Petition for Writ of Certiorari — Arizona, et al., Petitioners v. City and County of San Francisco, California, et al.
Supreme Court briefJun 18, 2021
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APPENDIX
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APPENDIX
TABLE OF CONTENTS
Appendix A City & Cty of San Francisco v. USCIS,
992 F.3d 742 (9th Cir. 2021). . . . . App. 1
Appendix B City & Cty of San Francisco v. USCIS,
981 F.3d 742 (9th Cir. 2020). . . . App. 41
Appendix C City & Cty of San Francisco v. USCIS,
944 F.3d 773 (9th Cir. 2019). . . . App. 90
Appendix D City & Cty of San Francisco v. USCIS,
408 F.Supp.3d 1057
(N.D. Cal. 2019) . . . . . . . . . . . . App. 171
Appendix E Washington v. DHS, 408 F.Supp.3d
1191 (E.D. Wash. 2019) . . . . . . App. 308
Appendix F Statutory Provisions
Involved . . . . . . . . . . . . . . . . . . . App. 369
App. 1
APPENDIX A
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 19-17213
D.C. No. 4:19-cv-04717--PJH
[Filed: April 8, 2021]
__________________________________________
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;
)
ALEJANDRO MAYORKAS, in his official
)
capacity as Secretary of the U.S.
)
Department of Homeland Security;
)
TRACY RENAUD in her official capacity as
)
Senior Official Performing the Duties of
)
the Director, U.S. Citizenship and
)
Immigration Services,
)
Defendants-Appellants,
)
__________________________________________)
App. 2
STATES OF ARIZONA, ALABAMA, ARKANSAS,
)
INDIANA, KANSAS, LOUISIANA, MISSISSIPPI,
)
MISSOURI, MONTANA, OKLAHOMA,
)
SOUTH CAROLINA, TEXAS, AND
)
WEST VIRGINIA,
)
Intervenors-Pending.
)
__________________________________________)
No. 19-17214
D.C. No. 4:19-cv-04975-PJH
__________________________________________
STATE OF CALIFORNIA; DISTRICT OF
)
COLUMBIA; STATE OF MAINE;
)
COMMONWEALTH OF PENNSYLVANIA;
)
STATE OF OREGON,
)
Plaintiffs-Appellees,
)
)
v.
)
)
U.S. DEPARTMENT OF HOMELAND SECURITY, )
a federal agency; UNITED STATES
)
CITIZENSHIP AND IMMIGRATION SERVICES,
)
a federal agency; ALEJANDRO MAYORKAS,
)
in his official capacity as Secretary of the
)
U.S. Department of Homeland Security;
)
TRACY RENAUD in her official capacity as
)
Senior Official Performing the Duties of
)
the Director, U.S. Citizenship and
)
Immigration Services,
)
Defendants-Appellants,
)
__________________________________________)
STATES OF ARIZONA, ALABAMA, ARKANSAS,
)
INDIANA, KANSAS, LOUISIANA, MISSISSIPPI,
)
App. 3
MISSOURI, MONTANA, OKLAHOMA,
)
SOUTH CAROLINA, TEXAS, AND
)
WEST VIRGINIA,
)
Intervenors-Pending.
)
__________________________________________)
No. 19-35914
D.C. No. 4:19-cv-05210-RMP
__________________________________________
STATE OF WASHINGTON;
)
COMMONWEALTH OF VIRGINIA;
)
STATE OF COLORADO; STATE OF DELAWARE; )
STATE OF ILLINOIS; STATE OF MARYLAND;
)
COMMONWEALTH OF MASSACHUSETTS;
)
DANA NESSEL, Attorney General on behalf )
of the People of Michigan; STATE OF
)
MINNESOTA; STATE OF NEVADA;
)
STATE OF NEW JERSEY; STATE OF
)
NEW MEXICO; STATE OF RHODE ISLAND;
)
STATE OF HAWAII,
)
Plaintiffs-Appellees,
)
)
v.
)
)
U.S. DEPARTMENT OF HOMELAND SECURITY, )
a federal agency; ALEJANDRO MAYORKAS,
)
in his official capacity as Secretary of the
)
U.S. Department of Homeland Security;
)
UNITED STATES CITIZENSHIP AND
)
IMMIGRATION SERVICES, a federal agency;
)
TRACY RENAUD in her official capacity as
)
Senior Official Performing the Duties of
)
the Director, U.S. Citizenship and
)
App. 4
Immigration Services,
)
Defendants-Appellants,
)
__________________________________________)
STATES OF ARIZONA, ALABAMA, ARKANSAS,
)
INDIANA, KANSAS, LOUISIANA, MISSISSIPPI,
)
MISSOURI, MONTANA, OKLAHOMA,
)
SOUTH CAROLINA, TEXAS, AND
)
WEST VIRGINIA,
)
Intervenors-Pending.
)
__________________________________________)
Filed April 8, 2021
Before: Mary M. Schroeder, William A. Fletcher, and
Lawrence J. VanDyke, Circuit Judges.
Order;
Dissent by Judge VanDyke
_________________________________________________
SUMMARY*
_________________________________________________
Immigration/Intervention
The panel denied motions by the State of Arizona
and other states to intervene in cases in which the
panel previously issued an opinion in City and County
of San Francisco v. USCIS, 981 F.3d 742 (9th Cir.
2020) [Schroeder (author) W. Fletcher VanDyke
(dissenting)], affirming in part and vacating in part
preliminary injunctions enjoining implementation of
the Department of Homeland Security’s redefinition of
the term “public charge,” and in which the Supreme
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
App. 5
Court on March 9, 2021, dismissed pending petitions
for writ of certiorari pursuant to the stipulation of the
parties.
Judge VanDyke dissented from the denial of
intervention. Judge VanDyke wrote that with the
recent change in federal administrations, the Biden
Administration stopped defending certain rules
promulgated by the Trump Administration, including
the Public Charge rule at issue in this case. Judge
VanDyke observed that this in itself is neither
surprising nor particularly unusual, as elections have
consequences, and new presidential administrations,
especially of a different party, often disagree with some
of the rules promulgated by their predecessors. But
here, Judge VanDyke wrote, the new administration
did something quite extraordinary with the Public
Charge rule: in concert with the various plaintiffs who
had challenged the rule in federal courts across the
country, the federal defendants simultaneously
dismissed all the cases challenging the rule (including
cases pending before the Supreme Court), acquiesced
in a single judge’s nationwide vacatur of the rule,
leveraged that now-unopposed vacatur to immediately
remove the rule from the Federal Register, and quickly
engaged in a cursory rulemaking stating that the
federal government was reverting back to the
Clinton-era guidance—all without the normal notice
and comment typically needed to change rules.
A collection of states moved to intervene in the
various lawsuits challenging the rule around the
country (including this one), arguing that because the
federal government was now demonstrably in cahoots
App. 6
with the plaintiffs, the states should be allowed to take
up the mantle of defending the Trump-era rule.
Pointing to the fact that the Supreme Court had both
stayed multiple lower courts’ injunctions of the rule
and—until the new administration voluntarily
dismissed its appeals—planned to review the rule’s
validity, the states contended there was something
amuck about the federal government’s new
rulemaking-by-collusive-acquiescence.
In Judge VanDyke’s view, the states easily met the
intervention standard of Federal Rule of Civil
Procedure 24. First, because the states quickly
intervened within days of discovering that the federal
government had abandoned their interests, and the
federal government asserted no apparent prejudice in
allowing intervention, Judge VanDyke wrote that the
motion to intervene was timely. Judge VanDyke wrote
that the states also have a “significant protectable
interest” in the continuing validity of the rule because
invalidating the rule could cost the states as much as
$1.01 billion annually. Responding to the plaintiffs’ and
the federal government’s argument that in lieu of
joining this litigation, the states could vindicate their
interests by participating in an agency review process
or asking the agency to promulgate a new rule, Judge
VanDyke observed that this argument might have had
more merit had the federal government followed the
traditional route of asking the courts to hold the public
charge cases in abeyance, rescinding the rule per the
Administrative Procedure Act, and then promulgating
a new rule through notice and comment rulemaking.
Judge VanDyke wrote that instead, the federal
government intentionally avoided the APA entirely by
App. 7
acquiescing in a final district court judgment, and
altering the federal regulations by unilaterally
reinstating the Clinton-era field guidance as the de
facto new rule—without any formal agency rulemaking
or meaningful notice to the public. Judge VanDyke
wrote that by deliberately evading the administrative
process in this way, the government harmed the state
intervenors by preventing them from seeking any
meaningful relief through agency channels. Judge
VanDyke wrote that the disposition of this action,
together with the federal government’s other
coordinated efforts to eliminate the rule while avoiding
APA review, will impair or impede the states’ ability to
protect their interest in the 2019 rule’s estimated
annual savings. Judge VanDyke also wrote that the
existing parties obviously do not adequately represent
the states’ interests because they are now united in
vigorous opposition to the rule.
Addressing the plaintiffs’ and the government’s
argument that this case is moot because the court
cannot offer adequate relief now that the 2019 rule has
been vacated by a different federal judge in the
Seventh Circuit, Judge VanDyke wrote that the parties
opposing intervention had not met their heavy burden
of showing that there is not any effective relief that a
court can provide. Judge VanDyke noted that the
states could obtain effective relief because they
currently have an action pending before the Supreme
Court asking that Court to order the Seventh Circuit to
reverse or stay the vacatur of the rule, and if
successful, that would remove any obstacle to the
states ultimately getting relief in this court. Judge
VanDyke pointed out that if the states are successful in
App. 8
their current request that the Supreme Court stay the
Seventh Circuit’s vacatur of the rule, the panel’s denial
of intervention will leave the states with no way to
prevent one of the district courts in this circuit from
immediately imposing a nationwide preliminary
injunction of the rule or, worse, vacating the rule
(again).
Judge VanDyke observed that there is a final
reason why intervention is especially warranted in this
case. Judge VanDyke wrote that by granting two stays
(and a later petition for certiorari), the Supreme Court
repeatedly indicated that the United States had “made
a strong showing that [it was] likely to succeed on the
merits” in its defense of the rule. Judge VanDyke wrote
that absent intervention, the parties’ strategic
cooperative dismissals preclude those whose interests
are no longer represented from pursuing arguments
that the Supreme Court has already alluded are
meritorious. Judge VanDyke wrote that even more
concerning, the dismissals lock in a final judgment and
a handful of presumptively wrong appellate court
decisions in multiple circuits, and circumvent the APA
by avoiding formal notice-and-comment procedures.
Judge VanDyke suggested a possible solution to this
novel problem of a new federal administration
deliberately short-circuiting the normal APA process.
Judge VanDyke observed that the Supreme Court
obviously could allow the states to intervene in the
Seventh Circuit litigation and defend the 2019 rule in
place of the federal government. But Judge VanDyke
wrote that there may be a simpler solution here that
would not only address what has happened with
App. 9
respect to the Public Charge rule but, perhaps more
importantly, would encourage future administrations
to change rules—not through collusive capitulation—
but via the familiar and required APA rulemaking
process Congress created for that purpose. Judge
VanDyke wrote that the Supreme Court could simply
clarify that Munsingwear vacatur of lower court
decisions and judgments is appropriate in this
circumstance where the federal government and the
plaintiffs jointly mooted litigation by acquiescing in a
judgment against the government, which then
prevented the normal APA process for removing or
replacing a formal rule.
COUNSEL
Mark Brnovich, Attorney General; Joseph A. Kanefield,
Chief Deputy and Chief of Staff; Brunn (“Beau”) W.
Roysden III, Solicitor General; Drew C. Ensign, Deputy
Solicitor General; Robert J. Makar, Assistant Attorney
General; Office of the Attorney General, Phoenix,
Arizona; Eric S. Schmitt, Attorney General; D. John
Sauer, Solicitor General; Michael E. Talent, Deputy
Solicitor General; Office of the Attorney General,
Jefferson City, Missouri; Steve Marshall, Alabama
Attorney General; Leslie Rutledge, Arkansas Attorney
General; Theodore E. Rokita, Indiana Attorney
General; Derek Schmidt, Kansas Attorney General;
Jeff Landry, Louisiana Attorney General; Lynn Fitch,
Mississippi Attorney General; Austin Knudsen,
Montana Attorney General; Mike Hunter, Oklahoma
Attorney General; Alan Wilson, South Carolina
Attorney General; Ken Paxton, Texas Attorney
General; Patrick Morrisey, West Virginia Attorney
App. 10
General; for Proposed Intervenors States of Arizona,
Alabama, Arkansas, Indiana, Kansas, Louisiana,
Mississippi, Missouri, Montana, Oklahoma, South
Carolina, Texas, and West Virginia.
Matthew Rodriguez, Acting Attorney General; Michael
L. Newman, Senior Assistant Attorney General;
Cherokee DM Melton, Supervising Deputy Attorney
General; Lisa Cisneros, Katherine Lehe, Julia Hamumi
Mass, Brenda Ayon Verduzco, and Anna Rich, Deputy
Attorneys General; Office of the Attorney General,
Oakland, California; for Plaintiff-Appellee State of
California.
James R. Williams, County Counsel; Greta S. Hansen,
Chief Assistant County Counsel; Laura Trice, Lead
Deputy County Counsel; Raphael N. Rajendra, Julia B.
Spiegel, H. Luke Edwards, and Hannah Kieschnick,
Deputy County Counsel; Office of the County Counsel,
County of Santa Clara, San Jose, California; for
Plaintiff-Appellee County of Santa Clara.
Dennis J. Herrera, City Attorney; Jesse C. Smith, Chief
Assistant City Attorney; Ronald P. Flynn, Chief Deputy
City Attorney; Yvonne R. Mere, Sara J. Eisenberg, and
Matthew D. Goldberg, Deputy City Attorneys; Office of
the City Attorney, San Francisco, California; for
Plaintiff-Appellee City and County of San Francisco.
Karl A. Racine, Attorney General; Loren L. Alikhan,
Solicitor General; Office of the Attorney General,
Washington, D.C.; for Plaintiff-Appellee District of
Columbia.
Aaron M. Frey, Attorney General; Kimberly L.
Patwardhan, Assistant Attorney General; Office of the
App. 11
Att orney G enera l, Aug ust a,
Plaintiff-Appellee State of Maine.
Ma i ne;
for
Robert W. Ferguson, Attorney General; Noah G.
Purcell, Solicitor General; Tera M. Heintz, Deputy
Solicitor General; Jeffrey T. Sprung and Nathan K.
Bays, Assistant Attorneys General; Office of the
Attorney General, Seattle, Washington; for
Plaintiff-Appellee State of Washington.
Ellen Rosenblum, Attorney General; Benjamin
Gutman, Solicitor General; Nicole DeFever and
Patricia Garcia Rincon, Assistant Attorneys General;
Oregon Department of Justice, Salem, Oregon; for
Plaintiff-Appellee State of Oregon.
Mark R. Herring, Attorney General; Michelle S. Kallen
and Jessica Merry Samuels, Deputy Solicitors General;
Ryan Spreague Hardy and Alice Ann Lloyd, Assistant
Attorneys General; Office of the Attorney General,
Richmond, Virginia; for Plaintiff-Appellee
Commonwealth of Virginia.
Josh Shapiro, Attorney General; Michael J. Fischer,
Chief Deputy Attorney General; Aimee D. Thomson,
Deputy Attorney General; Office of the Attorney
General, Philadelphia, Pennsylvania; for
Plaintiff-Appellee Commonwealth of Pennsylvania.
Phil Weiser, Attorney General; Eric R. Olson, Solicitor
General; Office of the Attorney General, Denver,
Colorado; for Plaintiff-Appellee State of Colorado.
Kathleen Jennings, Attorney General; Christian
Douglas Wright, Director of Impact Litigation; Vanessa
L. Kassab, Deputy Attorney General; Delaware
App. 12
Department of Justice, Wilmington, Delaware; for
Plaintiff-Appellee State of Delaware.
Kwame Raoul, Attorney General; Liza RobersonYoung, Public Interest Counsel; Office of the Attorney
General, Chicago, Illinois; for Plaintiff-Appellee State
of Illinois.
Clare E. Connors, Attorney General; Lili A. Young,
Deputy Attorney General; Department of the Attorney
General, Honolulu, Hawaii; for Plaintiff-Appellee State
of Hawaii.
Brian E. Frosh, Attorney General; Jeffrey P. Dunlap,
Assisant Attorney General; Office of the Attorney
General, Baltimore, Maryland; for Plaintiff-Appellee
State of Maryland.
Maura Healey, Attorney General; Abigail B. Taylor,
Chief, Civil Rights Division; David Urena, Special
Assistant Attorney General; Angela Brooks, Assistant
Attorney General; Office of the Attorney General,
Boston, Massachusetts; for Plaintiff-Appellee
Commonwealth of Massachusetts.
Dana Nessel, Attorney General; Fadwa A. Hammoud,
Solicitor General; Toni L. Harris, First Assistant
Attorney General; Michigan Department of the
Attorney General, Lansing, Michigan; for
Plaintiffs-Appellees People of Michigan.
Keith Ellison, Attorney General; R.J. Detrick,
Assistant Attorney General; Office of the Attorney
General, St. Paul, Minnesota; for Plaintiff-Appellee
State of Minnesota.
App. 13
Aaron D. Ford, Attorney General; Heidi Parry Stern,
Solicitor General; Office of the Attorney General, Las
Vegas, Nevada; for Plaintiff-Appellee State of Nevada.
