be deemed “inadmissible”

even when the alien is already in the country. For example, when an alien seeks an

adjustment of status from non-immigrant to LPR, DHS must determine that the

alien is not inadmissible. See id. And when an alien is processed in immigration

court, the Department of Justice (DOJ) through immigration judges and the Board

of Immigration Appeals (BIA) must determine whether that alien is inadmissible.

Id.

Though § 212 of the INA lays out the factors an immigration official must

consider “at a minimum” when making a public-charge determination, the INA

does not define the term “public charge,” or restrict how officials are to consider

3

 An affidavit of support is a binding pledge, often made by an employer or

family member of the alien, to financially support the alien at 125 percent of the

Federal poverty line. 8 U.S.C. § 1183.

9
age, health, family status, financial resources, and education. Indeed, as explained

in more detail below, in the context of immigration law, the term “public charge”

has had several meanings. Since 1999, however, the term has been defined

according to guidelines issued by the INS Field Guidance on the matter. See 1999

Field Guidance, 64 Fed. Reg. at 28,689. The 1999 Field Guidance defined a

public charge as an alien who “is likely to become (for admission/adjustment

purposes) primarily dependent on the government for subsistence, as demonstrated

by either (i) the receipt of public cash assistance for income maintenance or (ii)

institutionalization for long-term care at government expense.” Id. (internal

quotation marks omitted). The 1999 Field Guidance did not permit immigration

officers to “place any weight on the receipt of non-cash public benefits,” id., and

allowed consideration of only cash-benefit programs like SSI, TANF, and “[s]tate

and local cash assistance programs that provide benefits for income maintenance,”

id. at 28,692.

B. The Proposed Rule

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

(NPRM) indicating its intent to abandon the 1999 Field Guidance and redefine the

term “public charge.” See Inadmissibility on Public Charge Grounds, 83 Fed. Reg.

10
51,114 (proposed Oct. 10, 2018).4

 It did so acting under the authority vested in the

Secretary of Homeland Security to establish immigration regulations and enforce

immigration law. See 8 U.S.C. § 1103(a)(3) (“[The Secretary of Homeland

Security] shall establish such regulations . . . as he deems necessary for carrying

out his authority under the provisions of this chapter.”). The proposed rule

redefined the term “public charge” in two ways.

First, the proposed rule for the first time established a required length of

time for which the alien would have to rely on public benefits before being labeled

a public charge. Under the 1999 Field Guidance, a public charge was defined as an

individual “primarily dependent” on government benefits, but the 1999 Field

Guidance prescribed no specific time period for which this determination should

be made. See 64 Fed. Reg. at 28,689, 28,692. Under the new rule, an alien would

be considered a public charge if he or she “receives one or more [designated]

public benefits . . . for more than 12 months in the aggregate within a 36-month

period.” 83 Fed. Reg. at 51,157–58. Moreover, the proposed rule counts each

4

 The proposed rule would not change the definition of public charge for

removability determinations, only for determinations of inadmissibility. 83 Fed.

Reg. at 51,134. And though the rule only applies to DHS, DHS is currently

working with DOS and DOJ to ensure that all three agencies apply a consistent

definition of the term in their admissibility inquiries. 84 Fed. Reg. at 41,294 n.3.

11
public benefit received, so that “receipt of two different non-monetizable benefits

in one month counts as two months.” Id. at 51,166.

Second, the proposed rule expanded which benefits contributed to a publiccharge determination. The proposed rule still included those cash-benefit

programs that were listed in the 1999 Field Guidance, but now also includes

various in-kind programs, such as:

(A) Supplemental Nutrition Assistance Program (SNAP, formerly

called ‘‘Food Stamps’’), 7 U.S.C. 2011 to 2036c;

(B) Section 8 Housing Assistance under the Housing Choice Voucher

Program, as administered by HUD under 24 CFR part 984; 42 U.S.C.

1437f and 1437u;

(C) Section 8 Project-Based Rental Assistance (including Moderate

Rehabilitation) under 24 CFR parts 5, 402, 880 through 884 and 886;

and

 . . . 

(i) Medicaid, 42 U.S.C. 1396 et seq., [with several exceptions,

discussed below]

. . .

(iv) Subsidized Housing under the Housing Act of 1937, 42 

U.S.C. 1437 et seq.

12
Id. at 51,290 (to be codified at 8 C.F.R. § 212.21).5

Additionally, the proposed rule added other factors for immigration officers

to consider when making a public-charge determination. The rule still required

consideration of the alien’s age, health, family status, financial status, education

and skills, as well as any affidavits of support the alien presents. See 83 Fed Reg.

51,178 (to be codified at 8 C.F.R. § 212.22). But the proposed rule also laid out

new factors to be afforded extra weight. Four factors weigh heavily against the

alien in a public-charge determination: (1) a finding that the alien “is not a

full-time student and is authorized to work,” but cannot demonstrate “current

employment, employment history, or [a] reasonable prospect of future

employment”; (2) a previous finding of inadmissibility on public-charge grounds;

(3) a medical diagnosis that would likely require extensive medical treatment or

interfere with the alien’s ability to be self-sufficient; and (4) receipt of benefits for

5

 DHS altered the Final Rule to make clear that certain benefits were exempt

from consideration, including “Medicaid [collected] by aliens under the age of 21[,

Medicaid collected by] pregnant women during pregnancy and during the 60-day

period after pregnancy,” school-based services, Individuals with Disabilities

Education Act (IDEA) services, Medicare Part D Low-Income Subsidies, and

emergency medical care. 84 Fed. Reg. at 41,296–97 (codified at 8 C.F.R.

§ 212.21). Further, in certain circumstances, the proposed rule excuses receipt of

covered public benefits. See id. (codified at 8 C.F.R. § 212.21) (exempting public

benefits from consideration when the recipient has received certain humanitarian

relief, the recipient or his spouse was in the Armed Forces, or the recipient

received a waiver).

13
more than twelve months within a thirty-six month period. Id. at 51,198–201 (to

be codified at 8 C.F.R. § 212.22). Conversely, two factors would weigh heavily in

favor of the alien in a public-charge determination: (1) assets or household income

over 250 percent of the Federal poverty line, and (2) individual income over 250

percent of the Federal poverty line.

6

 Id. at 51,292 (to be codified at 8 C.F.R. §

212.22(c)(2)).

During the sixty-day public comment period that followed the NPRM, DHS

collected 266,077 comments, “the vast majority of which opposed the rule.” 84

Fed. Reg. at 41,297. On August 14, 2019, DHS published the Final Rule in the

Federal Register. Id. at 41,292. In its 216-page Final Rule, DHS made some

changes to the proposed rule (which are not relevant here) and addressed the

comments it received. The Final Rule was scheduled to take effect on October 15,

2019, and would apply to anyone applying for admission or adjustment of status

after that date. Id.

C. The Proceedings

1. The Northern District of California Case

6

 The Final Rule added a third factor: private health insurance not subsidized

under the Affordable Care Act. 84 Fed. Reg. at 41,504.

14
On August 13, 2019, the City and County of San Francisco and the County

of Santa Clara sued several government agencies and officials, including U.S.

Citizenship and Immigration Services (USCIS), the Acting Director of USCIS

Kenneth T. Cuccinelli, DHS, and the then Acting Director of DHS Kevin

McAleenan. They brought suit in the United States District Court for the Northern

District of California, claiming that the proposed rule violated the APA on two

grounds: (1) the rule was not made in accordance with the law, and (2) the rule was

arbitrary, capricious, and an abuse of discretion. See 5 U.S.C. § 706(2). Three

days later, on August 16, 2019, California, Maine, Oregon, Pennsylvania, and the

District of Columbia, sued the same defendants in the same court. They claimed

that (1) the proposed rule violated § 706 of the APA because (a) it was not made in

accordance with the INA, the IIRIRA, the Rehabilitation Act, or state healthcare

discretion, (b) it was arbitrary, capricious, and an abuse of discretion, and (2) the

proposed rule violated the Fifth Amendment’s Due Process Clause because it

denied equal protection based on race and unconstitutional animus. 

15
Each set of plaintiffs filed a motion to preliminarily enjoin enforcement of

the proposed rule. On August 27, 2019, the district court ordered the two cases

consolidated.7

The district court heard oral argument on October 2, 2019, and on October

11, granted the preliminary injunction. See City & Cty. of San Francisco, 2019

WL 5100718 at *1, 53. The court first held that both the Counties and the States

had standing to sue because they showed imminent financial injury. Id. at *46–47. 

It held that they were in the statute’s zone of interests because, in enacting the

public-charge provision of the INA, “Congress intended to protect states and their

political subdivisions’ coffers.” Id. at *41. On the merits, the district court found

that the States satisfied the four-factor test for a preliminary injunction. See Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The court held that the

States had a likelihood of success on the merits for at least some of their claims. It

found the States were likely to successfully show that the proposed rule was

contrary to law because it unreasonably defined the term “public charge,” and thus

failed the second step of the Chevron analysis. City & Cty. of San Francisco, 2019

7

 Several legal and health-care organizations were also parties to the motion

for a preliminary injunction below. The district court found that they failed to

establish that they were within the zone of interests. City & Cty. of San Francisco,

2019 WL 5100718, at *53. They are not parties to this appeal.

16
WL 5100718, at *28. Alternatively, the court found that the States had shown a

serious question as to whether the INA unambiguously foreclosed the proposed

change to the definition of public charge, thus causing the Final Rule to fail at

Chevron step one. Id. The court also concluded that the States had demonstrated a

likelihood of success on the arbitrary-and-capricious claim because DHS failed to

adequately consider the adverse economic and public health-related costs of the

proposed rule. Id. at *34, *37.

Further, the court found that the rule’s implementation would irreparably

harm the Counties and States by causing them to lose millions of dollars in federal

reimbursements and face increased operational costs. Id. at *46–49. Focusing on

the public’s interest in the continued provision of medical services and the

prevention of communicable diseases, the district court found both the balance of

the equities and the public interest weighed in favor of granting an injunction. Id.

at *50–51. However, because the court found that the States had failed to show

why a nationwide injunction would be necessary, the court granted an injunction

that applied only to those persons living in plaintiff states or counties. Id. at *53.

On October 25, 2019, DHS sought a stay of the preliminary injunction. 

DHS informed the court that it would seek appellate relief if the court did not act

by November 14. 

17
2. The Eastern District of Washington Case

On August 14, 2019, Washington, Virginia, Colorado, Delaware, Hawai‘i,

Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, Rhode Island,

and the state attorney general on behalf of Michigan sued USCIS, Cuccinelli, DHS,

and McAleenan in the United States District Court for the Eastern District of

Washington. They alleged claims similar to those presented in the California

cases: (1) the proposed rule violated the APA because (a) it was not in accordance

with immigration law or the Rehabilitation Act, (b) it exceeded DHS’s statutory

jurisdiction or authority, and (c) it was arbitrary, capricious, and an abuse of

discretion, and (2) the proposed rule violated the Fifth Amendment’s Due Process

Clause because it denied equal protection based on race and unconstitutional

animus. 

