Amicus Curiae Brief — Department of Homeland Security, et al., Applicants v. New York, et al.

No. 19A785

IN THE

Supreme Court

of the United States

________________

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

ET AL.,

Applicants,

v.

STATE OF NEW YORK, ET AL.,

Respondents.

________________

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

ET AL.,

Applicants,

v.

MAKE THE ROAD NEW YORK, ET AL.,

Respondents.

________________

ON APPLICATION FOR STAY PENDING APPEAL TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT

________________

CONSENT MOTION FOR LEAVE TO FILE AND

BRIEF OF U.S. HOUSE OF REPRESENTATIVES AS

AMICUS CURIAE SUPPORTING RESPONDENTS

________________

Robert M. Loeb

Thomas M. Bondy

Peter E. Davis

Sachi Schuricht

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street NW

Washington, DC 20005

(202) 339-8400

Douglas N. Letter

General Counsel

Counsel of Record

Todd B. Tatelman

Principal Deputy General

Counsel

Megan Barbero

Josephine Morse

Adam A. Grogg

OFFICE OF GENERAL COUNSEL

U.S. HOUSE OF REPRESENTATIVES

219 Cannon Building

Washington, DC 20515

(202) 225-9700

Douglas.Letter@mail.house.gov

Counsel for Amicus Curiae

i

CONSENT MOTION FOR LEAVE TO FILE

BRIEF IN SUPPORT OF RESPONDENTS

The U.S. House of Representatives moves for

leave to file the accompanying brief in support of respondents’ opposition to the Department of Homeland

Security’s Application for a Stay Pending Appeal to

the U.S. Court of Appeals for the Second Circuit of the

injunctions issued by the U.S. District Court for the

Southern District of New York. These orders enjoin

DHS’s August 14, 2019, final rule establishing a new

standard for determining who is likely to become a

“public charge” for purposes of inadmissibility under

federal immigration law. Counsel for the parties consent to the filing of this brief.

Respectfully submitted,

Robert M. Loeb

Thomas M. Bondy

Peter E. Davis

Sachi Schuricht

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street NW

Washington, DC 20005

(202) 339-8400

Douglas N. Letter

General Counsel

Counsel of Record

Todd B. Tatelman

Megan Barbero

Josephine Morse

Adam A. Grogg

OFFICE OF GENERAL

COUNSEL U.S. HOUSE

OF REPRESENTATIVES

219 Cannon Building

Washington, DC 20515

(202) 225-9700

Douglas.Letter@mail.

house.gov

ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................... iii

INTEREST OF AMICUS CURIAE .......................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 2

ARGUMENT ............................................................. 5

I.

THE EQUITIES WEIGH DECISIVELY AGAINST

A STAY. ................................................................ 5

II. THE MERITS ALSO WEIGH DECISIVELY

AGAINST A STAY. ................................................. 8

A. DHS’s Effort To Redefine “Public

Charge” Departs From That Term’s

Longstanding And Settled Meaning............. 8

B. DHS’s New “Public Charge” Rule Is

Irrational. .................................................... 23

CONCLUSION ........................................................ 25

iii

TABLE OF AUTHORITIES

Page(s)

Cases

City & Cty. of S.F. v. USCIS,

408 F. Supp. 3d 1057

(N.D. Cal. 2019) ...................................................19

City of Boston v. Capen,

61 Mass. 116 (1851) .............................................10

Coykendall v. Skrmetta,

22 F.2d 120 (5th Cir. 1927)..................................11

Cuomo v. Clearing House Ass’n, LLC,

557 U.S. 519 (2009) ..............................................23

Dayton Bd. of Educ. v. Brinkman,

439 U.S. 1358 (1978) ..............................................8

Forest Grove Sch. Dist. v. T.A.,

557 U.S. 230 (2009) ..............................................14

Galvan v. Press,

347 U.S. 522 (1954) ................................................1

Gegiow v. Uhl,

239 U.S. 3 (1915) ............................................10, 20

Helsinn Healthcare S.A. v. Teva Pharm.

USA, Inc.,

139 S. Ct. 628 (2019)........................................4, 14

iv

Helvering v. Winmill,

305 U.S. 79 (1938) ................................................14

Ex parte Hosaye Sakaguchi,

277 F. 913 (9th Cir. 1922)....................................11

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) ..............................................15

Judulang v. Holder,

565 U.S. 42 (2011) ................................................25

New York v. DHS,

408 F. Supp. 3d 334 (S.D.N.Y. 2019) ....................6

Ng Fung Ho v. White,

266 F. 765 (9th Cir. 1920)....................................11

Nken v. Holder,

556 U.S. 418 (2009) .................................... 2, 3, 5, 8

Twp. of Cicero v. Falconberry,

42 N.E. 42 (Ind. App. 1895) .................................10

Constitutional Provisions

U.S. Const. art. I, § 8...................................................1

Statutes

7 U.S.C. § 2011 ..........................................................18

8 U.S.C. § 1182(a)(4)(A) .................................. 3, 13, 23

8 U.S.C. § 1423 ..........................................................20

8 U.S.C. § 1613 ......................................................7, 24

v

42 U.S.C. § 1396-1 .....................................................18

42 U.S.C. § 1396a(a)(10)(i) ........................................18

42 U.S.C. § 1396a(l) ..................................................18

42 U.S.C. § 1437(a)(1) ...............................................18

Illegal Immigration Reform and

Immigrant Responsibility Act of

1996, Pub. L. No. 104-208, 110 Stat.