Burbir S. Grewal, Attorney General; Maria Soueid,
Deputy Attorney General; Office of the Attorney
General, Trenton, New Jersey; for Plaintiff-Appellee
State of New Jersey.
Hector Balderas, Attorney General; Tania Maestas,
Chief Deputy Attorney General; Office of the Attorney
General, Santa Fe, New Mexico; for Plaintiff-Appellee
State of New Mexico.
Peter F. Neronha, Attorney General; Lauren E. Hill,
Special Assistant Attorney General; Office of the
Attorney General, Providence, Rhode Island; for
Plaintiff-Appellee State of Rhode Island.
ORDER
The Motion of State of South Carolina to Join
Motion to Intervene by the States of Arizona, et al., is
GRANTED.
The Motion of State of Missouri to Join Motion to
Intervene by the States of Arizona, et al., is
GRANTED.
The Motion to Intervene by the States of Arizona, et
al., is DENIED.
App. 14
VANDYKE, Circuit Judge, dissenting from the denial
of intervention:
With the recent change in federal administrations,
the Biden Administration stopped defending certain
rules promulgated by the Trump Administration,
including the Public Charge rule at issue in this case.
That in itself is neither surprising nor particularly
unusual. Elections have consequences, as they say, and
a common enough one is that new presidential
administrations, especially of a different party, often
disagree with some of the rules promulgated by their
predecessors. But here, as I explain in more detail
below, the new administration did something quite
extraordinary with the Public Charge rule. In concert
with the various plaintiffs who had challenged the rule
in federal courts across the country, the federal
defendants simultaneously dismissed all the cases
challenging the rule (including cases pending before
the Supreme Court), acquiesced in a single judge’s
nationwide vacatur of the rule, leveraged that
now-unopposed vacatur to immediately remove the rule
from the Federal Register, and quickly engaged in a
cursory rulemaking stating that the federal
government was reverting back to the Clinton-era
guidance—all without the normal notice and comment
typically needed to change rules.
In short, the new administration didn’t just stop
defending the prior administration’s rule and ask the
courts to stay the legal challenges while it promulgated
a new rule through the ordinary (and invariably timeand resource-consuming) process envisioned by the
APA. Instead, together with the plaintiffs challenging
App. 15
the rule, it implemented a plan to instantly terminate
the rule with extreme prejudice—ensuring not only
that the rule was gone faster than toilet paper in a
pandemic, but that it could effectively never, ever be
resurrected, even by a future administration. All while
avoiding the normal messy public participation
generally required to change a federal rule. Not bad for
a day’s work.
But not everyone was impressed with this rare
display of governmental efficiency. Swiftly rebounding
from the whiplash, a collection of states quickly moved
to intervene in the various lawsuits challenging the
rule around the country (including this one), arguing
that because the federal government was now
demonstrably in cahoots with the plaintiffs, the states
should be allowed to take up the mantle of defending
the Trump-era rule. Pointing to the fact that the
Supreme Court had both stayed multiple lower courts’
injunctions of the rule and—until the new
administration voluntarily dismissed its appeals—
planned to review the rule’s validity, the states
contended there is something amuck about the federal
government’s new rulemaking-by-collusiveacquiescence.
The panel majority denies the states’ motion for
intervention. I conclude intervention is warranted, and
therefore respectfully dissent. Before explaining why,
I first provide some background on the Public Charge
rule and the legal challenges to it. And after explaining
why we should have granted intervention, I briefly
conclude with what I think might be a possible solution
to this novel problem of a new federal administration
App. 16
deliberately (1) short-circuiting the normal APA
process by using a single judge to engage in de facto
nationwide rulemaking and (2) locking in adverse legal
precedents that the Supreme Court has already
signaled are highly questionable.
I. Background
A. The term “Public Charge”
The term “public charge” has been a part of our
country’s statutory immigration lexicon for more than
a century. City & County of San Francisco v. USCIS,
981 F.3d 742, 749 (9th Cir. 2020) (noting the first use
in the Immigration Act of 1882). The most recent
regulatory interpretation of that term has prompted
various circuits across the nation to spill much ink
arguing over its precise historical contours. See, e.g.,
Cook County v. Wolf, 962 F.3d 208, 222–29 (7th Cir.
2020); New York v. U.S. Dep’t of Homeland Security,
969 F.3d 42, 63–80 (2d Cir. 2020); CASA de Md., Inc. v.
Trump, 971 F.3d 220, 230–34 (4th Cir. 2020), vacated
for reh’g en banc, 981 F.3d 311 (4th Cir. 2020)
(dismissed Mar. 11, 2021); City & County of San
Francisco, 981 F.3d at 756–58. Throughout much of its
history, however, “public charge” has maintained a
less-than-precise meaning, even as the term was
continuously used in various state and federal statutes
denying admission or adjustment of immigration status
to noncitizens that were “likely at any time to become
a public charge.” 8 U.S.C. § 1182(a)(4)(A); see also Cook
County , 962 F.3d at 238–42 (Barrett, J., dissenting)
(explaining the statutory usages and inferred meanings
of the term “public charge” throughout its history).
App. 17
In a laudable attempt to give the term a more
concrete meaning, the Clinton Administration proposed
a rule to define the term “public charge,” but the effort
was ultimately abandoned and a final rule never
issued. See Inadmissibility and Deportability on Public
Charge Grounds, 64 Fed. Reg. 28,676 (proposed May
26, 1999). Enduring from that attempt, however, was
field guidance defining a “public charge.” Field
Guidance on Deportability and Inadmissibility on
Public Charge Grounds, 64 Fed. Reg. 28,689, 28,692
(May 26, 1999). This field guidance was not binding,
but the Department of Homeland Security (DHS)
followed it in the absence of explicit regulatory
direction. See New York, 969 F.3d at 53.
Under the guidance, an individual was considered
a “public charge” if he was likely to receive “[c]ash
assistance for incom e m a i ntena nce [or]
institutionalization for long-term care at government
expense.” 64 Fed. Reg. at 28,692. But an individual
seeking adjustment of status would not be considered
a “public charge,” even though he would need
government-provided housing, government-paid
electrical assistance, government-provided food,
government health insurance for himself and his
children, and government-provided childcare while
using government-provided job training. See 64 Fed.
Reg. at 28,692–93. In short, under the de facto rule in
existence before the Trump Administration
promulgated an actual rule, a noncitizen would not be
deemed a public charge even though the government
furnished essentially his every need (and many of his
wants), just as long as the government didn’t give him
App. 18
cash benefits that he could then use to pay for his
Netflix subscription.
While the ambiguous concept of a “public charge” no
doubt allows for substantial interpretive elasticity, that
seems quite a stretch. Indeed, it seems exactly
backwards from what most people would think makes
someone a “public charge.” Nowadays, almost
everybody in this country is getting cash stimulus
payments from the IRS on what feels like a
semi-regular basis, and nobody thinks that alone
makes them a public charge. Call me crazy, but I
expect most people would say it is being overly reliant
on the government to meet your needs that makes one
a public charge, not whether the welfare benefits are
provided in cash or in kind.
B. New Public Charge Definition
Nearly two decades after the Clinton
Administration promulgated its guidance, the Trump
Administration in August 2019 issued a final
rule—after notice and comment—defining “public
charge.” Inadmissibility on Public Charge Grounds;
Final Rule, 84 Fed. Reg. 41,292 (Aug. 14, 2019). The
2019 rule looked prospectively at applications for
admission or adjustment of status to determine
whether the individual was “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.” Id. at
41,295. The rule considered whether an individual
would likely receive cash from the government and/or
“means-tested non-cash benefits . . . which bear directly
on the recipient’s self-sufficiency and . . . account for
App. 19
significant federal expenditures on low-income
individuals.” Id. at 41,296. If, under the totality of
circumstances analysis, a noncitizen applying for
admission or adjustment of status would likely need
specified cash benefits and/or various non-monetizable
government-provided housing, food assistance, or
medical insurance for more than a collective twelve
months, then the noncitizen could be considered a
public charge. Id. at 41,501 (citing 8 C.F.R. § 212.21).
Because many categories of immigrants are either
not eligible for these types of public benefits or are
exempted from the public charge exclusion, the rule
primarily affected only a limited subset of
immigrants—nonimmigrant visa holders applying for
green cards. See Cook County, 962 F.3d at 235–38
(Barrett, J., dissenting).1 While not currently eligible
for public benefits, upon adjustment of status, those
individuals would be eligible in the future—thus, “[t]he
public charge rule is concerned with what use a green
card applicant would make of this future eligibility.” Id.
at 237.
C. Challenging the 2019 Public Charge Rule
Notwithstanding that the 2019 rule affected only a
narrow group of people, almost none of whom have
previously used public benefits, a score of outraged
1
A lawful permanent resident—already admitted to the U.S. and
thus eligible for select public benefits—could also be subject to the
2019 rule if the individual left the United States for more than 180
days, which would bring his residency in to question and prompt
the need to seek admission upon returning. See Cook County, 962
F.3d at 236 (Barrett, J., dissenting).
App. 20
entities challenged the rule.2 In late 2019, district
courts in the Second, Fourth, Seventh, and Ninth
Circuits all preliminarily enjoined the rule’s
enforcement. See New York v. U.S. Dep’t of Homeland
Sec., 408 F. Supp. 3d 334, 353 (S.D.N.Y. 2019); CASA
de Md., Inc. v. Trump, 414 F. Supp. 3d 760, 788 (D. Md.
2019); Cook County v. McAleenan, 417 F. Supp. 3d
1008, 1014 (N.D. Ill. 2019); City & County of San
Francisco v. USCIS, 408 F. Supp. 3d 1057, 1073 (N.D.
Cal. 2019); Washington v. U.S. Dep’t of Homeland Sec.,
408 F. Supp. 3d 1191, 1224 (E.D. Wash. 2019). A
divided motions panel of this court stayed the
injunctions issued in this circuit in a published opinion,
thereby allowing the rule to go into effect. City &
County of San Francisco v. USCIS, 944 F.3d 773, 7 81
(9th Cir. 2019). Likewise, the Fourth Circuit stayed
the preliminary injunction in its circuit. CASA de Md.,
Inc., 971 F.3d at 237. The Second and Seventh Circuits
initially denied stays, but the Supreme Court stepped
in and stayed the preliminary injunctions issued in
those circuits as well. See Dep’t of Homeland Sec. v.
New York, 140 S. Ct. 599, 599 (2020);Wolf v. Cook
County, 140 S. Ct. 681, 681 (2020). In sum, although
the plaintiffs had a nice run of initial successes
2
The states challenging the rule alleged injury in the form of
resident noncitizens, confused by the language of the rule,
unnecessarily disenrolling from state public benefits. See New
York, 969 F.3d at 59–60. DHS explained that the new rule would
actually save the states money because they would be paying out
less in public benefits. Id. at 60. The challenging states didn’t
disagree that the rule would directly save them money, but
countered with a response that would delight salespeople
everywhere: sometimes you have to spend money to save it. Id.; see
also City & County of San Francisco, 981 F.3d at 755.
App. 21
challenging the rule, by early 2020, all the injunctions
against the rule had been stayed and the rule was in
effect nationwide.
Undeterred by the Supreme Court’s signal that
challenges to the rule were ultimately likely to fail on
the merits, lower courts continued to hammer away.
The Second Circuit in continuing litigation affirmed the
issuance of its circuit’s preliminary injunction (with a
limited scope), as did divided panels in the Seventh
Circuit and this circuit. See New York, 969 F.3d at 50
(affirming the preliminary injunction, but with a
limited scope); Cook County, 962 F.3d at 215; City &
County of San Francisco, 981 F.3d at 763 (affirming
preliminary injunctions, but with a limited scope). But
a divided Fourth Circuit panel reversed, noting that
the Supreme Court’s stay in other circuits’ proceedings
“would have been improbable if not impossible had the
government, as the stay applicant, not made a strong
showing that it was likely to succeed on the merits.”
CASA de Md., Inc., 971 F.3d at 229 (citation and
internal quotation marks omitted).
Meanwhile, back in the Seventh Circuit, having
moved on from the preliminary injunction stage to the
merits phase of litigation, the Northern District of
Illinois on November 2, 2020 entered a Rule 54(b) final
judgment against the federal government and vacated
the rule in its entirety. Cook County v. Wolf , No. 1:19cv-06334, 2020 WL 6393005, at *6–7 (N.D. Ill. Nov. 2,
2020). Notwithstanding the Supreme Court’s stay of its
earlier preliminary injunction, the district court denied
the government’s request to stay the vacatur of the
rule. Id. The Seventh Circuit, perhaps more
App. 22
experienced at reading the Supreme Court, stepped in
and stayed implementation of the district court’s
judgment pending appeal. Order Granting Motion to
Stay Judgment, Cook County v. Wolf, No. 20-3150 (7th
Cir. Nov. 19, 2020), ECF No. 21.
While all this was going on, the federal government
filed multiple petitions for certiorari seeking Supreme
Court review of the Second, Seventh, and Ninth Circuit
decisions concluding that the rule was likely unlawful.
As these petitions were pending, President Biden took
office in January 2021. Almost exactly a month later,
the Supreme Court on February 22, 2021 granted
review of the Second Circuit’s case. See Dep’t of
Homeland Sec. v. New York, No. 20-449, 2021 WL
666376, at *1 (U.S. Feb. 22, 2021). While obviously one
can never fully predict how the Supreme Court is going
to decide a case, the Supreme Court’s earlier
stays—combined with its later cert grant of a lower
court decision at odds with those stays —did not bode
well for opponents of the rule.
D. DHS’s Rapid Dismissal of the Litigation
One of those opponents was the new Biden
Administration, which put the federal government in
the awkward position of having a case teed up before
the Supreme Court that it knew it was likely to win,
but now really wanted to lose. So in the early hours of
March 9, 2021, despite the Supreme Court having
granted certiorari just two weeks prior in a related case
that the government had asked the Court to review,
DHS in coordination with the plaintiffs moved to
dismiss the Seventh Circuit appeal of the district
App. 23
court’s vacatur of the rule.3 Approximately an hour and
a half later, DHS released a statement explaining that
“the Department of Justice will no longer pursue
appellate review of judicial decisions invalidating or
enjoining enforcement of the 2019 Rule.”4 With a
reaction time the envy of every appellate court, the
Seventh Circuit only a few hours after DHS’s
statement granted the motion to dismiss and
immediately issued the mandate.5 Later that same
evening, DHS issued another statement noting that
“[f]ollowing the Seventh Circuit dismissal this
afternoon, the final judgment from the Northern
District of Illinois, which vacated the 2019 public
charge rule, went into effect.” It continued that “[a]s a
result, the 1999 interim field guidance on the public
charge inadmissibility provision (i.e., the [Clinton-era]
policy that was in place before the 2019 public charge
rule) is now in effect.”6 A little over 24 hours later, the
3
See Unopposed Mot ion to Voluntarily Dismiss Appeal, Cook
County v. Wolf, No. 20-3150 (7th Cir. Mar. 9, 2021), ECF No. 23.
4
Press Release, U.S. Dep’t of Homeland Sec., DHS Statement on
Litigation Related to the Public Charge Ground of Inadmissibility
(Mar. 9, 2021), https://www.dhs.gov/news/2021/03/09/dhs
-statement-litigation-related-public-charge-ground-inadmissibility.
5
Order Dismissing Appeal, Cook County v. Wolf, No. 20-3150 (7th
Cir. Mar. 9, 2021), ECF No. 24-1; Notice of Issuance of Mandate,
Cook County v. Wolf, No. 20-3150 (7th Cir. Mar. 9, 2021), ECF No.
24-2.
6
Press Release, U.S. Dep’t of Homeland Sec., DHS Secretary
Statement on the 2019 Public Charge Rule(Mar. 9, 2021),
https://www.dhs.gov/news/2021/03/09/dhs-secretary-statement-2
019-public-charge-rule.
App. 24
parties filed a joint stipulation to dismiss the case in
the Northern District of Illinois.7 The district court
closed the case the following day.8
On the same day it dismissed its Seventh Circuit
appeal, the federal government, now BFFs with its
prior opponents, also filed joint stipulations to dismiss
all the cases pending before the Supreme Court,
including the Second Circuit case in which the
Supreme Court had already granted cert.9 Consistent
with the Supreme Court’s Rule 46.1, which allows
automatic dismissal of a case by unanimous agreement
of the parties, the Clerk of the Supreme Court,
“without further reference to the Court,” dismissed
those cases. Sup. Ct. R 46.1.10
In the afternoon of that same day, March 9, 2021,
the parties also moved to dismiss their case in the
7
Joint Stipulation of Dismissal with Prejudice, CookCounty v.
Wolf, No. 19-cv-6334 (N.D. Ill. Mar. 11, 2019), ECF No. 253.
8
Notification of Docket Entry, Cook County v. Wolf, No. 19-cv-6334
(N.D. Ill. Mar. 12, 2019), ECF No. 254.
9
Joint Stipulation to Dismiss, U.S. Dep’t of Homeland Sec. v. New
York, No. 20-449 (U.S. Mar. 9, 2021); Joint Stipulation to Dismiss,
Mayorkas v. Cook County , No. 20-450 (U.S. Mar. 9, 2021); Joint
Stipulation to Dismiss, USCIS v. City & County of San Francisco,
No. 20-962 (U.S. Mar. 9, 2021).
10
Mayorkas v. Cook County, No. 20-450, 2021 WL 1081063 (U.S.
Mar. 9, 2021); USCIS v. City & County of San Francisco, No.
