Petition for Writ of Certiorari — United States Citizenship and Immigration Services, et al., Petitioners v. City and County of San Francisco, California, et al.
Supreme Court briefJan 21, 2021
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No.
In the Supreme Court of the United States
UNITED STATES CITIZENSHIP AND IMMIGRATION
SERVICES, ET AL., PETITIONERS
v.
CITY AND COUNTY OF SAN FRANCISCO, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
JOHN V. COGHLAN
Deputy Assistant Attorney
General
HASHIM M. MOOPPAN
Counselor to the Solicitor
General
SOPAN JOSHI
Senior Counsel to the
Assistant Attorney General
BENJAMIN W. SNYDER
Assistant to the Solicitor
General
DANIEL TENNY
GERARD SINZDAK
JOSHUA DOS SANTOS
JACK STARCHER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
Under the Immigration and Nationality Act, 8 U.S.C.
1101 et seq., an alien is “inadmissible” if, “in the opinion
of the [Secretary of Homeland Security] at the time of
application for admission or adjustment of status, [the
alien] is likely at any time to become a public charge.”
8 U.S.C. 1182(a)(4)(A). Following notice-and-comment
rulemaking, the United States Department of Homeland Security (DHS) promulgated a final rule interpreting the statutory term “public charge” and establishing
a framework by which DHS personnel are to assess
whether an alien is likely to become a public charge.
The questions presented are:
1. Whether entities that are not subject to the
public-charge ground of inadmissibility contained in
8 U.S.C. 1182(a)(4)(A), and which seek to expand benefits usage by aliens who are potentially subject to that
provision, are proper parties to challenge the final rule.
2. Whether the final rule is likely contrary to law or
arbitrary and capricious.
(I)
PARTIES TO THE PROCEEDING
Petitioners (defendants-appellants below) are the
United States Citizenship and Immigration Services,
the United States Department of Homeland Security;
Peter T. Gaynor, in his official capacity as Acting Secretary of Homeland Security; and Kenneth T. Cuccinelli, Senior Official Performing the Duties of the Director, United States Citizenship and Immigration Services. *
Respondents (plaintiffs-appellees below) are the
City and County of San Francisco; the County of Santa
Clara; the State of California; the State of Colorado; the
State of Delaware; the State of Hawaii; the State of Illinois; the State of Maine; the State of Maryland; the
Commonwealth of Massachusetts; the State of Minnesota; the State of Nevada; the State of New Jersey; the
State of New Mexico; the State of Oregon; the Commonwealth of Pennsylvania; the State of Rhode Island; the
Commonwealth of Virginia; the State of Washington;
Dana Nessel, Attorney General on behalf of the People
of Michigan; and the District of Columbia.
The complaints named Kevin K. McAleenan, then the Acting
Secretary of Homeland Security, as a defendant in his official capacity. Peter T. Gaynor has since assumed the role of Acting Secretary,
and has thus been automatically substituted as a party in place of
former Acting Secretary McAleenan. See Fed. R. App. P. 43(c)(2);
Fed. R. Civ. P. 25(d). Similarly, the complaints named Kenneth T.
Cuccinelli II, in his role as Acting Director of the United States Citizenship and Immigration Services. Mr. Cuccinelli is now serving
as Senior Official Performing the Duties of the Director.
*
(II)
RELATED PROCEEDINGS
United States District Court (E.D. Wash.):
State of Washington v. United States Department
of Homeland Security, No. 19-cv-5210 (Oct. 11,
2019)
United States District Court (N.D. Cal.):
City & County of San Francisco v. U.S. Citizenship
& Immigration Services, No. 19-cv-4717 (Oct.
11, 2019)
State of California v. U.S. Department of Homeland Security, No. 19-cv-4975 (Oct. 11, 2019)
United States Court of Appeals (9th Cir.):
City & County of San Francisco v. United States
Citizenship & Immigration Services, No. 1917213 (Dec. 2, 2020) (affirming preliminary injunction in relevant part)
(III)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statutory and regulatory provisions involved ........................... 2
Statement ...................................................................................... 2
A. The public-charge inadmissibility rule .......................... 3
B. Procedural history ........................................................... 6
Discussion .................................................................................... 12
Conclusion ................................................................................... 13
Appendix A — Court of appeals opinion (Dec. 2, 2020) ........ 1a
Appendix B — Court of appeals order (Dec. 5, 2019) ......... 35a
Appendix C — District court preliminary injunction
(Oct. 11, 2019)........................................... 102a
Appendix D — District court order granting plaintiff
States’ motion for Section 705 stay and
preliminary injunction (Oct. 11, 2019) ... 232a
Appendix E — Statutory provisions ................................... 289a
TABLE OF AUTHORITIES
Cases:
CASA de Maryland, Inc. v. Trump, 971 F.3d 220
(4th Cir. 2020), reh’g en banc granted, 981 F.3d 311
(4th Cir. 2020) .................................................................. 2, 12
Cook County v. Wolf, 962 F.3d 208 (7th Cir. 2020),
petition for cert. pending, No. 20-450
(f iled Oct. 7, 2020) ........................................................... 3, 12
Department of Homeland Security v. New York,
140 S. Ct. 599 (2020) ............................................................. 2
New York v. United States Department of Homeland Security, 969 F.3d 42 (2d Cir. 2020), petition
for cert. pending, No. 20-449 (f iled Oct. 7, 2020) ............... 3
Wolf v. Cook County, 140 S. Ct. 681 (2020) ........................... 2
(V)
VI
Constitution and statutes:
Page
U.S. Const. Art. III ................................................................. 8
Immigrant Fund Act, Act of Aug. 3, 1882, ch. 376,
§§ 1-2, 22 Stat. 214 ................................................................ 4
Immigration and Nationality Act, ch. 477,
66 Stat. 163 (8 U.S.C. 1101 et seq.) ...................................... 2
§ 212(a)(15), 66 Stat. 183 ................................................... 4
8 U.S.C. 1103 ...................................................................... 3
8 U.S.C. 1182(a)(4)(A) ..................................... 2, 3, 9, 289a
8 U.S.C. 1182(a)(4)(B) ............................................. 3, 289a
8 U.S.C. 1182(a)(4)(B)(i)(II) ................................. 9, 289a
8 U.S.C. 1182(a)(4)(C)-(D) .................................. 11, 290a
8 U.S.C. 1227(a)(5)................................................... 3, 294a
8 U.S.C. 1601 ......................................................... 9, 294a
Rehabilitation Act of 1973, Pub. L. No. 93-112,
87 Stat. 355 (29 U.S.C. 701 et seq.) ................................... 6
29 U.S.C. 794(a)................................................... 10, 300a
5 U.S.C. 706(2)(A) ................................................................ 6
6 U.S.C. 211(c)(8) ..................................................................... 3
6 U.S.C. 557 .............................................................................. 3
Miscellaneous:
64 Fed. Reg. 28,676 (May 26, 1999) ................................... 4, 5
64 Fed. Reg. 28,689 (May 26, 1999) ................................... 4, 5
83 Fed. Reg. 51,114 (Oct. 10, 2018) ........................................ 5
84 Fed. Reg. 41,292 (Aug. 14, 2019) ............................... 4, 5, 6
S. Rep. No. 1515, 81st Cong., 2d Sess. (1950) ....................... 4
In the Supreme Court of the United States
No.
UNITED STATES CITIZENSHIP AND IMMIGRATION
SERVICES, ET AL., PETITIONERS
v.
CITY AND COUNTY OF SAN FRANCISCO, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Acting Solicitor General, on behalf of the United
States Citizenship and Immigration Services, et al., respectfully petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the
Ninth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a34a) is reported at 981 F.3d 742. An earlier order of the
court of appeals staying the preliminary injunctions at
issue here pending appeal (App., infra, 35a-101a) is reported at 944 F.3d 773. The orders of the district courts
(App., infra, 102a-231a, 232a-288a) are reported at 408
F. Supp. 3d 1057 and 408 F. Supp. 3d 1191.
JURISDICTION
The judgment of the court of appeals was entered on
December 2, 2020. The jurisdiction of this court is invoked under 28 U.S.C. 1254(1).
(1)
2
STATUTORY AND REGULATORY
PROVISIONS INVOLVED
Pertinent statutory and regulatory provisions are
reproduced in the appendix to this petition. App., infra,
289a-302a.
STATEMENT
The United States Department of Homeland Security (DHS) issued a rule interpreting the provision of
the Immigration and Nationality Act (INA), ch. 477, 66
Stat. 163 (8 U.S.C. 1101 et seq.), that makes an alien inadmissible if, “in the opinion of ” the Secretary of Homeland Security, the alien is “likely at any time to become
a public charge.” 8 U.S.C. 1182(a)(4)(A). The district
courts here entered preliminary injunctions barring implementation of the DHS rule, one nationwide and the
other within the geographic bounds of the plaintiff jurisdictions, see App., infra, 102a-231a, 232a-288a, and
district courts in three other States also entered preliminary injunctions against implementation of the Rule
(some nationwide and some on a more limited basis).
Those preliminary injunctions were all stayed—some
by the Fourth and Ninth Circuits, see Order, CASA de
Maryland, Inc. v. Trump, No. 19-2222 (4th Cir. Dec. 9,
2019); App., infra, 35a-101a, and the remainder by this
Court, see Department of Homeland Security v. New
York, 140 S. Ct. 599 (2020); Wolf v. Cook County, 140
S. Ct. 681 (2020). A Fourth Circuit panel subsequently
reversed the preliminary injunction entered by a district court in Maryland, see CASA de Maryland, Inc. v.
Trump, 971 F.3d 220 (2020), but the full court then
granted rehearing en banc, 981 F.3d 311 (2020), while
the Second Circuit affirmed the injunctions entered by
a district court in New York (though limiting their geo-
3
graphic scope), see New York v. United States Department of Homeland Security, 969 F.3d 42 (2020), petition
for cert pending, No. 20-449 (filed Oct. 7, 2020), and the
Seventh Circuit affirmed an injunction entered by a district court in Illinois, Cook County v. Wolf, 962 F.3d 208
(2020), petition for cert pending, No. 20-450 (filed Oct.
7, 2020). In the decision here, a divided panel of the
Ninth Circuit affirmed the preliminary injunctions entered by the district courts, but concluded that the injunctions should not extend nationwide. App., infra, 1a34a.
A. The Public-Charge Inadmissibility Rule
1. The INA 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). * That assessment “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.”
8 U.S.C. 1182(a)(4)(B). A separate INA provision provides that an alien is deportable if, within five years of
entry, the alien “has become a public charge from
causes not affirmatively shown to have arisen” since entry. 8 U.S.C. 1227(a)(5).
Three agencies make public-charge determinations
under this provision: DHS, for aliens seeking admission
at the border and aliens within the country applying to
The statute refers to the Attorney General, but in 2002 Congress
transferred the Attorney General’s authority to make public-charge
determinations in the relevant circumstances to the Secretary of
Homeland Security. See 8 U.S.C. 1103; 6 U.S.C. 557; see also
6 U.S.C. 211(c)(8).
*
4
adjust their status to that of a lawful permanent resident; the Department of State, for aliens abroad applying for visas; and the Department of Justice, for aliens
in removal proceedings. See 84 Fed. Reg. 41,292, 41,294
n.3 (Aug. 14, 2019). The rule at issue governs DHS’s
public-charge determinations. Ibid.
2. The “public charge” ground of inadmissibility
dates back to the first federal immigration statutes in
the late nineteenth century. See, e.g., Immigrant Fund
Act, Act of Aug. 3, 1882, ch. 376, §§ 1-2, 22 Stat. 214.
Through the nearly 140 years that the public-charge inadmissibility ground has been in effect, however, Congress has consistently chosen not to define the term
“public charge” by statute. Indeed, in an extensive report that served as a foundation for the enactment of
the INA in 1952, the Senate Judiciary Committee recognized that “[d]ecisions of the courts have given varied
definitions of the phrase ‘likely to become a public
charge,’ ” and that “ ‘different consuls, even in close
proximity with one another, have enforced [publiccharge] standards highly inconsistent with one another.’ ” S. Rep. No. 1515, 81st Cong., 2d Sess. 347, 349
(1950). Rather than recommend adoption of a specific
standard, the Committee indicated that because “the elements constituting likelihood of becoming a public
charge are varied, there should be no attempt to define
the term in the law.” Id. at 349; see INA § 212(a)(15),
66 Stat. 183 (using term without definition).
In 1999, the Immigration and Naturalization Service
(INS), recognizing that the term was “ambiguous” and
had “never been defined in statute or regulation,” proposed a rule to “for the first time define ‘public charge.’ ”
64 Fed. Reg. 28,676, 28,676-28,677 (May 26, 1999); 64
5
Fed. Reg. 28,689, 28,689 (May 26, 1999) (1999 Guidance). The proposed rule would have defined “public
charge” to mean an alien “who is likely to become primarily dependent on the Government for subsistence
as demonstrated by either: (i) [t]he receipt of public
cash assistance for income maintenance purposes, or
(ii) [i]nstitutionalization for long-term care at Government expense.” 64 Fed. Reg. at 28,681. When it announced the proposed rule, INS also issued “field guidance” adopting the proposed rule’s definition of “public
charge.” 64 Fed. Reg. at 28,689. The proposed rule was
never finalized, however, leaving only the 1999 Guidance in place. 84 Fed. Reg. at 41,348 n.295.