3009 .......................................................... 13, 15, 16

Immigration Act of 1882, ch. 376, 22

Stat. 214 .................................................................9

Immigration Act of February 5, 1917,

ch. 29, 39 Stat. 874 .............................................10

Immigration and Nationality Act, Pub.

L. No. 82-414, ch. 2, 66 Stat. 163

(1952) ....................................................................11

Personal Responsibility and Work

Opportunity Reconciliation Act, Pub.

L. No. 104-193, 110 Stat. 2105

(1996) ..............................................................15, 16

Rules and Regulations

7 C.F.R. § 273.9(a)(1) ................................................18

8 C.F.R. § 1003.1(g)(1)...............................................14

vi

Inadmissibility and Deportability on

Public Charge Grounds, 64 Fed. Reg.

28,676 (proposed May 26, 1999) ....................12, 18

Inadmissibility on Public Charge

Grounds, 83 Fed. Reg. 51,114 (proposed Oct. 10, 2018) .............................................17

Inadmissibility on Public Charge

Grounds, 84 Fed. Reg. 41,292 (Aug.

14, 2019) ............................... 3, 6, 16, 19, 22, 24, 25

Administrative Decisions

Matter of Harutunian,

14 I. & N. Dec. 583 (BIA 1974) ............................12

Matter of Martinez-Lopez,

10 I. & N. Dec. 409 (A.G. 1964) ......... 11, 12, 15, 20

Matter of T-,

3 I. & N. Dec. 641 (BIA 1949) ..............................11

Legislative Materials

142 Cong. Rec. S11872 (daily ed. Sept.

30, 1996) ...............................................................13

Raise Act, S.1720, 115th Cong. (2017) .....................20

S. Rep. No. 113-40 (2013) ....................................13, 14

vii

Other Authorities

Jeanne Batalova & Jie Zong, Language

Diversity and English Proficiency in

the United States, Migration Pol’y

Inst. (Nov. 11, 2016),

tinyurl.com/vue225q ............................................20

Hidetaka Hirota, Expelling the Poor

(2016) ....................................................................10

Information on Public Charge,

Travel.State.Gov Advisories (Oct.

24, 2019), https://tinyurl.com/rgwl2dv .................................................6

Michelangelo Landgrave, Immigrants

Learn English, CATO Inst.

Immigration Res. & Pol’y Br. No. 14

(Sept. 17, 2019), tinyurl.com/scxwtoh .................20

Alex Nowrasteh & Robert Orr,

Immigration and the Welfare State,

CATO Inst. Immigration Res. &

Pol’y Br. No. 6 (May 10, 2018)

https://tinyurl.com/ya9ygkt6 ...............................21

Policy Basics: The Supplemental Nutrition Assistance Program, Ctr. on

Budget & Pol’y Priorities (June 25,

2019), tinyurl.com/yx7dh4v5 (SNAP

Basics) ..................................................................19

Rules of the U.S. House of Representatives (116th Cong.), Rule II.8(b),

https://perma.cc/M25F-496H .................................1

viii

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of

Legal Texts (2012) ................................................14

Danilo Trisi, Administration’s Public

Charge Rules Would Close the Door

to U.S. to Immigrants Without

Substantial Means, Ctr. on Budget

& Pol’y Priorities (Nov. 11, 2019),

https://tinyurl.com/ur8d7xy .................................17

Webster’s American Dictionary of the

English Language (1st ed. 1828) ...........................9

INTEREST OF AMICUS CURIAE1

Amicus curiae, the United States House of Representatives,2 respectfully submits this brief because of

its interest in ensuring that immigrants to our Nation

are accorded the rights to which the immigration laws

enacted by Congress entitle them. The Constitution

empowers the Legislative Branch to “establish a uniform Rule of Naturalization.” Art. I, § 8. The formulation of “[p]olicies pertaining to the entry of

[noncitizens] and their right to remain here … is entrusted exclusively to Congress.” Galvan v. Press, 347

U.S. 522, 531 (1954) (citation omitted).

For more than 100 years, courts and the Executive Branch have understood the “public charge” provision of our Nation’s immigration laws to apply to

individuals who are likely to become primarily dependent upon public assistance for a significant period. Congress preserved that long-established

1 Pursuant to Sup. Ct. R. 37.6, the House states that no

counsel for a party authored this brief in whole or in part, and

no person or entity other than the House and its counsel made a

monetary contribution intended to fund the preparation or submission of this brief.

2 The Bipartisan Legal Advisory Group (BLAG) of the

United States House of Representatives has authorized the filing of an amicus brief in this matter. The BLAG comprises the

Honorable Nancy Pelosi, Speaker of the House, the Honorable

Steny H. Hoyer, Majority Leader, the Honorable James E. Clyburn, Majority Whip, the Honorable Kevin McCarthy, Republican Leader, and the Honorable Steve Scalise, Republican Whip,

and “speaks for, and articulates the institutional position of, the

House in all litigation matters.” Rules of the U.S. House of Representatives (116th Cong.), Rule II.8(b), https://perma.cc/M25F496H. The Republican Leader and Republican Whip dissented.