20-962, 2021 WL 1081068 (U.S. Mar. 9, 2021); Dep’t of Homeland
Sec. v. New York, No. 20-449, 2021 WL 1081216 (U.S. Mar. 9,
2021).
App. 25
Fourth Circuit.11 The Fourth Circuit granted the
unopposed motion and issued the mandate two days
later, on March 11, 2021, noting the lack of
opposition.12
On that same day—March 11, 2021, only two days
after the federal government’s volte-face—fourteen
states13 responded in the Seventh and Fourth Circuits
to the parties’ synchronized blitzkrieg, collectively
filing a Motion to Recall the Mandate to Permit
Intervention as Appellant, an Opposed Motion to
Reconsider, or alternatively, Rehear, a Motion to
Dismiss, and an Opposed Motion to Intervene.14 The
11
See Unopposed Motion to Voluntarily Dismiss Appeal, CASA de
Md. v. Biden, No. 19-2222 (4th Cir. Mar. 9, 2021), ECF No. 210.
12
See Order, CASA de Md. v. Biden, No. 19-2222 (4th Cir. Mar. 11,
2021), ECF No. 211; Rule 42(b) Mandate, CASA de Md. v. Biden,
No. 19-2222 (4th Cir. Mar. 11, 2021), ECF No. 212.
13
The states are Texas, Alabama, Arizona, Arkansas, Indiana,
Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio,
Oklahoma, South Carolina, and West Virginia. The day before, on
March 10, 2021, the states of Arizona, Alabama, Arkansas,
Indiana, Kansas, Louisiana, Mississippi, Montana, Oklahoma,
Texas, and West Virginia, filed the Motion to Intervene now denied
by this panel. See Motion to Intervene, City and County of San
Francisco v. USCIS, Nos. 19-17213, 19-17214, 19-35914 (9th Cir.
Mar. 10, 2021) . South Carolina and Missouri subsequently moved
to join the motion before our court.
14
See Motion to Recall the Mandate to Permit Intervention as
Appellant, Opposed Motion to Reconsider, or in the Alternative to
Rehear, the Motion to Dismiss, Opposed Motion to InterveneAppellants, Cook County v. Wolf, No. 20-3150, (7th Cir. Mar. 11,
2021), ECF Nos. 25-1, 25-2, 25-3; Motion to Recall the Mandate to
App. 26
states explained that “[b]ecause the Court issued its
mandate within hours of the United States’
announcement that it would no longer defend the Rule,
interested parties had no ability to intervene before it
did so,” and “because the United States did not inform
the States that it intended to cease defending the Rule
before abandoning numerous cases supporting the Rule
nationwide, the States did not have an opportunity to
intervene at an earlier point.”15
The Seventh Circuit summarily denied the states’
motions on March 15, 2021,16 coincidentally the same
day that DHS issued a final rule removing the 2019
rule. The Fourth Circuit also summarily denied the
states’ motions on March 18, 2021.17 On March 19,
2021, having been denied intervention or any other
relief by the Seventh Circuit, the states asked the
Supreme Court to order intervention or grant
Permit Intervention as Appellant, Opposed Motion to Reconsider,
or in the Alternative to Rehear, the Motion to Dismiss, Opposed
Motion for Leave to Intervene-Appellants, CASA de Md. v. Biden,
No. 19-2222 (4th Cir. Mar. 11, 2021), ECF Nos. 213, 214, 215.
15
See Motion to Recall the Mandate t o Permit Intervention as
Appellant, Cook County v. Wolf, No. 20-3150, (7th Cir. Mar. 11,
2021), ECF Nos. 25-1, at 4.
16
See Order Denying Motions, Cook County v. Wolf, No. 20-3150
(7th Cir. Mar. 15, 2021), ECF No. 26.
17
See Order Denying Motions, CASA de Md. v. Biden, No. 19-2222
(4th Cir. Mar. 18, 2021), ECF No. 216.
App. 27
alternative relief that would allow them to revive the
lower court litigation.18
E. DHS’s Rescission of the 2019 Rule
On March 15, 2021, DHS issued a final rule
“remov[ing] the regulations resulting from [the 2019
rule], which has since been vacated by a Federal
district court.”19 Notably, it issued the final rule
without a notice and comment period or delayed
effective date, stating instead that it was promulgating
a rule that was already in effect: “[t]his rule is effective
on March 9, 2021, as a result of the district court’s
vacatur.” It explained that “[b]ecause this rule simply
implements the district court’s vacatur of the August
2019 rule, as a consequence of which the August 2019
rule no longer has any legal effect, DHS is not required
to provide notice and comment or delay the effective
date of this rule.” Accordingly, there was “good cause”
to “bypass[] any otherwise applicable requirements of
notice and comment and a delayed effective date” as
“unnecessary for implementation of the court’s order
vacating the rule . . . in light of the agency’s immediate
need to implement the now-effective final judgment.”20
This is the background against which we are
presented the instant motion to intervene. Arguing
18
See Application for Leave to Intervene & for a Stay of Judgment,
Texas v. Cook County, No. 20A150 (U.S. Mar. 19, 2021).
19
Inadmissibility on Public Charge Grounds; Implementation of
Vacatur, 86 Fed. Reg. 14,221 (Mar. 15, 2021) (to be codified at 8
C.F.R. pts. 103, 106, 212–14, 245, 248).
20
Id. at 14,221.
App. 28
that the federal government managed to snatch defeat
from the jaws of victory only by naked capitulation, the
states ask for an opportunity to pick up the football and
step into the federal government’s shoes, just as the
formerly adversarial parties are walking off the field
together, hand- in-hand, celebrating their “win-win.”
Meanwhile, the plaintiffs and feds, only months ago
bitter enemies, collectively press us to deny
intervention. The game is over, they say. You can’t put
Humpty Dumpty back together again. The horse hasn’t
just left the barn—it’s dead, and never coming back.
II. Analysis
The federal government and the plaintiffs have
certainly played their hand well. Not only have they
gotten rid of a rule they dislike, but they’ve done so in
a way that allowed them to dodge the pesky
requirements of the APA and ensure that it will be
very difficult for any future administration to
promulgate another rule like the 2019 rule. But putting
aside one’s view of the merits of the rule itself, that
doesn’t seem like a good thing for good government.
Leveraging a single judge’s ruling into a mechanism to
avoid the public participation in rule changes
envisioned by the APA should trouble pretty much
everyone, one would hope. Especially when the legal
validity of that ruling is highly suspect and left
untested only because of the collusive actions of the
parties. Left unchecked, it seems quite likely this will
become the mechanism of choice for future
administrations to replace disfavored rules with prior
favored ones.
App. 29
But of course, just because something is bad policy
doesn’t always mean there is a legal basis to challenge
it. Ultimately, the question currently before this panel
is whether the states should be allowed to
intervene—that is, not whether they should win the
game, but just whether they should be allowed to play.
That question is controlled by a well-established
standard that favors intervention. As explained below,
I think the states have easily met that standard here.
A. The States Meet the Intervention Standard
The states’ motion to intervene is governed by
Federal Rule of Civil Procedure 24. Int’l Union, United
Auto., Aerospace & Agric. Implement Workers of Am.,
AFL-CIO, Local 283 v. Scofield, 382 U.S. 205, 217 n.10
(1965); Day v. Apoliona, 505 F.3d 963, 965 (9th Cir.
2007). Per Rule 24(a)(2), applicants can intervene in an
action as of right when they meet the following four
requirements:
(1) the intervention application is timely;
(2) the applicant has a significant protectable
interest relating to the property or transaction
that is the subject of the action; (3) the
disposition of the action may, as a practical
matter, impair or impede the applicant’s ability
to protect its interest; and (4) the existing
parties may not adequately represent the
applicant’s interest.
Prete v. Bradbury , 438 F.3d 949, 954 (9th Cir. 2006)
(citation and internal quotation marks omitted); see
also Fed. R. Civ. P. 24(a)(2). When determining
whether these four “requirements are met, we normally
App. 30
follow ‘practical and equitable considerations’ and
construe the Rule ‘broadly in favor of proposed
intervenors.’” Wilderness Soc’y v. U.S. Forest Serv., 630
F.3d 1173, 1179 (9th Cir. 2011) (en banc) (citation
omitted).
To evaluate intervention’s timeliness, “we consider
(1) the stage of the proceeding at which an applicant
seeks to intervene; (2) the prejudice to other parties;
and (3) the reason for and length of the delay.” Peruta
v. County of San Diego, 824 F.3d 919, 940 (9th Cir.
2016) (en banc) (citation and internal quotation marks
omitted). If a putative intervenor moves promptly to
intervene when it becomes clear that their interests
“would no longer be protected . . . there is no reason
why [the intervention] should not be considered
timely.” United Airlines, Inc. v. McDonald, 432 U.S.
385, 394–95 (1977). The states here moved to intervene
in the public charge cases within mere days of the
federal government making public that it no longer
sought to defend the rule. The plaintiffs and the federal
government argue against intervention by contending
that “[n]either practical nor equitable concerns justify
intervention at this late stage in the litigation.” But
this is hardly the typical case where putative
intervenors sat on their hands until the eleventh hour.
Instead, the federal government robustly defended the
rule for more than a year in courts across the nation
before suddenly acquiescing in its vacatur and
dismissing all the public charge cases without prior
notice. Because the states quickly intervened when
they discovered that the federal government had
abandoned their interests, and the federal government
App. 31
has asserted no apparent prejudice in allowing
intervention, the motion to intervene is timely.
The states also have a “significant protectable
interest” in the continuing validity of the rule because
invalidating the rule could cost the states as much as
$1.01 billion annually.21 The federal government
contends that in lieu of joining this litigation, the states
can vindicate their interests by participating in an
agency review process or asking the agency to
promulgate a new rule. This argument might have had
more merit had the federal government followed the
traditional route of asking the courts to hold the public
charge cases in abeyance, rescinding the rule per the
APA, and then promulgating a new rule through notice
and comment rulemaking. But instead, the federal
government intentionally avoided the APA entirely by
acquiescing in a final district court judgment and
altering the federal regulations by unilaterally
reinstating the 1999 field guidance. See 86 Fed. Reg. at
14,221 (“This rule removes from the Code of Federal
Regulations. . . the regulatory text that DHS
promulgated in the August 2019 rule and restores the
regulatory text to appear as it did prior to the issuance
of the August 2019 rule.”). Its carefully coordinated
actions effectively removed the Trump-era rule and
installed the Clinton-era guidance as the de facto new
rule—without any formal agency rulemaking or
meaningful notice to the public. By deliberately
evading the administrative process in this way, the
21
Motion to Intervene by the States at 1, 3–5, City & County of
San Francisco v. USCIS, 981 F.3d 742 (9th Cir. 2021) (Nos.
19-17213, 19-17214, 19-35914).
App. 32
government harmed the state intervenors by
preventing them from seeking any meaningful relief
through agency channels. The courts can and should
remedy this procedural harm. See Massachusetts v.
EPA, 549 U.S. 497, 518 (2007) (“When a litigant is
vested with a procedural right, that litigant has
standing if the re is some possibility that the requested
relief will prompt the injury-causing party to
reconsider the decision that allegedly harmed the
litigant.”).
The disposition of this action, together with the
federal government’s other coordinated efforts to
eliminate the rule while avoiding APA review, will
impair or impede the states’ ability to protect their
interest in the 2019 rule’s estimated annual savings
discussed above. And the existing parties obviously do
not adequately represent the states’ interests because
they are now united in vigorous opposition to the rule.
See Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir.
2003) (“The most important factor in determining the
adequacy of representation is how the interest
compares with the interests of existing parties.”).
Against the states’ arguments in favor of
intervention, the federal government and plaintiffs
have one main response: this case is moot because the
court cannot offer adequate relief now that the 2019
rule has been vacated by a different federal judge in a
different circuit.
“The party asserting mootness bears the burden of
establishing that there is no effective relief that the
court can provide.” Forest Guardians v. Johanns, 450
F.3d 455, 461 (9th Cir. 2006). “That burden is ‘heavy’;
App. 33
a case is not moot where any effective relief may be
granted.” Id. (emphasis in original) (citation omitted).
The parties opposing intervention have failed to
meet their “heavy” burden here. Id. (citation omitted).
As the states explain, they could obtain effective relief
because they currently have an action pending before
the Supreme Court asking that Court to order the
Seventh Circuit to reverse or stay the vacatur of the
rule. If successful, that would remove any obstacle to
the states ultimately getting relief in this court. See
Allied Concrete & Supply Co. v Baker, 904 F.3d 1053,
1066 (9th Cir. 2018) (distinguishing moot cases where
the underlying litigation had concluded from cases
where “a potential petition for rehearing or certiorari
keeps a case alive”). Indeed, if the states are successful
in their current request that the Supreme Court stay
the Seventh Circuit’s vacatur of the rule, given our
denial of their intervention here the states will be left
with no way to prevent one of the district courts in our
circuit from immediately imposing a nationwide
preliminary injunction of the rule or, worse, vacating
the rule (again). The horse may have left the barn, but
the rumors of its death are, if not greatly exaggerated,
at least premature.
Since this case is not moot, I would have granted
the states’ intervention motion because now that the
federal government has abandoned the field, only the
states themselves can present their arguments in favor
of the rule to the Court. By denying the motion to
intervene, we are sanctioning a collude-and-circumvent
tactic by the parties, who clearly now share the same
agenda. Cf. Knox v. Serv. Emp. Int’l Union, Loc. 1000,
App. 34
567 U.S. 298, 307 (2012) (warning that “postcertiorari
maneuvers designed to insulate a decision from review
by [the Supreme] Court must be viewed with a critical
eye”).
There is a final reason why intervention is
especially warranted in this case. By granting two
stays (and a later petition for certiorari), the Supreme
Court repeatedly indicated that the United States had
“made a strong showing that [it was] likely to succeed
on the merits” in its defense of the rule. Nken v.
Holder, 556 U.S. 418, 434 (2009) (citation omitted).
Absent intervention, the parties’ strategic cooperative
dismissals preclude those whose interests are no longer
represented from pursuing arguments that the
Supreme Court has already alluded are meritorious.
Even more concerning, the dismissals lock in a final
judgment and a handful of presumptively wrong
appellate court decisions in multiple circuits, and
circumvent the APA by avoiding formal
notice-and-comment procedures. See Transp. Div. of the
Int’l Ass’n of Sheet Metal, Air, Rail, & Transp. Workers
v. Fed. R.R. Admin., 988 F.3d 1170, 1180 (9th Cir.
2021) (noting that among “the most fundamental of the
APA’s procedural requirements” is the requirement
that “the agency shall give interested persons an
opportunity to participate in the rule making through
submission of written data, views, or arguments for the
agency’s consideration” (citation and internal quotation
marks omitted)). The United States’ evasion of one of
the APA’s most fundamental requirements, especially
on such shaky grounds as a district court decision that
never withstood the crucible of full appellate review,
further supports intervention here.
App. 35
B. Munsingwear Vacatur?
There is truth to the federal government’s and
plaintiffs’ arguments in opposition to intervention that,
as things currently stand, the Ninth Circuit’s Public
Charge cases have been relegated to little more than a
rearguard action. So long as the 2019 rule itself
remains vacated nationwide by a single judge in the
Seventh Circuit, not much can be done in this circuit to
affect that. While that doesn’t technically make this
case moot for purposes of our intervention analysis, it
does highlight the expansive reach of the parties’
coordinated actions, and how impressively effective
those actions are at preventing anyone or any single
court from unwinding their multifaceted, calculated
capitulation and avoidance of the APA. They really
have smashed Humpty Dumpty into pieces spread
across the nation, and there isn’t a single court (or
future administration) that can do much about it.
Except the one court that has yet to address the
states’ arguments: the Supreme Court. First, the
Supreme Court obviously could allow the states to
intervene in the Seventh Circuit litigation and defend
the 2019 rule in place of the federal government. But I
think there may be a simpler solution here that would
not only address what has happened with respect to
the Public Charge rule but, perhaps more importantly,
would encourage future administrations to change
rules—not through collusive capitulation—but via the
familiar and required APA rulemaking process
Congress created for that purpose.
The solution is that the Supreme Court could simply
clarify that Munsingwear vacatur of lower court
App. 36
decisions and judgments is appropriate in this
circumstance where the federal government and the
plaintiffs jointly mooted litigation by acquiescing in a
judgment against the government, which then
prevented the normal APA process for removing or
replacing a formal rule. Under Munsingwear, when a
civil case is mooted while on appeal to the Supreme
Court, “[t]he established practice” is “to reverse or
vacate the judgment below and remand with a
direction to dismiss.” United States v. Munsingwear,
Inc., 340 U.S. 36, 39 (1950). “Because this practice is
rooted in equity, the decision whether to vacate turns
on ‘the conditions and circumstances of the particular
case.’” Azar v. Garza, 138 S. Ct. 1790, 1792 (2018) (per
curiam) (citation omitted).
For instance, “[v]acatur is in order when mootness
occurs through . . . the ‘unilateral action of the party
who prevailed in the lower court.’” Arizonans for Off.
Eng. v. Arizona, 520 U.S. 43, 71–72 (1997) (quoting
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513
U.S. 18, 23 (1994)). This is to prevent a party from
securing “a favorable judgment, tak[ing] voluntary
action that moots the dispute, and then retain[ing] the
benefit of the judgment.” Arizonans for Off. Eng., 520
U.S. at 75 (alterations omitted). By requiring that the
lower court judgment be vacated under those
circumstances, Munsingwear “prevent[s] a judgment,
unreviewable because of mootness, from spawning any
legal consequences.” Munsingwear, 340 U.S. at 41.