3. In October 2018, DHS announced a new approach
to public-charge determinations. It did so by providing
notice of a proposed rule and soliciting comments. 83
Fed. Reg. 51,114 (Oct. 10, 2018). After responding to
comments timely submitted, DHS promulgated a final
rule in August 2019. 84 Fed. Reg. at 41,501 (Rule).
The Rule defines “public charge” to mean “an alien
who receives one or more public benefits [as defined in
the Rule] * * * for more than 12 months in the aggregate within any 36-month period.” 84 Fed. Reg. at
41,501. The designated public benefits include cash assistance for income maintenance and certain non-cash
benefits, including most Medicaid benefits, Supplemental Nutrition Assistance Program benefits, and federal housing assistance. Ibid. As the agency explained,
the Rule’s definition of “public charge” differs from the
1999 Guidance in that (1) it incorporates certain noncash benefits and (2) it replaces the “primarily dependent” standard with the 12-month/36-month measure of
dependence. Id. at 41,294-41,295.
6
The Rule also sets forth a framework immigration
officials will use to evaluate whether, considering the
“totality of an alien’s individual circumstances,” the alien is “likely at any time in the future to become a public
charge.” 84 Fed. Reg. at 41,369; see id. at 41,501-41,504.
Among other things, the framework identifies a number
of factors an adjudicator must consider in making a
public-charge determination, such as the alien’s age, financial resources, employment history, education, and
health. Ibid. The Rule was set to take effect on October
15, 2019, and was originally set to apply prospectively
to applications and petitions postmarked (or, if applicable, submitted electronically) on or after that date. Id.
at 41,292.
B. Procedural History
1. Respondents are a group of cities, counties, and
States. In three separate lawsuits, they challenged the
Rule, urging that the Rule’s definition of “public charge”
is at odds with that term’s settled meaning; the Rule is
arbitrary and capricious, see 5 U.S.C. 706(2)(A); the Rule
violates the Rehabilitation Act of 1973 (Rehabilitation
Act), Pub. L. No. 93-112, 87 Stat. 355 (29 U.S.C. 701
et seq.), because disabled aliens are less likely to be admissible; and the Rule violates constitutional equalprotection principles.
Two of the lawsuits were brought in the Northern
District of California, and the relevant respondents’ motions for preliminary injunctions were decided together
in a single opinion on October 11, 2019, with the district
court issuing a preliminary injunction applicable to all
the plaintiff jurisdictions in those cases. App., infra,
102a-231a. The third lawsuit was brought in the Eastern
District of Washington, and the district court issued a
7
nationwide injunction on October 14, 2019. Id. at 232a288a.
a. In the California case, the district court concluded
that respondents had standing because they anticipate
experiencing economic and administrative costs when aliens disenroll from public benefits in response to the
Rule. App., infra, 211a-221a. The court also concluded
that respondents were within the zone of interests protected by the public-charge provision, reasoning that,
through the public-charge and related provisions, “Congress intended to protect states and their political subdivisions’ coffers.” Id. at 200a.
On the merits, the district court concluded that respondents were likely to prevail on their claim that the
Rule’s definition of “public charge” was not a reasonable
interpretation of the statute. App., infra, 120a-169a.
The court reasoned that the Rule’s definition was at odds
with the term’s purportedly “long-standing focus on the
individual’s ability and willingness to work or otherwise
support himself,” and the legislative history of Congress’s 1996 amendments to the INA and an amendment
Congress rejected in 2013. Id. at 166a.
The district court also concluded that respondents
were likely to succeed in demonstrating that the Rule
was arbitrary and capricious, because DHS allegedly
failed adequately to consider the adverse economic costs
and public-health-related effects of the Rule. App., infra, 171a-190a.
b. In the Washington case, the district court likewise
concluded that respondents had standing because they
anticipate experiencing economic, administrative, and
public-health costs when aliens disenroll from public
benefits in response to the Rule. App., infra, 242a-256a.
The court also concluded that respondents were within
8
the zone of interests protected by the public-charge provision, reasoning that the public-charge statute is designed “to protect states from having to spend money to
provide for immigrants who could not provide for themselves.” Id. at 258a.
On the merits, the district court concluded that respondents were likely to prevail on their claim that the
Rule’s definition of “public charge” was not a reasonable
interpretation of the statute. App., infra, 263a-277a.
The court reasoned that the public-charge statute’s recent legislative history, including Congress’s recent rejection of legislative proposals that would have expressly
defined “public charge” to include receipt of noncash
benefits, indicated that Congress unambiguously foreclosed DHS from adopting the Rule. Id. at 277a. The
court further concluded that Congress had not delegated
the authority to DHS to define who qualifies as a “public
charge.” Ibid.
The district court also concluded that respondents
were likely to succeed in demonstrating that the Rule
was arbitrary and capricious, because DHS allegedly
failed to provide reasoned explanations for changing the
definition of “public charge” and for adopting its chosen
framework. App., infra, 278a-280a. The court further
concluded that there was “doubt” as to whether the Rule
complied with the Rehabilitation Act, because the Rule
required DHS to consider an alien’s disability as a negative factor in some circumstances. Id. at 276a.
2. The government sought a stay pending appeal, and
the Ninth Circuit granted it in a published opinion. App.,
infra, 35a-101a. The court of appeals rejected the government’s Article III standing argument, id. at 52a-56a,
and assumed without deciding that respondents’ injuries
fell within the statute’s zone of interests, id. at 51a n.8.
9
But the court concluded that the government had
demonstrated a “strong” likelihood of success on the
merits, that the government would suffer irreparable
harm, and that the balance of the equities and public interest favored a stay. Id. at 40a.
On the merits, the court of appeals observed that the
statute’s text entrusts the public-charge determination
to the “ ‘opinion’ of the consular or immigration officer,”
which “is the language of discretion.” App., infra, 62a
(quoting 8 U.S.C. 1182(a)(4)(A)). The court further reasoned that the term “public charge” is ambiguous, that
Congress had identified a non-exclusive list of factors for
the agency to consider, and that DHS had authority to
adopt regulations to enforce the provision. Id. at 63a64a. The court reviewed the history of the term’s interpretation, and was “unable to discern one fixed understanding of ‘public charge’ that has endured since 1882,”
instead concluding that “different factors have been
weighted more or less heavily at different times.” Id. at
73a; see id. at 64a-74a.
The court of appeals then concluded that DHS had
adopted a reasonable interpretation of the ambiguous
term. App., infra, 78a-79a. The court’s conclusion in
that regard was bolstered by the statements of immigration policy enacted by Congress in 1996, contemporaneously with the current version of the public-charge provision, that emphasize self-sufficiency. Id. at 79a (citing
8 U.S.C. 1601).
The court of appeals stated that respondents’ reliance
on the Rehabilitation Act “need not detain us long.”
App., infra, 80a. Immigration officers are statutorily required to consider an immigrant’s “health,” 8 U.S.C.
1182(a)(4)(B)(i)(II), and DHS uses a totality-of-thecircumstances test to determine whether an alien is
10
likely to become a public-charge, and would not deny an
alien admission or adjustment of status “solely by reason
of her or his disability,” 29 U.S.C. 794(a). App., infra,
80a-81a.
The court of appeals likewise rejected respondents’
arbitrary-and-capricious argument. The court noted
that “DHS addressed at length the costs and benefits associated with the Final Rule.” App., infra, 83a. And
DHS “not only addressed [concerns related to public
health] directly, it changed its Final Rule in response to
the comments.” Id. at 90a.
Finally, the court of appeals concluded that the government had demonstrated irreparable harm, given that
it might grant lawful-permanent-resident status to aliens
whom the Secretary would have deemed likely to become
public charges. App., infra, 91a-93a. Because the government had made a strong showing of likelihood of success on the merits and had demonstrated irreparable
harm, the court concluded that a stay was warranted. Id.
at 96a.
Judge Owens would have denied the motions to stay.
App., infra, 101a.
3. After plenary review, however, the Ninth Circuit
affirmed the preliminary injunctions, though holding
that they should not have nationwide scope. App., infra,
1a-34a.
The court of appeals once again concluded that respondents had standing, and stated that respondents’
“interests * * * in preserving immigrants’ access to supplemental benefits is within the zone of interests protected by the statute.” App., infra, 17a; see id. at 14a17a.
On the merits, the court of appeals concluded that the
statute’s history suggested that “it had been interpreted
11
to mean long-term dependence on government support,
and had never been interpreted to encompass temporary
resort to supplemental non-cash benefits.” App., infra,
18a. The court accepted respondents’ argument that repeated reenactment of the public-charge provision without change, against that backdrop, supported their reading of the statute. Ibid.
The court of appeals rejected reliance on other INA
provisions that indicate that Congress intended that
those admitted to the country be able to support themselves without relying on non-cash benefits for an intense
or extended period. The court, for example, dismissed
the requirement that certain immigrants furnish an affidavit of support from a sponsor under which the sponsor
must agree to reimburse the government for any meanstested benefit the alien receives, 8 U.S.C. 1182(a)(4)(C)(D), because the court concluded that provision had “no
historic or functional relationship” to the public charge
provision. App., infra, 22a.
The court of appeals also agreed with respondents’ argument that the Rule was arbitrary and capricious. The
court concluded that the Rule “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.” App., infra, 24a; see id. at 24a30a.
The court of appeals did not reach the Rehabilitation
Act issue, because it had upheld the preliminary injunction on other grounds. App., infra, 33a.
12
The court of appeals concluded that respondents’ economic harms were sufficient to constitute irreparable
harm, and that the balance of harms favored a preliminary injunction. App., infra, 30a-32a. The court concluded, however, that a nationwide injunction was not appropriate. Id. at 32a-33a.
Judge VanDyke dissented. App., infra, 34a. He
would have reversed the injunctions for the reasons set
forth in the motions panel’s stay order, the Fourth Circuit’s decision in CASA de Maryland, supra, and thenJudge Barrett’s dissent in Cook County, supra. App.,
infra, 34a.
DISCUSSION
The court of appeals held that the public-charge rule
is likely contrary to law and arbitrary and capricious.
As the government has explained in its petition for a
writ of certiorari in Department of Homeland Security
v. New York, No. 20-449 (Oct. 7, 2020), that conclusion
is erroneous. While this Court’s review is therefore
warranted, the same questions are already presented
by the government’s petition in New York, which is fully
briefed and was conferenced on January 8, 2021. And
the court of appeals in this case did not address any
other questions not presented in New York. Accordingly, the government respectfully requests that the
Court hold the petition for a writ of certiorari in this
case pending the Court’s disposition of the government’s petition in New York, and then dispose of the petition here as appropriate in light of New York.
13
CONCLUSION
The Court should hold the petition for a writ of certiorari pending disposition of Department of Homeland
Security v. New York, No. 20-449 (Oct. 7, 2020), and
then dispose of the petition as appropriate in light of the
Court’s decision in that case.
Respectfully submitted.
JEFFREY B. WALL
Acting Solicitor General
JOHN V. COGHLAN
Deputy Assistant Attorney
General
HASHIM M. MOOPPAN
Counselor to the Solicitor
General
SOPAN JOSHI
Senior Counsel to the
Assistant Attorney General
BENJAMIN W. SNYDER
Assistant to the Solicitor
General
DANIEL TENNY
GERARD SINZDAK
JOSHUA DOS SANTOS
JACK STARCHER
Attorneys
JANUARY 2021
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 19-17213
D.C. No. 4:19-cv-04717-PJH
CITY AND COUNTY OF SAN FRANCISCO; COUNTY OF
SANTA CLARA, PLAINTIFFS-APPELLEES
v.
U.S. CITIZENSHIP AND IMMIGRATION
SERVICES, A FEDERAL AGENCY; U.S. DEPARTMENT OF
HOMELAND SECURITY, A FEDERAL AGENCY; CHAD F.
WOLF, IN HIS OFFICIAL CAPACITY AS ACTING
SECRETARY OF THE UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; KENNETH T. CUCCINELLI, IN
HIS OFFICIAL CAPACITY AS ACTING DIRECTOR OF
UNITED STATES CITIZENSHIP AND IMMIGRATION
SERVICES, DEFENDANTS-APPELLANTS
No. 19-17214
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.
UNITED STATES DEPARTMENT OF HOMELAND
SECURITY, A FEDERAL AGENCY; UNITED STATES
CITIZENSHIP AND IMMIGRATION SERVICES, A FEDERAL
AGENCY; CHAD 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
(1a)
2a
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
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
Argued and Submitted: Sept. 15, 2020
San Francisco, California
Filed: Dec. 2, 2020
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Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
OPINION
Before:
MARY M. SCHROEDER, WILLIAM A.
FLETCHER, and LAWRENCE VANDYKE, Circuit Judges.
Opinion by Judge SCHROEDER;
Dissent by Judge VANDYKE
SCHROEDER, Circuit Judge:
The phrase “public charge” enjoys a rich history in
Anglo-American lore and literature, one more colorful
than our American law on the subject. There have
been relatively few published court decisions construing
the phrase, even though our immigration statutes have
barred admission to immigrants who are likely to become a “public charge” for more than a century. Until
recently, the judicial and administrative guidance has
reflected the traditional concept—rooted in the English
Poor Laws and immortalized by Dickens in the workhouse of Oliver Twist—of incapacity and reliance on
public support for subsistence. The first comprehensive federal immigration law barred entry to “any convict, lunatic, idiot, or any person unable to take care of
himself or herself without becoming a public charge.”