2

meaning when it reenacted the public-charge provision without material change in 1996. Congress has

an important interest in preserving its ability to reenact a statutory term, against the backdrop of that

term’s settled meaning, without the risk that an administration dissatisfied with Congress’s policy judgment will later seek to give the term a meaning that

Congress has already rejected.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The Department of Homeland Security’s new

“public charge” rule is unprecedented. While the parties disagree about nearly every aspect of this case,

they agree on this. For more than a century, no

branch of the federal government has ever adopted

the sweeping approach to the public-charge ground of

inadmissibility that the Executive Branch now advances.

The Court should deny the stay request without

even reaching the merits because the balance of equities overwhelmingly weighs against a stay. See Nken

v. Holder, 556 U.S. 418, 434 (2009). In seeking an extraordinary stay from this Court, DHS seeks to upend

the long-established status quo, with harmful repercussions for immigrant communities and the public

alike.

In contrast, DHS’s only asserted injury absent a

stay is the granting of legal status to persons based

on the understanding of “public charge” that has stood

for more than a century. That purported injury is far

outweighed by the concrete harms a stay would inflict

3

on immigrants and the communities in which they

live. Denying a stay would merely preserve the status

quo while the Court of Appeals proceeds to resolve

this case on an expedited timeline.

In addition to the decided imbalance of harms,

this Court should reject the stay request because DHS

has not made a “strong showing” that it is likely to

succeed on the merits. Nken, 556 U.S. at 434. Since

1882, Congress has directed that persons likely to become “public charges” may not settle in the United

States. Since its enactment, the term “public charge”

has been understood by the courts and the Executive

Branch to refer to a person likely to become primarily

dependent on the government for a significant period.

In 1996, Congress reaffirmed this long-established

understanding when it enacted the current version of

the provision. See 8 U.S.C. § 1182(a)(4)(A) (denying

visas, admission, and adjustment of status to permanent residency to persons “likely at any time to become a public charge”).

The current Administration now seeks to dramatically broaden the scope of the public-charge provision. On August 14, 2019, DHS issued a rule

redefining “public charge” to refer to persons likely at

any time to receive certain government benefits—including in-kind benefits like food stamps, Medicaid,

and federal housing assistance—for more than 12

months in the aggregate within any three-year period. See Inadmissibility on Public Charge Grounds,

84 Fed. Reg. 41,292, 41,295 (Public Charge Rule). Because the class of noncitizens who may obtain these

benefits at some point in their lifetimes is vast, the

new rule would overhaul the Nation’s immigration

4

system, seizing on a previously narrow exclusion to

substantially limit the class of individuals who may

settle here.

DHS may not substitute its own policy judgment

for Congress’s in this way. When Congress reenacted

the public-charge provision without material change

in 1996, it legislated against the backdrop of a longsettled understanding of “public charge” as limited to

noncitizens who primarily depend on the government

over the long term. Courts must presume that Congress intended to ratify that long-established meaning when it reenacted the provision without changing

it. See Helsinn Healthcare S.A. v. Teva Pharm. USA,

Inc., 139 S. Ct. 628, 633-34 (2019).

The district court correctly held that DHS’s new

rule deviates from the longstanding understanding of

“public charge” in fundamental respects. For the first

time ever, DHS would consider in its public-charge

determination not just a noncitizen’s receipt of cash

benefits for income maintenance, but also the receipt

of in-kind benefits like food stamps, Medicaid, and

housing assistance—even though acceptance of such

benefits does not make a noncitizen primarily dependent upon the government. In another first, a noncitizen deemed likely to collect no more than 50 cents of

government assistance a day for just over one year

would be considered a “public charge.” And contrary

to more than one hundred years of history, immigration officials would be directed to consider a noncitizen’s lack of English proficiency as evidence that she

is likely to become a “public charge.” These changes

cannot be reconciled with the language enacted by

Congress.

5

The district court also correctly enjoined the new

DHS rule on the independent ground that it would be

impossible to apply rationally or fairly. The rule requires immigration officials to make predictive judgments about whether noncitizens are likely, far in the

future, to collect de minimis supplemental public benefits for even short periods. This inquiry would give

officials essentially unchecked authority to exclude

prospective immigrants, and it would substantially

increase the danger of arbitrary and discriminatory

enforcement.

This Court should deny the stay application.

ARGUMENT

I.

THE EQUITIES WEIGH DECISIVELY AGAINST A

STAY.

The balance of the equities weighs conclusively

against a stay because the speculative injury asserted

by DHS is far outweighed by the concrete harms to

the other parties in this litigation and the public at

large. See Nken, 556 U.S. at 434.

In seeking a stay, DHS is asking this Court to upend the longstanding status quo regarding the application of the public-charge provision. DHS argues

that adhering to the established meaning of “public

charge,” which has been applied for more than a century, will “force DHS to grant status to those not legally entitled to it,” causing it “effectively irreparable”

harm. Stay Appl’n 40 (citation omitted). But the predicted granting of legal status to unspecified persons

from following long-established rules by itself inflicts

6

no injury on the Executive Branch. And DHS does not

identify any tangible harms following from this speculative possibility.

Moreover, DHS took three years to finalize this

rewrite of the public-charge rule, and the State Department—which is responsible for a significant proportion

of

public-charge

determinations—has

apparently held up its implementation of this new

standard for paperwork reasons.3 Thus, the claimed

urgency should be viewed with deep skepticism.

On the other hand, a stay would inflict concrete,

grave, and irreparable harm on respondents and the

public. Unlike DHS, respondents “extensively describ[ed] and calculat[ed]” the “direct and inevitable

consequence[s] of the impending implementation of

the [r]ule.” New York v. DHS, 408 F. Supp. 3d 334,

350 (S.D.N.Y. 2019). For example, the rule would irrevocably reduce revenues for healthcare providers

and facilities operated by respondents. Public Charge

Rule at 41,300-01; see, e.g., C.A.App.269, New York v.