That’s why vacatur in such circumstances is “generally
‘automatic.’” NASD Dispute Resol., Inc. v. Jud. Council
of State of Cal., 488 F.3d 1065, 1068 (9thCir. 2007)
(citation omitted).
App. 37
But under the Bancorp exception to Munsingwear,
courts usually won’t vacate lower court decisions when
the appellant’s voluntary actions moot the appeal. See
Bancorp, 513 U.S. at 25. The reason for that is
straightforward: generally, if a party lost below, but
does something intentional to moot its case while the
appeal is pending, you don’t need to worry about that
losing party deliberately mooting the case on appeal so
that it can “retain the benefit of the judgment” without
risking a future adverse decision. For the party that
lost below, there isn’t generally any “benefit of the
judgment” to be retained. If the losing party voluntarily
moots the case on appeal, it is invariably for some
reason other than trying to manipulate the court
system to lock in favorable precedent while insulating
that precedent from further review. That is why, in
reliance on Bancorp, courts rarely Munsingwear vacate
a lower court decision when the parties voluntarily
settle a case. See generally id. In those situations,
“[t]he judgment is not unreviewable, but simply
unreviewed by [the losing party’s] own choice.” Id.
Those appellants “voluntarily forfeited [their] legal
remedy by the ordinary process of appeal or certiorari,
thereby surrendering [their] claim to the equitable
remedy of vacatur.” Id.
The federal government’s coordinated settlement of
the Public Charge cases falls within the technical
parameters of the Bancorp exception to Munsingwear
vacatur because the federal government was the
appellant in these cases. But the uniquely inequitable
circumstances facing the intervening states here,
together with the government’s maneuvering precisely
so that it could retain the benefit of some questionable
App. 38
judgments it now really likes, demonstrates that this
situation clearly falls far outside any reasonable
rationale for Bancorp’s exception to Munsingwear’s
normal rule. The settlements that the states seek to
challenge are a transparent attempt by a new federal
administration and its prior litigation opponents to not
only rid the federal government of a now-disfavored
rule, but also to avoid the APA’s procedures in
changing that rule and force any future administration
that wants to enact a similar rule to fight against the
strong headwinds of dubious Ninth, Seventh, and
Second Circuit precedent. This is, in short, precisely an
example of a party “tak[ing] voluntary action that
moots the dispute, and then retain[ing] the benefit of
the judgment.” Arizonans for Off. Eng., 520 U.S. at 75
(alterations omitted).
Because both Munsingwear and Bancorp turn on
equity—and even Bancorp notes that “exceptional
circumstance[s] may . . . counsel in favor of . . . vacatur”
when parties settle, Bancorp, 513 U.S. at 29—the
Supreme Court should make clear that the Bancorp
exception to Munsingwear, which usually counsels
against vacating a judgment where the appellant’s
voluntary actions mooted the appeal, does not apply in
this circumstance. The states’ proceedings before the
Supreme Court seem like a perfect vehicle for the
Court to address this unique situation where a new
administration doesn’t like a duly enacted rule and
attempts to insulate the lower court’s judgment
vacating the disfavored rule from further appellate
review.
App. 39
Clarifying that all lower court decisions and
judgments should be vacated under these
circumstances would have both immediate and longterm salutary effects. First, the current administration
will be required to do what every administration before
it did with existing rules they didn’t like—promulgate
a new rule subject to all of the procedural protections
provided by the APA. Second, the thicket of suspect
lower-court precedents created by the Public Charge
litigation, which the Supreme Court seemed poised to
correct before the parties’ voluntary dismissal, would
be cleared away instead of remaining as a calcified
obstacle to future executive discretion. And third,
future administrations (and courts, and challengers)
will be incentivized to follow the APA’s rules, rather
than attempt procedural workarounds that eliminate
the public’s participation in administrative
rulemaking.22
22
There is one additional reason why Munsingwear vacatur of the
lower courts’ decisions would be particularly appropriate in the
context of the Public Charge rule. By design, the federal
government’s and plaintiffs’ coordinated dismissals act to replace
the Trump Administration’s Public Charge rule with the Clinton
Administration’s Public Charge “guidance.” Press Release, U.S.
Dep’t of Homeland Sec., DHS Secretary Statement on the 2019
Public Charge Rule (Mar. 9, 2021), https://www.dhs.gov/news/2021
/03/09/dhs-secretary-statement-2019-public-charge-rule. As
discussed, under the Clinton-era guidance, a noncitizen who is
entirely dependent on in kind government support—for food,
housing, medical care, etc.—cannot be considered a “public charge”
unless he also receives cash benefits. That seems like it might run
into problems under the APA. But the government’s circumvention
of the APA allowed it to slip back into applying the old guidance
without even needing to take that into consideration.
App. 40
Our court should have allowed the states to
intervene in these suits. But one hopes that maybe our
incorrect denial of intervention may be as
inconsequential as the panel majority’s prior incorrect
opinion, once the Supreme Court makes clear that our
dirty slate must be wiped clean under Munsingwear—
and with it, all its inequitable repercussions.
App. 41
APPENDIX B
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 19-17213
D.C. No. 4:19-cv-04717--PJH
[Filed: December 2, 2020]
__________________________________________
CITY AND COUNTY OF SAN
)
FRANCISCO; COUNTY OF SANTA
)
CLARA,
)
Plaintiffs-Appellees,
)
)
v.
)
)
UNITED STATES CITIZENSHIP AND
)
IMMIGRATION SERVICES, a federal
)
agency; U.S. DEPARTMENT OF
)
HOMELAND SECURITY, a federal agency;
)
CHAD F. WOLF, in his official
)
capacity as Acting Secretary of the
)
United States Department of Homeland
)
Security; KENNETH T. CUCCINELLI,
)
in his official capacity as Acting
)
Director of United States Citizenship and
)
Immigration Services,
)
Defendants-Appellants.
)
__________________________________________)
App. 42
No. 19-17214
D.C. No. 4:19-cv-04975-PJH
__________________________________________
STATE OF CALIFORNIA; DISTRICT OF
)
COLUMBIA; STATE OF MAINE;
)
COMMONWEALTH OF PENNSYLVANIA;
)
STATE OF OREGON,
)
Plaintiffs-Appellees,
)
)
v.
)
)
U.S. DEPARTMENT OF HOMELAND
)
SECURITY, a federal agency; UNITED
)
STATES CITIZENSHIP AND
)
IMMIGRATION SERVICES, a federal
)
agency; CHAD F. WOLF, in his official
)
capacity as Acting Secretary of the
)
United States Department of Homeland
)
Security; KENNETH T. CUCCINELLI, in
)
his official capacity as Acting Director of
)
United States Citizenship and
)
Immigration Services,
)
Defendants-Appellants.
)
__________________________________________)
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief District Judge, Presiding
App. 43
No. 19-35914
D.C. No. 4:19-cv-05210-RMP
__________________________________________
STATE OF WASHINGTON;
)
COMMONWEALTH OF VIRGINIA;
)
STATE OF COLORADO; STATE OF DELAWARE; )
STATE OF ILLINOIS; STATE OF MARYLAND;
)
COMMONWEALTH OF MASSACHUSETTS;
)
DANA NESSEL,Attorney General on behalf
)
of the People of Michigan; STATE OF
)
MINNESOTA; STATE OF NEVADA;
)
STATE OF NEW JERSEY; STATE OF
)
NEW MEXICO; STATE OF RHODE ISLAND;
)
STATE OF HAWAII,
)
Plaintiffs-Appellees,
)
)
v.
)
)
U.S. DEPARTMENT OF HOMELAND
)
SECURITY, a federal agency;
)
CHAD F. WOLF, in his official capacity
)
as Acting Secretary of the United States
)
Department of Homeland Security;
)
UNITED STATES CITIZENSHIP
)
AND IMMIGRATION SERVICES, a
)
federal agency; KENNETH T. CUCCINELLI,
)
in his official capacity as Acting
)
Director of United States Citizenship
)
and Immigration Services,
)
Defendants-Appellants.
)
__________________________________________)
OPINION
App. 44
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted September 15, 2020
San Francisco, California
Filed December 2, 2020
Before: Mary M. Schroeder, William A. Fletcher, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge Schroeder;
Dissent by Judge VanDyke
___________________________________________________
SUMMARY*
___________________________________________________
Immigration
In cases in which two district courts issued
preliminary injunctions enjoining implementation of
the Department of Homeland Security’s redefinition of
the term”public charge,” which describes a ground of
inadmissibility, the panel: 1) affirmed the preliminary
injunction of the District Court for the Northern
District of California covering the territory of the
plaintiffs; and 2) affirmed in part and vacated in part
the preliminary injunction of the District Court for the
Eastern District of Washington, vacating the portion of
the injunction that made it applicable nationwide.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
App. 45
Under 8 U.S.C. § 1182(a)(4)(A), any alien who, in
the opinion of the Secretary of Homeland Security, at
the time of application for admission or adjustment of
status, is likely at any time to become a “public
charge,” is inadmissible. No statute has ever defined
the term. In 1999, the Immigration and Naturalization
Service issued guidance (Guidance) defining the term
as one who “is or is likely to become primarily
dependent on the government for subsistence.” The
Guidance expressly excluded non-cash benefits
intended to supplement income.
In August 2019, the Department of Homeland
Security (DHS) issued a rule (the Rule) that defines
“public charge” to include those who are likely to
participate, even for a limited period of time, in noncash federal government assistance programs. The
Rule defines the term “public charge” to mean “an alien
who receives one or more [specified] public benefits . . .
for more than 12 months in the aggregate within any
36-month period.” Inadmissibility on Public Charge
Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019). The Rule
also directs officials to consider English proficiency in
making the public charge determination.
States and municipalities brought suits in
California and Washington, asserting claims under the
Administrative Procedure Act. The District Court for
the Northern District of California issued a preliminary
injunction covering the territory of the plaintiffs, and
the District Court for the Eastern District of
Washington issued a nationwide injunction. A divided
motions panel of this court granted DHS’s motion for a
stay of those injunctions pending appeal.
App. 46
The panel first concluded that the plaintiffs had
established Article III standing. The plaintiffs are
states and municipalities that alleged that the Rule is
causing them continuing financial harm, as lawful
immigrants eligible for federal cash, food, and housing
assistance withdraw from these programs and instead
turn to state and local programs. The panel concluded
that this constituted sufficient injury. Addressing
whether the injury is apparent or imminent, the panel
explained that: 1) the Rule itself predicts a 2.5 percent
decrease in enrollment in federal programs and a
corresponding reduction in Medicaid payments of over
one billion dollars per year; 2) the Rule acknowledges
that disenrollment will cause other indirect financial
harm to state and local entities; and 3) declarations in
the record show that such entities are already
experiencing disenrollment.
Next, the panel concluded that the interest of the
plaintiffs in preserving immigrants’ access to
supplemental benefits is within the zone of interests
protected by the “public charge” statute. The panel
rejected DHS’s suggestion that only the federal
government and individuals seeking to immigrate are
within the zone of interest. The panel also rejected
DHS’s suggestion that the purpose of the public charge
statute is to reduce immigrants’ use of public benefits.
Addressing DHS’s contention that the statute’s overall
purpose is to promote self-sufficiency, the panel
concluded that providing access to better health care,
nutrition, and supplemental housing benefits is
consistent with precisely that purpose.
App. 47
The panel next concluded that the plaintiffs had
demonstrated a high likelihood of success in showing
that the Rule is inconsistent with any reasonable
interpretation of the public charge statute and
therefore contrary to law. The plaintiffs pointed to
repeated congressional reenactment of the provision
after it had been interpreted to mean long-term
dependence on government support, noting that the
statute had never been interpreted to encompass
temporary resort to supplemental non-cash benefits.
The plaintiffs contended that this repeated
reenactment amounted to congressional ratification of
the historically consistent interpretation.
The panel concluded that the history of the
provision supported the plaintiffs’ position, noting that:
1) from the Victorian Workhouse through the 1999
Guidance, the concept of becoming a “public charge”
has meant dependence on public assistance for
survival; 2) the term had never encompassed persons
likely to make short-term use of in-kind benefits that
are neither intended nor sufficient to provide basic
sustenance; and 3) the Rule introduces a lack of
English proficiency. The panel also noted that the
opinions of the Second Circuit and the Seventh Circuit,
in affirming preliminary injunctions of the Rule, agreed
that the Rule’s interpretation was outside any
historically accepted or sensible understanding of the
term.
The panel next concluded that the Rule’s
promulgation was arbitrary and capricious, explaining
that DHS: 1) failed to adequately consider the financial
effects of the Rule; 2) failed to address concerns about
App. 48
the Rule’s effect on public safety, health, and nutrition,
as well its effect on hospital resources and vaccination
rates in the general population; and 3) failed to explain
its abrupt change in policy from the 1999 Guidance.
The panel also concluded that the remaining
preliminary injunction factors favored the plaintiffs.
The panel explained that the plaintiffs had established
that they likely are bearing and will continue to bear
heavy financial costs because of withdrawal of
immigrants from federal assistance programs and
consequent dependence on state and local programs.
The panel also observed that the public interest in
preventing contagion is particularly salient during the
current global pandemic, and noted the financial
burdens on the plaintiffs and the adverse effects on the
health and welfare of the immigrant as well as general
population.
Finally, the panel concluded that a nationwide
injunction was not appropriate in this case because the
impact of the Rule would fall upon all districts at the
same time, and the same issues regarding its validity
have been and are being litigated in multiple federal
district and circuit courts. Accordingly, the panel
vacated that portion of the District Court for the
Eastern District of Washington’s injunction making it
applicable nationwide.
Dissenting, Judge VanDyke, wrote that for the
reasons ably articulated by this court in a December
2019 published opinion in this case, by the Fourth
Circuit in CASA de Maryland, Inc. v. Trump, 971 F.3d
220 (4th Cir. 2020), and by a dissenting Seventh
Circuit judge in Cook County v. Wolf, 962 F.3d 208,
App. 49
234–54 (7th Cir. 2020) (Barrett, J., dissenting)—and
implied by the Supreme Court’s multiple stays this
year of injunctions virtually identical to those the
majority today affirms—he must respectfully dissent.
___________________________________________________
COUNSEL
Gerard Sinzdak (argued), Daniel Tenny, Joshua Dos
Santos, and Jack Starcher, Appellate Staff; David L.
Anderson and William D. Hyslop, United States
Attorneys; Joseph H. Hunt, Assistant Attorney
General; Civil Division, United States Department of
Justice, Washington D.C.; for Defendants-Appellants.
H. Luke Edwards (argued), Raphael N. Rajendra, Julia
B. Spiegel, and Hannah Kieschnick, Deputy County
Counsels; Laura Trice, Lead Deputy County Counsel;
Greta S. Hansen, Chief Assistant County Counsel;
James R. Williams, County Counsel; Office of the
County Counsel, County of Santa Clara, San Jose,
California; Dennis J. Herrera, City Attorney; Jesse C.
Smith, Chief Assistant City Attorney; Ronald P. Flynn,
Chief Deputy City Attorney; Yvonne R. Mere, Chief,
Complex & Affirmative Litigation; Sara J. Eisenberg,
Chief of Strategic Advocacy; Matthew D. Goldberg,
Deputy City Attorney; City Attorney’s Office, San
Francisco, California; for Plaintiffs-Appellees City and
County of San Francisco; County of Santa Clara.
Xavier Becerra, Attorney General; Matthew Rodriguez,
Chief Assistant Attorney General; Michael L. Newman,
Senior Assistant Attorney General; Cherokee DM
Melton, Supervising Deputy Attorney General; Jennifer
C. Bonilla, Lisa Cisneros, Rebekah Fretz, Katherine
App. 50
Lehe, Marissa Malouff, Julia Harumi Mass, Anita
Garcia Velasco, Brenda Ayon Verduzco, and Anna Rich,
Deputy Attorneys General; Office of the Attorney
General, Oakland, California; Karl A. Racine, Attorney
General; Loren L. AliKhan, Solicitor General; Office of
the Attorney General, Washington, D.C.; Aaron M.
Frey, Attorney General; Susan P. Herman, Chief
Deputy Attorney General; Office of the Attorney
General, Augusta, Maine; Ellen Rosenblum, Attorney
General; Benjamin Gutman, Solicitor General; Nicole
DeFever and Patricia Garcia Rincon, Attorneys; Oregon
Department of Justice, Salem, Oregon; Josh Shapiro,
Attorney General; Michael J. Fischer, Chief Deputy
Attorney General; Aimee D. Thomson, Deputy Attorney
General; Office of the Attorney General, Philadelphia,
Pennsylvania; for Plaintiffs-Appellees State of
California, District of Columbia, State of Maine,
Commonwealth of Pennsylvania and State of Oregon.
Robert W. Ferguson, Attorney General; Noah G.
Purcell, Solicitor General; Tera M. Heintz, Deputy
Solicitor General; Jeffrey T. Sprung, Nathan K. Bays,
and Joshua Weissman, Assistant Attorneys General;
Office of the Attorney General, Seattle, Washington;
Mark R. Herring, Attorney General; Michelle S. Kallen,
Deputy Solicitor General; Jessica Merry Samuels,
Assistant Solicitor General; Ryan Spreague Hardy,
Alice Anne Lloyd, and Mamoona H. Siddiqui, Assistant
Attorneys General; Office of the Attorney General,
Richmond, Virginia; Phil Weiser, Attorney General,
Eric R. Olson, Solicitor General; Office of the Attorney
General, Denver, Colorado; Kathleen Jennings,
Attorney General; Aaron R. Goldstein, State Solicitor,
Monica A. Horton, Deputy Attorney General;
App. 51
Department of Justice, Wilmington, Delaware; Kwame
Raoul, Attorney General; Liza Roberson-Young, Public
Interest Counsel; Office of the Attorney General,
Chicago, Illinois; Clare C. Connors, Attorney General;
Lili A. Young, Deputy Attorney General; Department
of the Attorney General, Honolulu, Hawaii; Brian E.