Immigration Act of 1882, 22 Stat. 214, Chap. 376 § 2
(1882). The 1999 Guidance (the Guidance) issued by
the Immigration and Naturalization Service (INS), the
predecessor of the current agency, defined a “public
charge” as one who “is or is likely to become primarily
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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 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.
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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 “public charge,”
and arbitrary and capricious, in concluding that shortterm 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
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with DHS that those who receive such supplemental
benefits could be considered public charges because, by
receiving some assistance, they are not completely selfsufficient. Cook Cnty., 962 F.3d at 250-51 (Barrett, J.,
dissenting).
The district court in Maryland also enjoined enforcement of the Rule and was reversed by a divided decision
of the Fourth Circuit. The majority looked in large
measure to the fact that the Supreme Court had stayed
the injunctions in the Seventh and Second Circuits.
CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 230
(4th Cir. 2020). In dissent, Judge King viewed the Rule
as outside the longstanding meaning of “public charge”
and would have affirmed the injunction. He also disagreed with the majority about the significance of the Supreme Court’s stay, explaining that “[i]f the Court's decision to grant a stay could be understood to effectively
hand victory to the government regarding the propriety
of a preliminary injunction, there would be little need
for an intermediate appellate court to even consider the
merits of an appeal in which the Court has granted a
stay.” Id. at 281 n.16 (King, J., dissenting) (citing Cook
Cnty., 962 F.3d at 234).
To understand the reason for this recent cascade of
litigation after a relatively quiescent statutory and regulatory history, we review the historical background of
the Rule. Such a review reveals the extent to which the
Rule departs from past congressional and administrative policies.
A.
Statutory and Administrative Background
This country has had a federal statutory provision
barring the admission of persons likely to become a
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“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 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
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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 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
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the individual rather than to external circumstances.
The Board of Immigration Appeals thus held that
only an individual with the inherent inability to be selfsupporting 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 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
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receipt of income or confinement in a public institution.
It described persons “primarily dependent on the government for subsistence, as demonstrated by either (i)
the receipt of public cash assistance for income maintenance or (ii) institutionalization for long term care at
government expense.” Id. at 28,689. It thus embodied the traditional notion of primary dependence on the
government for either income or institutional care.
The Guidance went on to identify the types of public
assistance that would typically qualify as evidence of primary dependence: (1) Supplemental Security Income
(SSI); (2) Temporary Assistance for Needy Families
(TANF); (3) state and local cash assistance programs;
and (4) programs supporting people institutionalized for
long-term care. Id. at 28,692. The Guidance expressly
excluded non-cash benefits intended to supplement income and not to provide primary support. The explanation lay with the changing times that 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 be-
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tween the receipt of such supplemental benefits and dependence on the government for subsistence income
that would render the individual a “public charge.” Id.
at 28,692-93.
The 2019 Public Charge Rule we review in this case
effectively reversed that policy by making receipt of
supplemental benefits the very definition of a public
charge. See Inadmissibility on Public Charge Grounds,
84 Fed. Reg. 41,292 (Aug. 14, 2019). The Rule defines
the term “public charge” to mean “an alien who receives
one or more [specified] public benefits . . . for more
than 12 months in the aggregate within any 36-month
period (such that, for instance, receipt of two benefits in
one month counts as two months).” Id. at 41,501. The
public benefits specified by the Rule include most Medicaid benefits, SNAP benefits, Section 8 housing vouchers and rental assistance, and other forms of federal
housing assistance. Id. Any receipt of such a benefit,
no matter how small, will factor into the public charge
determination. The Rule also directs officials to consider 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,
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and the County of Santa Clara. The Eastern District
heard the challenges brought by Washington, Virginia,
Colorado, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey,
New Mexico, and Rhode Island. Both district courts
agreed that the plaintiffs had standing because they had
shown that they would likely suffer economic harm and
other costs and that their concerns were within the zone
of interests of the statute. Both held that the new definition of “public charge” was likely not a permissible interpretation of the statute because it would depart from
the longstanding, settled understanding that a person
does not become a public charge by receiving short-term
aid, and must instead demonstrate an inherent incapacity to provide subsistence. City and Cnty. of San
Francisco v. USCIS, 408 F. Supp. 3d 1057, 1101 (N.D.
Cal. 2019), Washington v. DHS, 408 F. Supp. 3d 1191,
1219 (E.D. Wash. 2019). Both found the Rule to be
likely arbitrary and capricious because the agency failed
to consider the burdens the Rule would impose on states
and municipalities. 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).
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The stay was based on a prediction of what this panel
would hold in reviewing the merits of the preliminary
injunctions. The stay in this case was entered at a particularly early point, less than two months after the district court injunctions. Almost none of the extensive
documentation relevant to this appeal was before the
motions panel. The brief of the appellant DHS in the
Northern District case had been filed only the day before the panel entered its stay, and the opening brief in
the Eastern District case was not filed until the day after. Still to come were not only the answering and reply briefs in both appeals, but two dozen amicus briefs,
many of which we have found very helpful.
At least equally important, no other circuit court
opinions had yet considered the issues. By now we
have heard from three. One of those opinions even discussed and disagreed with the reasoning of this court’s
motions panel stay opinion, pointing out that it “pinn[ed]
the definition of ‘public charge’ on the form of public
care provided” in concluding that there was no consistent interpretation of the Rule. New York, 969 F.3d
at 73 (emphasis in original). The court there said 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
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or are outside the zone of interests of the immigration
statute in question.
C.
Plaintiffs’ Capacity to Maintain the Action
Plaintiffs are states and municipalities that allege the
Rule is causing them to suffer continuing financial harm,
as lawful immigrants eligible for federal cash, food, and
housing assistance withdraw from these programs to
avoid the impact of the Rule. Plaintiffs allege harm because such immigrants will instead turn to assistance
programs administered by the state and local entities.
DHS argues that such injuries are speculative and
represent only plausible future injury. There is no
question that to have Article III standing to bring this
action, the plaintiffs must allege that they have suffered,
or will imminently suffer, a “concrete and particularized” injury in fact. Lujan v. Defs. of Wildlife, 504 U.S.
555, 560 (1992). There is also no question that an increased demand for aid supplied by the state and local
entities would be such an injury. The only question is
whether such demand is, as of yet, apparent or imminent.
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
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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 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
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Union Admin., 988 F.2d 1272, 1275 (D.C. Cir. 1993)
(quoting Clarke, 479 U.S. at 397 n.12).
The statute in question is, of course, the immigration
statute that renders inadmissible an individual likely to
become a “public charge.” 8 U.S.C. § 1182(a)(4)(A).
DHS appears to contend that the only entities within the
zone of interests are the federal government itself and
individuals seeking to immigrate, because the provision
deals with immigration and only the federal government
controls immigration. If that were to define the zone
of interests regulated by the statute, the scope of permissible immigration litigation against the government
would be so narrow as to practically insulate it from
many challenges to immigration policy and procedures,
even those violating the Constitution or federal laws.
DHS suggests that the purpose of the public charge
exclusion is to reduce immigrants’ use of public benefits,
and that the plaintiffs’ suit therefore contradicts this
purpose by seeking to make more federal benefits available. But this assumes that Congress’s statutory purpose was the same as DHS’s purpose here, which is the
very dispute before us. As the Second Circuit pointed
out, “DHS assumes the merits of its own argument when
it identifies the purpose of the public charge ground as
ensuring that non-citizens do not use public benefits.
. . . Understood in context, [the public charge bar’s]
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
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housing benefits is consistent with precisely that purpose. See Cook Cnty., 962 F.3d at 220 (access to affordable basic health care may promote self-sufficiency);
Hilary Hoynes, Diane Whitmore Schanzenbach & Douglas Almond, Long-Run Impacts of Childhood Access to
the Safety Net, 106 Am. Econ. Rev. 903, 921 (2016) (access to food stamps in childhood significantly increases
economic self-sufficiency among women). For these
reasons, the interests of the plaintiffs in preserving immigrants’ access to supplemental benefits is within the
zone of interests protected by the statute.
We therefore conclude that the district courts correctly determined that the plaintiffs are entitled to
maintain this action. All of the circuits to consider the
validity of this Rule have reached a similar conclusion.
See Cook Cnty., 962 F.3d at 219-20, CASA de Maryland,
971 F.3d at 240-241, New York, 969 F.3d at 62-63. We
now turn to the question whether they were entitled to
the preliminary injunctions entered by the district
courts.
D.
Contrary to Law
Both district courts concluded that the plaintiffs are
likely to prevail in their contention that the Rule violates
the statute’s public charge provision, and that such a
conclusion supports the entry of preliminary injunctions. See Winter v. 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.”
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History is a strong pillar supporting the plaintiffs’
case. Plaintiffs point to repeated congressional reenactment of the provision after it had been interpreted to
mean long-term dependence on government support,
and had never been interpreted to encompass temporary resort to supplemental non-cash benefits. Plaintiffs contend that this repeated reenactment amounts to
congressional ratification of the historically consistent
interpretation. DHS disagrees, arguing that the repeated reenactments reflect congressional intent to
have a flexible standard subject to various executive
branch interpretations.
Our review of the history of the provision in our law
suggests the plaintiffs have the better part of this dispute. From the Victorian Workhouse through the 1999
Guidance, the concept of becoming a “public charge” has
meant dependence on public assistance for survival.
Up until the promulgation of this Rule, the concept has
never encompassed persons likely 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
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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 well-settled meaning of
“public charge” even before congressional passage of
the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, and that was a person “unable to support herself, either through work, savings, or
family ties.” Id. at 71. Receipt of cash benefits may
be considered in deciding whether a person is dependent
on the government but has never been determinative.
The Second Circuit persuasively summarized:
The Plaintiffs do not argue, and we do not hold, that
the receipt of various kinds of public benefits is irrelevant to the determination of whether a non-citizen
is likely to become a public charge. But defining
public charge to mean the receipt, even for a limited
period, of any of a wide range of public benefits—
particularly . . . ones that are designed to supplement an individual’s or family’s efforts to support
themselves, rather than to deal with their likely permanent inability to do so—is inconsistent with the
traditional understanding 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
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charge” was susceptible to various interpretations. Id.
at 226. It concluded, however, that DHS’s interpretation, quantifying the definition to mean receipt of twelve
months’ worth of benefits within three years, represented an understanding of its authority to define the
phrase that “has no natural limitation.” Id. at 228-29.
If DHS’s interpretation were to be accepted, then there
is nothing in the statutory text that would prevent a
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
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noted that the Seventh Circuit had not included the significant administrative rulings that preceded the 1996
statute. New York, 969 F.3d at 74.
The New York opinion was unanimous, but the Cook
County opinion was not. The lengthy dissenting opinion in Cook County focused on other statutory provisions aimed at preventing entry of persons who could
become dependent on the government. The most significant of these provisions is the requirement that 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
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the choice of an aggregate of twelve months is “not unreasonable.” Id. at 253. Moreover, the dissent’s interpretation of the affidavit requirement’s application
here seems to suggest that it would approve a public
charge rule excluding individuals who received “any
means-tested benefit,” no matter how small, as in line
with congressional intent.
In this appeal, DHS also relies upon the affidavit of
support provisions to contend that the Rule is consistent
with the statutory public charge bar.
The public
charge bar and affidavit of support provisions were
parts of two separate acts. The two have no historic or
functional relationship to each other. The public charge
bar dates back to the 19th century, embodying an ageold 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, 75253 (1998) (article by INS Associate General Counsel).
23a
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. (“State Farm”), 463 U.S. 29
(1983). The Court explained the general rule:
24a
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
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
25a
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/publiccharge-seminar-slides-nov2018.pdf (estimating over
300,000 disenrollments from Medicaid in California
alone); Fiscal Policy Institute, Only Wealthy Immigrants
Need Apply: The Chilling Effects of “Public Charge,”
5 (Nov. 2019), http://fiscalpolicy.org/wp-content/uploads/
2019/11/FINAL-FPI-Public-Charge-2019-MasterCopy.
pdf (estimating over $500 million combined in lost state
tax revenue). DHS was required to “reasonably reflect
upon” and “grapple with” such evidence. Fred Meyers
Stores, Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017).
But DHS made no attempt to quantify the financial costs
of the Rule or critique the projections offered.
26a
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 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,
27a
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 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; Hilltown
Cmty. Health Ctr., Comments on Inadmissibility on Public Charge Grounds (Dec. 2018), https://www.regulations.
gov/document?D=USCIS-2010-0012-45675.
A deci-
28a
sion that “runs counter to the evidence” or “is so implausible that it could not be ascribed to a difference in view
or the product of agency expertise” is arbitrary and capricious. State Farm, 463 U.S. at 43. The promulgation of this Rule is such a decision. DHS claims no expertise in public health, unlike the scores of expert commenters who weighed in against the Rule.
3.
Reversal of Position
Above all, DHS failed to explain its abrupt change in
policy from the 1999 Guidance. An agency reversing a
prior policy “must show that there are good reasons for
the new policy” and provide “a reasoned explanation
. . . for disregarding facts and circumstances that underlay or were engendered by the prior policy.” FCC
v. Fox Television Stations, Inc., 556 U.S. 502, 515-16
(2009). The district courts below found that DHS had
failed to satisfy this standard. City and Cnty. of SF,
408 F. Supp. 3d at 1111-12; Washington v. DHS, 408
F. Supp. 3d at 1220.
The 1999 Guidance had been issued after the 1996
statutory amendments setting out the general factors to
be taken into account in making a public charge determination. The Guidance considered all of the different
types of public assistance governments offered, including programs 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.