DHS, No. 19-3591 (2d Cir. 2019) (estimating loss of

$50 to $187 million per year to NYC Hospitals).

It would also irreparably harm respondents’ residents. Conservative estimates show that more than

one million people would disenroll from public benefits to which they are entitled if the rule were implemented. Public Charge Rule at 41,313; C.A.App.24445, Make the Road N.Y. v. DHS, No. 19-3595 (2d Cir.

2019) (1 to 3.1 million persons will forgo Medicaid).

3 See Information on Public Charge, Travel.State.Gov Advisories (Oct. 24, 2019), https://tinyurl.com/rgwl2dv.

7

This in turn will cause crippling damage to the health

and nutrition of many noncitizens, particularly children. See, e.g., C.A.App.198-200, 227-29, New York,

No. 19-3591. The rule is also projected to result in the

“loss of 230,000 jobs and $33.8 billion in potential economic ripple effects” across the country. C.A.App.14546, Make the Road, No. 19-3595.

DHS does not meaningfully dispute this evidence.

It nevertheless asserts—without explanation—that

these harms are “speculative.” Stay Appl’n 40. Calling

them “speculative” does not make them so. Respondents have introduced detailed declarations and studies establishing the concrete effects of the rule. See,

e.g., C.A.App.303, New York, No. 19-3591 (documenting estimated Medicaid enrollment losses);

C.A.App.420, Make the Road, No. 19-3595 (quantifying impact of DHS rule on vulnerable groups).

DHS also suggests that the harms to respondents

are outweighed by the “compelling interest that Congress has attached to ensuring self-sufficiency among

[noncitizens] admitted to the United States.” Stay

Appl’n 40 (citing 8 U.S.C. § 1601(5)). This is simply

wrong. When Congress made this statement, it expressly allowed noncitizens to collect public benefits

under certain circumstances. See 8 U.S.C. § 1613.

DHS can hardly claim irreparable harm from something Congress expressly authorized. General notions

of “self-sufficiency” are too abstract, in any event, to

establish a cognizable injury, let alone overcome respondents’ concrete and irreparable injuries.

DHS presents a remarkably weak case for this

Court’s intervention to disrupt a status quo that has

8

operated for more than a century. If this Court were

to grant a stay, it would irrevocably harm immigrants

and communities across the Nation. But if this Court

denies the request, it will simply leave in place the

longstanding status quo until the Court of Appeals resolves this case in a matter of months.

A stay is plainly unwarranted under these circumstances. As Justice Rehnquist explained in Dayton Board of Education v. Brinkman, 439 U.S. 1358

(1978), sometimes “the status quo … can be preserved

only by denying [a stay].” Id. at 1358. That is the case

here.

II. THE MERITS ALSO WEIGH DECISIVELY AGAINST

A STAY.

DHS also fails to make a “strong showing” that

this Court will vacate the injunction. Nken, 556 U.S.

at 434. The new rule’s unprecedented understanding

of “public charge” departs improperly from the longsettled meaning of the term enacted by Congress. And

it is impossible to apply fairly and rationally.

A. DHS’s Effort To Redefine “Public

Charge” Departs From That Term’s

Longstanding And Settled Meaning.

1. The term “public charge” has always referred to

persons likely to become primarily dependent on the

government over the long term. Over the more than

100 years since the public-charge provision was enacted, the courts and the Executive Branch have consistently understood the term in accord with that

plain meaning.

9

a. Congress first used the phrase “public charge”

in the Immigration Act of 1882, the Nation’s original

immigration law. The 1882 Act provided that “any

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

care of himself or herself without becoming a public

charge … shall not be permitted to land [in the United

States].” Immigration Act of 1882, ch. 376, § 2, 22

Stat. 214.

The text of the 1882 statute establishes that “public charge” referred to persons primarily dependent on

the government. When the provision was enacted,

Webster’s Dictionary defined a “charge” as a “person

or thing committed to another’s custody, care or management.” Webster’s American Dictionary of the English Language (1st ed. 1828). A “public charge,”

therefore, at the time was understood to refer to someone committed to the custody or care of the government. By definition, one who is committed to

government custody or management relies on the

public for support—i.e., he or she is primarily dependent on the government.

Other features of the 1882 Act confirm that “public charge” requires a showing of primary dependency,

and that the dependency must be more than temporary. A different provision of the 1882 Act created an

“immigrant fund” to be “used … for the care of immigrants arriving in the United States, for the relief of

such as are in distress,” and commanded the Treasury

Secretary to “provide for the support and relief of such

immigrants therein landing as may fall into distress

or need public aid.” §§ 1-2, 22 Stat. at 214. The statute

necessarily contemplated that the United States

would admit distressed immigrants needing public

10

aid. The public-charge provision therefore could not

have excluded immigrants simply because they might

collect some government benefits.

Historical context reinforces this understanding.

Congress modeled the original public-charge restriction on state laws directed at “exceptionally impoverished and destitute persons.” Hidetaka Hirota,

Expelling the Poor 33, 68 (2016). Those provisions required proof that individuals would be “unable to

maintain themselves … by reason of some permanent

disability.” City of Boston v. Capen, 61 Mass. 116, 122

(1851). Accordingly, the “mere fact that a person may

occasionally obtain assistance from the county does

not necessarily make such person … a public charge.”