Frosh, Attorney General; Jeffrey P. Dunlap, Assistant
Attorney General; Office of the Attorney General,
Baltimore, Maryland; Maura Healey, Attorney
General; Abigail B. Taylor, Chief, Civil Rights Division;
David Ureña, Special Assistant Attorney General;
Angela Brooks, Assistant Attorney General; Office of
the Attorney General, Boston, Massachusetts; Dana
Nessel, Attorney General; Fadwa A. Hammoud,
Solicitor General; Toni L. Harris, First Assistant
Attorney General; Michigan Department of Attorney
General, Lansing, Michigan; Keith Ellison, Attorney
General; R.J. Detrick, Assistant Attorney General;
Attorney General’s Office, St. Paul, Minnesota; Aaron
D. Ford, Attorney General; Heidi Parry Stern, Solicitor
General; Office of the Attorney General; Gurbir S.
Grewal, Attorney General; Glenn J. Moramarco,
Assistant Attorney General; Office of the Attorney
General, Trenton, New Jersey; Hector Balderas,
Attorney General; Tania Maestas, Chief Deputy
Attorney General; Office of the Attorney General,
Santa Fe, New Mexico; Peter F. Neronha, Attorney
General; Lauren E. Hill, Special Assistant Attorney
General; Office of the Attorney General, Providence,
Rhode Island; for Plaintiffs-Appellees Washington,
Virginia, Colorado, Delaware, Illinois, Maryland,
Massachusetts, Michigan, Minnesota, Nevada, New
Jersey, New Mexico, Rhode Island, and Hawaii.
App. 52
Edward T. Waters, Phillip A. Escoriaza, and Amanda
N. Pervine, Feldesman Tucker Leifer Fidell LLP, for
Amici Curiae Public Health, Health Policy, Medicine,
and Nursing Deans, Chairs, and Scholars; American
Public Health Association; and American Academy of
Nursing.
R. Adam Lauridsen, Chessie Thacher, Victor H. Yu,
and Nicholas R. Green, Keker Van Nest & Peters LLP,
San Francisco, California for Amici Curiae National
Housing Law Project, Food Research & Action Center,
and Center for Law & Social Policy, National
Education Association, and Service Employees
International Union.
Nicholas Espíritu, Linton Joaquin, Alvaro M. Huerta,
Mayra B. Joachin, and Max S. Wolson, National
Immigration Law Center, Los Angeles, California;
Allon Kedem, Graham White, Jayce Born, Hillary
Anderson, Arnold & Porter Kaye Scholer LLP,
Washington, D.C., for Amici Curiae Immigrant and
Healthcare Service Organizations.
Barbara J. Parker, City Attorney; Maria Bee, Chief
Assistant City Attorney; Eric Bernstein, Senior Deputy
City Attorney; Malia McPherson, Deputy City
Attorney; Caroline Wilson, Fellow; Oakland, California;
Michael N. Feuer, City Attorney; Kathleen A. Kenealy,
Chief Deputy City Attorney; Danielle L. Goldstein,
Deputy City Attorney, Los Angeles, California; Vince
Ryan, County Attorney; Robert Hazeltine-Shedd,
Assistant County Attorney; Harris County, Houston,
Texas; Margaret L. Carter and Daniel R. Suvor,
O’Melveny & Myers LLP, Los Angeles, California;
Esteban A. Aguilar Jr., City Attorney, Albuquerque,
App. 53
New Mexico; Anne L. Morgan, City Attorney, Austin,
Texas; Andre M. Davis, City Solicitor, Baltimore,
Maryland; Mark A. Flessner, Corporation Counsel;
Benna Ruth Solomon, Deputy Corporation Counsel,
Chicago, Illinois; Barbara J. Doseck, Director of Law;
John C. Muston, Chief Trial Counsel, Dayton, Ohio;
Crystal Barnes, Acting City Solicitor, Holyoke,
Massachusetts; Howard Phillip Schneiderman, Senior
Deputy Prosecuting Attorney, King County, Seattle,
Washington; Brian E. Washington, County Counsel,
County of Marin, San Rafael, California; Charles J.
McKee, County Counsel; William M. Litt, Anne K.
Brereton, and Marina S. Pantchenko, Deputy County
Counsels; County of Monterey, Salinas, California;
Marc. P. Hansen, County Attorney, Montgomery
County, Rockville, Maryland; Marcel S. Pratt, City
Solicitor, Philadelphia, Pennsylvania; Susana Alcala
Wood, City Attorney, Sacramento, California; John C.
Beiers, County Counsel; David A. Silverman, Chief
Deputy County Counsel; Ilana Parmer Mandelbaum,
Deputy County Counsel; County of San Mateo,
Redwood City, California; Peter S.Holmes, City
Attorney, Seattle, Washington; Michael Tubbs, Mayor,
Stockton, California; Michael Jenkins, City Attorney,
West Hollywood, California; for Amici Curiae 20
Counties, Cities, and Municipalities.
Denny Chan, Justice in Aging, Los Angeles, California;
Regan Bailey and Natalie Kean, Justice in Aging,
Washington, D.C.; Russel L. Hirschhorn and
Christopher Spadaro, Proskauer Rose LLP, New York,
New York; for Amici Curiae Justice in Aging, American
Society on Aging, Caring Across Generations, Jewish
Family Service of Los Angeles, Jewish Federations of
App. 54
North America, National Asian Pacific Center on
Aging, National Council on Aging, National Hispanic
Council on Aging, Mazon, Phi, and Center for Medicare
Advocacy.
Alexandra Wald, Cohen & Gresser LLP, New York,
New York; Elizabeth B. Wydra, Brianne J. Gorod, and
Dayna J. Zolle, Constitutional Accountability Center,
Washington, D.C.; for Amici Curiae Legal Historians.
Simon Sandoval-Moshenberg and Kelly Salzmann,
Legal Aid Justice Center, Falls Church, Virginia; Ariel
Nelson and Chi Chi Wu, National Consumer Law
Center, Boston, Massachusetts; for Amici Curiae
National Consumer Law Center, Legal Aid Justice
Center, Public Citizen Inc., Consumer Action, Equal
Justice Society, Impact Fund, Secure Justice, Media
Alliance, Americans for Financial Reform Education
Fund, and New Economy Project.
Richard L. Revesz, Jack Lienke, and Max Sarinsky,
New York, New York, as and for Amicus Curiae
Institute for Policy Integrity.
Debra Gardner, Monisha Cherayil, Sally
Dworak-Fisher, and Tyra Robinson, Baltimore,
Maryland, as and for Amicus Curiae Public Justice
Center.
Paul J. Lawrence and Alanna E. Peterson, Pacifica Law
Group, Seattle, Washington, for Amici Curiae
Nonprofit Anti-Domestic Violence and Sexual Assault
Organizations.
App. 55
Diana Kasdan, Pilar Herrero, Amy Myrick, and Elyssa
Spitzer, New York, New York, as and for Amicus
Curiae Center for Reproductive Rights.
Robert M. Loeb, Thomas M. Bondy, Peter E. Davis, and
Emily Green, Orrick Herrington & Sutcliffe LLP,
Washington, D.C.; Douglas N. Letter, General Counsel;
Todd B. Tatelman, Principal Deputy General Counsel;
Megan Barbero, Josephine Morse, Adam A. Grogg, and
William E. Havemann, Deputy General Counsel; Office
of General Counsel, U.S. House of Representatives,
Washington, D.C., for Amicus Curiae United States
House of Representatives.
Harry Lee, Mary Woodson Poag, Johanna Dennehy,
Steptoe & Johnson LLP, Washington, D.C., for Amici
Curiae Immigration Law Professors.
Emily Tomoko Kuwahara, Crowell & Moring LLP, Los
Angeles, California; Austin J. Sutta, Crowell & Moring
LLP, San Francisco, California; for Amici Curiae Asian
Americans Advancing Justice, Asian American Legal
Defense and Education Fund, National Women’s Law
Center, and 38 Other Amici Curiae.
Sadik Huseny, Brittany N. Lovejoy, Joseph C. Hansen,
Tess L. Curet, and Alexandra B. Plutshack, Latham &
Watkins LLP, San Francisco, California, for Amici
Curiae Fiscal Policy Institute, President’s Alliance on
Higher Education and Immigration, and 12 Other
Amici Curiae.
Susan M. Krumplitsch, Elizabeth Stameshkin, and
Priyamvada Arora, Cooley LLP, Palo Alto, California,
for Amici Curiae American Academy of Pediatrics;
American Medical Association; American College of
App. 56
Physicians; American College of Obstetricians and
Gynecologists; California Medical Association;
American Academy of Pediatrics, California; American
Academy of Pediatrics, Hawaii Chapter; Alaska
Chapter of the American Academy of Pediatrics;
Arizona Chapter of the American Academy of
Pediatrics; and Nevada Chapter, American Academy of
Pediatrics.
Paul W. Hughes, Michael B. Kimberly, and Matthew A.
Waring, McDermott Will & Emery LLP, Washington,
D.C., for Amici Curiae 105 Businesses and
Organizations.
___________________________________________________
OPINION
SCHROEDER, Circuit Judge:
The phrase “public charge” enjoys a rich history in
Anglo-American lore and literature, one more colorful
than our American law on the subject. There have been
relatively few published court decisions construing the
phrase, even though our immigration statutes have
barred admission to immigrants who are likely to
become a “public charge” for more than a century. Until
recently, the judicial and administrative guidance has
reflected the traditional concept—rooted in the English
Poor Laws and immortalized by Dickens in the
workhouse of Oliver Twist—of incapacity and reliance
on public support for subsistence. The first
comprehensive federal immigration law barred entry to
“any convict, lunatic, idiot, or any person unable to
take care of himself or herself without becoming a
public charge.” Immigration Act of 1882, 22 Stat. 214,
App. 57
Chap. 376 § 2 (1882). The 1999 Guidance (the
Guidance) issued by the Immigration and
Naturalization Service (INS), the predecessor of the
current agency, defined a “public charge” as one who “is
or is likely to become primarily dependent on the
government for subsistence.” See Field Guidance on
Deportability and Inadmissibility on Public Charge
Grounds, 64 Fed. Reg. 28,689 (May 26, 1999).
In 2019, the Department of Homeland Security
(DHS) changed direction, however, and issued a rule
(the Rule) that defines the term to include those who
are likely to participate, even for a limited period of
time, in non-cash federal government assistance
programs. The programs designated by the Rule are
not intended to provide for subsistence but instead to
supplement an individual’s ability to provide for basic
needs such as food, medical care, and housing. 8 C.F.R.
§ 212.21(b). Foreseeable participation for an aggregate
of twelve months in any of the federal programs within
a three-year span renders an immigrant inadmissible
as a public charge and ineligible for permanent
resident status. § 212.21(a). In other words, a single
mother with young children who DHS foresees as likely
to participate in three of those programs for four
months could not get a green card.
Litigation followed in multiple district courts
against DHS and U.S. Citizenship and Immigration
Services (USCIS) as states and municipalities
recognized that the immediate effect of the Rule would
be to discourage immigrants from participating in such
assistance programs, even though Congress has made
them available to immigrants who have been in the
App. 58
country for five years. According to the plaintiffs in
those cases, the Rule’s effect would be to increase
assistance demands on state and local governments, as
their resident immigrants’ overall health and welfare
would be adversely affected by non-participation in
federal assistance programs.
The challenges to the Rule in the district courts
resulted in a chorus of preliminary injunctions holding
the Rule to be contrary to law and arbitrary and
capricious under the Administrative Procedure Act
(APA). 5 U.S.C. § 706(2)(A). These included the two
preliminary injunctions before us, one issued by the
District Court for the Northern District of California
(Northern District) covering the territory of the
plaintiffs, and the other by the District Court for the
Eastern District of Washington (Eastern District)
purporting to apply nationwide. Our court became the
first federal appeals court to weigh in when we granted
DHS’s motion for a stay of those injunctions pending
appeal. City and Cnty. of San Francisco v. USCIS, 944
F.3d 773, 781 (9th Cir. 2019). Preliminary injunctions
were also issued by courts in the Northern District of
Illinois and the Southern District of New York, and
they were stayed by the United States Supreme Court
before appeals could be considered by the circuit courts
of appeals.
When the Seventh Circuit and the Second Circuit
did consider those preliminary injunction appeals, both
courts affirmed the injunctions. Although their
reasoning differed in some respects, both circuits
concluded that the Rule’s definition was both outside
any historic or commonly understood meaning of
App. 59
“public charge,” and arbitrary and capricious, in
concluding that short-term reliance on supplemental
benefits made immigrants dependent on public
assistance within the meaning of the statutory public
charge immigration bar. Cook Cnty., Ill. v. Wolf, 962
F.3d 208, 229, 232–33 (7th Cir. 2020); New York v.
DHS, 969 F.3d 42, 80–81 (2nd Cir. 2020). The Second
Circuit opinion was unanimous, while a dissenting
opinion in the Seventh Circuit agreed with DHS that
those who receive such supplemental benefits could be
considered public charges because, by receiving some
assistance, they are not completely self-sufficient. Cook
Cnty., 962 F.3d at 250–51 (Barrett, J., dissenting).
The district court in Maryland also enjoined
enforcement of the Rule and was reversed by a divided
decision of the Fourth Circuit. The majority looked in
large measure to the fact that the Supreme Court had
stayed the injunctions in the Seventh and Second
Circuits. CASA de Maryland, Inc. v. Trump, 971 F.3d
220, 230 (4th Cir. 2020). In dissent, Judge King viewed
the Rule as outside the longstanding meaning of
“public charge” and would have affirmed the injunction.
He also disagreed with the majority about the
significance of the Supreme Court’s stay, explaining
that “[i]f the Court’s decision to grant a stay could be
understood to effectively hand victory to the
government regarding the propriety of a preliminary
injunction, there would be little need for an
intermediate appellate court to even consider the
merits of an appeal in which the Court has granted a
stay.” Id. at 281 n.16 (King, J., dissenting) (citing Cook
Cnty., 962 F.3d at 234).
App. 60
To understand the reason for this recent cascade of
litigation after a relatively quiescent statutory and
regulatory history, we review the historical background
of the Rule. Such a review reveals the extent to which
the Rule departs from past congressional and
administrative policies.
A. Statutory and Administrative Background
This country has had a federal statutory provision
barring the admission of persons likely to become a
“public charge” since 1882. The Immigration Act of
1882 barred entry to, among others, “any convict,
lunatic, idiot, or any person unable to take care of
himself or herself without becoming a public charge.”
The Immigration and Nationality Act now provides
that “[a]ny alien who, . . . in the opinion of the
[Secretary of Homeland Security] at the time of
application for admission or adjustment of status, is
likely at any time to become a public charge is
inadmissible.” 8 U.S.C. § 1182(a)(4)(A). No statute has
ever defined the term. For over a century, agencies
have routinely applied these provisions in determining
admissibility and removal as well as in issuing visas for
entry.
In 1996, however, Congress amended the statute to
add five factors for agencies to consider in determining
whether an individual is likely to be a public charge:
the non-citizen’s age; health; family status; assets,
resources and financial status; and education and
skills. § 1182(a)(4)(B)(i). Congress also included a
provision requiring applicants to produce an affidavit
of support. See § 1182(a)(4)(C)–(D) (requiring most
App. 61
family-sponsored immigrants to submit affidavits of
support); § 1183a (affidavit of support requirements).
At nearly the same time, Congress enacted major
reforms of public benefit programs that, as relevant
here, made only non-citizens with five or more years of
residency in the United States eligible for public
benefits such as Supplemental Nutrition Assistance
Program (SNAP) and Medicaid. Personal Responsibility
and Work Opportunity Reconciliation Act (PRWORA),
Pub. L. No. 104-193, 110 Stat. 2105, 2265 (1996).
Previously, lawful immigrants had generally been
eligible for such benefits. Congress thus simultaneously
reduced the number of immigrants eligible for this
assistance and spelled out the factors to be considered
in a public charge determination. The fact that
Congress delineated the factors relevant to the public
charge determination at the same time it adjusted
certain immigrants’ eligibility to receive specific
supplemental assistance strongly suggests that
Congress did not intend for such assistance to be
considered as one of the public charge factors.
Judicial guidance in interpreting the phrase was
apparently not in need or demand: There are relatively
few such decisions. A leading early Supreme Court case
resolved the important question of whether the adverse
economic conditions in the location where the
immigrant intends to live can render an immigrant
likely to become a “public charge.” Gegiow v. Uhl, 239
U.S. 3 (1915). The Supreme Court’s answer was no
because the statute spoke to the permanent
characteristics personal to the immigrant rather than
to local labor market conditions. Id. at 10. We followed
App. 62
Gegiow in Ex parte Sakaguchi, 277 F. 913 (9th Cir.
1922), where we held that a person temporarily in need
of family assistance should not have been excluded as
likely to become a public charge. We so held because
there was an absence of “any evidence whatever of
mental or physical disability or any fact tending to
show that the burden of supporting the appellant is
likely to be cast upon the public.” Id. at 916. Thus, our
court in Sakaguchi understood the standard for
determining whether someone is a public charge to be
whether the “burden of support” falls on the public.