The district court heard oral argument on October 3, 2019, and on October

11, granted the preliminary injunction. See Washington, 2019 WL 5100717, at

*23. The court’s conclusions largely mirrored those of the Northern District of

California, though there were some differences. Citing the States’ anticipated

economic, administrative, and public-health costs, the court held that the States had

standing and that the matter was ripe. Id. at *11. Finding that the INA was

enacted “to protect states from having to spend state money to provide for

18
immigrants who could not provide for themselves,” the court concluded that the

States were within the INA’s zone of interests. Id.

 On the merits, the court held that the States had shown a likelihood of

success on the arbitrary-and-capriciousness claim and the Chevron claim, though

the Washington court was less clear than the California court had been about at

which step of the Chevron analysis the proposed rule would fail. Id. at *13–17. 

Unlike the California court, the Washington court also found that the States were

likely to succeed in proving that DHS had violated the Rehabilitation Act, and that

DHS acted beyond its congressionally delegated authority in defining selfsufficiency. Id. at *17–18. Noting that “the Plaintiff States provide a strong basis

for finding that disenrollment from non-cash benefits programs is predictable, not

speculative,” and that such disenrollment would financially harm the States, the

court found that the States would suffer irreparable harm if the injunction were not

issued. Id. at *20–21. On these same grounds, the court found that the balance of

the equities and public interest both “tip[ped] in favor” of granting a preliminary

injunction. Id. at *21. However, unlike the California court, the Washington court

found a geographically limited injunction untenable, in part because a limited

injunction might give immigrants an incentive to move from unprotected states to

19
protected states. Accordingly, the Washington court granted the States a

nationwide injunction. Id. at *22–23.

On October 25, 2019, DHS sought a stay of the preliminary injunction. 

DHS informed the court that it would seek appellate relief if the court did not act

by November 14. 

 * * * 

By November 14, neither district court responded to the respective motions

to stay. On November 15, 2019, DHS filed a motion in this court for an emergency

stay of the injunction.

II. JURISDICTION

DHS contends that the plaintiffs do not have Article III standing to sue and

that their claims do not fall within the zone of interests protected by the INA. We

have an obligation to ensure that jurisdiction exists before proceeding to the merits. 

See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–95 (1998).8 

Additionally, although no party has raised the issue, we must address whether

8

 Both district courts also held that the States’ claims fall within the INA’s

“zone of interests.” See City & Cty. of San Francisco, 2019 WL 5100718, at *41;

Washington, 2019 WL 5100717, at *11. For present purposes, because the issue is

close and raises a prudential rather than jurisdictional concern, see Bank of Am.

Corp. v. City of Miami, 137 S. Ct. 1296, 1302 (2017), we will assume that the

States’ claims satisfy the requirement.

20
DHS’s request for a stay pending appeal is moot in light of the fact that two courts

outside our circuit have also issued nationwide injunctions, and any decision we

issue here would not directly affect those orders. We conclude that, at this

preliminary stage of the proceedings, the States have sufficiently alleged grounds

for Article III standing and that DHS’s petition for a stay is not moot.

 

A. Article III Standing

Article III of the Constitution limits the federal judicial power to the

adjudication of “Cases” and “Controversies.” U.S. CONST. art. III, § 2, cl. 1. This

fundamental limitation “is founded in concern about the proper—and properly

limited—role of the courts in a democratic society.” Summers v. Earth Island

Inst., 555 U.S. 488, 492–93 (2009) (quoting Warth v. Seldin, 422 U.S. 490, 498

(1975)). “One of the essential elements of a legal case or controversy is that the

plaintiff have standing to sue.” Trump v. Hawai’i, 138 S. Ct. 2392, 2416 (2018). 

“[B]uilt on separation-of-powers principles,” standing ensures that litigants have “a

personal stake in the outcome of the controversy as to justify the exercise of the

court’s remedial powers on their behalf.” Town of Chester v. Laroe Estates, Inc.,

137 S. Ct. 1645, 1650 (2017) (internal citations and alterations omitted).

21
To demonstrate Article III standing, a plaintiff must show a “concrete and

particularized” injury that is “fairly traceable” to the defendant’s conduct and “that

is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins,

136 S. Ct. 1540, 1547–48 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,

560–61 (1992)). “At least one plaintiff must have standing to seek each form of

relief requested,” Town of Chester, 137 S. Ct. at 1651, and that party “bears the

burden of establishing” the elements of standing “with the manner and degree of

evidence required at the successive stages of the litigation,” Lujan, 504 U.S. at 561. 

“At this very preliminary stage,” plaintiffs “may rely on the allegations in their

Complaint and whatever other evidence they submitted in support of their

[preliminary-injunction] motion to meet their burden.” Washington v. Trump, 847

F.3d 1151, 1159 (9th Cir. 2017) (per curiam). And they “need only establish a risk

or threat of injury to satisfy the actual injury requirement.” Harris v. Bd. of

Supervisors, 366 F.3d 754, 762 (9th Cir. 2004); see Spokeo, 136 S. Ct. at 1548

(noting that the injury must be “actual or imminent, not conjectural or

hypothetical” (quoting Lujan, 504 U.S. at 560)).

The district courts concluded that the States had standing based on their

alleged loss of federal funds and increase in operational costs related to individuals

disenrolling from the non-cash public benefits at issue. DHS challenges this

22
finding, arguing that predictions of future financial harm are based on an

“‘attenuated chain of possibilities’ that does not show ‘certainly impending’

injury.”9 DHS’s argument is unavailing for several reasons.

First, the injuries alleged are not entirely speculative—at least for standing

purposes. DHS acknowledges that one result of the Final Rule will be to

encourage aliens to disenroll from public benefits. It predicted a 2.5 percent

disenrollment rate when proposing the rule. 84 Fed. Reg. at 41,463. This

disenrollment, DHS predicted, would result in a reduction in Medicaid

reimbursement payments to the States of about $1.01 billion. Id. at 41,301. DHS

also acknowledged increased administrative costs that would result from the Final

Rule. Id. at 41,389. To be sure, the predicted result is premised on the actions of

third parties, but this type of “predictable effect of Government action on the

decisions of third parties” is sufficient to establish injury in fact. Dep’t of

Commerce v. New York, 139 S. Ct. 2551, 2566 (2019). 

Moreover, according to evidence supplied by the States, the predicted results

have already started. As more individuals disenroll from Medicaid, the States will

no longer receive reimbursements from the federal government for treating them. 

9

 DHS raises no argument about the second and third elements of the

standing analysis.

23
Similarly, the States have sufficiently alleged that they are facing new and ongoing

operational costs resulting from the Final Rule. See City & Cty. of San Francisco,

2019 WL 5100718, at *48. These costs are predictable, likely, and imminent. It is

disingenuous for DHS to claim that they are too attenuated at this point when it

acknowledged these costs in its own rulemaking process.

Finally, DHS’s reliance on Clapper v. Amnesty Int’l USA, 568 U.S. 398

(2013), is unfounded. There, the Court found that various human rights, labor,

legal, and media organizations did not have standing to challenge the

constitutionality of a law authorizing governmental electronic surveillance of

communications for foreign intelligence purposes. Id. at 414. The alleged injury

was that the threat of surveillance would compel them to travel abroad to have inperson conversations with sources and witnesses, in addition to other costs related

to protecting the confidentiality of sensitive communications. Id. at 406–07. The

Court found that the injury was not “certainly impending” because it was highly

speculative whether the government would imminently target communications

between the plaintiffs and foreign individuals. Id. at 410–11. The assumption that

their communications would be targeted was not enough to demonstrate injury in

fact. Id. at 411–14. Here, the States are not making assumptions about their

24
claimed injuries. Unlike in Clapper, the States present evidence that the predicted

disenrollment and rising administrative costs are currently happening.

Thus, based on the available evidence at this early stage of the proceedings,

we conclude that the States have shown that they have suffered and will suffer

direct injuries traceable to the Final Rule and thus have standing to challenge its

validity.

B. Mootness

Finally, we raise on our own the question of whether we can consider DHS’s

request for a stay of the district court’s preliminary injunctions. See Demery v.

Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004) (“[W]e have an independent duty to

consider sua sponte whether a case is moot.”). The stay would, presumably, allow

the Final Rule to go into effect pending further proceedings in the district court and

this court. The question of mootness arises because, contemporaneous with the

district courts’ orders here, district courts in Maryland and New York also issued

nationwide injunctions. Casa de Md/, Inc. v. Trump, 2019 WL 5190689 (D. Md.

Oct. 14, 2019); New York v. U.S. Dep’t of Homeland Sec., 2019 WL 5100372

25
(S.D.N.Y. Oct. 11, 2019).10

 Thus, unless a stay also issues in those cases, any stay

we might issue would not allow the Final Rule to go into effect; the Final Rule

would still be barred by those injunctions.

We recently addressed this precise question in California v. U.S. Department

of Health & Human Services, 941 F.3d 410, 423 (9th Cir. 2019), and we concluded

that even if an injunction from another court “has a fully nationwide scope, we

nevertheless retain jurisdiction under the exception to mootness for cases capable

of repetition, yet evading review.” Similarly, we conclude that DHS’s petition is

not moot, and we proceed to the merits of its petition. 

III. STANDARD OF REVIEW

DHS requests that we stay the district courts’ preliminary injunctions

pending resolution of the consideration of the merits of DHS’s appeals. We have

authority to do so under the All Writs Act, 28 U.S.C. § 1651, which provides that

the courts “may issue all writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of law.” See ScrippsHoward Radio, Inc. v. FCC, 316 U.S. 4, 9–10 (1942) (finding that a federal court

may stay judgments pending appeal “as part of its traditional equipment for the

10

 In a third case out of the Northern District of Illinois, the district court

issued an order enjoining enforcement of the Final Rule in Illinois only. Cook Cty.

v. McAleenan, 2019 WL 5110267 (N.D. Ill. Oct. 14, 2019).

26
administration of justice”); In re McKenzie, 180 U.S. 536, 551 (1901) (noting the

“inherent power of the appellate court to stay . . . proceedings on appeal”); see also

Fed. R. Civ. P. 62(g).

Two standards affect our determination, the standard applicable to district

courts for preliminary injunctions, and the standard for appellate courts for stays

pending appeal. The district court must apply a four-factor standard: 

A plaintiff seeking a preliminary injunction must establish [1] that he

is likely to succeed on the merits, [2] that he is likely to suffer

irreparable harm in the absence of preliminary relief, [3] that the

balance of equities tips in his favor, and [4] that an injunction is in the

public interest.

Winter, 555 U.S. at 20.