29a
The Rule, however, provides that the prospect of receiving those same supplemental benefits, for even a few
months, renders an individual inadmissible. This is directly contrary to the 1999 Guidance.
Yet DHS promulgated the Rule without any explanation of why the facts found, and the analysis provided, in
the prior Guidance were now unsatisfactory. This is a
practice the Supreme Court has rejected: an agency
about-face with no “reasoned explanation . . . for
disregarding” the findings underlying the prior policy.
Fox, 556 U.S. at 516. Here is an illustration of the
about-face. The 1999 Guidance had found that deterring acceptance of “important health and nutrition benefits” had yielded “an adverse impact . . . on public
health and the general welfare.” 64 Fed. Reg. at
28,692. In contrast, DHS now says that the new Rule
“will ultimately strengthen public safety, health, and nutrition.” 84 Fed. Reg. at 41,314. DHS provides no basis for this conclusion or for its departure from the empirical assessments underlying the prior policy.
In light of this policy change, coupled with the “serious reliance interests” engendered by over two decades
of reliance on the Guidance, DHS was required to provide a “more detailed justification” for the Rule. Fox,
556 U.S. at 515. DHS provides no justification, other
than the repeated conclusory mantra that the new policy
will encourage 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
30a
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
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
31a
likely are bearing and will continue to bear heavy financial costs because of withdrawal of immigrants from federal assistance programs and consequent dependence
on state and local programs.
There is no dispute that such economic harm is sufficient to constitute irreparable harm because of the unavailability of monetary damages. See California v.
Azar, 911 F.3d 558, 581 (9th Cir. 2018); 5 U.S.C. § 702
(providing for relief “other than monetary damages”).
DHS counters that such harm in this case is speculative,
amounting to no more than the possibility of future injury. See Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Tr., 636 F.3d 1150, 1160 (9th Cir. 2011).
We have, however, already seen that in this case such
harm is more than speculative. Plaintiffs have presented evidence that they are already experiencing
harm and DHS itself has projected significant disenrollment from federal programs, likely leading to enrollments in state and local ones. The district courts both
made factual findings as to harm that DHS does not refute with citations to the record.
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.
32a
of SF, 408 F. Supp. 3d at 1127. The public interest in
preventing contagion is particularly salient during the
current global pandemic.
Although DHS nevertheless argues that it is harmed
by not being able to implement its new definition of public charge, if it is ultimately successful in defending the
merits of the Rule, the harm will amount to no more than
a temporary extension of the law previously in effect for
decades. Given the financial burdens that plaintiffs
have persuasively demonstrated will befall them as a result of disenrollment from federal programs, coupled
with adverse effects on the health and welfare of the immigrant as well as general population, we cannot say the
district courts abused their discretion in finding that the
balance of equities and public interest weigh in favor the
injunction.
G.
Propriety of a Nationwide Injunction
The Northern District issued a preliminary injunction limited to the territory of the plaintiff state and local entities before it. The Eastern District issued a nationwide injunction, explaining that a more limited injunction would not prevent 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.,
33a
concurring); Trump v. Hawaii, 138 S. Ct. 2392, 2424-29
(2018) (Thomas, J., concurring). In explaining the limited scope of its injunction, the Second Circuit questioned the propriety of one court imposing its will on all:
It is not clear to us that, where contrary views could
be or have been taken by courts of parallel or superior authority entitled to determine the law within
their own geographical jurisdictions, the court that
imposes the most sweeping injunction should control
the nationwide legal landscape.
New York, 969 F.3d at 88.
Whatever the merits of nationwide injunctions in
other contexts, we conclude a nationwide injunction is
not appropriate in this case. This is because the impact
of the Rule would fall upon all districts at the same time,
and the same issues regarding its validity have been and
are being litigated in multiple federal district and circuit
courts.
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.
34a
I.
Conclusion
The order of the District Court for the Northern District of California is AFFIRMED. The order of the District Court for the Eastern District of Washington is AFFIRMED in part and VACATED in part. Costs are
awarded to the plaintiffs.
VANDYKE, Circuit Judge, dissenting:
For the reasons ably articulated by our court in a December 2019 published opinion,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 affirms 4—I must
respectfully dissent.
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).
1
35a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 19-17213
D.C. No. 4:19-cv-04717-PJH
CITY AND COUNTY OF SAN FRANCISCO; COUNTY OF
SANTA CLARA, PLAINTIFFS-APPELLEES
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION
SERVICES, A FEDERAL AGENCY; U.S. DEPARTMENT OF
HOMELAND SECURITY, A FEDERAL AGENCY; CHAD F.
WOLF, IN HIS OFFICIAL CAPACITY AS ACTING
SECRETARY OF THE UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; KENNETH T. CUCCINELLI, IN
HIS OFFICIAL CAPACITY AS ACTING DIRECTOR OF
UNITED STATES CITIZENSHIP AND IMMIGRATION
SERVICES, DEFENDANTS-APPELLANTS
No. 19-17214
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
36a
DIRECTOR OF UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, DEFENDANTS-APPELLANTS
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
Filed: Dec. 5, 2019
ORDER
Before: JAY S. BYBEE, SANDRA S. IKUTA, and JOHN
B. OWENS, Circuit Judges.
Concurrence by Judge BYBEE;
37a
Partial Concurrence and Partial Dissent by Judge
OWENS
BYBEE, Circuit Judge:
Since 1882, when the Congress enacted the first comprehensive immigration statute, U.S. law has prohibited
the admission to the United States of “any person unable to take care of himself or herself without becoming a
public charge.” Act of Aug. 3, 1882, ch. 376, § 2, 22 Stat.
214 (1882). Although the precise formulation of this
provision has been amended regularly in the succeeding
century and a quarter, the basic prohibition and the
phrase “public charge” remains. Most recently, in the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress amended the Immigration and Nationality Act (INA) to provide that
“[a]ny alien who, in the opinion of the consular officer at
the time of application for a visa, or in the opinion of
the Attorney General at the time of application for admission or adjustment of status, is likely at any time
to become a public charge is inadmissible.” 8 U.S.C.
§ 1182(a)(4)(A). In making this determination, “the
consular officer or the Attorney General shall at a minimum” take five factors into account: age; health; family status; assets, resources, and financial status; and education and skills. Id. § 1182(a)(4)(B)(i). Under longstanding practice, consular officers and the Attorney
General consider these factors under a “totality of the
circumstances” test.
In 1999, the Immigration and Naturalization Service
(INS), providing guidance to the public and INS field
officers, defined “public charge” as an “alien . . .
who is likely to become . . . primarily dependent on
38a
the government for subsistence” as demonstrated by either “institutionalization for long-term care at government expense” or “receipt of public cash assistance for
income maintenance.” Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64
Fed. Reg. 28,689, 28,689 (May 26, 1999) (1999 Field
Guidance) (internal quotation marks omitted). Although
INS determined that the receipt of cash benefits received under a public program would be considered a
factor in determining whether an alien was likely to become a public charge, it stated that non-cash benefits
would not be taken into account for public-charge purposes. Id.
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 noncash 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
39a
rule exempts public benefits received for emergency
medical conditions, benefits received under the Individuals with Disabilities Education Act, and school-based
services or benefits. Id. It also exempts those benefits received by aliens under 21 years of age, women during pregnancy, and members of the armed forces and
their families. Id. DHS repeated that “[t]he determination of an alien’s likelihood of becoming a public
charge at any time in the future must be based on the
totality of the alien’s circumstances.” Id. at 41,502.
Prior to the Final Rule taking effect in October 2019,
various states, municipalities, and organizations brought
suits in California and Washington seeking a preliminary injunction against the implementation of the rule.
In Nos. 19-17213 and 19-17214, California, Maine, Oregon, Pennsylvania, and the District of Columbia; the
City and County of San Francisco and the County of
Santa Clara; and various organizations brought suit in
the Northern District of California against the United
States under the Due Process Clause of the Fifth
Amendment; the Administrative Procedure Act (APA),
5 U.S.C. § 706; and the Declaratory Judgment Act, 28
U.S.C. §§ 2201-02. The district court granted a preliminary injunction on the basis of the APA, effective
against implementation of the rule in the plaintiff states.
City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., 2019 WL 5100718 (N.D. Cal. Oct. 11,
2019). In No. 19-35914, thirteen states—Washington,
Virginia, Colorado, Delaware, Hawai‘i, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey,
New Mexico, and Rhode Island—filed suit in the Eastern District of Washington against DHS under the Due
Process Clause of the Fifth Amendment and the APA.
40a
The district court granted a preliminary injunction on
the basis of the APA claims and issued a nationwide injunction. Washington v. U.S. Dep’t of Homeland Sec.,
2019 WL 5100717 (E.D. Wash. Oct. 11, 2019).
DHS seeks a stay of both preliminary injunctions. 1
Our authority to issue a stay of a preliminary injunction
is circumscribed. Nevertheless, for the reasons explained below, we will grant the stay. DHS has shown
a strong likelihood of success on the merits, that it will
suffer irreparable harm, and that the balance of the equities and public interest favor a stay. See Nken v.
Holder, 556 U.S. 418, 434 (2009).
I.
BACKGROUND AND PROCEDURE
We begin with the governing statutory framework,
the proposed change to this framework, and the proceedings below.
A. Statutory Framework
The INA requires all aliens who seek lawful admission to the United States, or those already present but
seeking to become lawful permanent residents (LPRs),
to prove that they are “not inadmissible.” 8 U.S.C.
§ 1361; see also id. §§ 1225(a), 1255(a). Section 212 of
the INA lists the grounds on which an alien may be adjudged inadmissible. Id. § 1182(a)(1)-(10). One of the
grounds for 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:
For clarity, we will refer to the plaintiffs below as “the States”
and the defendants as “DHS.”
1
41a
(4) PUBLIC CHARGE.—
(A) IN GENERAL.—Any alien who, in the
opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney
General at the time of application for admission or
adjustment of status, is likely at any time to become a public charge is inadmissible.
(B) FACTORS
ACCOUNT.—
TO
BE
TAKEN
INTO
(i) In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General[2] shall at a minimum consider the alien’s—
(I)
age;
(II)
health;
(III) family status;
(IV) assets, resources, and financial status;
and
(V)
education and skills.
(ii) In addition to the factors under clause (i),
the consular officer or the Attorney General
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.
2
42a
may also consider any affidavit of support[3] under section 1183a of this title for purposes of
exclusion under this paragraph.
Id.
This provision is applied at different times by different government agencies. When an alien seeks a visa
to travel to the United States, a Department of State
(DOS) consular officer must make an admissibility determination. See 84 Fed. Reg. at 41,294 n.3. When an
alien arrives at a port of entry without a visa, DHS
makes that determination. Id. An alien may also be
deemed “inadmissible” even when the alien is already in
the country. For example, when an alien seeks an adjustment of status from non-immigrant to LPR, DHS
must determine that the alien is not inadmissible. See
id. And when an alien is processed in immigration
court, the Department of Justice (DOJ) through immigration judges and the Board of Immigration Appeals
(BIA) must determine whether that alien is inadmissible. Id.
Though § 212 of the INA lays out the factors an immigration official must consider “at a minimum” when
making a public-charge determination, the INA does not
define the term “public charge,” or restrict how officials
are to consider age, health, family status, financial resources, and education. Indeed, as explained in more
detail below, in the context of immigration law, the term
“public charge” has had several meanings. Since 1999,
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.
3
43a
however, the term has been defined according to guidelines issued by the INS Field Guidance on the matter.
See 1999 Field Guidance, 64 Fed. Reg. at 28,689. The
1999 Field Guidance defined a public charge as an alien
who “is likely to become (for admission/adjustment purposes) primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of
public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” Id. (internal quotation marks omitted). The
1999 Field Guidance did not permit immigration officers to “place any weight on the receipt of non-cash public benefits,” id., and allowed consideration of only cashbenefit programs like SSI, TANF, and “[s]tate and local
cash assistance programs that provide benefits for income maintenance,” id. at 28,692.
B. The Proposed Rule
On October 10, 2018, DHS published a Notice of Proposed Rulemaking (NPRM) indicating its intent to
abandon the 1999 Field Guidance and redefine the term
“public charge.” See Inadmissibility on Public Charge
Grounds, 83 Fed. Reg. 51,114 (proposed Oct. 10, 2018). 4
It did so acting under the authority vested in the Secretary of Homeland Security to establish immigration regulations and enforce immigration law. See 8 U.S.C.
§ 1103(a)(3) (“[The Secretary of Homeland Security]
shall establish such regulations . . . as he deems
The proposed rule would not change the definition of public
charge for removability determinations, only for determinations of
inadmissibility. 83 Fed. Reg. at 51,134. And though the rule only
applies to DHS, DHS is currently working with DOS and DOJ to
ensure that all three agencies apply a consistent definition of the
term in their admissibility inquiries. 84 Fed. Reg. at 41,294 n.3.
4
44a
necessary for carrying out his authority under the provisions of this chapter.”). The proposed rule redefined
the term “public charge” in two ways.