Administrative decisions followed the Supreme
Court’s lead by looking to the inherent characteristics
of the individual rather than to external circumstances.
The Board of Immigration Appeals thus held that only
an individual with the inherent inability to be
self-supporting is excludable as “likely to become a
public charge” within the meaning of the statute.
Matter of Harutunian, 14 I & N. Dec. 583, 589–90 (BIA
1974); Matter of Vindman, 16 I. & N. Dec. 131, 132
(B.I.A. 1977); see also New York, 969 F.3d at 69. There
has been corollary administrative recognition that even
if an individual has been on welfare, that fact does not
in and of itself establish the requisite likelihood of
becoming a public charge. An Attorney General
decision collected authorities indicating that it is the
totality of circumstances that must be considered in
order to determine whether “the burden of supporting
the alien is likely to be cast on the public.” Matter of
Martinez-Lopez, 10 I & N. Dec. 409, 421–22 (BIA 1962;
A.G. 1964) (citing Sakaguchi, 277 F. at 916). Likely
receipt of some public benefits does not automatically
App. 63
render an immigrant a public charge because the
public does not bear the “burden of support.”
The 1996 amendments, which added factors to be
considered and created the current public charge
statutory provision, caused some confusion as to how
big a change they represented. The INS, the agency
then in charge of administering immigration, decided
a regulatory definition would be helpful. It adopted the
1999 Guidance, the first regulatory guidance to
interpret the rather ancient notion of “public charge” in
light of the myriad, modern forms of public assistance.
64 Fed. Reg. 28,269.
The Guidance defined a “public charge” as a
non-citizen who depends on the government for
survival, either by receipt of income or confinement in
a public institution. It described persons “primarily
dependent on the government for subsistence, as
demonstrated by either (i) the receipt of public cash
assistance for income maintenance or
(ii) institutionalization for long term care at
government expense.” Id. at 28,689. It thus embodied
the traditional notion of primary dependence on the
government for either income or institutional care.
The Guidance went on to identify the types of public
assistance that would typically qualify as evidence of
primary dependence: (1) Supplemental Security Income
(SSI); (2) Temporary Assistance for Needy Families
(TANF); (3) state and local cash assistance programs;
and (4) programs supporting people institutionalized
for long-term care. Id. at 28,692. The Guidance
expressly excluded non-cash benefits intended to
supplement income and not to provide primary
App. 64
support. The explanation lay with the changing times
that were bringing benefits to more and more families
to improve their health and welfare. See id. (“[C]ertain
federal, state, and local benefits are increasingly being
made available to families with incomes far above the
poverty level, reflecting broad public policy decisions
about improving general public health and nutrition,
promoting education, and assisting working-poor
families in the process of becoming self-sufficient.
Thus, participation in such non-cash programs is not
evidence of poverty or dependence.”).
The Guidance actually encouraged non-citizens to
receive supplemental benefits in order to improve their
standard of living and to promote the general health
and welfare. The Guidance drew a sharp distinction
between the receipt of such supplemental benefits and
dependence on the government for subsistence income
that would render the individual a “public charge.” Id.
at 28,692–93.
The 2019 Public Charge Rule we review in this case
effectively reversed that policy by making receipt of
supplemental benefits the very definition of a public
charge. See Inadmissibility on Public Charge Grounds,
84 Fed. Reg. 41,292 (Aug. 14, 2019). The Rule defines
the term “public charge” to mean “an alien who
receives one or more [specified] public benefits . . . for
more than 12 months in the aggregate within any
36-month period (such that, for instance, receipt of two
benefits in one month counts as two months).” Id. at
41,501. The public benefits specified by the Rule
include most Medicaid benefits, SNAP benefits, Section
8 housing vouchers and rental assistance, and other
App. 65
forms of federal housing assistance. Id. Any receipt of
such a benefit, no matter how small, will factor into the
public charge determination. The Rule also directs
officials to consider English proficiency in making the
public charge determination. Id. at 41,503–04.
The Rule was greeted with challenges in federal
district courts throughout the country. We deal with
those in this circuit.
B. The District Court Injunctions
On appeal are two district court decisions granting
preliminary injunctions barring enforcement of the
Rule. The Northern District considered the challenges
of California, the District of Columbia, Maine,
Pennsylvania, and Oregon, consolidated with the
challenges brought by the City and County of San
Francisco, and the County of Santa Clara. The Eastern
District heard the challenges brought by Washington,
Virginia, Colorado, Delaware, Hawaii, Illinois,
Maryland, Massachusetts, Michigan, Minnesota,
Nevada, New Jersey, New Mexico, and Rhode Island.
Both district courts agreed that the plaintiffs had
standing because they had shown that they would
likely suffer economic harm and other costs and that
their concerns were within the zone of interests of the
statute. Both held that the new definition of “public
charge” was likely not a permissible interpretation of
the statute because it would depart from the
longstanding, settled understanding that a person does
not become a public charge by receiving short-term aid,
and must instead demonstrate an inherent incapacity
to provide subsistence. City and Cnty. of San Francisco
v. USCIS, 408 F. Supp. 3d 1057, 1101 (N.D. Cal. 2019),
App. 66
Washington v. DHS, 408 F. Supp. 3d 1191, 1219 (E.D.
Wash. 2019). Both found the Rule to be likely arbitrary
and capricious because the agency failed to consider the
burdens the Rule would impose on states and
municipalities. The Eastern District issued a
nationwide injunction, and the Northern District
declined to do so.
Within a few weeks of the district court rulings, a
divided motions panel of this court, however, stayed
both injunctions pending this appeal. City and Cnty. of
SF, 944 F.3d 773. The panel majority wrote that DHS
was likely to prevail because the Rule would probably
be viewed as a reasonable interpretation of a statute
that had no consistent historical application and gave
the agency “considerable discretion.” Id. at 796, 799.
Judge Owens dissented in part and would have denied
the stay. Id. at 809–10 (Owens, J., dissenting).
The stay was based on a prediction of what this
panel would hold in reviewing the merits of the
preliminary injunctions. The stay in this case was
entered at a particularly early point, less than two
months after the district court injunctions. Almost
none of the extensive documentation relevant to this
appeal was before the motions panel. The brief of the
appellant DHS in the Northern District case had been
filed only the day before the panel entered its stay, and
the opening brief in the Eastern District case was not
filed until the day after. Still to come were not only the
answering and reply briefs in both appeals, but two
dozen amicus briefs, many of which we have found very
helpful.
App. 67
At least equally important, no other circuit court
opinions had yet considered the issues. By now we have
heard from three. One of those opinions even discussed
and disagreed with the reasoning of this court’s
motions panel stay opinion, pointing out that it
“pinn[ed] the definition of ‘public charge’ on the form of
public care provided” in concluding that there was no
consistent interpretation of the Rule. New York, 969
F.3d at 73 (emphasis in original). The court there said
our motions panel thereby went “astray.” Id. This was
because the issue was not whether a “public charge”
had always received similar assistance. Id. The issue
should have been whether the “inquiry” under the
statute had been consistent. Id. The Second Circuit
concluded the public charge inquiry had always been
whether the non-citizen “is likely to depend on that
[assistance] system.” Id.
We therefore turn to the appeal before us. We deal
first with DHS’s arguments that the plaintiffs may not
maintain the suit because they lack Article III standing
or are outside the zone of interests of the immigration
statute in question.
C. Plaintiffs’ Capacity to Maintain the Action
Plaintiffs are states and municipalities that allege
the Rule is causing them to suffer continuing financial
harm, as lawful immigrants eligible for federal cash,
food, and housing assistance withdraw from these
programs to avoid the impact of the Rule. Plaintiffs
allege harm because such immigrants will instead turn
to assistance programs administered by the state and
local entities.
App. 68
DHS argues that such injuries are speculative and
represent only plausible future injury. There is no
question that to have Article III standing to bring this
action, the plaintiffs must allege that they have
suffered, or will imminently suffer, a “concrete and
particularized” injury in fact. Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992). There is also no question that
an increased demand for aid supplied by the state and
local entities would be such an injury. The only
question is whether such demand is, as of yet, apparent
or imminent.
That is not a difficult question to answer. The Rule
itself predicts a 2.5 percent decrease in enrollment in
public benefit programs and a corresponding reduction
in Medicaid payments of over one billion dollars per
year. Final Rule, 84 Fed. Reg. at 41,302, 41,463. The
Rule itself further acknowledges that disenrollment
will cause other indirect financial harm to state and
local entities by increasing the demand for
uncompensated indigent care. Declarations in the
record show that such entities are already experiencing
disenrollment as a result of the Rule. See City and
Cnty. of SF, 408 F. Supp. 3d at 1122.
DHS nevertheless asserts that the Rule will result
in a long-term cost savings after states compensate for
the loss of federal funds by reforming their operations.
But such long-term reforms would not remedy the
immediate financial injury to the plaintiffs or the
harms to the health and welfare of those individuals
affected. As the Second Circuit explained, “this
simplistic argument fails to account for the fact that
the States allege injuries that extend well beyond
App. 69
reduced Medicaid revenue and federal funding to the
States, including an overall increase in healthcare costs
that will be borne by public hospitals and general
economic harms.” New York, 969 F.3d at 60. Thus,
plaintiffs have established Article III standing.
Those suing under the APA, must also establish
that the interest they assert is at least “arguably
within the zone of interests to be protected or regulated
by the statute” in question. Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians v. Patchak, 567 U.S. 209,
224 (2012) (quoting Ass’n of Data Processing Serv.
Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). The
Supreme Court has described the test as “not meant to
be especially demanding” and as “not requir[ing] any
‘indication of congressional purpose to benefit the
would-be plaintiff.’” Id.at 225 (quoting Clarke v. Sec.
Indus. Ass’n, 479 U.S. 388, 399–40 (1987)). A plaintiff’s
interest need only be “sufficiently congruent with those
of the intended beneficiaries that the litigants are not
‘more likely to frustrate than to further the statutory
objectives.’” First Nat. Bank & Tr. Co. v. Nat’l Credit
Union Admin., 988 F.2d 1272, 1275 (D.C. Cir. 1993)
(quoting Clarke, 479 U.S. at 397 n.12).
The statute in question is, of course, the
immigration statute that renders inadmissible an
individual likely to become a “public charge.” 8 U.S.C.
§ 1182(a)(4)(A). DHS appears to contend that the only
entities within the zone of interests are the federal
government itself and individuals seeking to
immigrate, because the provision deals with
immigration and only the federal government controls
immigration. If that were to define the zone of interests
App. 70
regulated by the statute, the scope of permissible
immigration litigation against the government would
be so narrow as to practically insulate it from many
challenges to immigration policy and procedures, even
those violating the Constitution or federal laws.
DHS suggests that the purpose of the public charge
exclusion is to reduce immigrants’ use of public
benefits, and that the plaintiffs’ suit therefore
contradicts this purpose by seeking to make more
federal benefits available. But this assumes that
Congress’s statutory purpose was the same as DHS’s
purpose here, which is the very dispute before us. As
the Second Circuit pointed out, “DHS assumes the
merits of its own argument when it identifies the
purpose of the public charge ground as ensuring that
non-citizens do not use public benefits . . . . Understood
in context, [the public charge bar’s] purpose is to
exclude where appropriate and to not exclude where
exclusion would be inappropriate.”) New York, 969 F.3d
at 62–63.
Moreover, DHS maintains that the statute’s overall
purpose is to promote self-sufficiency. Providing access
to better health care, nutrition and supplemental
housing benefits is consistent with precisely that
purpose. See Cook Cnty., 962 F.3d at 220 (access to
affordable basic health care may promote
self-sufficiency); Hilary Hoynes, Diane Whitmore
Schanzenbach & Douglas Almond, Long-Run Impacts
of Childhood Access to the Safety Net, 106 Am. Econ.
Rev. 903, 921 (2016) (access to food stamps in childhood
significantly increases economic self-sufficiency among
women). For these reasons, the interests of the
App. 71
plaintiffs in preserving immigrants’ access to
supplemental benefits is within the zone of interests
protected by the statute.
We therefore conclude that the district courts
correctly determined that the plaintiffs are entitled to
maintain this action. All ofthe circuits to consider the
validity of this Rule have reached a similar conclusion.
See Cook Cnty., 962 F.3d at 219–20, CASA de
Maryland, 971 F.3d at 240–241, New York, 969 F.3d at
62–63. We now turn to the question whether they were
entitled to the preliminary injunctions entered by the
district courts.
D. Contrary to Law
Both district courts concluded that the plaintiffs are
likely to prevail in their contention that the Rule
violates the statute’s public charge provision, and that
such a conclusion supports the entry of preliminary
injunctions. See Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008). On appeal, DHS contends, as it
has throughout the litigation, that the Rule is a
permissible interpretation of the statute. The plaintiffs
maintain that the Rule violates the statute because the
Rule is not a reasonable interpretation of the meaning
of “public charge.”
History is a strong pillar supporting the plaintiffs’
case. Plaintiffs point to repeated congressional
reenactment of the provision after it had been
interpreted to mean long-term dependence on
government support, and had never been interpreted to
encompass temporary resort to supplemental non-cash
benefits. Plaintiffs contend that this repeated
App. 72
reenactment amounts to congressional ratification of
the historically consistent interpretation. DHS
disagrees, arguing that the repeated reenactments
reflect congressional intent to have a flexible standard
subject to various executive branch interpretations.
Our review of the history of the provision in our law
suggests the plaintiffs have the better part of this
dispute. From the Victorian Workhouse through the
1999 Guidance, the concept of becoming a “public
charge” has meant dependence on public assistance for
survival. Up until the promulgation of this Rule, the
concept has never encompassed persons likely to make
short-term use of in-kind benefits that are neither
intended nor sufficient to provide basic sustenance. The
Rule also, for the first time, introduces a lack of
English proficiency as figuring into the equation,
despite the common American experience of children
learning English in the public schools and teaching
their elders in our urban immigrant communities. 8
C.F.R. § 212.22(b)(5)(ii)(D). Indeed, in Gegiow, 239 U.S.
3, the Supreme Court found that the individuals in that
case were not likely to become public charges even
though they spoke only Russian.
In New York, 969 F.3d 42, the Second Circuit
essentially agreed with plaintiffs’ historical analysis.
The court recognized and explained the line of settled
judicial and administrative interpretations of a public
charge as one who is primarily dependent on the
government for subsistence. Id. at 65–70. The court
traced that history in far more detail than we have
outlined and was “convinced” that there was a wellsettled meaning of “public charge” even before
App. 73
congressional passage of the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA) in
1996, and that was a person “unable to support herself,
either through work, savings, or family ties.” Id. at 71.
Receipt of cash benefits may be considered in deciding
whether a person is dependent on the government but
has never been determinative. The Second Circuit
persuasively summarized:
The Plaintiffs do not argue, and we do not hold,
that the receipt of various kinds of public
benefits is irrelevant to the determination of
whether a non-citizen is likely to become a
public charge. But defining public charge to
mean the receipt, even for a limited period, of
any of a wide range of public benefits –
particularly . . . ones that are designed to
supplement an individual’s or family’s efforts to
support themselves, rather than to deal with
their likely permanent inability to do so – is
inconsistent with the traditional understanding
of what it means to be a “public charge,” which
was well-established by 1996.
Id. at 78 (emphasis removed).
A few months earlier, the Seventh Circuit had come
to a similar conclusion that the Rule violates the
statutory meaning of public charge. Cook Cnty., 962
F.3d 208. The Seventh Circuit differed somewhat in its
analysis. After a historical survey of court decisions
and secondary sources, it determined that the phrase
“public charge” was susceptible to various
interpretations. Id. at 226. It concluded, however, that
DHS’s interpretation, quantifying the definition to
App. 74
mean receipt of twelve months’ worth of benefits within
three years, represented an understanding of its
authority to define the phrase that “has no natural
limitation.” Id. at 228–29. If DHS’s interpretation were
to be accepted, then there is nothing in the statutory
text that would prevent a zero-tolerance rule, where
foreseeable receipt of a single benefit on one occasion
would bar entry or adjustment of status. The majority
forcefully rejected such an interpretation, stating:
We see no warrant in the Act for this sweeping
view. Even assuming that the term “public
charge” is ambiguous and thus might encompass
more than institutionalization or primary,
long-term dependence on cash benefits, it does
violence to the English language and the
statutory context to say that it covers a person
who receives only de minimis benefits for a de
minimis period of time. There is a floor inherent
in the words “public charge,” backed up by the
weight of history.
Id. at 229.
Although the opinions of the Second Circuit in New
York and the Seventh Circuit in Cook County reflect
some disagreement over whether there was any
historically established meaning of the phrase “public
charge,” they agreed that the Rule’s interpretation of
the statute was outside any historically accepted or
sensible understanding of the term. In commenting on
the difference between its historical review in New
York and that of the Seventh Circuit in Cook County,
the Second Circuit noted that the Seventh Circuit had
App. 75
not included the significant administrative rulings that
preceded the 1996 statute. New York, 969 F.3d at 74.
The New York opinion was unanimous, but the Cook
County opinion was not. The lengthy dissenting opinion
in Cook County focused on other statutory provisions
aimed at preventing entry of persons who could become
dependent on the government. The most significant of
these provisions is the requirement that familysponsored immigrants, and employment-sponsored
immigrants whose employment is tied to a family
member, must furnish an affidavit from the sponsor. 8
U.S.C. §§ 1182(a)(4)(C)–(D). In the affidavit, the
sponsor must agree to support the immigrant at annual
income of at least 125 percent of the poverty level and
pay back the relevant governmental entity in the event
the immigrant receives “any means-tested public
benefit.” 8 U.S.C. § 1183a(a)(1)(b).