Alternatively, “‘serious questions going to the merits’ and a balance of

hardships that tips sharply towards the plaintiff can support issuance of a

preliminary injunction, so long as the plaintiff also shows that there is a likelihood

of irreparable injury and that the injunction is in the public interest.” All. for the

Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).

Generally, the purpose of a preliminary injunction is to “preserve the status

quo and the rights of the parties until a final judgment issues in the cause.” U.S.

Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010) (citing Univ.

of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); Sierra On-Line, Inc. v. Phoenix

27
Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984)). An injunction is “an

extraordinary remedy that may only be awarded upon a clear showing that the

plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. It “should not be

granted unless the movant, by a clear showing, carries the burden of persuasion.”

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (citation omitted).

 The standard we apply to DHS’s request for a stay is similar, although the

burden of proof is reversed. “The party requesting a stay bears the burden of

showing that the circumstances justify an exercise of that discretion,” and our

analysis is guided by four factors:

(1) whether the stay applicant has made a strong showing that he is

likely to succeed on the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether issuance of the stay will

substantially injury the other parties interested in the proceeding; and

(4) where the public interest lies.

Nken, 556 U.S. at 433–34 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). 

“The first two factors . . . are the most critical,” and the “mere possibility” of

success or irreparable injury is insufficient to satisfy them. Id. at 434 (internal

quotation marks omitted). At this stage of the proceedings, it is now DHS’s

burden to make “a strong showing that [it] is likely to” prevail against the States’

claims. Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken, 556

28
U.S. at 426). We consider the final two factors “[o]nce an applicant satisfies the

first two.” Nken, 556 U.S. at 435.

“A stay is an ‘intrusion into the ordinary process of administration and

judicial review,’ and accordingly ‘is not a matter of right, even if irreparable injury

might otherwise result to the appellant.’” Id. at 427 (citations omitted). “It is

instead ‘an exercise of judicial discretion,’ and ‘the propriety of its issue is

dependent upon the circumstances of the particular case.’” Id. at 433 (alteration

omitted) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672–73

(1926)). 

There is significant overlap in these standards. The first prong in both

tests—likelihood of success on the merits—is the same. And the Supreme Court

has made clear that satisfaction of this factor is the irreducible minimum

requirement to granting any equitable and extraordinary relief. Trump v. Hawai’i,

138 S. Ct. at 2423. The analysis ends if the moving party fails to show a likelihood

of success on the merits of its claims. Id.

IV. LIKELIHOOD OF SUCCESS ON THE MERITS

Any “person suffering legal wrong . . . or adversely affected or aggrieved”

by an agency’s final action may seek judicial review. 5 U.S.C. § 702. The scope

of our review is determined by the APA. As a reviewing court, we must “set

29
aside” a final rule if it is “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.” Id. § 706(2)(A). In making this determination, we

may “decide all relevant questions of law, interpret . . . statutory provisions, and

determine the meaning or applicability of the terms of an agency action.” Id. §

706. 

DHS argues that it is likely to succeed on the merits of its appeal because,

contrary to the conclusions of the district courts, the Final Rule is neither contrary

to law nor arbitrary and capricious. We agree. The Final Rule’s definition of

“public charge” is consistent with the relevant statutes, and DHS’s action was not

arbitrary or capricious. 

A. Contrary to Law

The States argue that the Final Rule is invalid under the APA because the

Final Rule’s definition of “public charge” is contrary to (1) the INA and (2) the

Rehabilitation Act. We disagree and find that DHS is likely to succeed in its

argument that the Final Rule is not contrary to law.11

11

 The States also brought claims in both courts under the equal protection

component of the Due Process Clause. U.S. CONST. art. V. Neither district court

reached this issue. We also decline to reach this issue. We will consider the

likelihood of success on the merits only as to those issues that formed the bases for

the district courts’ injunctions. In any further proceedings, the district courts are

free to consider any issues fairly before them. 

30
1. The INA and “Public Charge”

When confronted with an argument that an agency’s interpretation of a

statute that it administers is wrong, we employ the familiar Chevron two-step test. 

First, we ask “whether Congress has directly spoken to the precise question at

issue.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842

(1984). If it has, “that is the end of the matter; for the court, as well as the agency,

must give effect to the unambiguously expressed intent of Congress.” Id. at

842–43. But if Congress has not spoken directly to the issue at hand, we proceed

to the second step and ask “whether the agency’s answer is based on a permissible

construction of the statute.” Id. at 843.

We must keep in mind why Chevron is an important rule of construction: 

Chevron is rooted in a background presumption of congressional

intent: namely, that Congress, when it left ambiguity in a statute

administered by an agency, understood that the ambiguity would be

resolved, first and foremost, by the agency, and desired the agency

(rather than the courts) to possess whatever degree of discretion the

ambiguity allows. Chevron thus provides a stable background rule

against which Congress can legislate: Statutory ambiguities will be

resolved, within the bounds of reasonable interpretation, not by the

courts but by the administering agency. Congress knows to speak in

plain terms when it wishes to circumscribe, and in capacious terms

when it wishes to enlarge, agency discretion.

Arlington v. FCC, 569 U.S. 290, 296 (2013) (quotation marks and citations

omitted).

31
The district courts found that the Final Rule failed the Chevron test at one or

both steps because the Final Rule’s definition of “public charge” was an

impermissible reading of that phrase in the INA. We will consider each step in

turn.

a. Chevron Step 1

At Chevron’s first step, we determine whether Congress has directly spoken

to the issue at hand by “employing traditional tools of statutory construction.”

Chevron, 467 U.S. at 843 n.9. That means we start with the text. Afewerki v.

Anaya Law Grp., 868 F.3d 771, 778 (9th Cir. 2017). We will then examine the

history of interpretation to see if there has been a judicial construction of the term

“public charge” that “follows from the unambiguous terms of the statute and thus

leaves no room for agency discretion.” Nat’l Cable & Telecomms. Ass’n v. Brand

X Internet Servs., 545 U.S. 967, 982 (2005). Finally, we will consider other factors

raised by the district courts and the States.

(1) Text. Under § 212 of the INA, an alien is inadmissible if, “in the opinion

of” the immigration official, the alien “is likely at any time to become a public

charge.” In making that determination, the immigration official must consider “at

a minimum” the alien’s age, health, family status, financial resources, education,

and skills. 8 U.S.C. § 1182(a)(4)(A). Congress did not define these terms and

32
placed no further restrictions on what these officers may consider in the publiccharge assessment. Nor did Congress prescribe how the officers are to regard the

five enumerated factors. 

We have four quick observations. First, the determination is entrusted to the

“opinion” of the consular or immigration officer.12 That is the language of

discretion, and the officials are given broad leeway. Depending on the context in

which the “opinion” is given, the decision may be nonreviewable. Under the rule

of consular nonreviewability, only the most egregious abuses of discretion may be

reviewed. See Kerry v. Din, 135 S. Ct. 2128, 2140–41 (2015) (Kennedy, J.,

concurring); see also Cardenas v. United States, 826 F.3d 1164, 1171–72 (9th Cir.

2016) (holding that Justice Kennedy’s concurring opinion in Din is the controlling

opinion and summarizing the consular nonreviewability rule). Indeed, we have

previously held that the phrase “in the opinion of the Attorney General” in a nowrepealed immigration statute conferred “unreviewable” discretion to the Executive

Branch. See Kalaw v. I.N.S., 133 F.3d 1147, 1151–52 (9th Cir. 1997), superseded

by statute on other grounds. And to the extent the federal courts may review such

12

 The text of the INA does not mention immigration officers. Rather, it

commits the public-charge determination to the “opinion of the Attorney General.”

8 U.S.C. § 1182(a)(4)(A). As we explained above, Congress has since transferred

the authority granted by the INA to DHS’s immigration officers.

33
determinations, our review is narrow. See Montero-Martinez v. Ashcroft, 277 F.3d

1137, 1144 (9th Cir. 2002) (holding that judicial review of discretionary acts by the

BIA is limited to “the purely legal and hence non-discretionary” aspects of the

BIA’s action); see also Allen v. Milas, 896 F.3d 1094, 1106–07 (9th Cir. 2018)

(noting that judicial review of visa denials is “limited . . . to constitutional

challenges” and does not extend to APA-based challenges (emphasis omitted)). 

Second, the critical term “public charge” is not a term of art. It is not selfdefining. That does not mean that officials may pour any meaning into the term,

but it does mean that there is room for discretion as to what, precisely, being a

“public charge” encompasses. In a word, the phrase is “ambiguous” under

Chevron; it is capable of a range of meanings. So long as the agency has defined

the term within that range of meanings, we have no grounds for second-guessing

the agency, “even if the agency’s reading differs from what [we] believe[] is the

best statutory interpretation.” Brand X, 545 U.S. at 980 (citing Chevron, 467 U.S.

at 843–44 & n.11). It also means that an agency “must consider varying

interpretations and the wisdom of its policy on a continuing basis,” including “in

response to changed factual circumstances, or a change in administrations.” Id. at

981 (quotations marks and citations omitted).

34
Third, Congress set out five factors to be taken into account by immigration

officials, but expressly did not limit the discretion of officials to those factors. 

Rather the factors are to be considered “at a minimum.” Other factors may be

considered as well, giving officials considerable discretion in their decisions. 

Fourth, Congress granted DHS the power to adopt regulations to enforce the

provisions of the INA. When Congress created DHS, Congress vested the

Secretary of Homeland Security “with the administration and enforcement of . . .

all [] laws relating to the immigration and naturalization of aliens” and authorized

the Secretary to “establish such regulations . . . as he deems necessary.” 8 U.S.C. §

1103(a)(1) & (3); see also 6 U.S.C. § 112(b)(1) (authorizing the Secretary to

“delegate any of the Secretary’s functions to any [DHS] officer, employee, or

organizational unit”); Matter of D-J-, 23 I. & N. Dec. at 573–74. By granting

regulatory authority to DHS, Congress intended that DHS would resolve any

ambiguities in the INA. See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117,

2125 (2016) (“A premise of Chevron is that when Congress grants an agency the

authority to administer a statute by issuing regulations with the force of law, it

presumes the agency will use that authority to resolve ambiguities in the statutory

scheme.”). As we have already noted, the INA’s text is ambiguous. DHS has

35
attempted to elucidate that ambiguity in the Final Rule. In short, we do not read

the text of the INA to unambiguously foreclose DHS’s action.

(2) Historic Understanding. Although the foregoing would ordinarily be

sufficient to end our inquiry, the current provision, which was most recently

rewritten in 1996 in IIRIRA, is merely the most recent iteration of federal

immigration law to deem an alien inadmissible if he or she is likely to become a

“public charge.” There is a long history of judicial and administrative

interpretations of this phrase in the immigration context that predates the

enactment of the INA. Because “Congress is presumed to be aware of an

administrative or judicial interpretation of a statute and to adopt that interpretation

when it re-enacts a statute without change,” Lorillard v. Pons, 434 U.S. 575, 580

(1978), we must examine this history to determine if “public charge” has a welldefined and congressionally understood meaning that limits DHS’s discretion.