Twp. of Cicero v. Falconberry, 42 N.E. 42, 44 (Ind.

App. 1895).

Thus, in Gegiow v. Uhl, 239 U.S. 3 (1915), this

Court held as a matter of law that the public-charge

provision did not apply in a case involving immigrants

who had little money, did not speak English, and

would be unable to find employment in their chosen

destination city. Id. at 8-10. To be a “public charge,”

the Court concluded, a person must be “excluded on

the ground of permanent personal objections.” Id. at

10.

b. In 1917, Congress enacted minor changes to

the public-charge provision. See Immigration Act of

February 5, 1917, ch. 29, § 3, 39 Stat. 874, 876. The

courts and the Executive Branch continued to recognize that the amended provision applied only to persons likely to become primarily dependent on the

government for significant periods.

11

In Ex parte Hosaye Sakaguchi, 277 F. 913 (9th

Cir. 1922), the court explained that the 1917 Amendment “does not change the meaning that should be

given [public charge].” Id. at 916. The Ninth Circuit

thus ruled that “the words ‘likely to become a public

charge’ … 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), aff’d

in part, rev’d in part on other grounds, 259 U.S. 276

(1922). Other courts also continued to interpret “public charge” to refer to “a condition of dependence on

the public for support.” Coykendall v. Skrmetta, 22

F.2d 120, 121 (5th Cir. 1927). The Executive Branch

interpreted the provision similarly. See Matter of T-,

3 I. & N. Dec. 641, 644 (BIA 1949).

c. In 1952, Congress enacted the Immigration and

Nationality Act (INA), which overhauled the Nation’s

immigration laws, but retained the “public charge”

provision in similar form. Pub. L. No. 82-414, ch. 2,

§ 212, 66 Stat. 163, 183. As before, the provision was

understood to apply only to noncitizens considered

likely to become primarily dependent on the government over the long term.

In 1964, the Attorney General issued a precedential decision holding that the public-charge provision

“requires more than a showing of a possibility that the

[noncitizen] will require public support.” Matter of

Martinez-Lopez, 10 I. & N. Dec. 409, 421 (A.G. 1964).

He explained that “[s]ome specific circumstance, such

as mental or physical disability, advanced age, or

other fact reasonably tending to show that the burden

of supporting the alien is likely to be cast on the

12

public, must be present.” Id. “A healthy person in the

prime of life cannot ordinarily be considered likely to

become a public charge”—“especially where he has

friends or relatives in the United States who have indicated their ability and willingness to come to his assistance in case of emergency.” Id. at 421-22.

Later opinions by the Board of Immigration Appeals (BIA) reaffirmed the settled understanding that

the public-charge determination principally turns on

a noncitizen’s “physical and mental condition, as it affects ability to earn a living,” rather than on the prospect that the noncitizen may temporarily receive

small amounts of government aid. Matter of Harutunian, 14 I. & N. Dec. 583, 588 (BIA 1974).

Summarizing the state of the law in 1999, the Immigration and Naturalization Service (INS) explained

that “public charge” means a noncitizen who has become “primarily dependent on the Government for

subsistence, as demonstrated by either the receipt of

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

expense.” Inadmissibility and Deportability on Public

Charge Grounds, 64 Fed. Reg. 28,676, 28,677 (proposed May 26, 1999) (INS Field Guidance). INS recognized that the plain meaning of the term “public

charge” “suggests a complete, or nearly complete, dependence on the Government rather than the mere

receipt of some lesser level of financial support.” Id.

This understanding was “consistent with” a century

of “public charge” precedents. Id.

2. When Congress enacted the public-charge provision without material change in 1996, it intended to

13

retain the established judicial and administrative understanding of that statutory term.

a. Congress passed the current public-charge provision as part of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA). See

Pub. L. No. 104-208, 110 Stat. 3009. IIRIRA made

substantial reforms to the Nation’s immigration

scheme, but it retained the public-charge provision

materially unchanged. The Act provides that a noncitizen is inadmissible if, “in the opinion of” the relevant

immigration official, the noncitizen “is likely at any

time to become a public charge.” 8 U.S.C.

§ 1182(a)(4)(A).

Congress, in considering IIRIRA, rejected a proposal to amend the public-charge provision addressing deportation to include noncitizens who

temporarily receive supplemental public benefits. A

prior version of the bill would have defined “public

charge” to permit deportation if a noncitizen “received

Federal public benefits for an aggregate of 12 months

over a period of 7 years.” 142 Cong. Rec. S11872,

S11882 (daily ed. Sept. 30, 1996) (statement of Sen.

Kyl). But this provision was removed under threat of

veto. Id. at S11881-82.

In 2013, Congress again rejected an attempt to expand the public-charge provision to encompass receipt of small amounts of supplemental public

benefits. Then-Senator Sessions introduced an

amendment that would have “expand[ed] the criteria

for ‘public charge’” to include receipt of non-cash benefits like Medicaid and food stamps. S. Rep. No. 113-

14

40, at 42 (2013). The amendment was rejected by

voice vote. Id.

b. Where, as here, “a word or phrase has been …

given a uniform interpretation by inferior courts or

the responsible agency, a later version of that act perpetuating the wording is presumed to carry forward

that interpretation.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts

322 (2012).