The dissent focused on the fact that the affidavit
provision forces sponsors to bear responsibility for “any
means-tested public benefit” that an immigrant may
receive. It concluded that the affidavit provision
reflects Congress’s view that “public charge” may
encompass receipt of supplemental benefits as well as
primary dependence. See Cook Cnty., 962 F.3d at 246
(Barrett, J., dissenting).
In its focus on the provisions in a related but
different section of the statute, the dissent did not
address the significance of the history of the public
charge provision itself, nor did it address the majority’s
objection to the duration of the receipt of benefits as a
standard having no limiting principle. The dissent
concluded only that the choice of an aggregate of twelve
App. 76
months is “not unreasonable.” Id. at 253. Moreover, the
dissent’s interpretation of the affidavit requirement’s
application here seems to suggest that it would approve
a public charge rule excluding individuals who received
“any means-tested benefit,” no matter how small, as in
line with congressional intent.
In this appeal, DHS also relies upon the affidavit of
support provisions to contend that the Rule is
consistent with the statutory public charge bar. The
public charge bar and affidavit of support provisions
were parts of two separate acts. The two have no
historic or functional relationship to each other. The
public charge bar dates back to the 19th century,
embodying an age-old concept of excluding those who
may become primarily dependent on the government.
Congress enacted the affidavit of support provision,
however, in 1996 as part of more recent specific
immigration reforms including the financial
responsibilities of families and employers sponsoring
individual immigrants. See PRWORA, Pub. L. No. 423,
110 Stat. 2271 (1996); IIRIRA, Pub. L. No. 104-208, 110
Stat. 3009 (1996). The section of the affidavit provision
that refers to public benefits serves as a post-admission
remedy to help local and federal governments recoup
funds. § 1183a(b). The changes to the affidavit
provisions were aimed at problems with the
unenforceability of such affidavits prior to 1996.
Michael J. Sheridan, The New Affidavit of Support and
Other 1996 Amendments to Immigration and Welfare
Provisions Designed to Prevent Aliens from Becoming
Public Charges, 31 Creighton L. Rev. 741, 743-44,
752-53 (1998) (article by INS Associate General
Counsel).
App. 77
DHS also points to the provision that permits entry
of battered women without regard to receipt of “any
benefits.” See 8 U.S.C. § 1182(s). DHS argues that this
reflects Congress’s belief that the receipt of any public
benefits would be a consideration in admission for most
other public charge determinations. Had Congress
intended to make non-cash benefits a factor for
admission or permanent residence, it would have done
so directly and not through this ancillary provision. See
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468
(2001) (Congress does not “hide elephants in
mouseholes”). It is more likely that Congress created
this provision in order to provide sweeping protections
for battered migrant women, as it did throughout
Section 1182. See § 1182(a)(6)(ii), (a)(9)(B)(iii)(IV).
For these reasons we conclude the plaintiffs have
demonstrated a high likelihood of success in showing
that the Rule is inconsistent with any reasonable
interpretation of the statutory public charge bar and
therefore is contrary to law.
E. Arbitrary and Capricious
Both district courts also ruled that the plaintiffs
were likely to succeed in their contention that the Rule
is arbitrary and capricious. The APA standard in this
regard is inherently deferential. The task of the courts
is to ensure that the agency’s action relied on
appropriate considerations, considered all important
aspects of the issue, and provided an adequate
explanation for its decision. The Supreme Court
summed it up in its leading decision, Motor Vehicle
Mfrs. Ass’n, Inc. v. State Farm Mut. Auto. Ins. Co.
App. 78
(“State Farm”), 463 U.S. 29 (1983). The Court explained
the general rule:
Normally, an agency rule would be arbitrary and
capricious if the agency has relied on factors
which Congress has not intended it to consider,
entirely failed to consider an important aspect of
the problem, offered an explanation for its
decision that runs counter to the evidence before
the agency, or is so implausible that it could not
be ascribed to a difference in view or the product
of agency expertise.
Id. at 43.
The plaintiffs argue that DHS failed the test in
three principal respects: It failed to take into account
the costs the Rule would impose on state and local
governments; it did not consider the adverse effects on
health, including both the health of immigrants who
might withdraw from programs and the overall health
of the community; and it did not adequately explain
why it was changing the policy that was thoroughly
explained in the 1999 Guidance.
1. Disenrollment and Financial Costs
We first turn to DHS’s consideration of the financial
impact of the proposed Rule. During the comment
period, there was repeated emphasis on the financial
burdens that would befall state and local governments
because immigrants fearing application of the Rule
would disenroll from the supplemental programs, even
if the Rule did not apply to them. DHS’s response was
a generality coupled with an expression of uncertainty.
It said that, despite these effects, the Rule’s “overriding
App. 79
consideration” of self-sufficiency formed “a sufficient
basis to move forward.” 84 Fed. Reg. at 41,312. DHS
added that there was no way of knowing with any
degree of exactitude how many individuals would
disenroll or how much of a burden it would place on the
state and local governments. Id. at 41,312–13.
DHS provided no analysis of the effect of the Rule
on governmental entities like the plaintiffs in these
cases. As the Northern District found, DHS had not
“grapple[d] with estimates and credible data explained
in the comments.” City and Cnty. of SF, 408 F. Supp.
3d at 1106.
Our law requires more from an agency. A bald
declaration of an agency’s policy preferences does not
discharge its duty to engage in “reasoned
decisionmaking” and “explain the evidence which is
available.” State Farm, 463 U.S. at 52. The record
before DHS was replete with detailed information
about, and projections of, disenrollment and associated
financial costs to state and local governments. See, e.g.,
Ninez Ponce, Laurel Lucia, & Tia Shimada, How
Proposed Changes to the ‘Public Charge’ Rule Will
Affect Health, Hunger and the Economy in California,
32 (Nov. 2018), https://healthpolicy.ucla.edu/newsroom
/Documents/2018/public-charge-seminar-slidesnov2018.pdf (estimating over 300,000 disenrollments
from Medicaid in California alone); Fiscal Policy
Institute, Only Wealthy Immigrants Need Apply: The
Chilling Effects of “Public Charge,” 5 (Nov. 2019),
http://fiscalpolicy.org/wp-content/uploads/2019/
11/FINAL-FPI-Public-Charge-2019-MasterCopy.pdf
(estimating over $500 million combined in lost state tax
App. 80
revenue). DHS was required to “reasonably reflect
upon” and “grapple with” such evidence. Fred Meyers
Stores, Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir.
2017). But DHS made no attempt to quantify the
financial costs of the Rule or critique the projections
offered.
Similarly, DHS’s repeated statements that the
Rule’s disenrollment impacts are “difficult to predict”
do not satisfy its duty to “examine the relevant data”
before it. State Farm, 463 U.S. at 43. The Supreme
Court held in State Farm that an agency may not,
without analysis, cite even “‘substantial uncertainty’
. . . as a justification for its actions.” Id. at 52; see also
Ctr. for Biological Diversity v. NHTSA, 538 F.3d 1172,
1200 (9th Cir. 2008) (rejecting as arbitrary and
capricious agency’s characterization of greenhouse gas
reductions as “too uncertain to support their explicit
valuation and inclusion” in analysis). DHS’s analysis
thus fell short of the standard established by the
Supreme Court and recognized by our circuit. DHS did
not adequately deal with the financial effects of the
Rule.
2. Health Consequences
Although DHS wrote the Rule was intended to
make immigrants healthier and stronger, commenters
stressed the Rule’s likely adverse health consequences
for immigrants and the public as a whole, including
infectious disease outbreaks and hospital closures.
While acknowledging these comments, DHS concluded,
without support, that the Rule “will ultimately
strengthen public safety, health, and nutrition.” 84
Fed. Reg. at 41,314. The Northern District aptly found
App. 81
that DHS impermissibly “simply declined to engage
with certain, identified public-health consequences of
the Rule.” City and Cnty. of SF, 408 F. Supp. 3d at
1111–12.
Commenters provided substantial evidence that the
Rule would in fact harm public safety, health, and
nutrition. DHS itself repeatedly acknowledged that
hospitals might face financial harms as a result of the
Rule, but DHS repeatedly declined to quantify, assess,
or otherwise deal with the problem in any meaningful
way. See, e.g., 84 Fed. Reg. at 41,313–14, 41,384,
41,475, 41,476. This is inadequate and suggests that
DHS’s position was intractable. As the D.C. Circuit has
observed, making some mention of evidence but then
coming to a contrary, “unsupported and conclusory”
decision “add[s] nothing to the agency’s defense of its
thesis except perhaps the implication that it was
committed to its position regardless of any facts to the
contrary.” Chem. Mfrs. Ass’n. v. EPA, 28 F.3d 1259,
1266 (D.C. Cir. 1994). DHS responded by excluding
certain programs for children and pregnant women
from the ambit of the Rule, but never addressed the
larger concerns about the Rule’s effect on health as well
as on hospital resources.
There were other serious health concerns. For
example, comments demonstrated that the Rule would
endanger public health by decreasing vaccination rates
in the general population. DHS insisted that vaccines
would “still be available” to Medicaid-disenrolled
individuals because “local health centers and state
health departments” would pick up the slack, id. at
41,385, despite objections voiced by such local health
App. 82
centers and state health departments themselves
showing that the Rule will put the populations they
serve—citizens and non-citizens alike—in danger. See,
e.g., Mass. Dep’t of Pub. Health, Comments on
Inadmissibility on Public Charge Grounds
(Dec.2018),https://www.regulations. gov/document?D=
USCIS-2010-0012-45697; HilltownCmty. Health Ctr.,
Comments on Inadmissibility on Public Charge
Grounds (Dec. 2018), https://www.regulations.gov/
document?D=USCIS-2010-0012-45675. A decision that
“runs counter to the evidence” or “is so implausible that
it could not be ascribed to a difference in view or the
product of agency expertise” is arbitrary and
capricious. State Farm, 463 U.S. at 43. The
promulgation of this Rule is such a decision. DHS
claims no expertise in public health, unlike the scores
of expert commenters who weighed in against the Rule.
3. Reversal of Position
Above all, DHS failed to explain its abrupt change
in policy from the 1999 Guidance. An agency reversing
a prior policy “must show that there are good reasons
for the new policy” and provide “a reasoned explanation
. . . for disregarding facts and circumstances that
underlay or were engendered by the prior policy.” FCC
v. Fox Television Stations, Inc., 556 U.S. 502, 515–16
(2009). The district courts below found that DHS had
failed to satisfy this standard. City and Cnty. of SF,
408 F. Supp. 3d at 1111–12; Washington v. DHS, 408 F.
Supp. 3d at 1220.
The 1999 Guidance had been issued after the 1996
statutory amendments setting out the general factors
to be taken into account in making a public charge
App. 83
determination. The Guidance considered all of the
different types of public assistance governments
offered, including programs providing subsistence
income and those providing supplemental benefits. The
Guidance expressly provided that receipt of
supplemental assistance for food, healthcare and
housing were not to be considered in assessing an
immigrant’s likelihood of becoming a public charge. As
discussed above, this provision was consistent with
over a century of judicial and administrative decisions
interpreting the public charge bar. The Rule, however,
provides that the prospect of receiving those same
supplemental benefits, for even a few months, renders
an individual inadmissible. This is directly contrary to
the 1999 Guidance.
Yet DHS promulgated the Rule without any
explanation of why the facts found, and the analysis
provided, in the prior Guidance were now
unsatisfactory. This is a practice the Supreme Court
has rejected: an agency about-face with no “reasoned
explanation . . . for disregarding” the findings
underlying the prior policy. Fox, 556 U.S. at 516. Here
is an illustration of the about-face. The 1999 Guidance
had found that deterring acceptance of “important
health and nutrition benefits” had yielded “an adverse
impact . . . on public health and the general welfare.”
64 Fed. Reg. at 28,692. In contrast, DHS now says that
the new Rule “will ultimately strengthen public safety,
health, and nutrition.” 84 Fed. Reg. at 41,314. DHS
provides no basis for this conclusion or for its departure
from the empirical assessments underlying the prior
policy.
App. 84
In light of this policy change, coupled with the
“serious reliance interests” engendered by over two
decades of reliance on the Guidance, DHS was required
to provide a “more detailed justification” for the Rule.
Fox, 556 U.S. at 515. DHS provides no justification,
other than the repeated conclusory mantra that the
new policy will encourage self-sufficiency. DHS in effect
says that by creating a disincentive for immigrants to
use available assistance, the Rule will “ensur[e] that
[admitted immigrants] be self-sufficient and not reliant
on public resources.” 84 Fed. Reg. at 41,319. DHS does
not substantiate, and the record does not support, this
empirical prediction. See, e.g., Hilary Hoynes, Diane
Whitmore Schanzenbach & Douglas Almond, Long-Run
Impacts of Childhood Access to the Safety Net, 106 Am.
Econ. Rev. 903, 930 (finding that having access to food
stamps during childhood leads to “significant
improvement in adult health” and “increases in
economic self-sufficiency,” including decreased welfare
participation). Plaintiffs urge that their experience is
contrary to DHS’s conclusion. Also to the contrary is
the experience related in multiple amicus briefs. See,
e.g., Brief for the Institute for Policy Integrity as
Amicus Curiae Supporting Petitioners at 9 (citing
evidence that reductions in SNAP participation
increase homelessness); Brief for National Housing
Law Project et al. as Amici Curiae Supporting
Petitioners at 13 (citing evidence that Medicaid made
it easier for recipients to work and find work).
4. Arbitrary and Capricious
In sum, DHS adopted the Rule, reversing prior,
longstanding public policy, without adequately taking
App. 85
into account its potential adverse effects on the public
fisc and the public welfare. We must conclude that the
Rule’s promulgation was arbitrary and capricious as
well as contrary to law within the meaning of the APA.
5 U.S.C. § 706(2)(A).
F. Remaining Injunction Factors
1. Irreparable Harm
Plaintiffs have shown a likelihood of success on the
merits of their claim that the Rule violates the
standards of the APA in that it is both contrary to law
and arbitrary and capricious. To support entry of an
injunction, Plaintiffs must also show a likely threat of
irreparable injury in the absence of an injunction.
Winter, 555 U.S. at 22. Plaintiffs have established that
they likely are bearing and will continue to bear heavy
financial costs because of withdrawal of immigrants
from federal assistance programs and consequent
dependence on state and local programs.
There is no dispute that such economic harm is
sufficient to constitute irreparable harm because of the
unavailability of monetary damages. See California v.
Azar, 911 F.3d 558, 581 (9th Cir. 2018); 5 U.S.C. § 702
(providing for relief “other than monetary damages”).
DHS counters that such harm in this case is
speculative, amounting to no more than the possibility
of future injury. See Park Vill. Apartment Tenants
Ass’n v. Mortimer Howard Tr., 636 F.3d 1150, 1160
(9th Cir. 2011).
We have, however, already seen that in this case
such harm is more than speculative. Plaintiffs have
presented evidence that they are already experiencing
App. 86
harm and DHS itself has projected significant
disenrollment from federal programs, likely leading to
enrollments in state and local ones. The district courts
both made factual findings as to harm that DHS does
not refute with citations to the record.
2. Balance of Equities and Public Interest
There was no error in finding that the balance of
equities and public interest support an injunction. The
Northern District pointed to the need for “continuing
the provision of medical services through Medicaid to
those who would predictably disenroll absent an
injunction” in light of the explanations given by
“parties and numerous amici . . . [of the] adverse health
consequences not only to those who disenroll, but to the
entire populations of the plaintiff states, for example,
in the form of decreased vaccination rates.” City and
Cnty. of SF, 408 F. Supp. 3d at 1127. The public
interest in preventing contagion is particularly salient
during the current global pandemic.
Although DHS nevertheless argues that it is
harmed by not being able to implement its new
definition of public charge, if it is ultimately successful
in defending the merits of the Rule, the harm will
amount to no more than a temporary extension of the
law previously in effect for decades. Given the financial
burdens that plaintiffs have persuasively demonstrated
will befall them as a result of disenrollment from
federal programs, coupled with adverse effects on the
health and welfare of the immigrant as well as general
population, we cannot say the district courts abused
their discretion in finding that the balance of equities
and public interest weigh in favor the injunction.
App. 87
G. Propriety of a Nationwide Injunction
The Northern District issued a preliminary
injunction limited to the territory of the plaintiff state
and local entities before it. The Eastern District issued
a nationwide injunction, explaining that a more limited
injunction would not prevent all the harms alleged. The
court was concerned about protecting immigrants from
harm if they moved outside of the plaintiff
jurisdictions, about the economic impact on plaintiff
states if immigrants moved to them to evade the
consequences of the Rule, and about lawful immigrants
being subject to the Rule at points of entry after travel
abroad. Washington, 408 F. Supp. 3d at 1223.
The appropriateness of nationwide injunctions in
any case has come under serious question. See,
e.g.,DHS v. New York, 140 S Ct. 599, 599–601 (2020)
(Gorsuch, J., concurring); Trump v. Hawaii, 138 S. Ct.
2392, 2424–29 (2018) (Thomas, J., concurring). In
explaining the limited scope of its injunction, the
Second Circuit questioned the propriety of one court
imposing its will on all:
It is not clear to us that, where contrary views
could be or have been taken by courts of parallel
or superior authority entitled to determine the
law within their own geographical jurisdictions,
the court that imposes the most sweeping
injunction should control the nationwide legal
landscape.