The history of the term “public charge” confirms that its definition has

changed over time to adapt to the way in which federal, state, and local

governments have cared for our most vulnerable populations. “Public charge” first

appeared in this country’s immigration law in 1882. That statute excluded a

would-be immigrant from the United States if the person was a “convict, lunatic,

36
idiot, or a[] person unable to take care of himself or herself without becoming a

public charge.” Act of Aug. 3, 1882 ch. 376, § 2, 22 Stat. 214. 

Congress did not define “public charge” in the 1882 act. We thus ascribe to

that phrase its commonly understood meaning at the time, as evidenced by

contemporary sources. See Freeman v. Quicken Loans, Inc., 566 U.S. 624, 633–34

& nn.6–8 (2012) (citing contemporary dictionary definitions to interpret statutory

phrases). An 1828 dictionary defined “charge” as “[t]hat which is enjoined,

committed, entrusted or delivered to another, implying care, custody, oversight, or

duty to be performed by the person entrusted,” or a “person or thing committed to

anothers [sic] custody, care or management.” Charge, WEBSTER’S DICTIONARY

(1828 Online Edition), http://webstersdictionary1828.com/Dictionary/charge; see

also Stewart Rapaljb & Robert L. Lawrence, DICTIONARY OF AMERICAN AND

ENGLISH LAW, WITH DEFINITIONS OF THE TECHNICAL TERMS OF THE CANON AND

CIVIL LAWS 196 (Frederick D. Linn & Co. 1888) (defining “charge” as “an

obligation or liability. Thus we speak . . . of a pauper being chargeable to the

parish or town”). That is a broad, common-sense definition, which was reflected in

Nineteenth-Century judicial opinions using the phrase. See, e.g., In re Day, 27 F.

678, 681 (C.C.S.D.N.Y. 1886) (defining a “public charge” as a person who “can

neither take care of themselves, nor are under the charge or protection of any other

37
person”); State v. The S.S. “Constitution”, 42 Cal. 578, 584–85 (1872) (noting that

those who are “liable to become a public charge” are “paupers, vagabonds, and

criminals, or sick, diseased, infirm, and disabled persons”); City of Alton v.

Madison Cty., 21 Ill. 115, 117 (1859) (noting that a person is not a “public charge”

if the person has “ample means” of support). 

The 1882 act did not consider an alien a “public charge” if the alien received

merely some form of public assistance. The act itself established an “immigrant

fund” that was designed to provide “for the care of immigrants arriving in the

United States.” Act of Mar. 26, 1910 ch. 376, § 1, 22 Stat. 214. Congress thus

accepted that providing some assistance to recent immigrants would not make

those immigrants public charges. But Congress did not draw that line with any

precision. Instead, we read “public charge” in the 1882 act to refer generally to

those who were unwilling or unable to care for themselves. In context that often

meant that they were housed in a government or charitable institution, such as an

almshouse, asylum, or penitentiary. 

The term “public charge” endured through subsequent amendments to the

1882 act. In 1910, Congress enacted a statute that deemed “paupers; persons likely

to become a public charge; professional beggars;” and similar people inadmissible. 

ch. 128, § 2, 36 Stat. 263 (1910). Relying on the placement of “public charge”

38
between “paupers” and “professional beggars,” the Supreme Court held that a

person is likely to become a public charge if that person has “permanent personal

objections” to finding employment. Gegiow v. Uhl, 239 U.S. 3, 10 (1915). In that

case, the petitioners, Russian emigrees, arrived in the United States with little cash

and the intention of going to Portland, Oregon. The immigration officials

considered them likely to become public charges because Portland had a high

unemployment rate. In a spare, three-page opinion by Justice Holmes, the Court

noted that the “single question” before the Court was “whether an alien can be

declared likely to become a public charge on the ground that the labor market in

the city of his immediate destination is overstocked.” Id. at 9–10. The Court

answered in the negative. In making the public-charge determination, immigration

officers must consider an alien’s “personal” characteristics, not a localized job

shortage. Id. at 10. The Court observed that “public charge” should be “read as

generically similar to the other[] [statutory terms] mentioned before and after” that

phrase. Id. Five years later, we followed the Supreme Court’s lead, holding that

“the words ‘likely to become a public charge’ are meant to exclude only those

persons who are likely to become occupants of almshouses for want of means with

which to support themselves in the future.” Ng Fung Ho v. White, 266 F. 765, 769

(9th Cir. 1920) (citing Howe v. United States, 247 F. 292, 294 (2d Cir. 1917)),

39
aff’d in part and rev’d in part on other grounds, 259 U.S. 276 (1922).13

 Thus, as

of 1920, we considered the likelihood of being housed in a state institution to be

the primary factor in the public-charge analysis. 

By the mid-Twentieth Century, the United States had largely abandoned the

poorhouse in favor of direct payments through social welfare legislation. At the

federal level, the government had created Social Security and Aid to Families With

Dependent Children (AFDC). At the state level, governments supplemented

family income through programs such as unemployment insurance and worker’s

compensation. Similar changes were being made in other programs such as mental

health care, where we moved from institutionalizing the mentally ill to a program

of treatment with the end of releasing them. As Chief Justice Burger observed:

Historically, and for a considerable period of time, subsidized

custodial care in private foster homes or boarding houses was the

13

 In Ng Fung Ho, the petitioner had been admitted to the United States,

based partly on his holding a “certificate” that allowed him to be a “merchant.” Id.

at 768. Several years after his admission, he pleaded guilty to gambling. Id. at

769. It was then determined that the petitioner was no longer a merchant. The

government argued that the petitioner was deportable because he had been likely to

become a public charge at the time of his admission. Because there was no

evidence that the certificate he had produced prior to admission had been

fraudulent, we held that merely pleading guilty to gambling and paying a $25 fine

three years after being admitted did not “prove that the alien . . . was likely to

become a public charge” at the time of admission. Id. We thus rejected the

government’s assertion that the petitioner should be deported on that basis. Id. at

770.

40
most benign form of care provided incompetent or mentally ill

persons for whom the States assumed responsibility. Until well into

the 19th century the vast majority of such persons were simply

restrained in poorhouses, almshouses, or jails.

O’Connor v. Donaldson, 422 U.S. 563, 582 (1975) (Burger, C.J., concurring). 

“[T]he idea that States may not confine the mentally ill except for the purpose of

providing them with treatment [was] of very recent origin.” Id. (footnote omitted). 

The way in which we regarded the poor and the mentally infirm not only brought

changes in the way we treated them, but major changes in their legal rights as well. 

See, e.g., McNeil v. Director, Patuxent Inst., 407 U.S. 245, 248–50 (1972)

(requiring a hearing before a person who has completed his criminal sentence can

be committed to indefinite confinement in a mental institution); cf. Goldberg v.

Kelly, 397 U.S. 254, 260–61 (1970) (holding that a recipient of public assistance

payments is constitutionally entitled to an evidentiary hearing before those

payments are terminated).

The movement towards social welfare was soon reflected in the definition of

“public charge.” In Matter of B-, 3 I. & N. Dec. 323 (BIA 1948), the recently

created BIA articulated a new definition of “public charge.” Permanent

institutionalization would not be the sole measure of whether an alien was a public

charge. The BIA said it would also consider whether an alien received temporary

41
services from the government. At the same time, the BIA recognized that mere

“acceptance by an alien of services provided by” the government “does not in and

of itself make the alien a public charge.” Id. at 324. Instead, the BIA stated that an

alien becomes a public charge if three elements are met: “(1) The State or other

governing body must, by appropriate law, impose a charge for the services

rendered to the alien. . . . (2) The authorities must make demand for payment of

the charges . . . . And (3) there must be a failure to pay for the charges.” Id. at

326. In other words, the government benefit received by the alien must be

monetized, a bill must be presented to the alien, and the alien must refuse to pay. 

Ultimately, in Matter of B-, the BIA held that the petitioner had not become a

public charge, even though she had been involuntarily committed to a mental

institution, because the state of Illinois had not charged her or demanded payment. 

Id. at 327. The BIA’s order was subsequently affirmed by the Attorney General. 

Id. at 337.

Four years later, Congress substantially revised the immigration laws in the

Immigration and Nationality Act of 1952. The amended statute retained the term

“public charge,” but, for the first time, made clear that the decision was committed

to the opinion of a consular officer or the Attorney General. The INA deemed

inadmissible “[a]liens who, in the opinion of the consular officer at the time of

42
application for a visa, or in the opinion of the Attorney General at the time of

application for admission, are likely at any time to become public charges.” Title

2, ch. 2, § 212, 66 Stat. 163, 183 (1952). Although Matter of B- was not

mentioned in the legislative history accompanying the 1952 act, it is notable that

Congress chose to insert this “opinion” language following the BIA’s articulation

of a new definition of “public charge” that departed from prior judicial

interpretations of the term.

In 1974, the BIA altered course again. The BIA limited Matter of B-’s threepart test to determining whether a person had become a public charge after having

been admitted to the United States. See Matter of Harutunian, 14 I. & N. Dec.

583, 585 (BIA 1974). After noting that the phrase “public charge” had been

interpreted differently by various courts, the BIA held:

[A]ny alien who is incapable of earning a livelihood, who does not

have sufficient funds in the United States for his support, and has no

person in the United States willing and able to assure that he will not

need public support is excludable as likely to become a public charge

whether or not the public support which will be available to him is

reimbursable to the state.

Id. at 589–90. The BIA thus pegged the public-charge determination to whether

the alien was likely to “need public support,” irrespective of whether the alien was

43
likely to be institutionalized for any length of time and billed for the cost by the

state. Id. at 589.

That definition of “public charge” was subsequently amended by the INS. 

In 1987, the INS issued a final rule that deemed an applicant for adjustment of

status to be a “public charge” if the applicant had “received public cash

assistance.” Adjustment of Status for Certain Aliens, 52 Fed. Reg. 16,205, 16,211

(May 1, 1987). INS did not state how much “public cash assistance” an alien had

to receive, but left the decision to officers who would judge the totality of the

circumstances. See id. at 16,211 (noting that “all [the] evidence produced by the

applicant will be judged”), 16,212 (“The weight given in considering applicability

of the public charge provisions will depend on many factors . . . .”). INS did make

clear that “public cash assistance” would not include the value of “assistance in

kind, such as food stamps, public housing, or other non-cash benefits,” including

Medicare and Medicaid. Id. at 16,209. 

In 1996, through IIRIRA, Congress enacted the current language appearing

in § 212 of the INA. Omnibus Consolidated Appropriations Act, Title 5 § 531,

110 Stat. 3009 (1996). As detailed above, Congress added a requirement that an

immigration officer consider an alien’s “age;” “health;” “family status;” “assets,

44
resources and financial status;” and “education and skills” when determining if a

person is likely to become a public charge. 8 U.S.C. § 1182(a)(4)(B). 