First, the proposed rule for the first time established
a required length of time for which the alien would have
to rely on public benefits before being labeled a public
charge. Under the 1999 Field Guidance, a public charge
was defined as an individual “primarily dependent” on
government benefits, but the 1999 Field Guidance prescribed no specific time period for which this determination should be made. See 64 Fed. Reg. at 28,689,
28,692. Under the new rule, an alien would be considered a public charge if he or she “receives one or more
[designated] public benefits . . . for more than 12
months in the aggregate within a 36-month period.” 83
Fed. Reg. at 51,157-58. Moreover, the proposed rule
counts each public benefit received, so that “receipt of
two different non-monetizable benefits in one month
counts as two months.” Id. at 51,166.
Second, the proposed rule expanded which benefits
contributed to a public-charge determination. The proposed rule still included those cash-benefit programs
that were listed in the 1999 Field Guidance, but now
also includes various in-kind programs, such as:
(A) Supplemental Nutrition Assistance Program (SNAP, formerly called ‘‘Food Stamps’’),
7 U.S.C. 2011 to 2036c;
(B) Section 8 Housing Assistance under the
Housing Choice Voucher Program, as administered by HUD under 24 CFR part 984; 42 U.S.C.
1437f and 1437u;
45a
(C) Section 8 Project-Based Rental Assistance
(including Moderate Rehabilitation) under 24
CFR parts 5, 402, 880 through 884 and 886; and
. . .
(i) Medicaid, 42 U.S.C. 1396 et seq., [with several exceptions, discussed below]
. . .
(iv) Subsidized Housing under the Housing
Act of 1937, 42 U.S.C. 1437 et seq.
Id. at 51,290 (to be codified at 8 C.F.R. § 212.21). 5
Additionally, the proposed rule added other factors
for immigration officers to consider when making a publiccharge determination. The rule still required consideration of the alien’s age, health, family status, financial
status, education, and skills, as well as any affidavits of
support the alien presents. See 83 Fed Reg. 51,178 (to
be codified at 8 C.F.R. § 212.22). But the proposed rule
also laid out new factors to be afforded extra weight.
Four factors weigh heavily against the alien in a publiccharge determination: (1) a finding that the alien “is
DHS altered the Final Rule to make clear that certain benefits
were exempt from consideration, including “Medicaid [collected] by
aliens under the age of 21[, Medicaid collected by] pregnant women
during pregnancy and during the 60-day period after pregnancy,”
school-based services, Individuals with Disabilities Education Act
(IDEA) services, Medicare Part D Low-Income Subsidies, and
emergency medical care. 84 Fed. Reg. at 41,296-97 (codified at 8
C.F.R. § 212.21). Further, in certain circumstances, the proposed
rule excuses receipt of covered public benefits. See id. (codified at
8 C.F.R. § 212.21) (exempting public benefits from consideration
when the recipient has received certain humanitarian relief, the recipient or his spouse was in the Armed Forces, or the recipient received a waiver).
5
46a
not a full-time student and is authorized to work,” but
cannot demonstrate “current employment, employment
history, or [a] reasonable prospect of future employment”; (2) a previous finding of inadmissibility on publiccharge grounds; (3) a medical diagnosis that would likely
require extensive medical treatment or interfere with
the alien’s ability to be self-sufficient; and (4) receipt of
benefits for more than twelve months within a thirty-six
month period. Id. at 51,198-201 (to be codified at 8
C.F.R. § 212.22). Conversely, two factors would weigh
heavily in favor of the alien in a public-charge determination: (1) assets or household income over 250 percent of the Federal poverty line, and (2) individual income over 250 percent of the Federal poverty line. 6 Id.
at 51,292 (to be codified at 8 C.F.R. § 212.22(c)(2)).
During the sixty-day public comment period that followed the NPRM, DHS collected 266,077 comments,
“the vast majority of which opposed the rule.” 84 Fed.
Reg. at 41,297. On August 14, 2019, DHS published the
Final Rule in the Federal Register. Id. at 41,292. In
its 216-page Final Rule, DHS made some changes to the
proposed rule (which are not relevant here) and addressed the comments it received. The Final Rule was
scheduled to take effect on October 15, 2019, and would
apply to anyone applying for admission or adjustment of
status after that date. Id.
The Final Rule added a third factor: private health insurance
not subsidized under the Affordable Care Act. 84 Fed. Reg. at
41,504.
6
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C. The Proceedings
1.
The Northern District of California Case
On August 13, 2019, the City and County of San Francisco and the County of Santa Clara sued several government agencies and officials, including U.S. Citizenship and Immigration Services (USCIS), the Acting Director of USCIS Kenneth T. Cuccinelli, DHS, and the
then Acting Director of DHS Kevin McAleenan. They
brought suit in the United States District Court for the
Northern District of California, claiming that the proposed rule violated the APA on two grounds: (1) the
rule was not made in accordance with the law, and (2)
the rule was arbitrary, capricious, and an abuse of discretion. See 5 U.S.C. § 706(2). Three days later, on
August 16, 2019, California, Maine, Oregon, Pennsylvania, and the District of Columbia, sued the same defendants in the same court. They claimed that (1) the proposed rule violated § 706 of the APA because (a) it was
not made in accordance with the INA, the IIRIRA, the
Rehabilitation Act, or state healthcare discretion, (b) it
was arbitrary, capricious, and an abuse of discretion,
and (2) the proposed rule violated the Fifth Amendment’s Due Process Clause because it denied equal protection based on race and unconstitutional animus.
Each set of plaintiffs filed a motion to preliminarily
enjoin enforcement of the proposed rule. On August
27, 2019, the district court ordered the two cases consolidated. 7
Several legal and health-care organizations were also parties to
the motion for a preliminary injunction below. The district court
found that they failed to establish that they were within the zone
7
48a
The district court heard oral argument on October 2,
2019, and on October 11, granted the preliminary injunction. See City & Cty. of San Francisco, 2019 WL
5100718 at *1, 53. The court first held that both the
Counties and the States had standing to sue because
they showed imminent financial injury. Id. at *46-47.
It held that they were in the statute’s zone of interests
because, in enacting the public-charge provision of the
INA, “Congress intended to protect states and their political subdivisions’ coffers.” Id. at *41. On the merits, the district court found that the States satisfied the
four-factor test for a preliminary injunction. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
The court held that the States had a likelihood of success
on the merits for at least some of their claims. It found
the States were likely to successfully show that the proposed rule was contrary to law because it unreasonably
defined the term “public charge,” and thus failed the
second step of the Chevron analysis. City & Cty. of
San Francisco, 2019 WL 5100718, at *28. Alternatively, the court found that the States had shown a serious question as to whether the INA unambiguously foreclosed the proposed change to the definition of public
charge, thus causing the Final Rule to fail at Chevron
step one. Id. The court also concluded that the
States had demonstrated a likelihood of success on the
arbitrary-and-capricious claim because DHS failed to
adequately consider the adverse economic and public
health-related costs of the proposed rule. Id. at *34,
*37.
of interests. City & Cty. of San Francisco, 2019 WL 5100718, at
*53. They are not parties to this appeal.
49a
Further, the court found that the rule’s implementation would irreparably harm the Counties and States by
causing them to lose millions of dollars in federal reimbursements and face increased operational costs. Id.
at *46-49. Focusing on the public’s interest in the continued provision of medical services and the prevention
of communicable diseases, the district court found both
the balance of the equities and the public interest weighed
in favor of granting an injunction. Id. at *50-51. However, because the court found that the States had failed
to show why a nationwide injunction would be necessary,
the court granted an injunction that applied only to
those persons living in plaintiff states or counties. Id.
at *53.
On October 25, 2019, DHS sought a stay of the preliminary injunction. DHS informed the court that it
would seek appellate relief if the court did not act by
November 14.
2.
The Eastern District of Washington Case
On August 14, 2019, Washington, Virginia, Colorado,
Delaware, Hawai‘i, Illinois, Maryland, Massachusetts,
Minnesota, Nevada, New Jersey, Rhode Island, and the
state attorney general on behalf of Michigan sued
USCIS, Cuccinelli, DHS, and McAleenan in the United
States District Court for the Eastern District of Washington. They alleged claims similar to those presented
in the California cases: (1) the proposed rule violated
the APA because (a) it was not in accordance with immigration law or the Rehabilitation Act, (b) it exceeded
DHS’s statutory jurisdiction or authority, and (c) it was
arbitrary, capricious, and an abuse of discretion, and (2)
the proposed rule violated the Fifth Amendment’s Due
50a
Process Clause because it denied equal protection based
on race and unconstitutional animus.
The district court heard oral argument on October 3,
2019, and on October 11, granted the preliminary injunction. See Washington, 2019 WL 5100717, at *23. The
court’s conclusions largely mirrored those of the Northern District of California, though there were some differences. Citing the States’ anticipated economic, administrative, and public-health costs, the court held that
the States had standing and that the matter was ripe.
Id. at *11. Finding that the INA was enacted “to protect states from having to spend state money to provide
for immigrants who could not provide for themselves,”
the court concluded that the States were within the
INA’s zone of interests. Id.
On the merits, the court held that the States had
shown a likelihood of success on the arbitrary-andcapriciousness claim and the Chevron claim, though the
Washington court was less clear than the California
court had been about at which step of the Chevron analysis the proposed rule would fail. Id. at *13-17. Unlike the California court, the Washington court also
found that the States were likely to succeed in proving
that DHS had violated the Rehabilitation Act, and that
DHS acted beyond its congressionally delegated authority in defining self-sufficiency. Id. at *17-18. Noting
that “the Plaintiff States provide a strong basis for finding that disenrollment from non-cash benefits programs
is predictable, not speculative,” and that such disenrollment would financially harm the States, the court found
that the States would suffer irreparable harm if the injunction were not issued. Id. at *20-21. On these
same grounds, the court found that the balance of the
51a
equities and public interest both “tip[ped] in favor” of
granting a preliminary injunction. Id. at *21. However, unlike the California court, the Washington court
found a geographically limited injunction untenable, in
part because a limited injunction might give immigrants
an incentive to move from unprotected states to protected states.
Accordingly, the Washington court
granted the States a nationwide injunction. Id. at *2223.
On October 25, 2019, DHS sought a stay of the preliminary injunction. DHS informed the court that it
would seek appellate relief if the court did not act by
November 14.
* * *
By November 14, neither district court responded to
the respective motions to stay. On November 15, 2019,
DHS filed a motion in this court for an emergency stay
of the injunction.
II.
JURISDICTION
DHS contends that the plaintiffs do not have Article
III standing to sue and that their claims do not fall
within the zone of interests protected by the INA. We
have an obligation to ensure that jurisdiction exists before proceeding to the merits. See Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 93-95 (1998). 8 Addition-
Both district courts also held that the States’ claims fall within
the INA’s “zone of interests.” See City & Cty. of San Francisco,
2019 WL 5100718, at *41; Washington, 2019 WL 5100717, at *11.
For present purposes, because the issue is close and raises a prudential rather than jurisdictional concern, see Bank of Am. Corp. v.
8
52a
ally, although no party has raised the issue, we must address whether DHS’s request for a stay pending appeal
is moot in light of the fact that two courts outside our
circuit have also issued nationwide injunctions, and any
decision we issue here would not directly affect those orders. We conclude that, at this preliminary stage of
the proceedings, the States have sufficiently alleged
grounds for Article III standing and that DHS’s petition
for a stay is not moot.
A. Article III Standing
Article III of the Constitution limits the federal judicial power to the adjudication of “Cases” and “Controversies.” U.S. CONST. art. III, § 2, cl. 1. This fundamental limitation “is founded in concern about the
proper—and properly limited—role of the courts in a
democratic society.” Summers v. Earth Island Inst.,
555 U.S. 488, 492-93 (2009) (quoting Warth v. Seldin, 422
U.S. 490, 498 (1975)). “One of the essential elements of
a legal case or controversy is that the plaintiff have
standing to sue.” Trump v. Hawai‘i, 138 S. Ct. 2392,
2416 (2018). “[B]uilt on separation-of-powers principles,” standing ensures that litigants have “a personal
stake in the outcome of the controversy as to justify the
exercise of the court’s remedial powers on their behalf.”
Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645,
1650 (2017) (internal citations and alterations omitted).
To demonstrate Article III standing, a plaintiff must
show a “concrete and particularized” injury that is “fairly
traceable” to the defendant’s conduct and “that is likely
to be redressed by a favorable judicial decision.”
City of Miami, 137 S. Ct. 1296, 1302 (2017), we will assume that the
States’ claims satisfy the requirement.
53a
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547-48 (2016)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61
(1992)). “At least one plaintiff must have standing to
seek each form of relief requested,” Town of Chester,
137 S. Ct. at 1651, and that party “bears the burden of
establishing” the elements of standing “with the manner
and degree of evidence required at the successive stages
of the litigation,” Lujan, 504 U.S. at 561. “At this very preliminary stage,” plaintiffs “may rely on the allegations
in their Complaint and whatever other evidence they
submitted in support of their [preliminary-injunction]
motion to meet their burden.” Washington v. Trump,
847 F.3d 1151, 1159 (9th Cir. 2017) (per curiam). And
they “need only establish a risk or threat of injury to
satisfy the actual injury requirement.” Harris v. Bd.
of Supervisors, 366 F.3d 754, 762 (9th Cir. 2004); see
Spokeo, 136 S. Ct. at 1548 (noting that the injury must
be “actual or imminent, not conjectural or hypothetical”
(quoting Lujan, 504 U.S. at 560)).