New York, 969 F.3d at 88.
Whatever the merits of nationwide injunctions in
other contexts, we conclude a nationwide injunction is
App. 88
not appropriate in this case. This is because the impact
of the Rule would fall upon all districts at the same
time, and the same issues regarding its validity have
been and are being litigated in multiple federal district
and circuit courts.
Accordingly, we vacate that portion of the Eastern
District’s injunction making it applicable nationwide,
but otherwise affirm it.
H. Rehabilitation Act
The plaintiffs also contend that the Rule violates
the Rehabilitation Act, which bans discrimination on
the basis of disabilities. 29 U.S.C. § 794(a). The
Seventh Circuit looked favorably on this contention,
and the Second Circuit expressly did not address it.
Cook Cnty., 962 F.3d at 228, New York, 969 F.3d at 64
n.20. Because we have held that the Rule violates the
APA as contrary to law and arbitrary and capricious,
we similarly do not address the Rehabilitation Act.
I. Conclusion
The order of the District Court for the Northern
District of California is AFFIRMED. The order of the
District Court for the Eastern District of Washington
is AFFIRMED in part and VACATED in part. Costs
are awarded to the plaintiffs.
App. 89
VANDYKE, Circuit Judge, dissenting:
For the reasons ably articulated by our court in a
December 2019 published opinion,1 by the Fourth
Circuit in an August 2020 opinion,2 and by a dissenting
Seventh Circuit judge in a June 2020 opinion
(particularly notable for its erudition)3—and implied by
the Supreme Court’s multiple stays this year of
injunctions virtually identical to those the majority
today affirms4—I must respectfully dissent.
1
City & County of San Francisco v. USCIS, 944 F.3d 773 (9th Cir.
2019).
2
CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (4th Cir. 2020).
3
Cook County v. Wolf, 962 F.3d 208, 234–54 (7th Cir. 2020)
(Barrett, J., dissenting).
4
Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020); Wolf
v. Cook County, 140 S. Ct. 681 (2020).
App. 90
APPENDIX C
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 19-17213
D.C. No. 4:19-cv-04717-PJH
[Filed: December 5, 2019]
__________________________________________
CITY AND COUNTY OF SAN
)
FRANCISCO; COUNTY OF SANTA
)
CLARA,
)
Plaintiffs-Appellees,
)
)
v.
)
)
UNITED STATES CITIZENSHIP AND
)
IMMIGRATION SERVICES, a federal
)
agency; U.S. DEPARTMENT OF
)
HOMELAND SECURITY, a federal agency;
)
CHAD F. WOLF, in his official
)
capacity as Acting Secretary of the
)
United States Department of Homeland
)
Security; KENNETH T. CUCCINELLI,
)
in his official capacity as Acting
)
Director of United States Citizenship and
)
Immigration Services,
)
Defendants-Appellants.
)
__________________________________________)
App. 91
No. 19-17214
D.C. No. 4:19-cv-04975-PJH
__________________________________________
STATE OF CALIFORNIA; DISTRICT OF
)
COLUMBIA; STATE OF MAINE;
)
COMMONWEALTH OF PENNSYLVANIA;
)
STATE OF OREGON,
)
Plaintiffs-Appellees,
)
)
v.
)
)
U.S. DEPARTMENT OF HOMELAND
)
SECURITY, a federal agency; UNITED
)
STATES CITIZENSHIP AND
)
IMMIGRATION SERVICES, a federal
)
agency; CHAD F. WOLF, in his official
)
capacity as Acting Secretary of the
)
United States Department of Homeland
)
Security; KENNETH T. CUCCINELLI, in
)
his official capacity as Acting Director of
)
United States Citizenship and
)
Immigration Services,
)
Defendants-Appellants.
)
__________________________________________)
App. 92
No. 19-35914
D.C. No. 4:19-cv-05210-RMP
__________________________________________
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
)
SECURITY, a federal agency;
)
CHAD F. WOLF, in his official capacity
)
as Acting Secretary of the United States
)
Department of Homeland Security;
)
UNITED STATES CITIZENSHIP
)
AND IMMIGRATION SERVICES, a
)
federal agency; KENNETH T. CUCCINELLI,
)
in his official capacity as Acting
)
Director of United States Citizenship
)
and Immigration Services,
)
Defendants-Appellants.
)
__________________________________________)
ORDER
App. 93
Filed December 5, 2019
Before: Jay S. Bybee, Sandra S. Ikuta, and John B.
Owens, Circuit Judges.
Order;
Concurrence by Judge Bybee;
Partial Concurrence and Partial Dissent by Judge
Owens
SUMMARY*
Immigration
The panel granted the Department of Homeland
Security’s petitions for stays of two district court
preliminary injunctions against the implementation of
the Department of Homeland Security’s redefinition of
the term, “public charge.”
Under the Immigration and Nationality Act (“INA”),
any alien who, in the opinion of a relevant immigration
officer, at the time of application for admission or
adjustment of status, is likely at any time to become a
public charge, is inadmissible. In 1999, the
Immigration and Naturalization Service defined
“public charge” as an “alien . . . who is likely to become
. . . primarily dependent on the government for
sub sistence” as demonstrated by either
“institutionalization for long-term care at government
expense” or “receipt of public cash assistance.” In
August 2019, the Department of Homeland Security
(“DHS”) adopted a new rule, redefining the term
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
App. 94
“public charge” to also require consideration of certain
non-cash benefits. Inadmissibility on Public Charge
Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (“Final
Rule”).
Various states, municipalities and organizations
brought suits in California and Washington seeking a
preliminary injunction against the Final Rule’s
implementation. The California and Washington
district courts issued preliminary injunctions based on
plaintiffs’ claims under the Administrative Procedure
Act (“APA”). DHS then sought stays of both
preliminary injunctions before this court.
The panel first concluded that the injuries plaintiffs
(“the States”) alleged – loss of federal funds and
increase in operational costs related to individuals
disenrolling from benefits – were sufficient for Article
III standing. The panel also addressed mootness
because district courts in Maryland and New York had
issued nationwide injunctions of the Final Rule. The
court concluded that, even if an injunction from
another court has a fully nationwide scope, this court
nevertheless retains jurisdiction under the exception to
mootness for cases capable of repetition, yet evading
review.
The panel next concluded that DHS had
demonstrated a strong likelihood of success on the
merits, explaining that the Rule’s definition of “public
charge” is consistent with the relevant statutes, and
DHS’s action was not arbitrary or capricious. In
rejecting the States’ argument that the Final Rule is
contrary to the INA, the panel concluded that the new
definition of “public charge” was entitled to deference
App. 95
under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837 (1984). At Chevron step one, the
panel explained that the statute is ambiguous, noting
that Congress chose not to define “public charge” and,
instead, described various factors to be considered “at
a minimum.” The panel also concluded that the history
of the use of the term demonstrated that the term does
not have an unambiguous meaning. Addressing the fact
that Congress twice considered, but failed to enact, a
definition of “public charge” that is similar to the
definition adopted in the Final Rule, the panel
explained that 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 panel
also rejected the States’ contention that DHS exceeded
its authority by determining what makes a person
“self-sufficient.”
At Chevron step two, the panel concluded that
DHS’s interpretation of “public charge” is a permissible
construction of the statute, explaining that: 1) the INA
grants DHS considerable discretion to determine if an
alien is likely to become a public charge; 2) there is no
statutory basis from which to conclude that addition of
certain categories of inkind benefits makes DHS’s
interpretation untenable; and 3) the receipt of non-cash
public assistance is relevant to the self-sufficiency
principle underlying U.S. immigration law. The panel
also rejected the States’ argument that the Final Rule
is inconsistent with the Rehabilitation Act, which
provides that a qualified individual with a disability
cannot, solely by reason of that disability, be excluded
from participation in Executive agency programs.
App. 96
In rejecting the States’ argument that the Final
Rule is arbitrary and capricious, the panel concluded
that DHS had adequately explained the reasons for the
rule because it was sufficient for DHS to consider
whether, in the long term, the overall benefits of its
policy change would outweigh the costs of retaining the
current policy and because DHS addressed public
health concerns.
The panel noted that, were it reviewing the
preliminary injunctions on direct review, its
determination on the likelihood of success on the
merits would be sufficient to reverse the district court’s
orders. But because the panel was addressing DHS’s
motion for a stay, it went on to consider the additional
factors of irreparable injury, balance of the equities and
the public interest. Addressing irreparable injury, the
panel concluded that DHS had shown that it would be
irreparably injured absent a stay, explaining that the
preliminary injunctions would force DHS to irrevocably
grant status to those who are not legally entitled to it.
Next, the panel explained that balancing the harms
was particularly difficult in this case because the
harms are not comparable and are also, to a degree,
speculative. The panel concluded that it could not state
with any confidence which set of harms was greater.
The panel explained that the public interest in this
case was likewise difficult to calculate with precision.
In the end, the panel concluded that the “critical”
factors were that DHS had mustered a strong showing
of likelihood of success on the merits and some
irreparable harm, and that those factors weighed in
favor of granting a stay, despite the potential harms to
App. 97
the States. For that reason, the panel concluded that
the stay was in the public interest.
Concurring, perplexed and perturbed, Judge Bybee
wrote separately to note that: 1) even as the courts are
embroiled in recent immigration controversies, no one
should mistake the court’s judgments for its policy
preferences; 2) given the fact that the courts may only
review policy decisions for arbitrariness and caprice,
the courts are not the proper foil to this or any other
administration as it crafts immigration policies; and 3)
because Congress is no place to be found in recent
immigration debates, it is time for a feckless Congress
to come to the table and grapple with these issues,
instead of leaving the table and expecting the court to
clean up.
Concurring in part and dissenting in part, Judge
Owens concurred with the majority’s jurisdiction
analysis, but otherwise dissented. In light of the:
(1) government’s heavy burden due to the standard of
review, 2) opaqueness of the legal questions before the
court, (3) lack of irreparable harm to the government at
this early stage, (4) likelihood of substantial injury to
the plaintiffs, and (5) equities involved, Judge Owens
would deny the government’s motions to stay and let
these cases proceed in the ordinary course.
COUNSEL
Joseph H. Hunt, Assistant Attorney General; David L.
Anderson, United States Attorney; Daniel Tenny,
Gerard Sinzdak, and Joshua Dos Santos, Appellate
Staff; Civil Division, United States Department of
Justice, Washington, D.C.; for Defendants-Appellants.
App. 98
Dennis J. Herrera, City Attorney; Jesse C. Smith, Chief
Assistant City Attorney; Ronald P. Flynn, Chief Deputy
City Attorney; Yvonne R. Mere, Chief, Complex &
Affirmative Litigation; Sara J. Eisenberg, Chief of
Strategic Advocacy; Matthew D. Goldberg, Deputy City
Attorney; City Attorney’s Office, City and County of
San Francisco, San Francisco, California; James R.
Williams, County Counsel; Greta S. Hansen, Chief
Assistant County Counsel; Laura S. Trice, Lead Deputy
County Counsel; Raphael N. Rajendra, Julia B. Spiegel,
and H. Luke Edwards, Deputy County Counsel; Office
of the County Counsel, County of Santa Clara, San
Jose, California; for Plaintiffs-Appellees City and
County of San Francisco, and County of Santa Clara.
Xavier Becerra, Attorney General; Matthew Rodriguez,
Chief Assistant Attorney General; Michael L. Newman,
Senior Assistant Attorney General; Cherokee DM
Melton, Supervising Deputy Attorney General; Jennifer
C. Bonilla, Lisa Cisneros, Rebekah Fretz, Katherine
Lehe, Julia Harumi Mass, Anita Garcia Velasco,
Brenda Ayon Verduzco, and Anna Rich, Deputy
Attorneys General; Office of the Attorney General,
Oakland, California; for Plaintiff-Appellee State of
California.
Karl A. Racine, Attorney General; Kathleen Konopka,
Deputy Attorney General, Public Advocacy Division;
Alacoque Hinga Nevitt, Assistant Attorney General;
Office of the Attorney General, Washington, D.C.; for
Plaintiff- Appellee District of Columbia.
Aaron M. Frey, Attorney General; Susan P. Herman,
Chief Deputy Attorney General; Office of the Attorney
App. 99
General, Augusta, Maine; for Plaintiff-Appellee State
of Maine..
Ellen Rosenblum, Attorney General; Benjamin
Gutman, Solicitor General; Nicole DeFever and
Patricia Garcia Rincon, Assistant Attorneys General;
Oregon Department of Justice, Salem, Oregon; for
Plaintiff-Appellee State of Oregon.
Josh Shapiro, Attorney General; Michael J. Fischer,
Chief Deputy Attorney General; Aimee D. Thomson,
Deputy Attorney General; Office of the Attorney
General, Philadelphia, Pennsylvania; for PlaintiffAppellee Commonwealth of Pennsylvania.
Robert W. Ferguson, Attorney General; Jeffrey T.
Sprung, Assistant Attorney General; Rene D. Tomisser,
Senior Counsel; Zachary P. Jones, Joshua Weissman,
Paul M. Crisalli, Nathan K. Bays, and Bryan M.S.
Ovens, Assistant Attorneys General; Office of the
Attorney General, Kennewick, Washington; for
Plaintiff-Appellee State of Washington.
Mark R. Herring, Attorney General; Michelle S. Kallen,
Deputy Solicitor General; Ryan Spreague Hardy, Alice
Anne Lloyd, and Mamoona H. Siddiqui, Assistant
Attorneys General; Office of the Attorney General,
Richmond, Virginia; for Plaintiff-Appellee
Commonwealth of Virginia.
Phil Weiser, Attorney General; Eric R. Olson, Solicitor
General; Office of the Attorney General, Denver,
Colorado; for Plaintiff-Appellee State of Colorado.
Kathleen Jennings, Attorney General; Aaron R.
Goldstein, State Solicitor; Ilona Kirshon, Deputy State
App. 100
Solicitor; Monica A. Horton, Deputy Attorney General;
Office of the Attorney General, Wilmington, Delaware;
for Plaintiff-Appellee State of Delaware.
Kwame Raoul, Attorney General; Liza RobersonYoung, Public Interest Counsel; Office of the Attorney
General, Chicago, Illinois; for Plaintiff-Appellee State
of Illinois.
Clare E. Connors, Attorney General; Lili A. Young,
Deputy Attorney General; Department of the Attorney
General, Honolulu, Hawai‘i; for Plaintiff-Appellee State
of Hawai‘i.
Brian E. Frosh, Attorney General; Jeffrey P. Dunlap,
Assistant Attorney General; Office of the Attorney
General, Baltimore, Maryland; for Plaintiff-Appellee
State of Maryland.
Maura Healey, Attorney General; Abigail B. Taylor,
Chief, Civil Rights Division; David Urena, Special
Assistant Attorney General; Angela Brooks, Assistant
Attorney General; Office of the Attorney General,
Boston, Massachusetts; for Plaintiff-Appellee
Commonwealth of Massachusetts.
Dana Nessel, Attorney General; Fadwa A. Hammoud,
Solicitor General; Toni L. Harris, First Assistant
Attorney General; Michigan Department of Attorney
General, Lansing, Michigan; for Plaintiff-Appellee
Dana Nessel on behalf of the People of Michigan.
Keith Ellison, Attorney General; R.J. Detrick,
Assistant Attorney General; Attorney General’s Office,
St. Paul, Minnesota; for Plaintiff-Appellee State of
Minnesota.
App. 101
Aaron D. Ford, Attorney General; Heidi Parry Stern,
Solicitor General; Office of the Attorney General, Las
Vegas, Nevada; for Plaintiff-Appellee State of Nevada.
Gurbir Singh Grewal, Attorney General; Glenn J.
Moramarco, Assistant Attorney General; Office of the
Attorney General, Trenton, New Jersey; for PlaintiffAppellee State of New Jersey.
Hector Balderas, Attorney General; Tania Maestas,
Chief Deputy Attorney General; Office of the Attorney
General, Santa Fe, New Mexico; for Plaintiff-Appellee
State of New Mexico.
Peter F. Neronha, Attorney General; Lauren E. Hill,
Special Assistant Attorney General; Office of the
Attorney General, Providence, Rhode Island; for
Plaintiff-Appellee State of Rhode Island.
Edward T. Waters, Phillip A. Escoriaza, and Amanda
N. Pervine, Feldesman Tucker Leifer Fidell LLP,
Washington, D.C., for Amici Curiae Public Health,
Health Policy, Medicine, and Nursing Deans, Chairs,
and Scholars; The American Public Health Association;
and The American Academy of Nursing.
R. Adam Lauridsen, Chessie Thacher, Victor H. Yu,
and Nicholas R. Green, Keker Van Nest & Peters LLP,
San Francisco, California, for Amici Curiae National
Housing Law Project, Food Research & Action Center,
and Center for Law & Social Policy.
ORDER
BYBEE, Circuit Judge:
Since 1882, when the Congress enacted the first
comprehensive immigration statute, U.S. law has
App. 102
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 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 long-standing
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.
App. 103
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 noncash benefits would not be taken into account for
public-charge purposes. Id.
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
App. 104
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 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. 1935914, 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 nationwide
App. 105
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
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. —
1
For clarity, we will refer to the plaintiffs below as “the States”
and the defendants as “DHS.”
App. 106
(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 General2 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.
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.
App. 107
(ii) In addition to the factors under
clause (i), the consular officer or
the Attorney General may also
consider any affidavit of support3
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
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.
App. 108
how officials are to consider age,
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