Responding to the 1996 act, INS published the 1999 Field Guidance to

“establish clear standards governing a determination that an alien is inadmissible or

ineligible to adjust status . . . on public charge grounds.” 64 Fed. Reg. at 28,689. 

In the 1999 Field Guidance, INS defined “public charge” as “an alien . . . who is

likely to become (for admission/adjustment purposes) primarily dependent on the

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

assistance for income maintenance or (ii) institutionalization for long-term care at

government expense.” Id. (internal quotation marks omitted). The 1999 Field

Guidance made clear that the public-charge determination remained a “totality of

the circumstances test.” Id. at 28,690. Within this totality-of-the-circumstances

assessment, only the receipt of “cash public assistance for income maintenance”

should be considered; “receipt of non-cash benefits or the receipt of specialpurpose cash benefits not for income maintenance should not be taken into

account.” Id. The 1999 Field Guidance thus largely reaffirmed INS’s 1987 rule. 

For the past twenty years, the 1999 Field Guidance has governed, until it was

replaced by the Final Rule. 

45
So what to make of this history? Unlike the district courts, we are unable to

discern one fixed understanding of “public charge” that has endured since 1882. If

anything has been consistent, it is the idea that a totality-of-the-circumstances test

governs public-charge determinations. But different factors have been weighted

more or less heavily at different times, reflecting changes in the way in which we

provide assistance to the needy. Initially, the likelihood of being housed in a

government or charitable institution was most important. Then, the focus shifted

in 1948 to whether public benefits received by an immigrant could be monetized,

and the immigrant refused to pay for them. In 1974, it shifted again to whether the

immigrant was employable and self-sufficient. That was subsequently narrowed in

1987 to whether the immigrant had received public cash assistance, which

excluded in-kind benefits. Congress then codified particular factors immigration

officers must consider, which was followed by the 1999 Field Guidance’s

definition of “public charge.” In short, we find that the history of the use of

“public charge” in federal immigration law demonstrates that “public charge” does

not have a fixed, unambiguous meaning. Rather, the phrase is subject to multiple

interpretations, it in fact has been interpreted differently, and the Executive Branch

has been afforded the discretion to interpret it. 

46
Congress simply has not spoken to how “public charge” should be defined. 

We must presume that when Congress enacted the current version of the INA in

1996, it was aware of the varying historical interpretations of “public charge.” See

Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239–40 (2009). Yet Congress chose

not to define “public charge” and, instead, described various factors to be

considered “at a minimum,” without even defining those factors. It is apparent that

Congress left DHS and other agencies enforcing our immigration laws the

flexibility to adapt the definition of “public charge” as necessary. 

(3) Other Factors. Both district courts found it significant that Congress

twice considered, but failed to enact, a definition of “public charge” that is similar

to the definition adopted in the Final Rule. City & Cty. of San Francisco, 2019 WL

5100718 at *27; Washington, 2019 WL 5100717, at *17. During the debates over

IIRIRA in 1996, Congress considered whether to enact the following definition of

“public charge”: “the term ‘public charge’ includes any alien who receives [certain

means-tested] benefits . . . for an aggregate period of at least 12 months or 36

months” in some cases. 142 Cong. Rec. 24,313, at 24,425 (1996). Senator Leahy

argued that this was “too quick to label people as public charges for utilizing the

same public assistance that many Americans need to get on their feet,” and that the

phrase “means tested” was “unnecessarily uncertain.” S. Rep. No. 104-249, at

47
63–64 (1996). Nevertheless, the Senate passed the bill containing the definition of

“public charge.” Before the House considered the bill, however, President Clinton

implicitly threatened to veto it because it went “too far in denying legal immigrants

access to vital safety net programs which could jeopardize public health and

safety.” Statement on Senate Action on the “Immigration Control and Financial

Responsibility Act of 1996,” 32 Weekly Comp. Pres. Doc. 783 (May 6, 1996). 

Ultimately, Congress chose not to enact this “public charge” definition. In 2013,

the Senate rejected an amendment to the INA that “would have expanded the

definition of ‘public charge’ such that people who received non-cash health

benefits could not become legal permanent residents. This amendment would also

have denied entry to individuals whom the Department of Homeland Security

determines are likely to receive these types of benefits in the future.” S. Rep. No.

113-40, at 63 (2013). 

The district courts viewed these failed legislative efforts as evidence that

Congress specifically rejected the interpretation of “public charge” DHS

articulated in the Final Rule, and that the Final Rule is thus an impermissible

reading of the INA. City & Cty. of San Francisco, 2019 WL 5100718, at *27;

Washington, 2019 WL 5100717, at *17. We disagree. If this legislative history is

probative of anything, it is probative only of the fact that Congress chose not to

48
codify a particular interpretation of “public charge.”

14

See Cent. Bank of Denver,

N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 184 (1994) (“[F]ailed

legislative proposals are a particularly dangerous ground on which to rest an

interpretation of a prior statute.” (quotation marks and citation omitted)). But the

failure of Congress to compel DHS to adopt a particular rule is not the logical

equivalent of forbidding DHS from adopting that rule. The failure to adopt a new

rule is just that: no new rule.

15

 And no change to § 212 means that consular

officers, the Attorney General, and DHS retain all the discretion granted them in

the INA.

14

 Sometimes it is appropriate to consider language Congress has rejected,

primarily when Congress rejected language in favor of the statute adopted and

under review. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 441–42 (1987)

(contrasting Congress’s decision to adopt the House proposal over the Senate

version). 

15

 We can speculate as to the reasons that members of Congress declined to

adopt these legislative proposals, but the speculation will not help us. “A bill can

be proposed for any number of reasons, and it can be rejected for just as many

others.” Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers, 531

U.S. 159, 170 (2001). Although some members may have thought the rule too

harsh, others may have thought it too lenient, while a third group may have thought

the rule should be left flexible and in the hands of the immigration agencies. If

anything, this legislative history proves only that Congress decided not to constrain

the discretion of agencies in determining who is a public charge. That discretion

had long been vested in the agencies, and these failed legislative efforts did not

alter that discretion. 

49
A second argument made by the States and relied upon by the Eastern

District of Washington is that DHS exceeded its authority by determining what

makes a person “self-sufficient.” Washington, 2019 WL 5100717, at *17–18. 

This argument is refuted by the statute itself. As we have discussed, the INA

requires immigration officers to consider an alien’s “health,” “family status,”

“assets, resources, [] financial status,” “education and skills.” 8 U.S.C. §

1182(a)(4)(B)(i)(II)–(V) . The concept of self-sufficiency is subsumed within each

of these factors. And even if it were not, the statutory factors are not exhaustive;

DHS may add to them. See id. § 1182(a)(4)(B)(i). Because DHS has been

“charged with the administration and enforcement” of all “laws relating to the

immigration and naturalization of aliens,” Id. § 1103(a)(1); see also 6 U.S.C. §

50
112(b)(1), determining what constitutes self-sufficiency for purposes of the publiccharge assessment is well within DHS’s authority.

16

* * *

In short, Congress has not spoken directly to the interpretation of “public

charge” in the INA. Nor did it unambiguously foreclose the interpretation

articulated in the Final Rule. Instead, the phrase “public charge” is ambiguous

under Chevron. DHS has the authority to interpret it and “must consider varying

interpretations and the wisdom of its policy on a continuing basis.” Chevron, 467

U.S. at 863–64. Indeed, “the fact that the agency has adopted different definitions

in different contexts adds force to the argument that the definition itself is flexible,

particularly since Congress has never indicated any disapproval of a flexible

16

 The Eastern District of Washington also held that, because the states have

a “central role in formulation and administration of health care policy,” DHS

“acted beyond its Congressionally delegated authority” when it adopted the Final

Rule. Washington, 2019 WL 5100717, at *18; see also id. (“Congress cannot

delegate authority that the Constitution does not allocate to the federal government

in the first place . . . . .”). Congress, of course, has plenary authority to regulate

immigration and naturalization. U.S. CONST. art. I, § 8, cl. 4. Pursuant to that

authority, Congress adopted the “public charge” rule, which no one has challenged

on constitutional grounds. Further, Congress has authorized DHS to adopt

regulations. 8 U.S.C. § 1103(a)(3). DHS thus did not overstep its authority by

promulgating the Final Rule. Indeed, under the district court’s analysis, even the

1999 Field Guidance might be unconstitutional. But neither the district court nor

the States question the lawfulness of the 1999 Field Guidance. We see no

meaningful difference between INS’s authority to promulgate the 1999 Field

Guidance and DHS’s authority to adopt the Final Rule.

51
reading of the statute.” Id. at 864. We thus proceed to the second step of the

Chevron analysis. 

b. Chevron Step 2

At Chevron’s second step, we ask whether the agency’s interpretation is

“reasonable—or ‘rational and consistent with the statute.’” Diaz-Quirazco v. Barr,

931 F.3d 830, 840 (9th Cir. 2019) (quoting Sullivan v. Everhart, 494 U.S. 83, 89

(1990)). If it is, we must defer to it, “even if the agency’s reading differs from

what the court believes is the best statutory interpretation.” Perez-Guzman v.

Lynch, 835 F.3d 1066, 1073–74 (9th Cir. 2016) (quoting Brand X, 545 U.S. at

980).

The Final Rule easily satisfies this test. As we have explained, the INA

grants DHS considerable discretion to determine if an alien is likely to become a

public charge. To be sure, under the Final Rule, in-kind benefits (other than

institutionalization) will for the first time be relevant to the public-charge

determination. We see no statutory basis from which a court could conclude that

the addition of certain categories of in-kind benefits makes DHS’s interpretation

52
untenable.

17

 And whether the change in policy results from changing

circumstances or a change in administrations, the wisdom of the policy is not a

question we can review. See Brand X, 545 U.S. at 981.

Our conclusion is reinforced by the Personal Responsibility and Work

Opportunity Reconciliation Act of 1996 (PRWORA), which Congress enacted

contemporaneous with IIRIRA. PRWORA set forth our “national policy with

respect to welfare and immigration.” 8 U.S.C. § 1601. In relevant part, PRWORA

provides, “Self-sufficiency has been a basic principle of United States immigration

law since this country’s earliest immigration statutes.” Id. § 1601(1). As a result,

“[i]t continues to be the immigration policy of the United States that . . . aliens

within the Nation’s borders not depend on public resources to meet their needs, but

rather rely on their own capabilities and the resources of their families, their

sponsors, and private organizations.” Id. § 1601(2). Receipt of non-cash public

assistance is surely relevant to “self-sufficiency” and whether immigrants are

“depend[ing] on public resources to meet their needs.” See id. § 1601(1)–(2); see

17

 Cash benefits and in-kind benefits are often treated under the single rubric

of a “direct subsidy.” Witters v. Wash. Dep’t of the Servs. for the Blind, 474 U.S.