The Supreme Court has repeatedly held that

when Congress reenacts a statutory phrase that has

a settled judicial interpretation, Congress is presumed to have adopted that interpretation. See, e.g.,

Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40

(2009). This Court recently emphasized that it “presume[s] that when Congress reenacted the same language in the [new statute], it adopted the earlier

judicial construction of that phrase.” Helsinn, 139 S.

Ct. at 633-34.

A similar presumption applies when Congress

reenacts a statutory phrase that has received an authoritative interpretation by the relevant Executive

Branch agency. Helvering v. Winmill, 305 U.S. 79, 83

(1938). Precedential decisions issued by the BIA and

Attorney General provide authoritative administrative interpretations of the immigration laws. See 8

C.F.R. § 1003.1(g)(1).

These presumptions apply with particular force

here where Congress has rejected efforts to modify the

term at issue. “Few principles of statutory construction are more compelling than the proposition that

15

Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of

other language.” INS v. Cardoza-Fonseca, 480 U.S.

421, 442-43 (1987) (citation omitted).

These principles leave no doubt that Congress

preserved the long-established meaning of “public

charge” when it reenacted that term without change

in IIRIRA. In drafting, debating, and enacting

IIRIRA, Congress legislated against the backdrop of a

uniform body of law holding that the provision “requires more than a showing of a possibility that the

[noncitizen] will require public support” and that “[a]

healthy person in the prime of life cannot ordinarily

be considered likely to become a public charge.” Matter of Martinez-Lopez, 10 I. & N. Dec. at 421. And Congress considered and rejected a proposal to expand

the public-charge provision governing deportation to

cover a noncitizen’s temporary receipt of benefits—

compelling evidence that it did not intend to achieve

that result.

c. Congress’s decision to retain the longstanding

meaning of “public charge” is confirmed by several

other amendments Congress made to the public benefits laws and to the INA in 1996. One month before

it passed IIRIRA, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation

Act, Pub. L. No. 104-193, 110 Stat. 2105 (1996)

(PRWORA), which overhauled key aspects of the Nation’s federal benefits programs. PRWORA provided

that lawful permanent residents could collect public

benefits like food stamps and Medicaid after they had

lived in the United States for five years. Id., § 403, 110

Stat. at 2265. It also made affidavits of support

16

submitted by an immigrant’s sponsor legally enforceable. Id., § 423, 110 Stat. at 2271. Then, in IIRIRA,

Congress amended the INA to require most immigrants to obtain affidavits of support from sponsors.

Pub. L. No. 104-208, § 531(a), 110 Stat. 3009-674.

These changes underscore Congress’s codification

of the long-settled meaning of “public charge.” Congress expressly authorized immigrants to collect federal benefits and required sponsors to reimburse the

government for receipt of these benefits under some

circumstances. Congress therefore contemplated that

immigrants, at least after the initial five-year period,

would collect federal benefits. It addressed its concern

about immigrant self-sufficiency not by excluding all

immigrants who might collect benefits, but instead by

enacting a detailed scheme that limited their eligibility for a defined period and required reimbursement

upon the government’s request.

3. DHS’s new rule impermissibly departs from the

long-settled understanding of “public charge.”

a. DHS’s new rule transforms the public-charge

provision. DHS now defines “public charge” for purposes of admissibility to mean a person who is likely

to collect more than 12 months of certain public benefits in the aggregate during a 36-month period. Public Charge Rule at 41,295. For the first time, DHS

seeks to consider in-kind assistance like Supplemental Nutrition Assistance Program (SNAP), Medicaid, and federal housing assistance. Id.

It is difficult to overstate the significance and

breadth of this transformation. Less than two percent

17

of noncitizens receive cash benefits that could trigger

a public-charge determination under the meaning of

that term that has governed for a century. See Inadmissibility on Public Charge Grounds, 83 Fed. Reg.

51,114, 51,193 (proposed Oct. 10, 2018). But the new

DHS rule requires immigration officers to predict

whether at any time in the future a noncitizen is

likely to collect de minimis public benefits that are

widely used. The new rule would therefore increase

the number of noncitizens deemed inadmissible on

public-charge grounds by orders of magnitude. For

context, “about half of all U.S.-born citizens” at some

point participate in the benefits programs considered

in DHS’s rule.4

The DHS rule would overhaul the Nation’s immigration system, seizing on a previously narrow exclusion to impose a new and dramatic limit on who can

enter the United States or become a lawful permanent resident. That is not a decision Congress authorized DHS to make. To the contrary, Congress twice

considered and rejected an expanded definition of

“public charge” similar to the definition that DHS now

seeks to enact administratively. The Executive

Branch cannot accomplish by regulation what the

Legislative Branch rejected by legislation.

4 Danilo Trisi, Administration’s Public Charge Rules Would

Close the Door to U.S. to Immigrants Without Substantial

Means, Ctr. on Budget & Pol’y Priorities (Nov. 11, 2019),

https://tinyurl.com/ur8d7xy.

18

b. The DHS rule departs from the long-established understanding of the term “public charge” in at

least four respects.

In-Kind Benefits. The new DHS rules departs

from Congress’s understanding that a public-charge

determination can be triggered only by a likelihood of

receiving aid associated with primary dependence on

the government, like cash assistance for income

maintenance.

Individuals who receive the benefits considered in

DHS’s new rule often do not depend on them for subsistence. The in-kind benefits in DHS’s rule—SNAP,

Medicaid, and housing assistance—reflect Congress’s

policy judgment that individuals should have access

to nutritious food, medical care, and affordable housing. See 7 U.S.C. § 2011; 42 U.S.C. § 1396-1; 42 U.S.C.

§ 1437(a)(1). The programs are not exclusively available to the poor. SNAP benefits are generally available to individuals with incomes up to 130% of the

federal poverty line. See 7 C.F.R. § 273.9(a)(1). Most

states have expanded Medicaid to persons with incomes up to 138% of the poverty line. See 42 U.S.C.

§ 1396a(a)(10)(i), (l). Individuals who receive these

benefits may not be destitute without them, but may

accept them anyway because Congress has made a

policy choice to provide them without cost.

Primary Dependence. The new DHS rule also departs from the settled understanding that the term

“public charge” requires “a complete, or nearly complete, dependence on the Government rather than the

mere receipt of some lesser level of financial support.”

INS Field Guidance at 28,677.

19

Individuals who obtain small amounts of in-kind

benefits do not primarily depend on those benefits.

Consider a recipient of SNAP. In 2018, the average

SNAP recipient received just $1.39 per meal—or $127

per month.5 Some individuals at the higher end of income eligibility for SNAP receive as little as 20 cents

per day—about $6 per month. See City & Cty. of S.F.

v. USCIS, 408 F. Supp. 3d 1057, 1099 (N.D. Cal.

2019). Most SNAP recipients who can work do so. See

SNAP Basics.

Long-Term Dependence. The DHS rule also departs from the long-settled understanding that a person is not a “public charge” merely because he or she

temporarily needs government assistance.

The DHS rule covers any noncitizen likely to receive more than 12 months of benefits in any threeyear period, and it counts a noncitizen’s receipt of

multiple benefits in one month as multiple months of

benefits. Thus, an individual would be excluded under

the public-charge provision if she were deemed likely

to receive SNAP, Medicaid, and housing assistance

for more than four months spread over any three-year

period during her lifetime.

English Proficiency. The DHS rule for the first

time provides that a noncitizen’s lack of English proficiency will be weighed negatively as part of the “public charge” analysis. Public Charge Rule at 41,503-04.

5 Policy Basics: The Supplemental Nutrition Assistance Program, Ctr. on Budget & Pol’y Priorities (June 25, 2019), tinyurl.com/yx7dh4v5 (SNAP Basics).

20

Congress has not authorized, and no historical

precedent exists, for considering English proficiency

in this way. To the contrary, courts have routinely rejected claims that an individual’s lack of English proficiency makes him or her likely to become a “public

charge.” In Gegiow, for example, this Court dismissed

arguments that Russian immigrants who lacked

knowledge of English were likely to become “public

charges.” 239 U.S. at 8. In Matter of Martinez-Lopez,

the Attorney General noted that the fact that the

noncitizen “spoke no English” was “no handicap.” 10

I. & N. Dec. at 411. Congress has refused to enact legislative proposals imposing a language barrier to obtaining permanent residency. See Raise Act, S.1720,

115th Cong. § 5(c) (2017). By contrast, Congress has

required immigrants who settle in the United States

to gain English proficiency before they become citizens. See 8 U.S.C. § 1423.

Millions of immigrants have come to the United

States with little or no knowledge of English.6 Even

though immigrants often arrive with imperfect English, many quickly learn the language. One study estimates that “about 91 percent of immigrants in the

United States between 1980 and 2010 reportedly

spoke English.”7 Temporary language barriers

6 Jeanne Batalova & Jie Zong, Language Diversity and Eng-

lish Proficiency in the United States, Migration Pol’y Inst. (Nov.

11, 2016), tinyurl.com/vue225q.

7 Michelangelo Landgrave, Immigrants Learn English,

CATO Inst. Immigration Res. & Pol’y Br. No. 14 (Sept. 17, 2019),

tinyurl.com/scxwtoh.

21

notwithstanding, “immigrants are less likely to consume welfare benefits” than “native-born Americans.”8

The predictive nature of the public-charge inquiry

makes consideration of English proficiency particularly problematic. A noncitizen’s English proficiency

at the time of admission has not been shown to bear

any relationship to whether the noncitizen is likely to

seek public benefits far into the future. There is a serious risk that consideration of English proficiency

would invite immigration officials to deem noncitizens “public charges” based on characteristics that

are irrelevant at best, or discriminatory at worst.

4. DHS’s arguments for deviating from the longestablished meaning of “public charge” lack merit.

a. DHS principally argues that, even though Congress retained the “public charge” language in 1996,

it impliedly overruled its long-established meaning

through separate amendments to the INA and to the

federal benefits laws that year. Stay Appl’n 21. To the

contrary, Congress elected to make no material

change to the public-charge provision and instead

chose to promote immigrant self-sufficiency by restricting noncitizen access to public benefits and by

requiring reimbursement by noncitizens’ sponsors

upon request. Congress’s decision to make most lawful permanent residents eligible for benefits after five

years cannot be reconciled with DHS’s view that any

8 Alex Nowrasteh & Robert Orr, Immigration and the Welfare State, CATO Inst. Immigration Res. & Pol’y Br. No. 6 (May

10, 2018) https://tinyurl.com/ya9ygkt6.

22

noncitizen likely to receive benefits at any time must

be excluded as a “public charge.”

DHS supports its argument by citing a provision

requiring a noncitizen’s sponsor to reimburse the government for any benefits the noncitizen may receive,

including Medicaid and SNAP. Stay Appl’n 20-21. But

DHS’s argument is inconsistent with its own understanding of “public charge.” DHS defines “public

charge” to mean a person “who receives one or more

designated public benefits for more than 12 months in

the aggregate within any 36-month period,” Public

Charge Rule at 41,295—not one who receives one or

more unreimbursed public benefits during that time

period. DHS’s definition does not account for whether

a benefit would be reimbursed, and it would therefore

exclude people that Congress expected would be admitted: noncitizens who collect public benefits subject

to reimbursement upon government request.

DHS’s argument also ignores that Congress did

not require all prospective permanent residents to obtain sponsors, yet it expressly permitted all lawful

permanent residents to obtain benefits after living in

the United States for five years. DHS’s argument is

inapposite as to noncitizens who are not required to

obtain a sponsor but whom Congress has nevertheless

authorized to obtain benefits.

b. DHS falls back on the assertion that Congress

intended to leave the Executive Branch broad discretion to interpret the meaning of “public charge.” Stay

Appl’n 24-25. DHS does not, however, have discretion

to rewrite the statute contrary to its long-established

meaning ratified by Congress. Even where there may

23

be “some uncertainty” about a provision’s meaning,

the Executive cannot “expand Chevron deference to

cover virtually any interpretation.” Cuomo v. Clearing House Ass’n, LLC, 557 U.S. 519, 525 (2009). The

language adopted by Congress sets the “outer limits”

on a provision’s meaning, id., and the courts must police those limits using the traditional tools of statutory interpretation.

DHS maintains that the scope of the term “public

charge” has varied to some degree over the last century, and that this variation supports its discretion to

wholly redefine the term. Stay Appl’n 24-25. This argument, however, ignores that Congress legislated

against the backdrop of a century of precedent in

which neither Congress, nor the courts, nor the Executive Branch deemed a noncitizen’s likelihood of receiving minimal in-kind benefits sufficient to render

the noncitizen a “public charge.” Even assuming the

understanding of the term fluctuated somewhat over

the course of the twentieth century, such minor variations cannot support an inference that Congress allowed DHS’s radical departure here.

B. DHS’s New “Public Charge” Rule Is

Irrational.

DHS’s new rule would be impossible to apply in

practice and would lead to a host of practical problems

that Congress did not intend.

The public-charge provision does not ask whether

the noncitizen is currently a “public charge.” Instead,

it asks whether a person is “likely at any time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A). The

24

DHS rule thus requires immigration officers to make

a prediction about whether a noncitizen “is more

likely than not at any time in the future to receive one

or more designated public benefits for more than 12

months in the aggregate within any 36-month period.” Public Charge Rule at 41,295.

This prediction requires immigration officials to

look far into the future. The benefits considered under

the rule are generally unavailable to noncitizens until

they have lived here for five years. See 8 U.S.C.

§ 1613. Most persons subject to the “public charge” restriction are thus ineligible for these benefits when

they apply for lawful permanent residency, and many

will remain ineligible for another five years after a

public-charge determination is made.

The prediction the rule calls for is impossible to

make accurately. Many noncitizens subject to DHS’s

new definition of “public charge” will be employed and

situated above the poverty line when the immigration

official is called upon to make the prediction. Others

will ordinarily be employed, except that they may

have suffered a medical emergency that requires

them to collect benefits temporarily. Some might at

some point collect merely de minimis benefits, hardly

adding up to $100 in a particular year. And some will

qualify for benefits but have relatives who could support them if they chose to forgo benefits. The DHS

rule requires immigration officials to predict whether

all these noncitizens will be likely to accept public

benefits—beginning five years after their admission

until they die.

25

An immigration official could not hope to make

that determination in a rational and consistent manner. See Judulang v. Holder, 565 U.S. 42, 56 (2011).

It would be impossible for an immigration official to

make a reasoned decision about whether an applicant, far in the future, is likely to encounter an unpredictable yet temporary hardship, or is likely at some

point to accept small amounts of benefits to supplement her steady income.

This indeterminacy has cascading effects

throughout the immigration system. The DHS rule

has left prospective immigrants and their immigration counselors in the dark about how to comply. Public Charge Rule at 41,315 (inquiry “inherently

subjective”). Some may choose not to apply for permanent residency. Others may altogether forgo benefits

to which they are entitled on the belief that their forbearance will improve their prospects for avoiding a

public-charge finding. Experts have projected that

millions of people may forgo benefits because of this

rule, a substantial share unnecessarily so because the

rule does not apply to them. See, e.g., C.A.App.244-45,

Make the Road, No. 19-3595.

The Court can and should deny the stay request

based on the equities alone. But it should also decline

DHS’s invitation to upend the status quo on the merits because the rule departs from language enacted by

Congress and is irrational.

CONCLUSION

The Court should deny the Administration’s application for a stay pending appeal.

26

Respectfully submitted,

Robert M. Loeb

Thomas M. Bondy

Peter E. Davis

Sachi Schuricht

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street NW

Washington, DC 20005

(202) 339-8400

January 22, 2020

Douglas N. Letter

General Counsel

Counsel of Record

Todd B. Tatelman

Megan Barbero

Josephine Morse

Adam A. Grogg

OFFICE OF GENERAL

COUNSEL U.S. HOUSE

OF REPRESENTATIVES

219 Cannon Building

Washington, DC 20515

(202) 225-9700

Douglas.Letter@mail.

house.gov