The district courts concluded that the States had
standing based on their alleged loss of federal funds and
increase in operational costs related to individuals disenrolling from the non-cash public benefits at issue.
DHS challenges this finding, arguing that predictions of
future financial harm are based on an “‘attenuated chain
of possibilities’ that does not show ‘certainly impending’
injury.” 9 DHS’s argument is unavailing for several
reasons.
First, the injuries alleged are not entirely speculative
—at least for standing purposes. DHS acknowledges
DHS raises no argument about the second and third elements of
the standing analysis.
9
54a
that one result of the Final Rule will be to encourage
aliens to disenroll from public benefits. It predicted a
2.5 percent disenrollment rate when proposing the rule.
84 Fed. Reg. at 41,463. This disenrollment, DHS predicted, would result in a reduction in Medicaid reimbursement payments to the States of about $1.01 billion.
Id. at 41,301. DHS also acknowledged increased administrative costs that would result from the Final Rule.
Id. at 41,389. To be sure, the predicted result is premised on the actions of third parties, but this type of “predictable effect of Government action on the decisions of
third parties” is sufficient to establish injury in fact.
Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2566
(2019).
Moreover, according to evidence supplied by the
States, the predicted results have already started. As
more individuals disenroll from Medicaid, the States will
no longer receive reimbursements from the federal government for treating them. Similarly, the States have
sufficiently alleged that they are facing new and ongoing
operational costs resulting from the Final Rule. See
City & Cty. of San Francisco, 2019 WL 5100718, at *48.
These costs are predictable, likely, and imminent. It is
disingenuous for DHS to claim that they are too attenuated at this point when it acknowledged these costs in
its own rulemaking process.
Finally, DHS’s reliance on Clapper v. Amnesty Int’l
USA, 568 U.S. 398 (2013), is unfounded. There, the
Court found that various human rights, labor, legal, and
media organizations did not have standing to challenge
the constitutionality of a law authorizing governmental
electronic surveillance of communications for foreign intelligence purposes. Id. at 414. The alleged injury
55a
was that the threat of surveillance would compel them
to travel abroad to have in-person conversations with
sources and witnesses, in addition to other costs related
to protecting the confidentiality of sensitive communications. Id. at 406-07. The Court found that the injury
was not “certainly impending” because it was highly
speculative whether the government would imminently
target communications between the plaintiffs and foreign individuals. Id. at 410-11. The assumption that
their communications would be targeted was not enough
to demonstrate injury in fact. Id. at 411-14. Here,
the States are not making assumptions about their
claimed injuries. Unlike in Clapper, the States present
evidence that the predicted disenrollment and rising administrative costs are currently happening.
Thus, based on the available evidence at this early
stage of the proceedings, we conclude that the States
have shown that they have suffered and will suffer direct
injuries traceable to the Final Rule and thus have standing to challenge its validity.
B. Mootness
Finally, we raise on our own the question of whether
we can consider DHS’s request for a stay of the district
court’s preliminary injunctions. See Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004) (“[W]e have an
independent duty to consider sua sponte whether a case
is moot.”). The stay would, presumably, allow the Final Rule to go into effect pending further proceedings in
the district court and this court. The question of mootness arises because, contemporaneous with the district
courts’ orders here, district courts in Maryland and New
York also issued nationwide injunctions. Casa de Md.,
Inc. v. Trump, 2019 WL 5190689 (D. Md. Oct. 14, 2019);
56a
New York v. U.S. Dep’t of Homeland Sec., 2019 WL
5100372 (S.D.N.Y. Oct. 11, 2019). 10 Thus, unless a stay
also issues in those cases, any stay we might issue would
not allow the Final Rule to go into effect; the Final Rule
would still be barred by those injunctions.
We recently addressed this precise question in California v. U.S. Department of Health & Human Services,
941 F.3d 410, 423 (9th Cir. 2019), and we concluded that
even if an injunction from another court “has a fully nationwide scope, we nevertheless retain jurisdiction under the exception to mootness for cases capable of repetition, yet evading review.” Similarly, we conclude that
DHS’s petition is not moot, and we proceed to the merits
of its petition.
III.
STANDARD OF REVIEW
DHS requests that we stay the district courts’ preliminary injunctions pending resolution of the consideration of the merits of DHS’s appeals. We have authority to do so under the All Writs Act, 28 U.S.C. § 1651,
which provides that the courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
See Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4,
9-10 (1942) (finding that a federal court may stay judgments pending appeal “as part of its traditional equipment for the administration of justice”); In re McKenzie, 180 U.S. 536, 551 (1901) (noting the “inherent power
In a third case out of the Northern District of Illinois, the district
court issued an order enjoining enforcement of the Final Rule in Illinois only. Cook Cty. v. McAleenan, 2019 WL 5110267 (N.D. Ill.
Oct. 14, 2019).
10
57a
of the appellate court to stay . . . proceedings on appeal”); see also Fed. R. Civ. P. 62(g).
Two standards affect our determination, the standard applicable to district courts for preliminary injunctions, and the standard for appellate courts for stays
pending appeal. The district court must apply a fourfactor standard:
A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits,
[2] that he is likely to suffer irreparable harm in the
absence of preliminary relief, [3] that the balance of
equities tips in his favor, and [4] that an injunction is
in the public interest.
Winter, 555 U.S. at 20.
Alternatively, “‘serious questions going to the merits’
and a balance of hardships that tips sharply towards the
plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a
likelihood of irreparable injury and that the injunction
is in the public interest.” All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
Generally, the purpose of a preliminary injunction is
to “preserve the status quo and the rights of the parties
until a final judgment issues in the cause.”
U.S.
Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094
(9th Cir. 2010) (citing Univ. of Tex. v. Camenisch, 451
U.S. 390, 395 (1981); Sierra On-Line, Inc. v. Phoenix
Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984)). An
injunction is “an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. It “should
not be granted unless the movant, by a clear showing,
58a
carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (citation
omitted).
The standard we apply to DHS’s request for a stay is
similar, although the burden of proof is reversed. “The
party requesting a stay bears the burden of showing
that the circumstances justify an exercise of that discretion,” and our analysis is guided by four factors:
(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.
Nken, 556 U.S. at 433-34 (quoting Hilton v. Braunskill,
481 U.S. 770, 776 (1987)). “The first two factors . . .
are the most critical,” and the “mere possibility” of success or irreparable injury is insufficient to satisfy them.
Id. at 434 (internal quotation marks omitted). At this
stage of the proceedings, it is now DHS’s burden to
make “a strong showing that [it] is likely to” prevail
against the States’ claims. Lair v. Bullock, 697 F.3d
1200, 1203 (9th Cir. 2012) (quoting Nken, 556 U.S. at
426). We consider the final two factors “[o]nce an applicant satisfies the first two.” Nken, 556 U.S. at 435.
“A stay is an ‘intrusion into the ordinary process of
administration and judicial review,’ and accordingly ‘is
not a matter of right, even if irreparable injury might
otherwise result to the appellant.’ ” Id. at 427 (citations
omitted). “It is instead ‘an exercise of judicial discretion,’ and ‘the propriety of its issue is dependent upon
the circumstances of the particular case.’ ” Id. at 433
59a
(alteration omitted) (quoting Virginian Ry. Co. v.
United States, 272 U.S. 658, 672-73 (1926)).
There is significant overlap in these standards. The
first prong in both tests—likelihood of success on the
merits—is the same. And the Supreme Court has
made clear that satisfaction of this factor is the irreducible minimum requirement to granting any equitable
and extraordinary relief. Trump v. Hawai‘i, 138 S. Ct.
at 2423. The analysis ends if the moving party fails to
show a likelihood of success on the merits of its claims.
Id.
IV.
LIKELIHOOD OF SUCCESS ON
THE MERITS
Any “person suffering legal wrong . . . or adversely affected or aggrieved” by an agency’s final action may seek judicial review. 5 U.S.C. § 702. The
scope of our review is determined by the APA. As a
reviewing court, we must “set aside” a final rule if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). In
making this determination, we may “decide all relevant
questions of law, interpret . . . statutory provisions,
and determine the meaning or applicability of the terms
of an agency action.” Id. § 706.
DHS argues that it is likely to succeed on the merits
of its appeal because, contrary to the conclusions of the
district courts, the Final Rule is neither contrary to law
nor arbitrary and capricious. We agree. The Final
Rule’s definition of “public charge” is consistent with the
relevant statutes, and DHS’s action was not arbitrary or
capricious.
60a
A. Contrary to Law
The States argue that the Final Rule is invalid under
the APA because the Final Rule’s definition of “public
charge” is contrary to (1) the INA and (2) the Rehabilitation Act. We disagree and find that DHS is likely to
succeed in its argument that the Final Rule is not contrary to law. 11
1.
The INA and “Public Charge”
When confronted with an argument that an agency’s
interpretation of a statute that it administers is wrong,
we employ the familiar Chevron two-step test. First,
we ask “whether Congress has directly spoken to the
precise question at issue.” Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).
If it has, “that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43.
But if Congress has not spoken directly to the issue at
hand, we proceed to the second step and ask “whether
the agency’s answer is based on a permissible construction of the statute.” Id. at 843.
We must keep in mind why Chevron is an important
rule of construction:
Chevron is rooted in a background presumption of
congressional intent: namely, that Congress, when
The States also brought claims in both courts under the equal
protection component of the Due Process Clause. U.S. CONST. art.
V. Neither district court reached this issue. We also decline to
reach this issue. We will consider the likelihood of success on the
merits only as to those issues that formed the bases for the district
courts’ injunctions. In any further proceedings, the district courts
are free to consider any issues fairly before them.
11
61a
it left ambiguity in a statute administered by an
agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired
the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.
Chevron thus provides a stable background rule
against which Congress can legislate: Statutory
ambiguities will be resolved, within the bounds of
reasonable interpretation, not by the courts but by
the administering agency. Congress knows to speak
in plain terms when it wishes to circumscribe, and in
capacious terms when it wishes to enlarge, agency
discretion.
Arlington v. FCC, 569 U.S. 290, 296 (2013) (quotation
marks and citations omitted).
The district courts found that the Final Rule failed
the Chevron test at one or both steps because the Final
Rule’s definition of “public charge” was an impermissible reading of that phrase in the INA. We will consider
each step in turn.
a.
Chevron Step 1
At Chevron’s first step, we determine whether Congress has directly spoken to the issue at hand by “employing traditional tools of statutory construction.”
Chevron, 467 U.S. at 843 n.9. That means we start with
the text. Afewerki v. Anaya Law Grp., 868 F.3d 771,
778 (9th Cir. 2017). We will then examine the history
of interpretation to see if there has been a judicial construction of the term “public charge” that “follows from
the unambiguous terms of the statute and thus leaves no
room for agency discretion.” Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982
62a
(2005). Finally, we will consider other factors raised
by the district courts and the States.
(1) Text. Under § 212 of the INA, an alien is inadmissible if, “in the opinion of” the immigration official,
the alien “is likely at any time to become a public
charge.” In making that determination, the immigration official must consider “at a minimum” the alien’s
age, health, family status, financial resources, education, and skills. 8 U.S.C. § 1182(a)(4)(A). Congress
did not define these terms and placed no further restrictions on what these officers may consider in the
public-charge assessment.
Nor did Congress prescribe how the officers are to regard the five enumerated factors.
We have four quick observations. First, the determination is entrusted to the “opinion” of the consular or
immigration officer. 12 That is the language of discretion, and the officials are given broad leeway. Depending on the context in which the “opinion” is given, the
decision may be nonreviewable. Under the rule of consular nonreviewability, only the most egregious abuses
of discretion may be reviewed. See Kerry v. Din, 135
S. Ct. 2128, 2140-41 (2015) (Kennedy, J., concurring); see
also Cardenas v. United States, 826 F.3d 1164, 1171-72
(9th Cir. 2016) (holding that Justice Kennedy’s concurring opinion in Din is the controlling opinion and summarizing the consular nonreviewability rule). Indeed,
we have previously held that the phrase “in the opinion
The text of the INA does not mention immigration officers.
Rather, it commits the public-charge determination to the “opinion
of the Attorney General.” 8 U.S.C. § 1182(a)(4)(A). As we explained
above, Congress has since transferred the authority granted by the
INA to DHS’s immigration officers.
12
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of the Attorney General” in a now-repealed immigration
statute conferred “unreviewable” discretion to the Executive Branch. See Kalaw v. I.N.S., 133 F.3d 1147,
1151-52 (9th Cir. 1997), superseded by statute on other
grounds. And to the extent the federal courts may review such determinations, our review is narrow. See
Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th
Cir. 2002) (holding that judicial review of discretionary
acts by the BIA is limited to “the purely legal and hence
non-discretionary” aspects of the BIA’s action); see also
Allen v. Milas, 896 F.3d 1094, 1106-07 (9th Cir. 2018)
(noting that judicial review of visa denials is “limited
. . . to constitutional challenges” and does not extend
to APA-based challenges (emphasis omitted)).
Second, the critical term “public charge” is not a term
of art. It is not self-defining. That does not mean
that officials may pour any meaning into the term, but it
does mean that there is room for discretion as to what,
precisely, being a “public charge” encompasses. In a
word, the phrase is “ambiguous” under Chevron; it is capable of a range of meanings. So long as the agency
has defined the term within that range of meanings, we
have no grounds for second-guessing the agency, “even
if the agency’s reading differs from what [we] believe[]
is the best statutory interpretation.” Brand X, 545
U.S. at 980 (citing Chevron, 467 U.S. at 843-44 & n.11).