481, 487 (1986). In certain contexts, such as settlement, “compensation in kind is

worth less than cash of the same nominal value,” In re Mex. Transfer Litig., 267

F.3d 743, 748 (9th Cir. 2001), but the Final Rule does not deal with the valuation

of such services. It deals only with whether in-kind benefits have been received

under certain specified programs. 

53
also Korab v. Fink, 797 F.3d 572, 580 (9th Cir. 2014). PRWORA thus lends

support to DHS’s interpretation of the INA. 

We conclude that DHS’s interpretation of “public charge” is a permissible

construction of the INA. 

2. The Rehabilitation Act

The States argue, and the Eastern District of Washington found, that the

Final Rule is inconsistent with the Rehabilitation Act. Washington, 2019 WL

5100717, at *18. The Northern District of California rejected that argument. City

& Cty. of San Francisco, 2019 WL 5100718, at *29–30. The Rehabilitation Act

provides: “No otherwise qualified individual with a disability in the United States

. . . shall, solely by reason of her or his disability, be excluded from participation

in, be denied the benefits of, or be subjected to discrimination under any program

or activity . . . conducted by any Executive agency.” 29 U.S.C. § 794(a). 

“Program or activity” is defined as “all of the operations of . . . [an] agency.” Id. §

794(b). 

This argument need not detain us long. First, under the INA, immigration

officers are obligated to consider an immigrant’s “health” when making the publiccharge determination. 8 U.S.C. § 1182(a)(4)(B)(i)(II). To the extent that inquiry

may consider an alien’s disability, the officers have been specifically directed by

54
Congress to do so. Indeed, Congress’s express direction that immigration officers

consider an alien’s “health” came twenty-three years after the Rehabilitation Act. 

We cannot see how a general provision in one statute constrains an agency given a

specific charge in a subsequent law. The INA does not violate the Rehabilitation

Act. Second, nothing in the Final Rule changes DHS’s practice with respect to

considering an alien’s health. Nothing in the Final Rule suggests that aliens will be

denied admission or adjustment of status “solely by reason of her or his disability.”

Throughout the Final Rule, DHS confirms that the public-charge determination is a

totality-of-the-circumstances test. See 84 Fed. Reg. at 41,295, 41,368. And DHS

specifically addressed this argument in the Final Rule: “it is not the intent, nor is it

the effect of this rule to find a person a public charge solely based on his or her

disability.” Id. at 41,368. DHS has shown a strong likelihood that the Final Rule

does not violate the Rehabilitation Act.

* * *

 In sum, DHS is likely to succeed in its argument that the Final Rule should

not be set aside as contrary to law. We will not minimize the practical impact of

the Final Rule, but we will observe that it is a short leap in logic for DHS to go

from considering in-cash public assistance to considering both in-cash and in-kind

public assistance. DHS has shown that there is a strong likelihood that its decision

55
to consider the receipt of in-kind government assistance as part of its totality-ofthe-circumstances test is a reasonable interpretation of the INA and does not

violate the Rehabilitation Act. 

B. Arbitrary and Capricious

Arbitrary and capricious review under the APA addresses the reasonableness

of the agency’s decision. The classic statement of our scope of review is Motor

Vehicle Manufacturers Association of the United States v. State Farm Mutual

Automotive Insurance Co., 463 U.S. 29 (1983): 

[T]he agency must examine the relevant data and articulate a

satisfactory explanation for its action including a rational connection

between the facts found and the choice made. In reviewing that

explanation, we must consider whether the decision was based on a

consideration of the relevant factors and whether there has been a

clear error of judgment. Normally, an agency rule would be arbitrary

and capricious if the agency has relied on factors which Congress has

not intended it to consider, entirely failed to consider an important

aspect of the problem, offered an explanation for its decision that runs

counter to the evidence before the agency, or is so implausible that

could not be ascribed to a difference in view of the product of agency

expertise.

Id. at 43 (quotation marks and citations omitted); see Org. Vill. of Kake v. Dep’t of

Agric., 795 F.3d 956, 966–67 (9th Cir. 2015). An agency’s failure to respond to

any particular comment or point put forward by a rule’s opponents is not a ground

for finding per se arbitrary-and-capricious action. See Safari Aviation Inc. v.

56
Garvey, 300 F.3d 1144, 1150–52 (9th Cir. 2002) (explaining that there is no per se

violation of the APA when an agency fails to address comments); Thompson v.

Clark, 741 F.2d 401, 408 (D.C. Cir. 1984) (“[The APA] has never been interpreted

to require the agency to respond to every comment, or to analyse [sic] every issue

or alternative raised by the comments, no matter how insubstantial.”). 

The fact that DHS has changed policy does not substantially alter the burden

in the challengers’ favor. DHS must, of course, “show that there are good reasons

for the new policy,” but, it 

need not demonstrate to a court’s satisfaction that the reasons for the

new policy are better than the reasons for the old one; it suffices that

the new policy is permissible under the statute, that there are good

reasons for it, and that the agency believes it to be better, which the

conscious change of course adequately indicates. 

FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).

The district courts raised two objections to DHS’s consideration that the

district courts found made the Final Rule arbitrary and capricious: (1) DHS’s

failure to properly weigh the costs to state and local governments and healthcare

providers, such as hospitals, resulting from disenrollment from public benefits

programs; and (2) DHS’s inadequate consideration of the Final Rule’s impact on

public health. City & Cty. of San Francisco, 2019 WL 5100718, at *31–35;

Washington, 2019 WL 5100717, at *19. We will consider each in turn.

57
 

1. Costs of Disenrollment

The Northern District of California’s principal concern was the higher costs

that state and local governments will face as a result of “disenrollment [from]

public benefits.” City & Cty. of San Francisco, 2019 WL 5100718, at *31. 

Specifically, the district court concluded that “DHS appears to have wholly failed

to engage with [comments on the costs of the change]. DHS failed to grapple with

the [Final] Rule’s predictable effects on local governments, and instead concluded

that the harms—whatever they may be—are an acceptable price to pay.” Id. at

*32. The court further faulted DHS for “refus[ing] to consider the costs associated

with predicted, likely disenrollment of those not subject to the public charge

determination.” Id. 

We begin with the observation that DHS addressed at length the costs and

benefits associated with the Final Rule. See 84 Fed. Reg. at 41,300–03

(summarizing costs and benefits); id. at 41,312–14 (estimating costs to health care

providers, states, and localities); id. at 41,463–81 (responding to various comments

on costs and benefits); id. at 41,485–41,489 (responding to Executive Orders

58
requiring an assessment of the costs and benefits of regulatory alternatives).18

 In

addition, DHS prepared an “Economic Analysis Supplemental Information for

Analysis of Public Benefits Programs,”

www.regulations.gov/document?D=USCIS-2010-0012-63742. 

DHS’s analysis began by stating, “This rule will impose new costs on this

population applying to adjust status . . . that are subject to the public charge ground

of inadmissibility.” 84 Fed. Reg. at 41,300. It estimated the direct costs to the

federal government of the rule to be $35,202,698 annually. Some of these direct

costs to the federal government would be offset by “individuals who may choose to

disenroll from or forego enrollment in a public benefits program.” Id. DHS

estimated the reduction in federal transfer payments would be about $2.47 billion

annually. Id. at 41,301. It further estimated that there would be a reduction in state

transfer payments of about $1.01 billion annually. Id. DHS also acknowledged

that the Final Rule would impose direct and indirect costs on individuals and

entities. The first of these, it suggested, were “familiarization costs,” which was “a

18

 Indeed, DHS’s notice is quite comprehensive. In no fewer than 216 pages

(which DHS estimated would take sixteen to twenty hours to read), DHS explained

the changes proposed, estimated costs and savings, and addressed scores of

comments on topics ranging from potential public-health concerns to whether DHS

should consider immigrants’ credit scores. See generally 84 Fed. Reg. at

41,292–508.

59
direct cost of the rule.” Id. Organizations that work with immigrant communities

would similarly experience indirect costs of familiarization. Id.

Elsewhere, DHS responded to comments claiming that the Final Rule would

cause aliens to disenroll from or forego enrollment in public benefit programs and

that this “would be detrimental to the financial stability and economy of

communities, States, local organizations, hospitals, safety net providers,

foundations, and healthcare centers.” Id. at 41,312; see also id. (suggesting that the

Final Rule would increase the use of hospital emergency rooms). DHS identified

three categories of aliens who might be affected by the Final Rule. First, there are

aliens who are entitled to public benefits and seek to immigrate or adjust status. 

Their receipt of some public benefits are simply not covered by the rule. DHS

noted, for example, that “emergency response, immunization, education, or

[certain] social services” are not included in its revised definition of “public

benefits.” Id. On the other hand, there are public benefits to which such an alien is

entitled but which will be considered by DHS in its determination whether such

alien is a “public charge.” DHS “acknowledge[d] that individuals subject to this

rule may decline to enroll in, or may choose to disenroll from, public benefits for

which they may be eligible under PRWORA, in order to avoid negative

consequences as a result of this final rule.” Id. DHS could not estimate how many

60
aliens in this category would be affected by the Final Rule “because data

limitations provide neither a precise count nor reasonable estimate of the number

of aliens who are both subject to the public charge ground of inadmissibility and

are eligible for public benefits in the United States.” Id. at 41,313. 

The second category of aliens are those who are unlawfully in the United

States. These are “generally barred from receiving federal public benefits other

than emergency assistance.” Id. (footnote omitted). Nevertheless, DHS

announced that it will not consider “for purposes of a public charge inadmissibility

determination whether applicants for admission or adjustment of status are

receiving food assistance through other programs, such as exclusively state-funded

programs, food banks, and emergency services, nor will DHS discourage

individuals from seeking such assistance.” Id.

Third are those aliens and U.S. citizens who are not subject to the Final

Rule, but erroneously think they are and disenroll from public benefits out of an

abundance of caution. Id. Disenrollment by this category of persons should not be

influenced by the Final Rule because their receipt of public benefits will “not be

counted against or made attributable to immigrant family members who are subject

to this rule.” Id. DHS understood “the potential effects of confusion” over the

scope of the Final Rule that might lead to over-disenrollment. DHS stated that it

61
would “issue clear guidance that identifies the groups of individuals who are not

subject to the rule.” Id.

The Northern District of California pointed out that DHS’s response “fails to

discuss costs being borne by the states, hospitals, or others, other than to say DHS

will issue guidance in an effort to mitigate confusion.” City & Cty. of San

Francisco, 2019 WL 5100718, at *34. The court further criticized DHS for “flatly

refus[ing] to consider the costs associated with predicted, likely disenrollment of

those not subject to the public charge determination.” Id. at *35.

We think several points must be considered here. First, the costs that the

states, localities, and various entities (such as healthcare providers) may suffer are

indirect. Nothing in the Final Rule imposes costs on those governments or entities;

the Final Rule does not regulate states, localities, and private entities. 

Disenrollment will be the consequence of either (1) the free choice of aliens who

wish to avoid any negative repercussions for their immigration status that would

result from accepting public benefits, or (2) the mistaken disenrollment of aliens or

U.S. citizens who can receive public benefits without any consequences for their

residency status. DHS addressed both groups. DHS said it did not have data to

calculate the size of the first group (and, presumably, the value of the benefits from

which they will disenroll), and it had no way to estimate the second. 84 Fed. Reg.

62
at 41,313. DHS stated that it would try to compensate for the latter group’s error

by publishing clear guidance, and it also noted that other organizations, public and

private, would have an incentive to provide accurate information to persons who

might mistakenly disenroll. Id. at 41,486. 

Second, DHS did acknowledge the indirect costs the Final Rule might

impose

downstream . . . on state and local economics, large and small

businesses, and individuals. For example, the rule might result in

reduced revenues for healthcare providers participating in Medicaid,

companies that manufacture medical supplies or pharmaceuticals,

grocery retailers participating in SNAP, agricultural producers who

grow foods that are eligible for purchase using SNAP benefits, or

landlords participating in federally funded housing programs. 

Id. It did not attempt to quantify those costs, but it recognized the overall effect of

the Final Rule, and that is sufficient. See Irvine Med. Ctr. v. Thompson, 275 F.3d

823, 835 (9th Cir. 2002) (“[T]he Secretary acknowledged that some Medicare

beneficiaries would possibly have to shoulder an additional financial burden as a

result of the repeal of the carry-forward provision. This acknowledgment did not

render the Secretary’s rulemaking statement or reliance upon it arbitrary,

however.” (internal citation omitted)) . 

63
Third, DHS is not a regulatory agency like EPA, FCC, or OSHA. Those

agencies have broad mandates to regulate directly entire industries or practices,

sometimes on no more instruction from Congress than to do so in the “public

convenience, interest or necessity,” 47 U.S.C. § 303 (FCC), or as “appropriate and

necessary,” 42 U.S.C. § 7412(n)(1)(A) (EPA). When Congress has vested such

broad regulatory authority in agencies, the Supreme Court has sometimes insisted

that the agencies perform some kind of a cost-benefit analysis. See, e.g., Michigan

v. EPA, 135 S. Ct. 2699, 2707 (2015) (EPA cannot “ignore cost when deciding

whether to regulate power plants”); Indus. Union Dep’t, AFL-CIO v. Am.

Petroleum Inst., 448 U.S. 607, 644 (1980) (plurality opinion) (OSHA must

“undertake some cost-benefit analysis before [it] promulgates any [safety and

health] standard”). But see Am. Textile Mfs. Inst. Inc. v. Donovan, 452 U.S. 490,

510–11 (1981) (“Congress uses specific language when intending that an agency

engage in cost-benefit analysis.”). By contrast, DHS is defining a simple statutory

term—“public charge”—to determine whether an alien is admissible. Its only

mandate is to regulate immigration and naturalization, not to secure transfer

payments to state governments or ensure the stability of the health care industry. 

Any effects on those entities are indirect and well beyond DHS’s charge and

expertise. Even if it could estimate the costs to the states, localities, and healthcare

64
providers, DHS has a mandate from Congress with respect to admitting aliens to

the United States. As DHS explained,

DHS does not believe that it is sound policy to ignore the

longstanding self-sufficiency goals set forth by Congress or to admit

or grant adjustment of status applications of aliens who are likely to

receive public benefits designated in this rule to meet their basic

living needs in . . . hope that doing so might alleviate food and

housing insecurity, improve public health, decrease costs to states and

localities, or better guarantee health care provider reimbursements. 

DHS does not believe that Congress intended for DHS to administer

[§ 212] in a manner that fails to account for aliens’ receipt of food,

medical, and housing benefits so as to help aliens become selfsufficient.

84 Fed. Reg. at 41,314. Even had DHS been able to calculate the indirect costs

that states, localities, and healthcare providers might bear as a result of the Final

Rule, it is not clear what DHS was supposed to balance. Rather, it was

sufficient—and not arbitrary and capricious—for DHS to consider whether, in the

long term, the overall benefits of its policy change will outweigh the costs of

retaining the current policy. 

2. Public-Health Concerns

The Northern District of California also found that DHS did not sufficiently

respond to certain public-health concerns. City & Cty. of San Francisco, 2019 WL

5100718, at *35–37. Specifically, the court worried that by disenrolling from

public-health benefits like Medicaid, people may forgo vaccinations, which could

65
have serious public-health consequences. Id. The district court also pointed out

that the 1999 Field Guidance declined to define “public charge” to include receipt

of “health and nutrition benefits” out of fear of possible public-health

ramifications. Id. at *37 (citing 64 Fed. Reg. at 28,692). 

DHS not only addressed these concerns directly, it changed its Final Rule in

response to the comments. 84 Fed. Reg. at 41,297. With respect to vaccines, DHS

stated that it “does not intend to restrict the access of vaccines for children or

adults or intend to discourage individuals form obtaining the necessary vaccines to

prevent vaccine-preventable diseases.” Id. at 41,384. The Final Rule “does not

consider receipt of Medicaid by a child under age 21, or during a person’s

pregnancy, to constitute receipt of public benefits.” DHS said that would address

“a substantial portion, though not all, of the vaccinations issue.” Id. Accordingly,

DHS “believes that vaccines would still be available for children and adults even if

they disenroll from Medicaid.” Id. at 41,385.

Both the Northern District of California and the Eastern District of

Washington expressed concern that the Final Rule was a departure from the 1999

Field Guidance, which raised the vaccine issue, and that the 1999 Field Guidance

had “engendered reliance.” City & Cty. of San Francisco, 2019 WL 5100718, at

*37; see also Washington, 2019 WL 5100717, at *19. The question is not whether

66
an agency can change a policy that people have come to rely on; clearly, it can. 

The real question is whether the agency has acknowledged the change and

explained the reasons for it. DHS knew well that it was adopting a change in

policy; that was the whole purpose of this rulemaking exercise. See Encino

Motorcars, 136 S. Ct. at 2126 (holding that a Department of Labor regulation was

“issued without . . . reasoned explanation” where there was “decades of industry

reliance on the Department’s prior policy” and the new rule was “offered [with]

barely any explanation”); INS v. Yueh-Shaio Yang, 519 U.S. 26, 32 (1996)

(distinguishing an “an irrational departure from [established] policy” from “an

avowed alteration of it”). “[I]t suffices that the new policy is permissible under the

statute, that there are good reasons for it, and that the agency believes it to be

better, which the conscious change of course adequately indicates.” Fox

Television Stations, 556 U.S. at 515. Because DHS has adequately explained the

reasons for the Final Rule, it has demonstrated a strong likelihood of success on the

merits. 

V. OTHER FACTORS

We have concluded that DHS is likely to succeed on the merits. Were we

reviewing the preliminary injunctions on direct review, this would be sufficient to

reverse the district courts’ orders. See Trump v. Hawai’i, 138 S. Ct. at 2423. But

67
because we are here on DHS’s motion for a stay, DHS bears the burden of

satisfying three additional factors: that DHS will suffer some irreparable harm, that

the balance of the hardships favors a stay, and that the stay is in the public interest. 

Nken, 556 U.S. at 434.

A. Irreparable Harm

We first consider whether DHS has shown that it “will be irreparably injured

absent a stay.” Nken, 556 U.S. at 434 (quoting Hilton, 481 U.S. at 776). The

claimed irreparable injury must be likely to occur; “simply showing some

‘possibility of irreparable injury’” is insufficient. Id. (citation omitted). DHS has

carried its burden on this factor.

 DHS contends that as long as the Final Rule is enjoined,

DHS will grant lawful-permanent-resident status to aliens whom the

Secretary would otherwise deem likely to become public charges in the

exercise of his discretion. DHS currently has no practical means of

revisiting public-charge determinations once made, so the injunctions will

inevitably result in the grant of LPR status to aliens who, under the

Secretary’s interpretation of the statute, are likely to become public charges. 

The States do not deny that LPR status might be irrevocably granted to some

aliens, but they claim that DHS has “exaggerate[d] the effect of the injunction”

because the public-charge exclusion has “never played a significant role in

immigration. In contrast, in just 8 of the 14 Plaintiff States [in the Washington

68
case] over 1.8 million lawfully present residents may be driven from federal and

state assistance programs if the injunction is lifted.” They argue that preserving the

status quo will not harm DHS pending adjudication on the merits, especially

considering that the Final Rule replaces a policy that had been in place for

decades. 

Several points emerge from the parties’ claims. First, the States appear to

concede that decisions to grant adjustment of status to aliens who could otherwise

not be eligible are not reversible. Second, although the States argue that “public

charge” exculsions have not been an important component of our immigration

scheme in the past, the whole point of DHS’s Final Rule is that “public charge”

inadmissibility has been underenforced. 

Moreover, to the extent the States are contesting the magnitude of the harm

to DHS, the claim is irrelevant here. We have said that this “analysis focuses on

irreparability, ‘irrespective of the magnitude of the injury.’” California v. Azar,

911 F.3d 558, 581 (9th Cir. 2018) (quoting Simula, Inc. v. Autoliv, Inc., 175 F.3d

716, 725 (9th Cir. 1999)). But even if we look at the magnitude, the States’ own

evidence is double-edged. The States claim that they will suffer harm because

millions of persons will disenroll to avoid potential immigration consequences. 

This seems to prove DHS’s point. If millions of “lawfully present residents” are

69
currently receiving public benefits and may choose to disenroll rather than be

found to be a “public charge” and inadmissible, the harm cited by DHS is not only

irreparable, but significant. 

Finally, we think the tenability of DHS’s past practice is of no import here. 

Congress has granted DHS the authority to enact and alter immigration regulations

and DHS has done that, and it has done so in a way that comports with its legal

authority. Thus, as of October 15, 2019, DHS had an obligation to deny admission

to those likely to become public charge, as defined by the Final Rule. This is true

regardless of DHS’s prior policy. As a consequence, the preliminary injunctions

will force DHS to grant status to those not legally entitled to it. DHS has satisfied

its burden to show irreparable harm to the government absent a stay of the

injunctions.

B. Balance of Hardships and Public Interest

Since DHS has satisfied the first two factors, we proceed to the final two:

balance of equities and the public interest. Nken, 556 U.S. at 435. “Because the

government is a party, we consider [these two factors] together.” California v.

Azar, 911 F.3d at 581. 