It also means that an agency “must consider varying interpretations and the wisdom of its policy on a continuing basis,” including “in response to changed factual circumstances, or a change in administrations.” Id. at 981
(quotations marks and citations omitted).
Third, Congress set out five factors to be taken into
account by immigration officials, but expressly did not
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limit the discretion of officials to those factors. Rather
the factors are to be considered “at a minimum.” Other
factors may be considered as well, giving officials considerable discretion in their decisions.
Fourth, Congress granted DHS the power to adopt
regulations to enforce the provisions of the INA.
When Congress created DHS, Congress vested the Secretary of Homeland Security “with the administration
and enforcement of . . . all [] laws relating to the immigration and naturalization of aliens” and authorized
the Secretary to “establish such regulations . . . as
he deems necessary.” 8 U.S.C. § 1103(a)(1) & (3); see
also 6 U.S.C. § 112(b)(1) (authorizing the Secretary to
“delegate any of the Secretary’s functions to any [DHS]
officer, employee, or organizational unit”); Matter of DJ-, 23 I. & N. Dec. at 573-74. By granting regulatory
authority to DHS, Congress intended that DHS would
resolve any ambiguities in the INA. See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (“A
premise of Chevron is that when Congress grants an
agency the authority to administer a statute by issuing
regulations with the force of law, it presumes the agency
will use that authority to resolve ambiguities in the statutory scheme.”). As we have already noted, the INA’s
text is ambiguous. DHS has attempted to elucidate
that ambiguity in the Final Rule. In short, we do not
read the text of the INA to unambiguously foreclose
DHS’s action.
(2) Historical Understanding. Although the foregoing would ordinarily be sufficient to end our inquiry,
the current provision, which was most recently rewritten in 1996 in IIRIRA, is merely the most recent itera-
65a
tion of federal immigration law to deem an alien inadmissible if he or she is likely to become a “public
charge.” There is a long history of judicial and administrative interpretations of this phrase in the immigration context that predates the enactment of the INA.
Because “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to
adopt that interpretation when it re-enacts a statute
without change,” Lorillard v. Pons, 434 U.S. 575, 580
(1978), we must examine this history to determine if
“public charge” has a well-defined and congressionally
understood meaning that limits DHS’s discretion.
The history of the term “public charge” confirms that
its definition has changed over time to adapt to the way
in which federal, state, and local governments have cared
for our most vulnerable populations. “Public charge”
first appeared in this country’s immigration law in 1882.
That statute excluded a would-be immigrant from the
United States if the person was a “convict, lunatic, idiot,
or a[] person unable to take care of himself or herself
without becoming a public charge.” Act of Aug. 3, 1882
ch. 376, § 2, 22 Stat. 214.
Congress did not define “public charge” in the 1882
act. We thus ascribe to that phrase its commonly understood meaning at the time, as evidenced by contemporary sources. See Freeman v. Quicken Loans, Inc.,
566 U.S. 624, 633-34 & nn.6-8 (2012) (citing contemporary dictionary definitions to interpret statutory
phrases).
An 1828 dictionary defined “charge” as
“[t]hat which is enjoined, committed, entrusted or delivered to another, implying care, custody, oversight, or
duty to be performed by the person entrusted,” or a
“person or thing committed to anothers [sic] custody,
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care or management.” Charge, WEBSTER’ S DICTIONARY (1828 Online Edition), http://webstersdictionary1828.
com/Dictionary/charge; see also Stewart Rapaljb &
Robert L. Lawrence, DICTIONARY OF AMERICAN AND
ENGLISH LAW, WITH DEFINITIONS OF THE TECHNICAL
TERMS OF THE CANON AND CIVIL LAWS 196 (Frederick
D. Linn & Co. 1888) (defining “charge” as “an obligation
or liability. Thus we speak . . . of a pauper being
chargeable to the parish or town”). That is a broad,
common-sense definition, which was reflected in
Nineteenth-Century judicial opinions using the phrase.
See, e.g., In re Day, 27 F. 678, 681 (C.C.S.D.N.Y. 1886)
(defining a “public charge” as a person who “can neither
take care of themselves, nor are under the charge or
protection of any other person”); State v. The S.S. “Constitution”, 42 Cal. 578, 584-85 (1872) (noting that those
who are “liable to become a public charge” are “paupers,
vagabonds, and criminals, or sick, diseased, infirm, and
disabled persons”); City of Alton v. Madison Cty., 21 Ill.
115, 117 (1859) (noting that a person is not a “public
charge” if the person has “ample means” of support).
The 1882 act did not consider an alien a “public
charge” if the alien received merely some form of public
assistance. The act itself established an “immigrant
fund” that was designed to provide “for the care of immigrants arriving in the United States.” Act of Mar.
26, 1910 ch. 376, § 1, 22 Stat. 214. Congress thus accepted that providing some assistance to recent immigrants would not make those immigrants public charges.
But Congress did not draw that line with any precision.
Instead, we read “public charge” in the 1882 act to refer
generally to those who were unwilling or unable to care
for themselves. In context that often meant that they
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were housed in a government or charitable institution,
such as an almshouse, asylum, or penitentiary.
The term “public charge” endured through subsequent amendments to the 1882 act. In 1910, Congress
enacted a statute that deemed “paupers; persons likely
to become a public charge; professional beggars;” and
similar people inadmissible. ch. 128, § 2, 36 Stat. 263
(1910). Relying on the placement of “public charge”
between “paupers” and “professional beggars,” the Supreme Court held that a person is likely to become a
public charge if that person has “permanent personal
objections” to finding employment. Gegiow v. Uhl, 239
U.S. 3, 10 (1915). In that case, the petitioners, Russian
emigrees, arrived in the United States with little cash
and the intention of going to Portland, Oregon. The
immigration officials considered them likely to become
public charges because Portland had a high unemployment rate. In a spare, three-page opinion by Justice
Holmes, the Court noted that the “single question” before the Court was “whether an alien can be declared
likely to become a public charge on the ground that the
labor market in the city of his immediate destination is
overstocked.” Id. at 9-10. The Court answered in the
negative. In making the public-charge determination,
immigration officers must consider an alien’s “personal”
characteristics, not a localized job shortage. Id. at 10.
The Court observed that “public charge” should be
“read as generically similar to the other[] [statutory
terms] mentioned before and after” that phrase. Id.
Five years later, we followed the Supreme Court’s lead,
holding that “the words ‘likely to become a public charge’
are meant to exclude only those persons who are likely
to become occupants of almshouses for want of means
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with which to support themselves in the future.” Ng
Fung Ho v. White, 266 F. 765, 769 (9th Cir. 1920) (citing
Howe v. United States, 247 F. 292, 294 (2d Cir. 1917)),
aff ’d in part and rev’d in part on other grounds, 259
U.S. 276 (1922).13 Thus, as of 1920, we considered the
likelihood of being housed in a state institution to be the
primary factor in the public-charge analysis.
By the mid-Twentieth Century, the United States
had largely abandoned the poorhouse in favor of direct
payments through social welfare legislation. At the
federal level, the government had created Social Security and Aid to Families With Dependent Children
(AFDC). At the state level, governments supplemented family income through programs such as unemployment insurance and worker’s compensation. Similar
changes were being made in other programs such as
mental health care, where we moved from institutionalizing the mentally ill to a program of treatment with the
end of releasing them. As Chief Justice Burger observed:
In Ng Fung Ho, the petitioner had been admitted to the United
States, based partly on his holding a “certificate” that allowed him
to be a “merchant.” Id. at 768. Several years after his admission,
he pleaded guilty to gambling. Id. at 769. It was then determined
that the petitioner was no longer a merchant. The government argued that the petitioner was deportable because he had been likely
to become a public charge at the time of his admission. Because
there was no evidence that the certificate he had produced prior to
admission had been fraudulent, we held that merely pleading guilty
to gambling and paying a $25 fine three years after being admitted
did not “prove that the alien . . . was likely to become a public
charge” at the time of admission. Id. We thus rejected the government’s assertion that the petitioner should be deported on that
basis. Id. at 770.
13
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Historically, and for a considerable period of time,
subsidized custodial care in private foster homes or
boarding houses was the most benign form of care
provided incompetent or mentally ill persons for
whom the States assumed responsibility. Until well
into the 19th century the vast majority of such persons were simply restrained in poorhouses, almshouses, or jails.
O’Connor v. Donaldson, 422 U.S. 563, 582 (1975) (Burger,
C.J., concurring). “[T]he idea that States may not confine the mentally ill except for the purpose of providing
them with treatment [was] of very recent origin.” Id.
(footnote omitted). The way in which we regarded the
poor and the mentally infirm not only brought changes
in the way we treated them, but major changes in their
legal rights as well. See, e.g., McNeil v. Director, Patuxent Inst., 407 U.S. 245, 248-50 (1972) (requiring a hearing before a person who has completed his criminal sentence can be committed to indefinite confinement in a
mental institution); cf. Goldberg v. Kelly, 397 U.S. 254,
260-61 (1970) (holding that a recipient of public assistance payments is constitutionally entitled to an evidentiary hearing before those payments are terminated).
The movement towards social welfare was soon reflected in the definition of “public charge.” In Matter
of B-, 3 I. & N. Dec. 323 (BIA 1948), the recently created
BIA articulated a new definition of “public charge.”
Permanent institutionalization would not be the sole
measure of whether an alien was a public charge. The
BIA said it would also consider whether an alien received temporary services from the government. At
the same time, the BIA recognized that mere “accep-
70a
tance by an alien of services provided by” the government “does not in and of itself make the alien a public
charge.” Id. at 324. Instead, the BIA stated that an
alien becomes a public charge if three elements are met:
“(1) The State or other governing body must, by appropriate law, impose a charge for the services rendered to
the alien. . . . (2) The authorities must make demand for payment of the charges. . . . And (3) there
must be a failure to pay for the charges.” Id. at 326.
In other words, the government benefit received by the
alien must be monetized, a bill must be presented to the
alien, and the alien must refuse to pay. Ultimately, in
Matter of B-, the BIA held that the petitioner had not
become a public charge, even though she had been involuntarily committed to a mental institution, because the
state of Illinois had not charged her or demanded payment. Id. at 327. The BIA’s order was subsequently
affirmed by the Attorney General. Id. at 337.
Four years later, Congress substantially revised the
immigration laws in the Immigration and Nationality
Act of 1952. The amended statute retained the term
“public charge,” but, for the first time, made clear that
the decision was committed to the opinion of a consular
officer or the Attorney General. The INA deemed inadmissible “[a]liens who, in the opinion of the consular
officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for
admission, are likely at any time to become public
charges.” Title 2, ch. 2, § 212, 66 Stat. 163, 183 (1952).
Although Matter of B- was not mentioned in the legislative history accompanying the 1952 act, it is notable that
Congress chose to insert this “opinion” language following the BIA’s articulation of a new definition of “public
71a
charge” that departed from prior judicial interpretations of the term.
In 1974, the BIA altered course again. The BIA limited Matter of B-’s three-part test to determining whether
a person had become a public charge after having been
admitted to the United States. See Matter of Harutunian, 14 I. & N. Dec. 583, 585 (BIA 1974). After noting
that the phrase “public charge” had been interpreted
differently by various courts, the BIA held:
[A]ny alien who is incapable of earning a livelihood,
who does not have sufficient funds in the United
States for his support, and has no person in the
United States willing and able to assure that he will
not need public support is excludable as likely to become a public charge whether or not the public support which will be available to him is reimbursable to
the state.
Id. at 589-90. The BIA thus pegged the public-charge
determination to whether the alien was likely to “need
public support,” irrespective of whether the alien was
likely to be institutionalized for any length of time and
billed for the cost by the state. Id. at 589.
That definition of “public charge” was subsequently
amended by the INS. In 1987, the INS issued a final
rule that deemed an applicant for adjustment of status
to be a “public charge” if the applicant had “received
public cash assistance.” Adjustment of Status for Certain Aliens, 52 Fed. Reg. 16,205, 16,211 (May 1, 1987).
INS did not state how much “public cash assistance” an
alien had to receive, but left the decision to officers who
would judge the totality of the circumstances. See id.
at 16,211 (noting that “all [the] evidence produced by the
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applicant will be judged”), 16,212 (“The weight given in
considering applicability of the public charge provisions
will depend on many factors. . . . ”). INS did make
clear that “public cash assistance” would not include the
value of “assistance in kind, such as food stamps, public
housing, or other non-cash benefits,” including Medicare and Medicaid. Id. at 16,209.
In 1996, through IIRIRA, Congress enacted the current language appearing in § 212 of the INA. Omnibus
Consolidated Appropriations Act, Title 5 § 531, 110 Stat.
3009 (1996). As detailed above, Congress added a requirement that an immigration officer consider an alien’s “age;” “health;” “family status;” “assets, resources
and financial status;” and “education and skills” when
determining if a person is likely to become a public
charge. 8 U.S.C. § 1182(a)(4)(B).
Responding to the 1996 act, INS published the 1999
Field Guidance to “establish clear standards governing
a determination that an alien is inadmissible or ineligible to adjust status . . . on public charge grounds.”
64 Fed. Reg. at 28,689. In the 1999 Field Guidance,
INS defined “public charge” as “an alien . . . who is
likely to become (for admission/adjustment purposes)
primarily dependent on the government for subsistence,
as demonstrated by either (i) the receipt of public cash
assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” Id.
(internal quotation marks omitted). The 1999 Field
Guidance made clear that the public-charge determination remained a “totality of the circumstances test.”
Id. at 28,690. Within this totality-of-the-circumstances
assessment, only the receipt of “cash public assistance
for income maintenance” should be considered; “receipt
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of non-cash benefits or the receipt of special-purpose
cash benefits not for income maintenance should not be
taken into account.” Id. The 1999 Field Guidance
thus largely reaffirmed INS’s 1987 rule. For the past
twenty years, the 1999 Field Guidance has governed,
until it was replaced by the Final Rule.
So what to make of this history? Unlike the district
courts, we are unable to discern one fixed understanding
of “public charge” that has endured since 1882. If anything has been consistent, it is the idea that a totalityof-the-circumstances test governs public-charge determinations. But different factors have been weighted
more or less heavily at different times, reflecting changes
in the way in which we provide assistance to the needy.
Initially, the likelihood of being housed in a government
or charitable institution was most important. Then,
the focus shifted in 1948 to whether public benefits received by an immigrant could be monetized, and the immigrant refused to pay for them. In 1974, it shifted
again to whether the immigrant was employable and
self-sufficient. That was subsequently narrowed in
1987 to whether the immigrant had received public cash
assistance, which excluded in-kind benefits. Congress
then codified particular factors immigration officers
must consider, which was followed by the 1999 Field
Guidance’s definition of “public charge.” In short, we
find that the history of the use of “public charge” in federal immigration law demonstrates that “public charge”
does not have a fixed, unambiguous meaning. Rather,
the phrase is subject to multiple interpretations, it in
fact has been interpreted differently, and the Executive
Branch has been afforded the discretion to interpret it.
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Congress simply has not spoken to how “public
charge” should be defined. We must presume that
when Congress enacted the current version of the INA
in 1996, it was aware of the varying historical interpretations of “public charge.” See Forest Grove Sch. Dist.
v. T.A., 557 U.S. 230, 239-40 (2009). Yet Congress
chose not to define “public charge” and, instead, described various factors to be considered “at a minimum,”
without even defining those factors. It is apparent that
Congress left DHS and other agencies enforcing our immigration laws the flexibility to adapt the definition of
“public charge” as necessary.
(3) Other Factors. Both district courts found it significant that Congress twice considered, but failed to enact, a definition of “public charge” that is similar to the
definition adopted in the Final Rule. City & Cty. of
San Francisco, 2019 WL 5100718 at *27; Washington,
2019 WL 5100717, at *17. During the debates over
IIRIRA in 1996, Congress considered whether to enact
the following definition of “public charge”: “the term
‘public charge’ includes any alien who receives [certain
means-tested] benefits . . . for an aggregate period
of at least 12 months or 36 months” in some cases. 142
Cong. Rec. 24,313, at 24,425 (1996). Senator Leahy argued that this was “too quick to label people as public
charges for utilizing the same public assistance that
many Americans need to get on their feet,” and that the
phrase “means tested” was “unnecessarily uncertain.”
S. Rep. No. 104-249, at 63-64 (1996). Nevertheless, the
Senate passed the bill containing the definition of “public charge.” Before the House considered the bill, however, President Clinton implicitly threatened to veto it
75a
because it went “too far in denying legal immigrants access to vital safety net programs which could jeopardize
public health and safety.” Statement on Senate Action
on the “Immigration Control and Financial Responsibility Act of 1996,” 32 Weekly Comp. Pres. Doc. 783 (May
6, 1996). Ultimately, Congress chose not to enact this
“public charge” definition. In 2013, the Senate rejected an amendment to the INA that “would have expanded the definition of ‘public charge’ such that people
who received non-cash health benefits could not become
legal permanent residents. This amendment would also
have denied entry to individuals whom the Department
of Homeland Security determines are likely to receive
these types of benefits in the future.” S. Rep. No. 11340, at 63 (2013).
The district courts viewed these failed legislative efforts as evidence that Congress specifically rejected the
interpretation of “public charge” DHS articulated in the
Final Rule, and that the Final Rule is thus an impermissible reading of the INA. City & Cty. of San Francisco, 2019 WL 5100718, at *27; Washington, 2019 WL
5100717, at *17. We disagree. If this legislative history is probative of anything, it is probative only of the
fact that Congress chose not to codify a particular interpretation of “public charge.” 14 See Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511
U.S. 164, 184 (1994) (“[F]ailed legislative proposals are
Sometimes it is appropriate to consider language Congress has
rejected, primarily when Congress rejected language in favor of
the statute adopted and under review. See, e.g., INS v. CardozaFonseca, 480 U.S. 421, 441-42 (1987) (contrasting Congress’s decision to adopt the House proposal over the Senate version).
14
76a
a particularly dangerous ground on which to rest an interpretation of a prior statute.” (quotation marks and
citation omitted)). But the failure of Congress to compel DHS to adopt a particular rule is not the logical
equivalent of forbidding DHS from adopting that rule.
The failure to adopt a new rule is just that: no new
rule. 15 And no change to § 212 means that consular officers, the Attorney General, and DHS retain all the discretion granted them in the INA.
A second argument made by the States and relied
upon by the Eastern District of Washington is that DHS
exceeded its authority by determining what makes a
person “self-sufficient.” Washington, 2019 WL 5100717,
at *17-18. This argument is refuted by the statute itself. As we have discussed, the INA requires immigration officers to consider an alien’s “health,” “family status,” “assets, resources, [] financial status,” “education
and skills.” 8 U.S.C. § 1182(a)(4)(B)(i)(II)-(V). The
concept of self-sufficiency is subsumed within each of
these factors. And even if it were not, the statutory
factors are not exhaustive; DHS may add to them. See
We can speculate as to the reasons that members of Congress
declined to adopt these legislative proposals, but the speculation will
not help us. “A bill can be proposed for any number of reasons, and
it can be rejected for just as many others.” Solid Waste Agency of
N. Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159, 170
(2001). Although some members may have thought the rule too
harsh, others may have thought it too lenient, while a third group
may have thought the rule should be left flexible and in the hands of
the immigration agencies. If anything, this legislative history proves
only that Congress decided not to constrain the discretion of agencies in determining who is a public charge. That discretion had long
been vested in the agencies, and these failed legislative efforts did
not alter that discretion.
15
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id. § 1182(a)(4)(B)(i). Because DHS has been “charged
with the administration and enforcement” of all “laws
relating to the immigration and naturalization of aliens,”
Id. § 1103(a)(1); see also 6 U.S.C. § 112(b)(1), determining what constitutes self-sufficiency for purposes of the
public-charge assessment is well within DHS’s authority. 16
* * *
In short, Congress has not spoken directly to the interpretation of “public charge” in the INA. Nor did it
unambiguously foreclose the interpretation articulated
in the Final Rule. Instead, the phrase “public charge”
is ambiguous under Chevron. DHS has the authority
to interpret it and “must consider varying interpretations and the wisdom of its policy on a continuing basis.”
Chevron, 467 U.S. at 863-64. Indeed, “the fact that the
agency has adopted different definitions in different
The Eastern District of Washington also held that, because the
states have a “central role in formulation and administration of health
care policy,” DHS “acted beyond its Congressionally delegated authority” when it adopted the Final Rule. Washington, 2019 WL
5100717, at *18; see also id. (“Congress cannot delegate authority
that the Constitution does not allocate to the federal government in
the first place. . . . ”). Congress, of course, has plenary authority to regulate immigration and naturalization. U.S. CONST. art. I,
§ 8, cl. 4. Pursuant to that authority, Congress adopted the “public
charge” rule, which no one has challenged on constitutional grounds.
Further, Congress has authorized DHS to adopt regulations. 8
U.S.C. § 1103(a)(3). DHS thus did not overstep its authority by
promulgating the Final Rule. Indeed, under the district court’s
analysis, even the 1999 Field Guidance might be unconstitutional.
But neither the district court nor the States question the lawfulness
of the 1999 Field Guidance. We see no meaningful difference between INS’s authority to promulgate the 1999 Field Guidance and
DHS’s authority to adopt the Final Rule.
16
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contexts adds force to the argument that the definition
itself is flexible, particularly since Congress has never
indicated any disapproval of a flexible reading of the
statute.” Id. at 864. We thus proceed to the second
step of the Chevron analysis.
b.
Chevron Step 2
At Chevron’s second step, we ask whether the
agency’s interpretation is “reasonable—or ‘rational and
consistent with the statute.’ ” Diaz-Quirazco v. Barr,
931 F.3d 830, 840 (9th Cir. 2019) (quoting Sullivan v.
Everhart, 494 U.S. 83, 89 (1990)). If it is, we must defer
to it, “even if the agency’s reading differs from what the
court believes is the best statutory interpretation.”
Perez-Guzman v. Lynch, 835 F.3d 1066, 1073-74 (9th
Cir. 2016) (quoting Brand X, 545 U.S. at 980).
The Final Rule easily satisfies this test. As we have
explained, the INA grants DHS considerable discretion
to determine if an alien is likely to become a public
charge. To be sure, under the Final Rule, in-kind benefits (other than institutionalization) will for the first
time be relevant to the public-charge determination.
We see no statutory basis from which a court could conclude that the addition of certain categories of in-kind
benefits makes DHS’s interpretation untenable. 17 And
Cash benefits and in-kind benefits are often treated under
the single rubric of a “direct subsidy.” Witters v. Wash. Dep’t of
the Servs. for the Blind, 474 U.S. 481, 487 (1986). In certain contexts, such as settlement, “compensation in kind is worth less than
cash of the same nominal value,” In re Mex. Transfer Litig., 267 F.3d
743, 748 (9th Cir. 2001), but the Final Rule does not deal with the
valuation of such services. It deals only with whether in-kind benefits have been received under certain specified programs.
17
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whether the change in policy results from changing circumstances or a change in administrations, the wisdom
of the policy is not a question we can review. See Brand
X, 545 U.S. at 981.
Our conclusion is reinforced by the Personal Responsibility and Work Opportunity Reconciliation Act of
1996 (PRWORA), which Congress enacted contemporaneous with IIRIRA. PRWORA set forth our “national
policy with respect to welfare and immigration.” 8 U.S.C.
§ 1601. In relevant part, PRWORA provides, “Selfsufficiency has been a basic principle of United States
immigration law since this country’s earliest immigration statutes.” Id. § 1601(1). As a result, “[i]t continues to be the immigration policy of the United States
that . . . aliens within the Nation’s borders not depend on public resources to meet their needs, but rather
rely on their own capabilities and the resources of their
families, their sponsors, and private organizations.”
Id. § 1601(2). Receipt of non-cash public assistance is
surely relevant to “self-sufficiency” and whether immigrants are “depend[ing] on public resources to meet
their needs.” See id. § 1601(1)-(2); see also Korab v.
Fink, 797 F.3d 572, 580 (9th Cir. 2014). PRWORA thus
lends support to DHS’s interpretation of the INA.
We conclude that DHS’s interpretation of “public
charge” is a permissible construction of the INA.
2.
The Rehabilitation Act
The States argue, and the Eastern District of Washington found, that the Final Rule is inconsistent with the
Rehabilitation Act. Washington, 2019 WL 5100717, at
*18. The Northern District of California rejected that
argument. City & Cty. of San Francisco, 2019 WL
80a
5100718, at *29-30. The Rehabilitation Act provides:
“No otherwise qualified individual with a disability in
the United States . . . shall, solely by reason of her
or his disability, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination
under any program or activity . . . conducted by any
Executive agency.” 29 U.S.C. § 794(a). “Program or
activity” is defined as “all of the operations of . . .
[an] agency.” Id. § 794(b).
This argument need not detain us long. First, under the INA, immigration officers are obligated to consider an immigrant’s “health” when making the publiccharge determination. 8 U.S.C. § 1182(a)(4)(B)(i)(II).
To the extent that inquiry may consider an alien’s disability, the officers have been specifically directed by
Congress to do so. Indeed, Congress’s express direction that immigration officers consider an alien’s “health”
came twenty-three years after the Rehabilitation Act.
We cannot see how a general provision in one statute
constrains an agency given a specific charge in a subsequent law. The INA does not violate the Rehabilitation
Act. Second, nothing in the Final Rule changes DHS’s
practice with respect to considering an alien’s health.
Nothing in the Final Rule suggests that aliens will be
denied admission or adjustment of status “solely by reason of her or his disability.” Throughout the Final
Rule, DHS confirms that the public-charge determination is a totality-of-the-circumstances test. See 84 Fed.
Reg. at 41,295, 41,368.
And DHS specifically addressed this argument in the Final Rule: “it is not the
intent, nor is it the effect of this rule to find a person a
public charge solely based on his or her disability.” Id.
81a
at 41,368. DHS has shown a strong likelihood that the
Final Rule does not violate the Rehabilitation Act.
* * *
In sum, DHS is likely to succeed in its argument that
the Final Rule should not be set aside as contrary to law.
We will not minimize the practical impact of the Final
Rule, but we will observe that it is a short leap in logic
for DHS to go from considering in-cash public assistance to considering both in-cash and in-kind public assistance. DHS has shown that there is a strong likelihood that its decision to consider the receipt of in-kind
government assistance as part of its totality-of-thecircumstances test is a r
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