To balance the equities, we consider the hardships each party is likely to

suffer if the other prevails. N. Cheyenne Tribe v. Norton, 503 F.3d 836, 843–44

70
(9th Cir. 2007) (citing Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542

(1987). We have discussed above the irreparable, non-monetary harm to the

government. On the other hand, the States contend that they face financial, publichealth, and administrative harms if the Final Rule takes effect and otherwise

eligible individuals disenroll from public benefits. These effects are indirect

effects of the Final Rule and they are largely short-term, since they will only result

during the pendency of the proceedings in the district courts and any appeals to this

court and the Supreme Court.19

 Those proceedings are likely to be conducted on

an expedited basis, limiting further any potential harm to be considered by this

court. DHS does not dispute that the States will incur some financial harm if the

Final Rule is not stayed. It cannot, because DHS repeatedly addressed the

potential costs to the States in its Final Rule. See, e.g., 84 Fed. Reb. at 41,300,

41,312–14, 41,385–85, 41,469–70, 41,474. And while ordinarily, we do not

consider purely economic harm irreparable, we have concluded that “such harm is

irreparable” when “the states will not be able to recover monetary damages.”

California v. Azar, 911 F.3d at 581. Yet the States’ financial concerns will be

mitigated to some extent. As DHS explained in the Final Rule, disenrollment from

19

 This is not to say that the States will not continue to incur harms after the

litigation terminates, but these potential harms are not relevant to the question of a

preliminary injunction or a stay.

71
public benefits means a reduction in federal and state transfer payments, so the

States will realize some savings in expenditures. 84 Fed. Reg. at 41,485–86. 

Nevertheless, we consider the harms to the States, even if not readily quantifiable,

significant.

Balancing these harms is particularly difficult in this case. First, the harms

are not comparable. DHS’s harm is not monetary, but programmatic. The policy

behind Congress’s decision not to admit those who are likely to become a public

charge may have a fiscal component, but it is not the reason for DHS’s Final Rule,

nor has DHS argued financial harm as a reason for seeking a stay. By contrast, the

States’ proffered harms are largely financial. Second, both parties’ proffered

harms are, to a degree, speculative. We cannot say for certain how many residents

of the plaintiff states and counties will disenroll from public benefits programs, nor

how much any over-disenrollment will cost the States. Nor can we say for certain

how many aliens might be found admissible during the pendency of the

preliminary injunction, and would have been found inadmissible under the Final

Rule. Given the largely predictive nature of both parties’ alleged harms, we cannot

state with any confidence which is greater. 

For the same reasons, the public interest in this case is likewise difficult to

calculate with precision. DHS contends it is in the public’s interest not to grant

72
immigration status to persons likely to become public charges. The States contend

that it is in the public’s interest to avoid increased administrative and public-health

costs. Both of these contentions are likely true. But on balance, we have few

standards for announcing which interest is greater.

We recently observed that “balancing the equities is not an exact science.”

Azar, 911 F.3d at 582. Indeed, Justice Frankfurter once remarked that the

balancing of the equities was merely “lawyers’ jargon for choosing between

conflicting public interests.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 609 (1952) (Frankfurter, J., concurring). Whether the stay is granted or

denied, one party’s costs will be incurred and the other avoided. In the end, the

“critical” factors are that DHS has mustered a strong showing of likelihood of

success on the merits and some irreparable harm. Nken, 556 U.S. at 434. Those

factors weigh in favor of granting a stay, despite the potential harms to the States. 

And for that reason, the stay is in the public interest.

VII. CONCLUSION

The motion for a stay of the preliminary injunction in Nos. 19-17213 and

19-17214 is GRANTED. The petition for stay of the preliminary injunction in No.

19-35914 is GRANTED. The cases may proceed consistent with this opinion.

73
City and County of San Francisco, et al v. USCIS, et al, No. 19-17213+

BYBEE, Circuit Judge, concurring, perplexed and perturbed:

I join the majority opinion in full. I write separately to emphasize two

points—points that I feel must be made, but are better said in a separate opinion. 

We as a nation are engaged in titanic struggles over the future of

immigration in the United States. These are difficult conversations. As a court,

the Ninth Circuit in particular has felt the effects of the recent surge in

immigration. As we observed last year with respect to the asylum problem: 

We have experienced a staggering increase in asylum applications. Ten

years ago we received about 5,000 applications for asylum. In fiscal year

2018 we received about 97,000—nearly a twenty-fold increase. Our

obligation to process these applications in a timely manner, consistent with

our statutes and regulations, is overburdened. The current backlog of

asylum cases exceeds 200,000—about 26% of the immigration courts’ total

backlog of nearly 800,000 removal cases. In the meantime, while

applications are processed, thousands of applicants who had been detained

by immigration authorities have been released into the United States. 

E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 754 (9th Cir. 2018) (citations

omitted). Because of our proximity to Mexico, Central America, and East Asia,

the brunt of these cases will find their way into our court. And we are well aware

that we are only seeing the matters that find their way into federal court, and that

the burdens of the increase in immigration are borne not only by our judges, but by

the men and women in the executive branch charged with enforcing the

immigration laws. 

FILED

DEC 5 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Our court has faced an unprecedented increase in emergency petitions

arising out of the administration’s efforts to administer the immigration laws and

secure our borders. These controversial efforts have met with mixed success in our

court and the Supreme Court. See, e.g., Sierra Club v. Trump, 929 F.3d 670 (9th

Cir.) (construction of wall on the border with Mexico), stay issued, 140 S. Ct. 1

(2019) (mem.); E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742 (9th Cir. 2018)

(aliens entering outside a port of entry are ineligible for asylum); Regents of Univ.

of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476 (9th Cir. 2018) (DACA),

cert. granted, 139 S. Ct. 2779 (2019) (mem.); Trump v. Hawai’i, 878 F.3d 662 (9th

Cir. 2017) (per curiam) (entry restrictions), rev’d, 138 S. Ct. 2392 (2018); Flores v.

Sessions, 862 F.3d 863 (9th Cir. 2017) (treatment of detained alien minors under

Flores agreement); Hawai’i v. Trump, 859 F.3d 741 (9th Cir.) (per curiam) (travel

ban), vacated as moot, 138 S. Ct. 377 (2017) (mem.); Washington v. Trump, 847

F.3d 1151 (9th Cir.) (per curiam) (travel ban), cert. denied sub nom. Golden v.

Washington, 138 S. Ct. 448 (2017) (mem.). 

My first point is that even as we are embroiled in these controversies, no one

should mistake our judgments for our policy preferences. Whether “the iron fist

[or an extended velvet glove] would be the preferable policy. . . . our thoughts on

the efficacy of the one approach versus the other are beside the point, since our

2
business is not to judge the wisdom of the National Government’s policy.” Am.

Ins. Ass’n v. Garamendi, 539 U.S. 396, 427 (2003); see Sale v. Haitian Ctrs.

Council, Inc., 509 U.S. 155, 165 (1993) (“The wisdom of the policy choices made

by Presidents Reagan, Bush, and Clinton is not a matter for our consideration.”); 

Lochner v. New York, 198 U.S. 45, 69 (1905) (Harlan, J., dissenting) (“Whether or

not this be wise legislation it is not the province of the court to inquire. Under our

systems of government the courts are not concerned with the wisdom or policy of

legislation.”). 

Oh, I am not so naive as to think that a simple declaration of judicial

neutrality will quell inquiry into judges’ backgrounds, prior writings, and opinions. 

The battles over judicial nominations provide ample proof that our generation of

lawyers bear a diverse set of assumptions about the nature of law, proper modes of

constitutional interpretation, and the role of the judiciary. These are fair debates

and they are likely to continue for some time. We can only hope that over time our

differences can be resolved by reason and persuasion rather than by politics by

other means. But I don’t know of any judge—at least not this judge—who can say

that every opinion and judgment she issued was in accord with her preferred policy

outcomes. “[I]n our private opinions, [we] need not concur in Congress’ policies to

hold its enactments constitutional. Judicially we must tolerate what personally we

3
may regard as a legislative mistake.” Harisiades v. Shaughnessy, 342 U.S. 580,

590 (1952).

My second point is less politic. In this case, we are called upon to review

the merits of DHS’s Final Rule through the lens of the judicial review provisions

of the Administrative Procedure Act, 5 U.S.C. § 706. Our review is quite

circumscribed. We can set aside agency action if it is contrary to law, if it exceeds

the agency’s jurisdiction or authority, or if the agency failed to follow proper

procedure. Id. § 706(2)(B)–(D). Those are largely legal judgments, which we can

address through the traditional tools judges have long used. With respect to the

policy behind the agency’s action, we are largely relegated to reviewing the action

for arbitrariness and caprice. Id. § 706(2)(A). That is not a very rigorous standard

and, as a result, an agency has broad discretion to administer the programs

entrusted to it by Congress. Cf. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def.

Council, Inc., 435 U.S. 519, 558 (1978) (“[F]undamental policy questions

appropriately resolved in Congress . . . are not subject to reexamination in the

federal courts under the guise of judicial review of agency action.”). 

In the immigration context, whatever dialogue we have been having with the

administration over its policies, we are a poor conversant. We are limited in what

we can say and in our ability—even if anyone thought we were qualified to do

4
so—to shape our immigration policies. We lack the tools of inquiry, investigation,

and fact-finding that a responsible policymaker should have at its disposal. In sum,

the APA is the meagerest of checks on the executive. We are not the proper foil to

this or any other administration as it crafts our immigration policies. 

By constitutional design, the branch that is qualified to establish

immigration policy and check any excesses in the implementation of that policy is

Congress. See U.S. CONST. Art. I, § 8, cl. 4. And, so far as we can tell from our

modest perch in the Ninth Circuit, Congress is no place to be found in these

debates. We have seen case after case come through our courts, serious and

earnest efforts, even as they are controversial, to address the nation’s immigration

challenges. Yet we have seen little engagement and no actual legislation from

Congress. It matters not to me as a judge whether Congress embraces or

disapproves of the administration’s actions, but it is time for a feckless Congress to

come to the table and grapple with these issues. Don’t leave the table and expect

us to clean up. 

5
1

City and County of San Francisco, et al v. USCIS, et al, No. 19-17213+

OWENS, Circuit Judge, concurring in part and dissenting in part:

While I concur with the majority’s jurisdiction analysis, I otherwise 

respectfully dissent. In light of the: (1) government’s heavy burden due to the 

standard of review, (2) opaqueness of the legal questions before us, (3) lack of 

irreparable harm to the government at this early stage, (4) likelihood of substantial 

injury to the plaintiffs, and (5) equities involved, I would deny the government’s 

motions to stay and let these cases proceed in the ordinary course. See Nken v. 

Holder, 556 U.S. 418, 427, 433-34 (2009) (holding that a “stay is an ‘intrusion into 

the ordinary processes of administration and judicial review,’” and “[t]he party 

requesting a stay bears the burden of showing that the circumstances justify an 

exercise of [judicial] discretion” (citation omitted)).

FILED

DEC 5 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS