City and County of San Francisco et al v. U.S. Citizenship and Immigration Services et al

Filing 115

PRELIMINARY INJUNCTIONAssociated Cases: 4:19-cv-04717-PJH, 4:19-cv-04975-PJH, 4:19-cv-04980-PJH(pjhlc1S, COURT STAFF) (Filed on 10/11/2019)

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 1 of 93

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CITY AND COUNTY OF SAN
FRANCISCO, et al.,
Plaintiffs,

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Case No. 19-cv-04717-PJH
Case No. 19-cv-04975-PJH
Case No. 19-cv-04980-PJH
Related Cases

v.

United States District Court
Northern District of California

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U.S. CITIZENSHIP AND IMMIGRATION
SERVICES, et al.,

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Defendants.
STATE OF CALIFORNIA, et al.,

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PRELIMINARY INJUNCTION

Plaintiffs,
v.
U.S. DEPARTMENT OF HOMELAND
SECURITY, et al.,
Defendants.

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LA CLINICA DE LA RAZA, et al.,
Plaintiffs,

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v.
DONALD J. TRUMP, et al.,
Defendants.
This order concerns three motions for a preliminary injunction filed in three related

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actions. Each of the plaintiffs in those actions moved for preliminary injunctive relief. The

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motions came on for hearing before this court on October 2, 2019.

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Plaintiff the City and County of San Francisco (“San Francisco”) appeared through

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 2 of 93

its counsel, Matthew Goldberg, Sara Eisenberg, and Yvonne Mere. Plaintiff the County

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of Santa Clara (“Santa Clara” and together with San Francisco, the “Counties”) appeared

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through its counsel, Ravi Rajendra, Laura Trice, and Luke Edwards. Plaintiffs the State

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of California, District of Columbia, State of Maine, Commonwealth of Pennsylvania, and

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State of Oregon (together, including D.C., the “States”) appeared through their counsel,

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Anna Rich, Lisa Cisneros, and Brenda Ayon Verduzco. Plaintiffs La Clinica De La Raza

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and California Primary Care Association (the two together are the “Healthcare

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Organizations”), Maternal and Child Health Access, Farmworker Justice, Council on

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American Islamic Relations-California, African Communities Together, Legal Aid Society

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of San Mateo County, Central American Resource Center, and Korean Resource Center

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United States District Court
Northern District of California

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(the “Legal Organizations”) (the Legal Organizations and the Healthcare Organizations

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together are the “Organizations”) appeared through their counsel, Alvaro Huerta,

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Nicholas Espiritu, Joanna Cuevas Ingram, Kevin Herrera, Tanya Broder, Max Wolsen,

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and Mayra Joachin.

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Defendants U.S. Citizenship and Immigration Services (“USCIS”), Department of

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Homeland Security (“DHS”), Kevin McAleenen as Acting Secretary of DHS, Kenneth T.

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Cuccinelli as Acting Director of USCIS, and Donald J. Trump, as President of the United

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States appeared through their counsel, Ethan Davis, Eric Soskin, and Kuntal Cholera.

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Additionally, papers submitted by numerous amici curiae were before the court.

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Prior to the hearing, the court granted motions to file amicus briefs on behalf of the

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following non-parties, all of which the court considered in its analysis: American Public

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Health Association, et al.; Asian Americans Advancing Justice, et al.; City of Los Angeles,

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et al.; Justice in Aging, et al.; and Members of Congress. A number of other requests to

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file amici briefs were denied due to the court’s insufficient time to consider them on this

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particular motion, given the already-voluminous filings from the parties, the briefing

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schedule, and the time-sensitive nature of plaintiffs’ request for preliminary relief.

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Having read the papers filed by the parties and carefully considered their
arguments and the relevant legal authority, and good cause appearing, the court hereby
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Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 3 of 93

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GRANTS CERTAIN PLAINTIFFS’ MOTIONS AND ISSUES A PRELIMINARILY

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INJUNCTION, the scope of which is discussed below, for the following reasons.

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EXECUTIVE SUMMARY

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In 1883, Emma Lazarus penned the now-famous sonnet, The New Colossus.

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Later affixed to the Statue of Liberty in New York Harbor, the poem has been

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incorporated into the national consciousness as a representation of the country’s promise

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to would-be immigrants:

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Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.

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United States District Court
Northern District of California

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"Keep, ancient lands, your storied pomp!" cries she
With silent lips. "Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!"

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But whether one would prefer to see America’s borders opened wide and

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welcoming, or closed because the nation is full, laws—not poetry—govern who may

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enter. And the year before Lazarus wrote The New Colossus, Congress had enacted its

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first comprehensive immigration law, barring entry to “any convict, lunatic, idiot, or any

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person unable to take care of himself or herself without becoming a public charge,”

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among others. An Act to Regulate Immigration, 22 Stat. 214, Chap. 376 § 2. (1882).

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Although various iterations of similar laws have since come and gone (the operative

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statute no longer refers to “lunatics” or “idiots”), since the very first immigration law in

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1882, this country has consistently excluded those who are likely to become a “public

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charge.”
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Although Congress has never authored an explicit definition of the term, courts

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and the executive branch have been considering its meaning as used in the statute for

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over one hundred and twenty years. As interpretations from those two branches

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accreted toward a consistent understanding, Congress repeatedly enacted statutes

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adopting the identical phrase.
In 1999, the executive branch reviewed its historical application of the term and

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issued formal guidance to executive employees, explaining that the public charge

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determination has historically, and should continue to, focus on whether an individual is

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primarily dependent on the government for subsistence.
In 2018, DHS published a new rule (scheduled to take effect October 15, 2019)

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United States District Court
Northern District of California

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that proposed to dramatically expand the definition of “public charge.” Rather than

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include only those who primarily depend on the government for subsistence, DHS now

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proposes for the first time to categorize as a public charge every person who receives 12

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months of public benefits (including many in-kind benefits, like Medicaid and SNAP/Food

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Stamps) over any 36-month period, regardless of how valuable those benefits are, or

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how much they cost the government to provide (receiving two types of benefits in one

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month would count as receiving benefits for two months).
Today, the court is presented with a challenge to DHS’s new definition. The

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plaintiffs seek to prevent defendants from implementing it before this court can consider

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this case on the merits. The plaintiffs argue that the new definition will lead to

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widespread disenrollment1 from public benefits by those who fear being labeled a public

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charge (and by those confused that they may be swept up in the rule), which will cause

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plaintiffs to lose a substantial amount funding (for example, the federal government

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heavily subsidizes state expenses for those enrolled in Medicaid).
The court finds that the plaintiffs are likely to prevail on the merits, for numerous

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When plaintiffs refer to harms caused by those who will disenroll from public benefits in
addition to those who will forego enrollment. This order considers the two categories
together, and refers to them interchangeably.
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reasons. DHS’s new definition of “public charge” is likely to be outside the bounds of a

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reasonable interpretation of the statute. Moreover, plaintiffs are likely to prevail on their

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entirely independent arguments that defendants acted arbitrarily and capriciously during

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the legally-required process to implement the changes they propose. Because plaintiffs

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are likely to prevail and will be irreparably harmed if defendants are permitted to

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implement the rule as planned on October 15, this court will enjoin implementation of the

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rule in the plaintiff states until this case is resolved on the merits, as discussed in more

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detail below.
BACKGROUND

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In each of the actions before the court, the plaintiffs challenge and seek to

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United States District Court
Northern District of California

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preliminarily enjoin implementation of a proposed rule entitled “Inadmissibility on Public

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Charge Grounds,” proposed by DHS and published in the Federal Register on August 14,

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2019. See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (August 14,

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2019) (“the Rule”). The Rule is scheduled to take effect nationwide on October 15, 2019.

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A.

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The Three Actions
In City and County of San Francisco v. U.S. Citizenship and Immigration Services,

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Case No. 19-cv-04717-PJH, San Francisco and Santa Clara (together, the “Counties”)

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filed a complaint naming as defendants USCIS; DHS; McAleenen as Acting Secretary of

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DHS; and Cuccinelli as Acting Director of USCIS. The complaint asserts two causes of

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action under the Administrative Procedure Act (“APA”): (1) Violation of APA, 5 U.S.C.

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§ 706(2)(A)—Not in Accordance with Law; and (2) Violation of APA, 5 U.S.C.

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§ 706(2)(A)—Arbitrary, Capricious, and Abuse of Discretion. The Counties filed the

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present motion for preliminary injunction on August 28, 2019.

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In State of California v. U.S. Department of Homeland Security, Case No. 19-cv-

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04975-PJH, the States filed a complaint naming the same defendants as the Counties:

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USCIS; DHS; McAleenen as Acting Secretary of DHS; and Cuccinelli as Acting Director

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of USCIS. The complaint asserts six causes of action: (1) Violation of APA, 5 U.S.C.

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§ 706—Contrary to Law, the Immigration and Nationality Act and the Illegal Immigration
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Reform and Immigrant Responsibility Act; (2) Violation of APA, 5 U.S.C. § 706—Contrary

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to Law, Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794 (the

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“Rehabilitation Act”); (3) Violation of APA, 5 U.S.C. § 706—Contrary to Law, State

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Healthcare Discretion; (4) Violation of APA, 5 U.S.C. § 706—Arbitrary and Capricious;

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(5) Violation of the Fifth Amendment’s Due Process clause requiring Equal Protection

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based on race; (6) Violation of the Fifth Amendment’s Due Process clause, based on a

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violation of Equal Protection principles based on unconstitutional animus. The States

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filed the present motion for preliminary injunction on August 26, 2019. On August 27,

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2019, this court ordered the action brought by the States related to the action brought by

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the Counties.

United States District Court
Northern District of California

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In La Clinica De La Raza v. Trump, Case No. 19-cv-04980-PJH, the Organizations

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filed a complaint naming the same defendants as the Counties, and also added Donald J.

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Trump: USCIS; DHS; McAleenen as Acting Secretary of DHS; and Cuccinelli as Acting

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Director of USCIS; and Donald J. Trump, as President of the United States. The

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complaint asserts four causes of action: (1) Violation of APA, 5 U.S.C. § 706—Contrary

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to the Statutory Scheme; (2) Violation of APA, 5 U.S.C. § 706—Arbitrary, Capricious, or

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otherwise not in accordance with law; (3) Violation of the Fifth Amendment based on

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Equal Protection for discriminating against non-white immigrants; (4) under the

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Declaratory Judgment Act, seeking a determination that the Rule is invalid because it

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was issued by an unlawfully-appointed agency director. On August 30, 2019, this court

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ordered the action brought by the Organizations related to the action brought by the

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Counties. The Organizations filed the present motion for preliminary injunction on

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September 4, 2019.

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B.

The Dispute

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The Immigration and Nationality Act, 8 U.S.C. §§ 1101, et seq. (“INA”), requires

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that all noncitizens seeking to be lawfully admitted into the United States or to become

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lawful permanent residents (“LPRs”) prove they are not inadmissible. 8 U.S.C. § 1361; 8

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U.S.C. § 1225(a). A noncitizen may be deemed inadmissible on any number of grounds,
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including that they are “likely at any time to become a public charge.” 8 U.S.C.

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§ 1182(a)(4)(A).
The specific INA provision relating to whether an alien is likely to become a “public

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charge” at issue in this litigation provides, in relevant part:

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Except as otherwise provided in this chapter, aliens who are
inadmissible under the following paragraphs are ineligible to
receive visas and ineligible to be admitted to the United States:
....
(4) Public charge

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(A) In general

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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.

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United States District Court
Northern District of California

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(B) Factors to be taken into account

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(i) In determining whether an alien is
inadmissible under this paragraph, the
consular officer or the Attorney General
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.

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(ii) In addition to the factors under clause
(i), the consular officer or the Attorney
General may also consider any affidavit of
support under section 1183a[2] of this title
for purposes of exclusion under this
paragraph.

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8 U.S.C. § 1182(a)(4).
The statute directs a “consular officer” or “the Attorney General” to form an opinion

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as to whether the applicant “is likely at any time to become a public charge.” Id. In

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Section 1183a is titled “Requirements for sponsor’s affidavit of support” and sets forth
the requirements of an “affidavit of support . . . to establish that an alien is not excludable
as a public charge under section 1182(a)(4) of this title[.]” 8 U.S.C. § 1183a(a)(1).
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forming that opinion, immigration officers must consider “at a minimum” five statutorily-

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defined factors: (1) age; (2) health; (3) family status; (4) assets, resources, and financial

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status; (5) education and skills. 8 U.S.C. § 1182(a)(4)(B)(i).

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An officer may additionally consider an affidavit of support, which is a legally-

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enforceable contract between the sponsor of the applicant and the Federal Government.

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See 8 U.S.C. § 1182(a)(4)(B)(ii); 8 U.S.C. § 1183a(a). The sponsor pledges to accept

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financial responsibility for the applicant and to maintain the applicant at an income of “not

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less than 125 percent of the Federal poverty line during the period in which the affidavit is

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enforceable[.]” 8 U.S.C. § 1183a(a)(1)(A).
Certain groups of noncitizens, such as asylum seekers and refugees, are not

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United States District Court
Northern District of California

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subject to exclusion based on an assessment that they are likely to become a public

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charge. See 8 U.S.C. § 1157 (refugee); 8 U.S.C. § 1158 (asylum); 8 U.S.C. § 1159(c)

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(refugee).

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An alien found to be inadmissible as a public charge may “be admitted in the

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discretion of the Attorney General . . . upon the giving of a suitable and proper bond or

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undertaking approved by the Attorney General, in such amount and containing such

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conditions as he may prescribe . . . holding the United States and all States . . . harmless

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against such alien becoming a public charge.” 8 U.S.C. § 1183.

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The public charge ground may arise when, inter alia, an alien seeks LPR status, or

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when noncitizens apply for visas. 8 U.S.C. § 1182(a); 8 U.S.C. § 1255(a). Aliens “to

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whom a permit to enter the United States has been issued to enter the United States” are

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also subject to an inadmissibility determination by DHS at ports of entry when they enter

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and re-enter the United States. 8 U.S.C. § 1185(d).

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Immigrants with LPR status may also be subject to the public charge analysis. For

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example, an LPR is considered to be “seeking admission” under various circumstances,

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for example when returning to the United States after being “absent from the United

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States for a continuous period in excess of 180 days” or after engaging in any “illegal

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activity after having departed the United States[.]” 8 U.S.C. § 1101(a)(13)(C)(ii)–(iii).
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LPRs can also be denied citizenship and/or placed in removal proceedings if DHS

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determines retrospectively that they were inadmissible as a public charge at the time of

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their adjustment. 8 U.S.C. § 1227(a)(1)(A); 84 Fed. Reg. at 41,328 & n.176 (discussing

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possible impact on naturalizations).
Under a separate provision in the INA, an alien can be deported upon a

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determination that he has in fact become a public charge since his admission, from

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causes “not affirmatively shown to have arisen since entry[.]” 8 U.S.C. 1227(a)(5).3
On October 10, 2018, DHS began the rule-making process to create a new

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framework for the public charge assessment by publishing a Notice of Proposed
Rulemaking. See Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (Oct.

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United States District Court
Northern District of California

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10, 2018) (the notice of proposed rulemaking is the “NPRM”). The NPRM provided a 60-

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day public comment period, during which 266,077 comments were collected. See 84

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

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Register. Id. at 41,292. It is set to become effective on October 15, 2019. On October 2,

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2019—the morning of the hearing on the pending motions for preliminary injunction—

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DHS published a 25-page list of “corrections” to the proposed final rule.4 See Case No.

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19-cv-04717-PJH, Dkt. 106, Ex. A. DHS stated that its October 2 amendments to the

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rule would not delay its planned implementation on October 15.
The Rule sets out what the parties have referred to as the “12/36 standard.” That

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is, the Rule “redefines the term ‘public charge’ to mean an alien who receives one or

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more designated public benefits for more than 12 months in the aggregate within any 36-

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Confusingly, DHS’s Rule would use completely distinct definitions for the term “public
charge” when assessing whether an alien “has become a public charge” (8 U.S.C.
1227(a)(5)) and whether an alien “is likely at any time to become a public charge” (8
U.S.C. 1182(a)(4)(A).
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Although defendants described the changes as fixes to “technical and typographical
errors” (Case No. 19-cv-04717-PJH, Dkt. 106, Ex. A at 2), the States argued at the
hearing that upon their limited review of the corrections (a review that was necessarily
limited given the eleventh-hour disclosure of DHS’s changes to the rule), the
amendments mooted at least one issue underlying the States’ motion, regarding
treatment of military families.
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month period (such that, for instance, receipt of two benefits in one month counts as two

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months). This Rule defines the term ‘public benefit’ to include cash benefits for income

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maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the

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Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance,

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and certain other forms of subsidized housing.” 84 Fed. Reg. at 41,295.
Because the INS directs immigration officers to opine as to whether an alien “is

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likely at any time to become a public charge,” the Rule’s new definition requires

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immigration officers to opine as to whether an alien is likely to receive certain public

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benefits for more than 12 months in the aggregate within any future 36-month period to
determine whether he is likely to become a public charge. The rule sets out a number of

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United States District Court
Northern District of California

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positive, negative, heavily-weighted, and normally-weighted factors to assist in making

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that determination, and those factors are considered as part of a “totality of the

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circumstances” assessment of whether an alien is likely to use more than 12 months’

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worth of benefits in any future 36-month period.
DISCUSSION

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A.

Legal Standard
Federal Rule of Civil Procedure 65 provides federal courts with the authority to

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issue preliminary injunctions. Fed. R. Civ. P. 65(a). Generally, the purpose of a

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preliminary injunction is to preserve the status quo and the rights of the parties until a

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final judgment on the merits can be rendered. See U.S. Philips Corp. v. KBC Bank N.V.,

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590 F.3d 1091, 1094 (9th Cir. 2010).

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An injunction is a matter of equitable discretion and is “an extraordinary remedy

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that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”

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Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); see also Munaf v. Geren,

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553 U.S. 674, 689–90 (2008). A preliminary injunction “should not be granted unless the

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movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong,

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520 U.S. 968, 972 (1997) (per curiam).

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“A plaintiff seeking a preliminary injunction must establish that [1] he is likely to
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succeed on the merits, that [2] he is likely to suffer irreparable harm in the absence of

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preliminary relief, that [3] the balance of equities tips in his favor, and that [4] an

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injunction is in the public interest.” Winter, 555 U.S. at 20.
Alternatively, “‘serious questions going to the merits’ and a hardship balance that

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tips sharply toward the plaintiff can support issuance of an injunction, assuming the other

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two elements of the Winter test are also met.” All. for the Wild Rockies v. Cottrell, 632

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F.3d 1127, 1132 (9th Cir. 2011). “That is, ‘serious questions going to the merits’ and a

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

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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.” Id. at 1135; see also

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United States District Court
Northern District of California

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Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017).

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If a plaintiff satisfies its burden to demonstrate that a preliminary injunction should

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issue, “injunctive relief should be no more burdensome to the defendant than necessary

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to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702

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(1979).
Separately, the APA permits this court to “postpone the effective date of action . . .

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pending judicial review.” 5 U.S.C. § 705; Bakersfield City Sch. Dist. of Kern Cty. v.

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Boyer, 610 F.2d 621, 624 (9th Cir. 1979) (“The agency or the court may postpone or stay

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agency action pending such judicial review.”) (citing 5 U.S.C. § 705). Any such

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postponement must be made “[o]n such conditions as may be required and to the extent

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necessary to prevent irreparable injury[.]” 5 U.S.C. § 705. The factors considered when

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issuing such a stay substantially overlap with the Winter factors for a preliminary

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injunction. See, e.g., Bauer v. DeVos, 325 F. Supp. 3d 74, 104–07 (D.D.C. 2018).

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B.

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Analysis
In considering plaintiffs’ motions for preliminary injunction, the court considers the

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Winter factors (and the alternative All. for the Wild Rockies) factors in turn. First, the

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court considers whether plaintiffs have demonstrated they are likely to succeed on the

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merits of their claims, or alternatively whether they have demonstrated serious questions
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going to the merits. Because a plaintiff must be within a statute’s “zone of interest” to

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succeed on an APA challenge based on the underlying statute, the court considers

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whether each plaintiff is within the relevant statute’s zone of interests when assessing its

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likelihood of success on the merits.
Second, the court considers whether plaintiffs have demonstrated they are likely to

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suffer irreparable harm in the absence of preliminary relief. Because plaintiffs’ alleged

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irreparable harms are also their alleged bases for standing, the court considers whether

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each plaintiff has standing to bring a ripe claim when assessing its irreparable harms.
Third, the court considers whether plaintiffs have demonstrated that the balance of

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equities tip in their favor, and whether the balance of hardships tip sharply in their favor.
Fourth, the court considers whether plaintiffs have demonstrated that an injunction

United States District Court
Northern District of California

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is in the public interest.
Fifth, the court addresses the scope of injunctive relief necessary and capable of

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providing complete relief to the harms plaintiffs have demonstrated they are likely to

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suffer prior to a determination on the merits, absent such relief.
1.

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The State and County Plaintiffs Are Likely to Succeed on the Merits
and Have Raised Serious Questions

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Plaintiffs argue that they are likely to succeed on three of their causes of action,

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each alleging a violation of the APA: (1) that the Rule violates the APA because it is not

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in accordance with the term “public charge” as used in the INA; (2) that the Rule violates

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the APA because it is not in accordance with the Rehabilitation Act § 504; and (3) that the

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Rule violates the APA because it is arbitrary, capricious, and an abuse of discretion.5

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Under the APA, “the reviewing court shall decide all relevant questions of law,

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interpret constitutional and statutory provisions, and determine the meaning or

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Although some of the arguments supporting these claims are likely to overlap with other
claims plaintiffs assert, plaintiffs have made clear that they are not moving for a
preliminarily injunction based on any other claim, including, inter alia, the claim that the
Rule violates the APA because it is contrary to laws giving the States discretion with
respect to the provision of healthcare, the claim under the declaratory judgment act that
Cuccinelli was unlawfully appointed, or any of the asserted Constitutional claims.
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applicability of the terms of an agency action. The reviewing court shall . . . hold unlawful

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and set aside agency action, findings, and conclusions found to be . . . arbitrary,

3

capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C.

4

§ 706.

5

“In the usual course, when an agency is authorized by Congress to issue

6

regulations and promulgates a regulation interpreting a statute it enforces, the

7

interpretation receives deference if the statute is ambiguous and if the agency’s

8

interpretation is reasonable. This principle is implemented by the two-step analysis set

9

forth in Chevron.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124 (2016)
(citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)).

11

United States District Court
Northern District of California

10

“At the first step, a court must determine whether Congress has ‘directly spoken to the

12

precise question at issue.’ If so, ‘that is the end of the matter; for the court, as well as the

13

agency, must give effect to the unambiguously expressed intent of Congress.’ If not,

14

then at the second step the court must defer to the agency's interpretation if it is

15

‘reasonable.’” Encino Motorcars, 136 S. Ct. at 2124–25 (citations omitted) (quoting

16

Chevron, 467 U.S. at 842–44).

17

“[I]f the statute is silent or ambiguous with respect to the specific issue, the

18

question for the court is whether the agency's answer is based on a permissible

19

construction of the statute.” Chevron, 467 U.S. at 843; see also Michigan v. E.P.A., 135

20

S. Ct. 2699, 2707 (2015) (“Even under this deferential standard, however, agencies must

21

operate within the bounds of reasonable interpretation.”) (internal quotation marks

22

omitted).

23

The Chevron analysis calls upon the court to “employ[] traditional tools of statutory

24

construction” to fulfill its role as “the final authority on issues of statutory construction[.]”

25

Chevron, 467 U.S. at 843 n.9; accord Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630

26

(2018).

27
28

“Chevron deference, however, is not accorded merely because the statute is
ambiguous and an administrative official is involved. To begin with, the rule must be
13

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 14 of 93

1

promulgated pursuant to authority Congress has delegated to the official.” Gonzales v.

2

Oregon, 546 U.S. 243, 258 (2006). “The starting point for this inquiry is, of course, the

3

language of the delegation provision itself. In many cases authority is clear because the

4

statute gives an agency broad power to enforce all provisions of the statute.” Id. (drawing

5

a distinction between delegation of authority to carry out the act generally, and authority

6

to execute the functions assigned to the agency).

7

First, the court assesses whether plaintiffs are likely to succeed on their claims

8

under the APA that the Rule is not in accordance with law, as provided in 8 U.S.C.

9

§ 1182(a)(4). Second, the court assesses whether plaintiffs are likely to succeed on their
claims under the APA that the Rule is not in accordance with law, as provided in the

11

United States District Court
Northern District of California

10

Rehabilitation Act § 504. Third, the court assess whether plaintiffs are likely to succeed

12

on their claims under the APA, that the Rule is arbitrary and capricious. Fourth, the court

13

assesses whether each plaintiff is within the relevant zone of interests, which is required

14

to succeed on an APA claim.

15

a.

16

Not in Accordance with Law—8 U.S. Code § 1182(a)(4)

Plaintiffs argue that the Rule is not in accordance with the definition of “public

17

charge” as used in 8 U.S. Code § 1182(a)(4) for three reasons: (1) DHS’s interpretation

18

should not be accorded any deference, and the Rule’s definition is inconsistent with the

19

statute; (2) even if the term is accorded deference, the term plainly and unambiguously

20

means “primarily dependent on the government for subsistence,” and the Rule conflicts

21

with that definition; and (3) the Rule’s definition of “public charge” is not reasonable or

22

based on a permissible construction of the statute.

23

The court did not understand plaintiffs to have raised the first argument in their

24

moving papers, although the Counties may have raised it obliquely in their reply. But the

25

court and defendants were surprised to learn at the hearing that plaintiffs were advancing

26

an argument that DHS’s promulgation of the Rule was wholly outside of Congressionally-

27

delegated authority. Cf. Counties’ Reply at 8–9 (“Counties do not contest DHS’s

28

authority to issue rational regulations governing the case-by-case application of the
14

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 15 of 93

1

statutory standard, so long as they do not misconstrue the term ‘public charge.’”); States’

2

Reply at 9–10 (“the States have never disputed the commonsense point that Congress in

3

8 U.S.C. § 1182(a)(4)(A) assigned responsibility to Defendants to make individual public

4

charge determinations”); Organizations’ Reply at 9 (“even if Defendants were correct,

5

Congress could delegate to DHS the power only to adopt reasonable interpretations of

6

the statute”). Nevertheless, plaintiffs have not sufficiently supported, or even explained,

7

their argument to satisfy their burden to show likelihood of success on the merits based

8

on it.6 Accordingly, the court analyzes the Rule pursuant to the framework set out by

9

Chevron.
The second and third arguments concern a challenge under Chevron’s framework

10

United States District Court
Northern District of California

11

to the meaning of “public charge” as used in § 1182(a)(4). Plaintiffs’ second argument

12

requires the court to determine whether the Rule contravenes the statute’s unambiguous

13

meaning, and their third argument requires the court to determine whether defendants’

14

chosen definition is reasonable and based on a permissible construction of the statute.

15

Both questions require a discussion of the long usage of the term by Congress, as well

16

as the expansive evaluation of the term by courts and executive agencies.
As preface to that discussion, a brief outline helps set the stage. The phrase

17
18

“public charge” was used in this country’s first-ever general immigration statute in 1882.

19

The immigration statutes have been interpreted and modified many time since then, and

20

although many other excluded categories of persons came and went, with each

21

modification through today the phrase “public charge” remained intact. As a result, the

22

meaning that the persistent term had when first used is relevant to understanding the

23

meaning Congress ascribed to it with each subsequent statutory revision, including the

24

now-operative statute, which most recently saw changes to the relevant provisions in

25

1990 and 1996.

26
27
28

However, the court notes that whether DHS’s promulgation of the Rule falls within the
rulemaking authority delegated to it by Congress may benefit from more attention in the
parties’ future briefing on the merits. See generally 8 U.S.C. § 1103(a).
15
6

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 16 of 93

1

Ultimately, this dispute concerns the meaning of a statutory term passed in 1990—
with clarifying language passed in 1996. As such, the court considers the meaning

3

ascribed to the term by Congress at that time, but in doing so it must afford due

4

consideration to Congress’s understanding of the term given the long historical context it

5

was operating within, which the court presently endeavors to describe. See Forest Grove

6

Sch. Dist. v. T.A., 557 U.S. 230, 239–40 (2009) (“Congress is presumed to be aware of

7

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

8

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

9

580 (1978)); United States v. Argueta-Rosales, 819 F.3d 1149, 1159 (9th Cir. 2016)

10

(same); J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 951 (9th Cir. 2010) (Congress

11

United States District Court
Northern District of California

2

does no “abrogate[] sub silentio the Supreme Court’s decision[s]”); Bob Jones Univ. v.

12

United States, 461 U.S. 574, 600–01 (1983) (interpretation informed by the fact that

13

Congress had a “prolonged and acute awareness” of an established agency

14

interpretation of a statute, considered the precise issue, and rejected bills to overturn the

15

prevailing interpretation); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S.

16

353, 381–82 (1982) (Congress is aware “of the ‘contemporary legal context’ in which” it

17

legislates, and amending a statute while leaving certain statutory provisions intact “is

18

itself evidence that Congress affirmatively intended to preserve that” context); see also

19

I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987) (“Few principles of statutory

20

construction are more compelling than the proposition that Congress does not intend sub

21

silentio to enact statutory language that it has earlier discarded in favor of other

22

language.”); Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975) (rejecting

23

construction of statute that would implement substance of provision that Conference

24

Committee rejected).
1.

25
26

1882 Act

In 1882, Congress enacted the country’s first general immigration statute. See

27

An Act to Regulate Immigration, 22 Stat. 214 (1882) (the “1882 Act”). That statute

28

provided, in part:
16

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 17 of 93

1

That the Secretary of the Treasury . . . shall have power to . . .
provide for the support and relief of such immigrants therein
landing as may fall into distress or need public aid . . . and it
shall be the duty of such State . . . to examine into the condition
of passengers arriving at the ports . . . and if on such
examination there shall be found among such passengers any
convict, lunatic, idiot, or any person unable to take care of
himself or herself without becoming a public charge . . . such
persons shall not be permitted to land.

2
3
4
5
6

22 Stat. 214, Chap. 376 § 2.

7

Legislative debate on the 1882 Act shows that at least one member of Congress

8

sought to prevent foreign nations from “‘send[ing] to this country blind, crippled, lunatic,

9

and other infirm paupers, who ultimately become life-long dependents on our public

10

charities.’” 13 Cong. Rec. 5108-10 (June 19, 1882) (statement of Rep. Van Voorhis).

United States District Court
Northern District of California

11
12

The 1882 Act also imposed on each noncitizen who entered the United States a
50-cent head tax for the purpose of creating an “immigrant fund”:

13
That there shall be levied, collected, and paid a duty of fifty
cents for each and every passenger not a citizen of the United
States who shall come by steam or sail vessel from a foreign
port to any port within the United States. . . . The money thus
collected shall . . . constitute a fund to be called the immigrant
fund, and shall be used . . . to defray the expense of regulating
immigration under this act, and for the care of immigrants
arriving in the United States, for the relief of such as are in
distress[.]

14
15
16
17
18
19

22 Stat. 214, Chap. 376, § 1; see also Edye v. Robertson, 112 U.S. 580, 590–91 (1884)

20

(“This act of congress is similar, in its essential features, to many statutes enacted by

21

states of the Union for the protection of their own citizens, and for the good of the

22

immigrants who land at sea-ports within their borders. That the purpose of these statutes

23

is humane, is highly beneficial to the poor and helpless immigrant, and is essential to the

24

protection of the people in whose midst they are deposited by the steam-ships, is beyond

25

dispute.”).

26

Nineteenth-century dictionaries defined “charge” as “That which is enjoined,

27

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

28

be performed by the person entrusted” and “The person or thing committed to anothers
17

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 18 of 93

1

[sic] custody, care or management; a trust. Thus the people of a parish are called the

2

ministers charge.” Charge, Webster’s Dictionary (1828 Online Edition),

3

http://webstersdictionary1828.com/Dictionary/charge; Charge, Webster’s Dictionary

4

(1886 Edition), https://archive.org/details/websterscomplete00webs/page/218 (“person or

5

thing committed or intrusted [sic] to the care, custody, or management of another; a trust;

6

as, to abandon a charge”).7
Another contemporary source defines charge “In its general sense, a charge is an

7
8

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

9

town.” Stewart; Lawrence Rapalje, Robert L., Dictionary of American and English Law,

10

with Definitions of the Technical Terms of the Canon and Civil Laws (1888), at 196.
Prior to the 1882 Act’s enactment, states had played a larger role in immigration

United States District Court
Northern District of California

11
12

than they do today, and state governments had used and interpreted the term “public

13

charge,” although of course not in relation to any Congressional act.
For example, the New Jersey Supreme Court, when interpreting a statute

14
15

concerning the procedures to remove an individual from a township in New Jersey,

16

considered whether a pauper was “either chargeable, or likely to become chargeable, to

17

the township of Princeton.” Overseers of Princeton Twp. v. Overseers of S. Brunswick

18

Twp., 23 N.J.L. 169, 170 (Sup. Ct. 1851). Although the case does not make clear what

19

precise relief is necessary to qualify as a public charge, it contemplated that one became

20

a public charge upon seeking such relief from “the church wardens or overseers of the

21

poor[.]” Id. at 173. The concurrence clarified that an “application for relief” is distinct from

22

being “chargeable,” although “[t]he probability of his becoming chargeable is sufficiently

23

shown by his application for relief.” Id. at 179 (Carpenter, J. concurring). The case does

24
25
26
27
28

7

Defendants cite Frederic Jesup Stimson, Glossary of Technical Terms, Phrases, and
Maxims of the Common Law (1881), but that source does not provide a relevant
definition. The first-listed definition is the most plausibly-relevant: “A burden,
incumbrance, or lien; as when land is charged with a debt.” Id. at 56. But that definition
concerns how the word charge relates to real property, which makes sense because at
the time, “[m]ore frequently, however, charge is applied to property” as “a general term[.]”
Stewart; Lawrence Rapalje, Robert L., Dictionary of American and English Law, with
Definitions of the Technical Terms of the Canon and Civil Laws (1888), at 196.
18

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 19 of 93

1

not explain the type or quantum of relief necessary to constitute one’s status as a

2

“charge.”
Another state court opinion, People ex rel. Durfee v. Commissioners of Emigration,

3

27 Barb. 562, 1858 WL 7084 (N.Y. Sup. Ct. 1858), addressed a statute which

5

contemplated bonds being paid on behalf of immigrants, and required the commissioners

6

of immigration who held those bonds to “indemnify so far as may be the several cities,

7

towns and counties of the state, for any expense or charge which may be incurred for the

8

maintenance and support of the” immigrants. 27 Barb. at 570. The court held that the

9

statute required indemnification of all expenses made on behalf of the immigrants—

10

whether temporary or permanent—so long as the expenses were lawfully made. Id.

11

United States District Court
Northern District of California

4

However, the case did not draw a clean line holding that any expense spent on an

12

individual makes him a public charge. Rather, an equally-plausible reading of the opinion

13

is that the statute requires immunity of all expenses paid to support immigrants for whom

14

bonds have been paid, regardless of whether they are formally considered public

15

charges.8

16

City of Bos. v. Capen, 61 Mass. 116, 121 (1851) concerned a statute which

17

required a bond for someone likely to become a public charge. The court explained that

18

the statute described various categories of people identified as being at risk of becoming

19

a public charge, and for whom bond may be required. However, what assistance or

20

payment qualified one as a "public charge” was not addressed.9
As a whole, the statutory language and authority underlying the 1882 Act provide

21
22
23
24
25
26
27
28

The latter reading would be in accordance with the current interpretation of “public
charge” as used elsewhere in the INA, which requires an alien to be presented with a bill
and prove unable or unwilling to pay it to be deemed a public charge. E.g., Matter of B-,
3 I. & N. Dec. 323 (A.G. 1948); Field Guidance on Deportability and Inadmissibility on
Public Charge Grounds, 64 Fed. Reg. 28,689 (May 26, 1999); 84 Fed. Reg. at 41,295.
8

The opinion also suggested that those who were “paupers in a foreign land” must have
been “a public charge in another country,” and then stated without explanation that “the
word ‘paupers’ being used in this connection in its legal, technical sense.” Capen, 61
Mass. at 121. Even looking past the confusion, the court might be interpreted as finding
that all paupers have been public charges, but from that the conclusion cannot be drawn
that all public charges must have been paupers.
19
9

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 20 of 93

1

some clear guidance as to the definition of public charge. For example, the 1882 Act

2

contemplated that admitted aliens (not excluded on public charge grounds) would receive

3

some assistance from the state. That is made clear by the same statute’s establishment

4

of a fund “for the care of immigrants arriving in the United States, for the relief of such as

5

are in distress[.]” 22 Stat. 214, Chap. 376, § 1. Although the quantum of state support

6

necessary to render one a public charge is less clear, the 1882 Act did not consider an

7

alien a public charge for simply receiving some assistance from the state. Also, it

8

appears that contemporary uses of the term would deem one a public charge after taking

9

on a particular, chargeable debt from the state and failing to repay it.
2.

10

In 1891, Congress amended the 1882 Act. That amended statute provided, in

United States District Court
Northern District of California

11
12
13
14
15
16

1891

part:
That the following classes of aliens shall be excluded from
admission into the United States . . . : All idiots, insane persons,
paupers or persons likely to become a public charge, persons
suffering from a loathsome or a dangerous contagious disease,
persons who have been convicted of a felony or other infamous
crime or misdemeanor involving moral turpitude, polygamists,
and . . . .

17

An Act in Amendment to the Various Acts Relative to Immigration and the Importation of

18

Aliens Under Contract or Agreement to Perform Labor, 26 Stat. 1084, Chap. 551 (“1891

19

Act”) § 1 (1891).

20

The 1891 amendment also provided that “any alien who becomes a public charge

21

within one year after his arrival in the United States from causes existing prior to his

22

landing therein shall be deemed to have come in violation of law and shall be returned”

23

pursuant to the procedures outline in the statute regarding aliens entering unlawfully.

24

1891 Act § 11. So, the 1891 Act set out the now-familiar practice of subjecting aliens to

25

two “public charge” assessments—one in which the government is called on to make a

26

forward-looking prediction, and another in which the government is called on to make a

27

backward-looking assessment. The first asks at the time of entry whether the alien is

28

likely to become a public charge. The second asks whether, after some period of time,
20

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 21 of 93

1

the alien has in fact become a public charge due to causes existing before he arrived.

2

Although the relevant time periods of the assessments have grown, this scheme

3

generally remains in place today.

4

The 1891 Act made a notable change to the law by adding the category “pauper,”

5

and including the term pauper with “persons likely to become a public charge” to form a

6

single entry in an expanded list of excluded categories of people.

7

An early case interpreting the act considered whether “the act of 1891 confers

8

upon the inspection officer power to detain and send back an alien immigrant as being a

9

person liable to become a public charge, in the absence of any evidence whatever
tending to establish that fact.” In re Feinknopf, 47 F. 447, 448 (E.D.N.Y. 1891). Although

11

United States District Court
Northern District of California

10

it did not define the term “public charge” in the abstract, the court provided an explanation

12

given the facts before it that essentially laid out a totality-of-the-circumstances test. It

13

held that “[o]f course” the following facts, “if believed, would not warrant the conclusion

14

that the petitioner was a person likely to become a public charge,” and that the case is

15

“devoid of any evidence whatever of any fact upon which to base a determination that the

16

petitioner is likely to become a public charge”:

17
18
19
20
21

the petitioner is 40 years old; that he is a native of Austria; that
he is a cabinet-maker by trade, and has exercised that trade for
25 years; that he has no family; that he has baggage with him,
worth $20, and 50 cents in cash; that he is a man who can find
employment in his trade, and is willing to exercise the same. . . .
[I]n addition, that the immigrant has not been an inmate of an
almshouse, and has not received public aid or support, and has
not been convicted of crime.

22

Id. at 447–48. A fair reading suggests that each of the enumerated facts could be

23

relevant to predicting whether someone is likely to become a public charge.

24

A subsequent court provided even more guidance. In United States v. Lipkis, 56

25

F. 427 (S.D.N.Y. 1893), a man had arrived in America before his wife and child. The wife

26

and child were required to pay a bond because the superintendent of immigration

27

deemed them “likely to become a public charge” based on “the poverty and character of

28

the husband,” whose residence gave the appearance of “extreme poverty.” Id. at 427.
21

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 22 of 93

1

However, that poverty alone did not mean he or the family was a public charge—rather, it

2

meant the family was likely to become a public charge. “About six months after the

3

arrival of the mother she became insane, and was sent to the public insane asylum of the

4

city under the direction of the commissioners of charities and correction, where only poor

5

persons unable to pay for treatment are received, and she was there attended to for a

6

considerable period at the expense of the municipality.” Id. at 428. Thus, the mother

7

became a public charge only when she was committed to the public insane asylum with

8

“no effort to provide for her at his [the husband’s] own expense[.]” Id.

9

But the court did not require commitment to an institution to make one a public
charge. It reasoned in dicta that the family’s financial condition generally subjected the

11

United States District Court
Northern District of California

10

family to the risk of becoming “a public charge under the ordinary liabilities to sickness, or

12

as soon as any other additional charges arose beyond the barest needs of existence. . . .

13

The liability of his family to become a public charge through any of the ordinary

14

contingencies of life existed when the bond was taken, because of his poverty and

15

inefficiency.” Id. So, a number of different financial shocks could have rendered the

16

family a public charge.

17

The court’s analysis drew a distinction between being a public charge (in this case,

18

someone committed to an insane asylum with no effort to cover the expense), and

19

someone likely to become a public charge (in this case, someone who can pay for “the

20

barest needs of existence,” yet whom an extreme illness could ruin).

21

The parties cite to state court decisions published during this time using the term

22

public charge, which are informative of what the term generally meant at the time. Those

23

opinions address the duration of benefits that render one a public charge rather than the

24

quantum, and they tend to suggest that temporary relief did not make one a public charge

25

as the term was understood at the time. However, they do not address whether longer-

26

term receipt of a small amount of public benefits qualifies one as a public charge (as the

27

Rule would do). See Yeatman v. King, 2 N.D. 421 (1892) (state loaning seed grain to

28

farmer using the general tax fund, with obligation of repayment, is designed to prevent
22

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 23 of 93

1

farmers “from becoming a public charge by affording them temporary relief”); Cicero v.

2

Falconberry, 14 Ind. App. 237 (1895) (“The mere fact that a person may occasionally

3

obtain assistance from the county does not necessarily make such person a pauper or a

4

public charge.”).10
Following the 1891 Act, two points are relatively clear. First, reaffirming the best

5
6

interpretation of the 1882 Act, the term was not used at the time to include short-term or

7

temporary relief from the state, as the case law continued to demonstrate. Second,

8

Lipkis could be read to support either of two non-controversial points: either state-funded

9

institutionalization constitutes becoming a public charge, or state-funded
institutionalization with “no effort” to pay the expense after being billed does so. Simply

11

United States District Court
Northern District of California

10

being able to pay for the barest needs of existence and nothing more does not render

12

one a public charge (although it may make one likely to become a public charge). A third

13

point begins to materialize in the case law, which is that absent some particularly-

14

identified negative factor, an employable individual is not a public charge. E.g., In re

15

Feinknopf, 47 F. at 447–48 (40-year-old man willing to exercise his trade); Lipkis, 56 F. at

16

428 (notwithstanding poverty, working man’s family is not a public charge until financial

17

calamity strikes); Yeatman, 2 N.D. at 421 (public aid to working farmer).
3.

18

In 1903, Congress passed a revised version of the act. That amended statute

19
20

provided, in part:

21

That the following classes of aliens shall be excluded from
admission into the United States: All idiots, insane persons,
epileptics, and persons who have been insane within five years
previous; persons who have had two or more attacks of insanity
at any time previously; paupers; persons likely to become a
public charge; professional beggars; persons afflicted with a
loathsome or with a dangerous contagious disease; persons
who have been convicted of a felony or other crime or

22
23
24
25
26
27
28

1903

10

The parties also cite Edenburg Borough Poor Dist. v. Strattanville Borough Poor Dist.,
5 Pa. Super. 516, 528 (1897), but that case concerns an individual who appears to have
formally registered as a pauper by seeking public assistance under state or local law. It
does not concern any immigration statutes, nor does the opinion use the word “charge” or
the phrase “public charge.”
23

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 24 of 93

misdemeanor involving
anarchists, or . . . .”

1

moral

turpitude;

polygamists;

2

An Act to Regulate the Immigration of Aliens Into the United States, 32 Stat. 1213,

3

Chap. 1012 § 2 (1903).
This change separated out “paupers” from “persons likely to become a public

4
5

charge,” which the previous act had grouped together as a single item in the list.
The 1903 amendment also provided that any alien who “shall be found a public

6
7

charge . . . from causes existing prior to landing, shall be deported . . . at any time within

8

two years after arrival[.]” Id. § 20.
4.

9

In 1907, Congress passed a revised version of the act. That amended statute

10

United States District Court
Northern District of California

11

1907

provided, in part:

12

That the following classes of aliens shall be excluded from
admission into the United States: All idiots, imbeciles, feebleminded persons, epileptics, insane persons, and persons who
have been insane within five years previous; persons who have
had two or more attacks of insanity at any time previously;
paupers; persons likely to become a public charge;
professional beggars; persons afflicted with tuberculosis or with
a loathsome or dangerous contagious disease; persons not
comprehended within any of the foregoing excluded classes
who are . . . mentally or physically defective, such mental or
physical defect being of a nature which may affect the ability of
such alien to earn a living; persons who have been convicted
of or admit having committed a felony or other crime or
misdemeanor involving moral turpitude; polygamists, or . . . .”

13
14
15
16
17
18
19

An Act to Regulate the Immigration of Aliens Into the United States, 34 Stat. 898, Chap.
20
1134 § 2 (1907).
21
Nothing relevant to the present action appears to have been changed by this
22

revision.11

23
5.

1910

24
In 1910, Congress amended the 1907 act. The new statute provided, in part:
25
26
27
28

11

The only notable change is the introduction of an exclusion for individuals not otherwise
captured by the categories who cannot earn a living based on mental or physical defect.
That suggests that earlier-listed categories also include such people, but not all such
people.
24

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 25 of 93

That the following classes of aliens shall be excluded from
admission into the United States: All idiots, imbeciles, feebleminded persons, epileptics, insane persons, and persons who
have been insane within five years previous; persons who have
had two or more attacks of insanity at any time previously;
paupers; persons likely to become a public charge;
professional beggars; persons afflicted with tuberculosis or with
a loathsome or dangerous contagious disease; persons not
comprehended within any of the foregoing excluded classes
who are . . . mentally or physically defective, such mental or
physical defect being of a nature which may affect the ability of
such alien to earn a living; persons who have been convicted
of or admit having committed a felony or other crime or
misdemeanor involving moral turpitude; polygamists, or . . . .”

1
2
3
4
5
6
7
8

An Act to Amend an Act entitled An Act to Regulate the Immigration of Aliens Into the

9

United States, 36 Stat. 263, Chap. 128 § 2 (1910).

10

United States District Court
Northern District of California

11
12

Nothing relevant to the present action appears to have been changed by this
revision.
In 1915, the Supreme Court addressed the 1910 act in Gegiow v. Uhl, 239 U.S. 3

13

(1915). “The single question” in that case was “whether an alien can be declared likely to

14

become a public charge on the ground that the labor market in the city of his

15

immediate destination is overstocked.” Id. at 9–10. The immigration commissioners in

16

that action determined that the immigrants were “bound for Portland, Oregon, where the

17

reports of industrial conditions show that it would be impossible for these aliens to obtain

18

employment[.]” Id. at 8.

19

The court held that “[t]he statute deals with admission to the United States, not to

20

Portland . . . . It would be an amazing claim of power if commissioners decided not to

21

admit aliens because the labor market of the United States was overstocked.” Id. at 10.

22

Because the immigration authorities could not consider labor conditions in a single

23

location to determine whether immigrants would be able to obtain employment, the

24

factual findings that the immigrants could not find work in Portland was insufficient to

25

support a determination that they were likely to become public charges.

26

The court also reasoned that, because the “public charge” ground for exclusion

27

was “mentioned between paupers and professional beggars, and along with idiots,

28

persons dangerously diseased, persons certified by the examining surgeon to have a
25

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 26 of 93

1

mental or physical defect of a nature to affect their ability to earn a living,” the term should

2

be construed as similar with the rest. Id. Under that construction, the court held that

3

those likely to become public charges “are to be excluded on the ground of permanent

4

personal objections accompanying them irrespective of local conditions[.]” Id.12 That

5

is, the court focused on an alien’s general ability and willingness to work and earn a

6

living, rather than the particular wages or labor conditions that existed in the alien’s

7

destination.
A court in 1916 considered “whether the fact that petitioner entered the United

8

States as a gambler, and as one having no other permanent means of support, actual or

10

contemplated, makes him a person ‘likely to become a public charge’ within the meaning

11

United States District Court
Northern District of California

9

of the Immigration Act.” Lam Fung Yen v. Frick, 233 F. 393, 396 (6th Cir. 1916):
It seems clear that the term ‘persons likely to become a public
charge’ is not limited to paupers or those liable to become such;
‘paupers‘ are mentioned as in a separate class. In United
States v. Williams (D.C.) 175 Fed. 274, 275, the term ‘persons
likely to become a public charge‘ is construed as including, ‘not
only those persons who through misfortune cannot be
self-supporting, but also those who will not undertake
honest pursuits, and who are likely to become periodically
the inmates of prisons.’ We think this a reasonable
construction. . . . Inmates of jails and prisons are for the time
being public charges, and we think it open to conclusion by
reasonable minds that those who will not work for a living, but
rely for that purpose upon gambling, are more likely than
citizens following the ordinary pursuits of industry to become,
at least intermittently, public charges.

12
13
14
15
16
17
18
19
20

Id. at 396–97 (emphasis added).
The court reasoned that because the alien was a gambler and gambling is

21
22

regarded “within the domain of police supervision and public security,” the petitioner is

23

reasonably likely to become periodically an inmate of a prison. Id. at 397. Under the

24

court’s reasoning, someone in a prison is a public charge, akin to someone in an

25

almshouse or insane asylum. Id.; see also United States v. Williams, 175 F. 274, 275

26
27
28

12

The Gegiow opinion was subject to some skepticism following a later amendment to
the statute, but the Ninth Circuit subsequently held that its reasoning remained
controlling. See Ex parte Hosaye Sakaguchi, 277 F. 913 (9th Cir. 1922); see also Ex
parte Mitchell, 256 F. 229 (N.D.N.Y. 1919).
26

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 27 of 93

1

(S.D.N.Y. 1910) (“They are surely public charges, at least during the term of their

2

incarceration.”).

3

In 1917, the Second Circuit relied on Gegiow’s statutory analysis when deciding a
case under the 1910 statute. Howe v. United States, 247 F. 292 (2d Cir. 1917). In

5

Howe, a Canadian who had allegedly “drawn a check . . . which proved bad,” among

6

other things, entered the United States, and an immigration inspector “believed him guilty

7

of dishonest practice in Canada.” Id. at 293–94. Because the plaintiff had not admitted

8

to or been convicted of a felony, the provision excluding criminals did not apply to him.

9

The court reasoned that (1) the term “public charge” needed to be read in context of its

10

position in the statute’s list, and (2) it cannot be interpreted to overlap with other items in

11

United States District Court
Northern District of California

4

the list (e.g., idiots, imbeciles, insane persons, criminals). As such, “[i]f the words

12

covered jails, hospitals, and insane asylums, several of the other categories of exclusion

13

would seem to be unnecessary.” Id. at 294. Instead, “Congress meant the act to exclude

14

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

15

which to support themselves in the future.” Id. The Howe court provided a very specific,

16

restrictive, and clear definition of the term. This also demonstrates an early split in the

17

case law as to whether prison inmates are considered public charges.

18

By 1917, the Supreme Court, the Second Circuit, and the Sixth Circuit had all

19

published opinions construing the term as used in the 1910 act. These are precisely the

20

sorts of constructions Congress is presumed knowledgeable of when reenacting statutory

21

language. See Forest Grove, 557 U.S. at 239–40. The Supreme Court held that

22

predicting whether someone will become a public charge requires consideration of

23

“permanent personal objections accompanying them irrespective of local conditions[.]”

24

Gegiow, 239 U.S. at 10. The two Circuit decisions are more difficult to reconcile. First,

25

they directly contradicted one another with respect to whether jail inmates were public

26

charges. Second, Howe broke with the weight of prior authority in holding that the term

27

was limited to those occupying almshouses for want of a means of support.

28

6.

1917
27

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1

In 1917, Congress amended the Act. That amended statute provided, in part:

2

That the following classes of aliens shall be excluded from
admission into the United States: All idiots, imbeciles, feebleminded persons, epileptics, insane persons; persons who have
had one or more attacks of insanity at any time previously;
persons of constitutional psychopathic inferiority; persons with
chronic alcoholism; paupers; professional beggars; vagrants;
persons afflicted with tuberculosis in any form or with a
loathsome or dangerous contagious disease; persons not
comprehended within any of the foregoing excluded classes
who are . . . mentally or physically defective, such physical
defect being of a nature which may affect the ability of such
alien to earn a living; persons who have been convicted of or
admit having committed a felony or other crime or
misdemeanor involving moral turpitude; polygamists, or . . . . ;
persons likely to become a public charge . . . .”

3
4
5
6
7
8
9

An Act to Regulate the Immigration of Aliens to, and the Residence of Aliens in, the

11

United States District Court
Northern District of California

10

United States, 39 Stat. 874, Chap. 29 § 3 (1917).

12

The statute also provided for the deportability of “any alien who within five years

13

after entry becomes a public charge from causes not affirmatively shown to have arisen

14

subsequent to landing[.]” Id. § 19.

15

The “public charge” language remains unchanged, although moved within the list.

16

The Congressional Record suggests that Congress intentionally moved the category of

17

“persons likely to become a public charge” later in the list in response to Gegiow. See 70

18

Cong. Rec. 3560 (1929) (“persons likely to become a public charge (this clause excluding

19

aliens on the ground likely to become a public charge has been shifted from its position in

20

section 2 of the immigration act of 1907 to its present position in section 3 of this act in

21

order to indicate the intention of Congress that aliens shall be excluded upon said ground

22

for economic as well as other reasons and with a view to overcoming the decision of the

23

Supreme Court in Gegiow v. Uhl, 239 U. S. 3”); see also 80 Cong. Rec. 5829 (1936)

24

(same).

25

A district court in 1919 reasoned that although the exact same phrase was shifted

26

within the list, “I am unable to see that this change of location of these words in the act

27

changes the meaning that is to be given them. A ‘person likely to become a public

28

charge’ is one who for some cause or reason appears to be about to become a charge
28

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 29 of 93

1

on the public, one who is to be supported at public expense, by reason of poverty,

2

insanity and poverty, disease and poverty, idiocy and poverty, or, it might be, by reason

3

of having committed a crime which, on conviction, would be followed by imprisonment.”

4

Ex parte Mitchell, 256 F. 229, 230 (N.D.N.Y. 1919). In that case, there was “no evidence

5

whatever that the alien at any time has relied in any degree on the charity of others,” but

6

rather the alien “is able to earn her own living and always has done so[.]” Id.
The court then stated that mere speculation about the possibility of becoming a

7
8

public charge does not make one likely to become a public charge: “The alien may

9

become sick; she may lose her house by fire; she may lose her personal property by bad
investments. All this is possible, but not probable. There is no claim that this alien is

11

United States District Court
Northern District of California

10

suffering, or that she has suffered at any time, from any mental or physical defect. It is

12

not claimed this alien has been convicted, or even charged with the commission, of any

13

crime, or that she came to the United States, or is in the United States, for any immoral or

14

improper purpose.” Id. at 231.

15

The Ninth Circuit agreed in 1922, holding that the 1917 Amendment’s movement

16

of the “public charge” exclusion “does not change the meaning that should be given” the

17

exclusion. Ex parte Hosaye Sakaguchi, 277 F. 913, 916 (9th Cir. 1922). The court

18

recognized the legislative change and that Gegiow’s reliance on the phrase’s relative

19

position in the statute was compromised, yet it held:

20

Although in the act of February 5, 1917, under which the
present case is to be determined, the location of the words
‘persons likely to become a public charge‘ is changed, we agree
with Judge Ray in Ex parte Mitchell (D.C.) 256 Fed. 229, that
this change of location of the words does not change the
meaning that should be given them, and that it is still to be held
that a person ‘likely to become a public charge’ is one who,
by reason of poverty, insanity, or disease or disability, will
probably become a charge on the public.

21
22
23
24
25

Id. (emphasis added).13

26
27
28

13

In 1923 a district court in Washington state did not cite these precedents and held
instead that Congress’s shift was an effective modification in response to Gegiow. Ex
parte Horn, 292 F. 455 (W.D. Wash. 1923). Interpreting the phrase anew based on its
plain meaning, the court reasoned that “a public charge” is “a person committed to the
29

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 30 of 93

1

A 1921 Second Circuit opinion relying on Howe and Ex parte Mitchell held that “A

2

person likely to become a public charge is one whom it may be necessary to support at

3

public expense by reason of poverty, insanity and poverty, disease and poverty, idiocy

4

and poverty. We think that the finding by the administrative authorities, showing a

5

physical defect of a nature that may affect the ability of the relator and appellee to earn a

6

living, is sufficient ground for exclusion. His physical condition, together with his financial

7

condition, having but $100 with him, justified the conclusion of the administrative

8

authorities in finding that he and his children were aliens likely to become public

9

charges.” Wallis v. U.S. ex rel. Mannara, 273 F. 509, 511 (2d Cir. 1921) (citation

10

United States District Court
Northern District of California

11

omitted).
A number of courts around this time also held that imprisonment was one way to

12

become a public charge. E.g., Ex parte Fragoso, 11 F.2d 988, 989 (S.D. Cal. 1926)

13

(“The fact is this petitioner did become a public charge. He was confined in a jail for a

14

period of nine months.”); U.S. ex rel. Lehtola v. Magie, 47 F.2d 768, 770 (D. Minn. 1931)

15

(noting a circuit split as to whether “dependency rather than imprisonment” is grounds for

16

finding a public charge); Ex parte Horn, 292 F. 455, 458 (W.D. Wash. 1923).

17

In 1933, the third edition of Black’s Law Dictionary was the first to define “public

18

charge.” The definition relied upon many of the above-cited cases, so for that reason it is

19

derivative of and less probative than those cases themselves. Nevertheless, the

20

definition is instructive. It defined the term as: “A person whom it is necessary to support

21

at public expense by reason of poverty, insanity and poverty, disease and poverty, or

22

idiocy and poverty. . . . As used in [the 1917 Act], one who produces a money charge on,

23

or an expense to, the public for support and care.” See Black’s Law Dictionary 311 (3d

24

Ed. 1933). The term includes paupers as well as those who will not undertake honest

25

pursuits or who are likely to go to prison.

26

In 1948, the Board of Immigration Appeals (“BIA”) issued an order, which the

27
28

custody of a department of the government by due course of law,” and that committing
someone to prison makes him a public charge. Id. at 457.
30

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 31 of 93

1

acting Attorney General thereafter issued an order approving. The order set out a very

2

explicit test for the term “public charge” as used elsewhere in the act, which concerned

3

deportation proceedings of aliens who are later determined to have actually become a

4

public charge during their time in the country. Matter of B-, 3 I. & N. Dec. 323 (A.G.

5

1948).

6

When interpreting the term as used in the deportation context, the BIA set out a 3-

7

part test requiring (1) an individualized bill for charges incurred, that is (2) presented to

8

the alien (or a family member) by the government, and (3) which the alien (or family

9

member) fails to pay.

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19

the following test must be applied to determine whether an alien
has become a public charge within the reach of the 1917 act:
(1) The State or other governing body must, by appropriate law,
impose a charge for the services rendered to the alien. In other
words, the State must have a cause of action in contract against
either the person taking advantage of the State services or
other designated relatives or friends. If there is no charge
made, and if the State does not have a cause of action, the
alien cannot be said to be a public charge. (2) The authorities
must make demand for payment of the charges upon those
persons made liable under State law. And (3) there must be a
failure to pay for the charges. If there is a failure to pay either
because of lack of demand or because the State authorities do
not perform their duty to collect the charges, the alien cannot
be said to have become a public charge.
Id. at 326 (footnote omitted).
The BIA also reasoned that the same definition would apply to the identical term

20

used earlier in the statute with respect to predicting whether an alien is likely to become a

21

public charge—i.e., the provision at issue in the present action:

22
23
24
25
26
27
28

First, we wish to make the following preliminary observation for
the purpose of clarifying the issue. The acceptance by an alien
of services provided by a State or by a subdivision of a State to
its residents, services for which no specific charge is made,
does not in and of itself make the alien a public charge within
the meaning of the 1917 act. To illustrate, an alien who
participates, without cost to him, in an adult education program
sponsored by the State does not become a public charge.
Similiarly [sic] with respect to an alien child who attends public
school, or alien child who takes advantage of the free-lunch
program offered by schools.
We could go on ad
infinitum setting forth the countless municipal and State
services which are provided to all residents, alien and citizen
31

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 32 of 93

1
2
3
4
5
6
7
8
9

alike, without specific charge of the municipality or the State,
and which are paid out of the general tax fund. The fact that
the State or the municipality pays for the services accepted by
the alien is not, then, by itself, the test of whether the alien has
become a public charge. . . . [I]f it were to be held that all aliens
became public charges by accepting such services, such a
holding would necessarily result in making aliens seeking
admission to the United States excludable under that clause of
section 3 of the act of February 5, 1917, which bars aliens likely
to become public charges from entering the United States,
provided it were shown the alien would accept the free
municipal and State services.
Id. at 324–25 & n.1.
District courts had independently adopted the same meaning under the 1917 Act.
E.g., Ex parte Orzechowska, 23 F. Supp. 428, 429 (D. Or. 1938) (individual not a public
charge so long as they will “pay the full amount of the cost of keeping the girl at the

11

United States District Court
Northern District of California

10

Oregon State Hospital”); Ex parte Kichmiriantz, 283 F. 697, 698 (N.D. Cal. 1922) (same).

12

This three-part test is still used for determining whether to deport those who in fact

13
14

become public charges currently, and DHS proposes to continue doing is in the Rule.
Prior to the 1952 Act’s passage, at least one principle had seemingly coalesced in

15

the case law. The reasoning in Gegiow was reaffirmed, and multiple circuits (also

16

recognized by Black’s Law Dictionary) agreed that someone likely to become a public

17

charge is one whom it may be necessary to support at public expense by reason of

18

poverty, insanity and poverty, disease and poverty, or idiocy and poverty. Although that

19

oft-used definition (or a close derivative) is not particularly descriptive as to what quantum

20

of support qualifies as “necessary to support” someone at public expense, it reaffirms the

21

principle expressed in Gegiow and prior cases that the inquiry is focused on the

22

individual’s inherent ability to support himself. This definition also accords with prior

23

interpretations generally finding that, absent some particularly-identified negative factor,

24

those who appear generally capable and willing to work are not likely to become public

25

charges. And unlike the Howe case, it allows reading the definition of public charge in

26

light of the surrounding categories of excluded persons, such that someone who is

27

excluded due to his disease alone may also be excluded because his disease, in

28

combination with another factor like poverty, is likely to render him a public charge. This
32

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 33 of 93

1

remains in line with other historically-supported, consistent principles described above,

2

namely that temporary assistance does not render one a public charge and that actual

3

incursion of debt to the state and refusal to pay could render one a public charge.

4

The Attorney General’s order in 1948 for the first time offered a single, clear

5

definition of the term “public charge” to be applied consistently throughout the Act. And it

6

also specifically ruled that acceptance of publicly-funded services “for which no specific

7

charge is made” does not make one a public charge. The three-part test requiring

8

presentation of a bill and inability or refusal to pay was certainly in accordance with a line

9

of precedential caselaw, but it was by no means the only or even dominant line at that
time. Nevertheless, this Attorney-General-issued order was controlling as administrative

11

United States District Court
Northern District of California

10

law between its issuance in 1948 and at least Congress’s next codification of the

12

immigration statutes in 1952.

13
14
15
16
17
18
19
20
21
22
23
24
25

7.

1952

In 1952, Congress again revised the laws relating to immigration. That revised
statute provided, in part:
Except as otherwise provided in this Act, the following classes
of aliens shall be ineligible to receive visas and shall be
excluded from admission into the United States:
(1) Aliens who are feeble-minded;
(2) Aliens who are insane;
(3) Aliens who have had one or more attacks of insanity;
...
(7) Aliens not comprehended within any of the foregoing
classes . . . having a physical defect, disease, or disability . . .
to be of such a nature that it may affect the ability of the alien
to earn a living, unless the alien affirmatively establishes that
he will not have to earn a living;
(8) Aliens who are paupers, professional beggars, or vagrants;
...
(15) Aliens 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”

26

An Act to Revise the Laws Relating to Immigration, Naturalization, and Nationality; and

27

for Other Purposes, 66 Stat. 163, 183, Title 2, Chap. 2 (“1952 Act”) § 212 (1952).

28

The 1952 Act also provided for deportation of any alien who, “in the opinion of the
33

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 34 of 93

1

Attorney General, has within five years after entry become a public charge from causes

2

not affirmatively shown to have arisen after entry[.]” Id., Chap. 5 § 241(a)(8).

3

The changes appear to be relatively minor for the purposes of this dispute.

4

Notably, Congress added the phrase “at any time” to specify the scope of time the public

5

charge determination is meant to consider. But no alteration to the phrase “public

6

charge” appears in the statute.

7
8

The 1951 edition of Black’s Law Dictionary, like the 3rd edition in 1933, assembled
its definition based on precedent discussed above:

9

A person whom it is necessary to support at public expense by
reason of poverty, insanity and poverty, or idiocy and poverty.
As used in [the 1917 Act] . . ., one who produces a money
charge on, or an expense to, the public for support and care.
As so used, the term is not limited to paupers or those liable to
become such, but includes those who will not undertake honest
pursuits, or who are likely to become periodically the inmates
of prison.

10

United States District Court
Northern District of California

11
12
13
14
15

Charge, Public Charge, Black’s Law Dictionary (4th ed. 1951) (citations omitted).
BIA dispositions following the passage of the 1952 Act addressed the term. One

16

such disposition surveyed caselaw interpreting the term and held “the statute requires

17

more than a showing of a possibility that the alien will require public support. Some

18

specific circumstance, such as mental or physical disability, advanced age, or other fact

19

reasonably tending to show that the burden of supporting the alien is likely to be cast on

20

the public, must be present. A healthy person in the prime of life cannot ordinarily

21

be considered likely to become a public charge, especially where he has friends or

22

relatives in the United States who have indicated their ability and willingness to

23

come to his assistance in case of emergency.” Matter of Martinez-Lopez, 10 I. & N.

24

Dec. 409, 421–22 (BIA 1962) (emphasis added) (collecting cases).

25

In that case, the agency held that the individual at issue was not likely to become a

26

public charge given his characteristics, which essentially showed he was able to perform

27

honest work:

28

When respondent applied for a visa he was 22 years of age.
34

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 35 of 93

He was sound of body and had about ten years of farming
experience. He had no specialized training, but had five years
of schooling and apparently planned to seek work for which he
was qualified. He spoke no English, but this was no handicap
for he would work among people who spoke Spanish. He had
about $50 in assets. He had a brother gainfully employed in the
United States and he had other close relations who were
interested in his welfare and who worked to bring him to the
United States. The brother was making $85 a week in
permanent employment; he was unmarried; he had been
sending money to his family in Mexico, and he was interested
in helping his brother. Respondent had previous experience in
the United States, having spent about three months here as a
contract worker. At that time he worked both in the fields and in
a cannery. His services appear to have been satisfactory for he
was retained here until his contract was completed.
Respondent had no criminal record.

1
2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11

Id. at 411.
A 1974 BIA decision emphasized that the public charge determination must

12

consider the totality of the circumstances, and that prior welfare use alone cannot be

13

determinative. Matter of Perez, 15 I. & N. Dec. 136, 137 (BIA 1974) (“The respondent's

14

reliance on welfare for support is a condition which she herself can remedy.”).

15

Another 1974 BIA decision confused matters. Matter of Harutunian, 14 I. & N.

16

Dec. 583, 584 (BIA 1974). The decision outlined “[t]he stages in decisional

17

interpretations of the deportation statute, culminating in Matter of B-":

18
19
20
21
22
23
24
25
26
27
28

1. The words “public charge” had their ordinary meaning, that
is to say, a money charge upon or an expense to the public for
support and care, the alien being destitute.
2. The alien had not yet become a public charge, even though
he personally was destitute and his care and support were
being paid for by public funds, if there existed close relatives,
ready, willing and able to pay the bill, but the appropriate
government agency had failed to submit any bill.
3. The alien had not become a public charge where the alien's
mother had offered to make reimbursement, but under state
law payment could not be accepted for maintenance and
treatment of the institutionalized alien.
4. The alien had not become a public charge where the
circumstances were like those described in 3, above, except
that no one had offered reimbursement.
Id. at 586 (citations omitted).
35

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1

However, it reasoned that the Attorney General’s opinion in Matter of B- “is not

2

necessarily controlling in relation to the provisions for exclusion.” Id. at 585. The BIA

3

reasoned that “[w]hile it may normally be assumed that identical words used in different

4

parts of the same statute are intended to have an identical meaning, this assumption

5

readily yields when the legislative intent requires variant meanings in different contexts.”

6

Id. at 586. The BIA then discussed legislative history in search of congressional intent.

7

Id. The decision notes that the Senate Judiciary Committee discussed that courts had

8

given different definitions to the term, and ultimately it decided not to define the term, “but

9

rather [decided] to establish the specific qualification that the determination of whether an
alien falls into that category rests within the discretion of the consular officers or the

11

United States District Court
Northern District of California

10

Commissioner.” Id. at 588 (citing S. Rep. 1515, 81st Cong., 2d Sess., April 20, 1950, p.

12

349).

13

The BIA stated that the phrase “public charge” must be “strictly construed” in the

14

deportation context, but not in the exclusion context. Id. It then reasoned that the old-

15

age benefits at issue in the case were “individualized public support to the needy, as

16

distinguished from essentially supplementary benefits, directed to the general welfare of

17

the public as a whole.” Id. at 589. Even though the state would never ask for repayment

18

of those old-age benefits—and therefore they could not constitute assistance qualifying

19

one as a public charge under the Matter of B- test—the court reasoned that it would not

20

consider “the element of reimbursement” when determining whether someone is likely to

21

become a public charge. Id.

22

So, the BIA rejected the Matter of B- test and constructed alternate definitions for

23

the same term depending on whether the executive is predicting whether someone is

24

likely to become a public charge or deciding whether someone has already become a

25

public charge. “Therefore, in our opinion any alien who is incapable of earning a

26

livelihood, who does not have sufficient funds in the United States for his support, and

27

has no person in the United States willing and able to assure that he will not need public

28

support is excludable as likely to become a public charge whether or not the public
36

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1
2

support which will be available to him is reimbursable to the state.” Id. at 589–90.
These BIA decisions are useful to understand the administrative practices and

3

interpretations operating when Congress reenacted the same language. Although this

4

period saw confusion within the agency about the proper way to interpret the phrase as

5

used in different contexts, each of the discussed decisions support the now-consistent

6

theme that a healthy person in the prime of life who can work cannot be considered likely

7

to become a public charge, absent some particularly-identified circumstance evaluated

8

under a totality of the circumstances. E.g., Matter of Martinez-Lopez, 10 I. & N. Dec. at

9

422 (collecting cases); Matter of Harutunian, 14 I. & N. Dec. at 589 (“alien who is
incapable of earning a livelihood”); Matter of Perez, 15 I. & N. Dec. at 137 (totality of

11

United States District Court
Northern District of California

10

circumstances).

12

8.

1987

13

In 1987, the INS issued a final rule, effective May 1, 1987, following notice and

14

comment. See Adjustment of Status for Certain Aliens, 52 Fed. Reg. 16,205 (May 1,

15

1987). The rule implemented section 245A of the Immigration and Nationality Act as

16

amended by section 201 of the Immigration Reform and Control Act of 1986. Id. at

17

16,205. So, the 1987 rule concerned the term “public charge” as used elsewhere in the

18

INA, specifically for aliens adjusting their status to that of aliens lawfully admitted for

19

temporary residence. The “key issues” subject to comments “were the public charge and

20

special rule for determination of public charge[.]” 52 Fed. Reg. at 16,206.

21

That rule provided: “An applicant . . . is subject to the provisions of section

22

212(a)(15) of the Act relating to excludability of aliens likely to become public charges

23

unless the applicant demonstrates a history of employment in the United States

24

evidencing self-support without receipt of public cash assistance. . . . If the alien's

25

period(s) of residence in the United States include significant gaps in employment or if

26

there is reason to believe that the alien may have received public assistance while

27

employed, the alien may be required to provide proof that he or she has not received

28

public cash assistance.” 52 Fed. Reg. at 16,211.
37

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1

Essentially, this provision exempted aliens who had been working domestically

2

from the normal public charge analysis, so long as they could prove a work history and

3

that they had not relied on public cash assistance. The rule defined cash assistance to

4

exclude in-kind benefits. 52 Fed. Reg. at 16,209 (“‘Public cash assistance’ means

5

income or needs-based monetary assistance, to include but not limited to supplemental

6

security income, received by the alien or his or her immediate family members through

7

federal, state, or local programs designed to meet subsistence levels. It does not include

8

assistance in kind, such as food stamps, public housing, or other non-cash benefits, nor

9

does it include work-related compensation or certain types of medical assistance
(Medicare, Medicaid, emergency treatment, services to pregnant women or children

11

United States District Court
Northern District of California

10

under 18 years of age, or treatment in the interest of public health).”).

12

This use of the term is somewhat of an aberration given that it essentially

13

concerned an exception to the statute at issue here—and it did not define the term.

14

However, it did reinforce the long-standing principle underlying the construction of the

15

term that, when considering whether someone should be admitted to the country, the

16

concept of “public charge” concerns primarily the prospect of gainful employment or

17

some other private source of support.
9.

18
19
20
21
22
23
24
25
26
27
28

1990

In 1990, Congress revised the laws relating to immigration. That revised statute
provided, in part:
Except as otherwise provided in this Act, the following
describes classes of excludable aliens who are ineligible to
receive visas and who shall be excluded from admission into
the United States:
(1) Health-Related Grounds
...
(2) Criminal and Related Grounds
...
(3) Security and Related Grounds
...
(4) Public Charge.—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
38

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1
2

become a public charge is excludable.
Immigration Act of 1990, 104 Stat. 4978, Title 6 § 601 (1990).

3

This version of the bill removed language referring to the feeble-minded, paupers,

4

professional beggars, and vagrants. There is a suggestion in the Congressional Record

5

that the removed terms were meant to be consolidated within the public charge category:

6

The bill removes some of the antiquated and unused
exclusions that have been in our law since the early 1900's,
such as the exclusions based on illiteracy, and the exclusions
for aliens who are "paupers, professional beggars, or
vagrants." These relics have been replaced by one generic
standard which exclude aliens who are "likely to become a
public charge."

7
8
9
10

United States District Court
Northern District of California

11

136 Cong. Rec. 36797, 36844 (1990).
In 1990, Black’s Law Dictionary defined “public charge” as “an indigent. A person

12

whom it is necessary to support at public expense by reason of poverty alone or illness

13

and poverty.” Charge, Public Charge, Black’s Law Dictionary (6th ed. 1990).

14

Although a statutory term is not defined by reference to one preferred

15

interpretation memorialized in the Congressional Record, that interpretation is consistent

16

with the courts’ and executive’s general treatment of the term since Gegiow. That is,

17

following Gegiow and later cases applying it to the 1917 Act, courts had read the term

18

public charge in context of those surrounding terms rather than in exclusion of them, and

19

focused on the alien’s ability to work or otherwise provide for himself, which each of the

20

omitted surrounding terms also ultimately spoke to. But see Howe, 247 F. at 294.

21
22
23
24
25
26
27
28

10.

1996

In 1996, Congress again revised the laws relating to immigration. That revised
statute provided, in part:
(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
excludable.
39

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1
2
3
4
5
6
7
8
9
10

(B) FACTORS TO BE TAKEN INTO ACCOUNT.—
(i) In determining whether an alien is excludable
under this paragraph, the consular officer or the
Attorney General shall at a minimum consider the
alien's—
(I) age;
(II) health;
(III) family status;
(IV) assets, resources, and financial
status; and
(V) education and skills.
(ii) In addition to the factors under clause (i), the
consular officer or the Attorney General may also
consider any affidavit of support under section
213A for purposes of exclusion under this
paragraph.

United States District Court
Northern District of California

11

Omnibus Consolidated Appropriations Act, 110 Stat. 3009, Title 5 § 531 (1996). This act

12

is often referred to as the Illegal Immigration Reform and Immigrant Responsibility Act

13

(“IIRIRA”). Elsewhere, the Act provided that “Any alien who, within five years after the

14

date of entry, has become a public charge from causes not affirmatively shown to have

15

arisen since entry is deportable.” 8 U.S.C. § 1251(a)(5) (effective April 24, 1996).

16

The revised law used the same relevant language as all previous versions—public

17

charge. However, the statute then listed five factors that Congress instructed must be

18

considered when determining whether an alien is likely to become a public charge, and it

19

identified another factor that “may also” be considered.

20

Contemporaneously, the Personal Responsibility and Work Opportunity

21

Reconciliation Act (“PRWORA”), Pub. L. 104-193, restricted most aliens from accessing

22

many public support programs for a period of time.

23

During legislative efforts that ultimately resulted in the IIRIRA, a group of

24

legislators proposed to define “public charge” with particularity in the statute to include

25

“any alien who receives benefits described in subparagraph (D) for an aggregate period

26

of at least 12 months” (or 36 months in the case of a battered spouse or child). 142

27

Cong. Rec. 24313, 24425 (1996). The benefits listed in subparagraph D (that would

28

qualify an alien as a public charge) included “means-tested public benefits,” but it’s not
40

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1

entirely clear what specific benefits that section refers to.14 That definition was not

2

enacted into law.
11.

3

1999

The INS attempted in 1999 to engage in rulemaking to guide immigration officers,

4
5

aliens, and the public in understanding the public charge determinations. No final rule

6

was ever issued. Instead, the agency published Field Guidance addressing the issue.

7

See Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64

8

Fed. Reg. 28,689 (May 26, 1999) (the “1999 Field Guidance”).
The notice was published prior to final rulemaking because it was deemed

10

“necessary to help alleviate public confusion over the meaning of the term ‘public charge’

11

United States District Court
Northern District of California

9

in immigration law and its relationship to the receipt of Federal, State, and local public

12

benefits.” 64 Fed. Reg. at 28,689. “The Department decided to publish a proposed rule

13

defining ‘public charge’ in order to reduce the negative public health consequences

14

generated by the existing confusion and to provide aliens with better guidance as to the

15

types of public benefits that will and will not be considered in public charge

16

determinations.” Id. The notice “both summarizes longstanding law with respect to

17

public charge and provides new guidance on public charge determinations in light of the

18

recent changes in law,” notably the “Illegal Immigration Reform and Immigrant

19

Responsibility Act of 1996 (IIRIRA) and welfare reform laws.” Id.

20

The notice proposed “that ‘public charge’ means an alien who has become (for

21

deportation purposes) or who is likely to become (for admission/adjustment purposes)

22

‘primarily dependent on the government for subsistence, as demonstrated by either (i) the

23

receipt of public cash assistance for income maintenance or (ii) institutionalization for

24

long-term care at government expense.’ Institutionalization for short periods of

25

rehabilitation does not constitute such primary dependence.” Id.

26
27
28

14

The record refers to Section 213A(e)(1), which appears to have been codified at 8
U.S.C § 1183a(e), but that does not describe means-tested benefits. The currentlyoperative version of 8 U.S. Code § 1183a(a)(1)(B) also appears to errantly refer to
subsection (e) for a list of means-tested benefits, so this error is not unique.
41

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1

Following the implementation of that interpretation, “officers should not place any

2

weight on the receipt of non-cash public benefits (other than institutionalization) or the

3

receipt of cash benefits for purposes other than for income maintenance with respect to

4

determinations of admissibility or eligibility for adjustment on public charge grounds.” Id.

5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18

Summarizing current agency practice, the memo explained:
The standard for adjudicating inadmissibility under section
212(a)(4) has been developed in several Service, BIA, and
Attorney General decisions and has been codified in the
Service regulations implementing the legalization provisions of
the Immigration Reform and Control Act of 1986. These
decisions and regulations, and section 212(a)(4) itself, create a
“totality of the circumstances” test.
In determining whether an alien is likely to become a public
charge, Service officers should assess the financial
responsibility of the alien by examining the “totality of the alien's
circumstances at the time of his or her application * * * The
existence or absence of a particular factor should never be the
sole criterion for determining if an alien is likely to become a
public charge. The determination of financial responsibility
should be a prospective evaluation based on the alien's age,
health, family status, assets, resources and financial status,
education, and skills, among other factors. An alien may be
considered likely to become a public charge even if there is no
legal obligation to reimburse the benefit-granting agency for the
benefits or services received, in contrast to the standards for
deportation, discussed below.
Id. at 28,690 (footnotes omitted).

19

The 1999 Field Guidance then explained that the three-part test for paying back

20

public debt continues to apply, but only as an additional test on top of the totality of the

21

circumstances test for deportation decisions:

22
23
24
25
26
27
28

Repayment is relevant to the public charge inadmissibility
determination only in very limited circumstances. If at the time
of application for admission or adjustment of status the alien is
deportable on public charge grounds under section 237(a)(5)
of the INA due to an outstanding public debt for a cash benefit
or the costs of institutionalization, then the alien is inadmissible.
Only a debt that satisfies the three-part [Matter of B-] test under
section 237(a)(5), described below, will render an alien
deportable as a public charge and therefore ineligible for
admission or adjustment. If the debt is paid, then the alien will
no longer be inadmissible based on the debt, and the usual
totality of the circumstances test would apply.
42

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1
2

Id.
The Feld Guidance explained that a compelling reason to limit the public charge

3

definition to those receiving cash is that “certain federal, state, and local benefits are

4

increasingly being made available to families with incomes far above the poverty level,

5

reflecting broad public policy decisions about improving general public health and

6

nutrition, promoting education, and assisting working-poor families in the process of

7

becoming self-sufficient. Thus, participation in such non-cash programs is not evidence

8

of poverty or dependence.” Id. at 28,692

9
10

12.

2013

In 2013, the Senate voted down two amendments to a never-passed bill regarding

United States District Court
Northern District of California

11

immigration. The first amendment proposed “expanding the criteria for ‘public charge,’

12

such that applicants would have to show they were not likely to qualify even for non-cash

13

employment supports such as Medicaid, the SNAP program, or the Children's Health

14

Insurance Program (CHIP). . . . [T]he amendment was rejected by voice vote.” S. Rep.

15

No. 113-40, at 42 (2013).

16

The second amendment “would have expanded the definition of ‘public charge’

17

such that people who received non-cash health benefits could not become legal

18

permanent residents. This amendment would also have denied entry to individuals

19

whom the Department of Homeland Security determines are likely to receive these types

20

of benefits in the future. The amendment was not agreed to by a voice vote.” S. Rep.

21

No. 113-40, at 63 (2013).

22
23

13.

2019—The Rule

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

24

Federal Register. See 83 Fed. Reg. 51,114. The NPRM provided a 60-day public

25

comment period, during which 266,077 comments were collected. See 84 Fed. Reg. at

26

41,297. On August 14, 2019, DHS published the Rule in the Federal Register.

27
28

The Rule supersedes the 1999 Field Guidance’s definition of “public charge,”
establishing a new definition based on a minimum time threshold for the receipt of public
43

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1

benefits. Under the newly-proposed “12/36 standard,” a public charge is defined as an

2

individual who receives designated public benefits for more than 12 months in the

3

aggregate within a 36-month period, although a single month where multiple types of

4

benefits are received is counted as multiple months of receiving aid. 84 Fed. Reg. at

5

41,295. The “public benefits” included are extended by the Rule to include many non-

6

cash benefits, for example Supplemental Nutrition Assistance Program (“SNAP”), Section

7

8 Housing Programs, Medicaid, and Public Housing. Id. at 41,501. Receipt of two

8

categories of benefits in the same months counts as two months of receipt for benefits,

9

so some will qualify as public charges without receiving benefits for 12 months.
Moreover, the rule is agnostic to the value (or cost to the government) of the benefits. To

11

United States District Court
Northern District of California

10

take a plausible example, someone receiving $182 over 36 months—or an average of

12

less than 17 cents a day—in SNAP benefits is a public charge under the Rule. See

13

Shing Decl. ¶ 17.

14

The Rule does not change the definition of public charge in the context of

15

deportability, described elsewhere in the INA. 84 Fed. Reg. at 41,295 (“This rule does

16

not interpret or change DHS’s implementation of the public charge ground of

17

deportability.”). Rather, DHS will continue to enforce the 1999 Field Guidance in the

18

deportation context. Id. at 41,304 (“DHS currently makes public charge determinations in

19

accordance with the 1999 Interim Field Guidance. . . . This guidance explains how the

20

agency determines . . . whether a person has become a public charge within five years of

21

entry”). The 1999 Field Guidance, which will continue to govern, provided that “the

22

definition of public charge is the same for both admission/adjustment and deportation,”

23

although “the standards applied to public charge adjudications in each context are

24

significantly different” because one is forward-looking and one is backward-looking. 64

25

Fed. Reg. at 28,689. As such, following the implementation of the Rule, “public charge”

26

will continue to be defined in the deportation context as “an alien who has become . . .

27

‘primarily dependent on the government for subsistence, as demonstrated by either (i) the

28

receipt of public cash assistance for income maintenance or (ii) institutionalization for
44

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 45 of 93

1

long-term care at government expense.’” Id. To assess whether an alien qualifies under

2

that definition in the deportability context, the 1999 Field Guidance prescribes the 3-part

3

test established in Matter of B-, 3 I. & N. Dec. 323.

4

So, the Rule proposes to simultaneously apply multiple definitions for the term

5

public charge. First, its new definition will be used to predict whether an alien is likely at

6

any time to become a public charge. Second, the 1999 Field Guidance’s “primary

7

dependence” definition is left unaltered in the deportation context, and it is evaluated

8

pursuant to the well-known 3-part Matter of B- test.

9

Each step in the Chevron analysis requires the court to consider the terms of the
statute in context. The court first looks to the statutory text, in light of prior agency and

11

United States District Court
Northern District of California

10

judicial interpretation—as explained at length above, although the court notes that judicial

12

and agency interpretation following the most-recent 1996 revision is not particularly

13

relevant to understanding the meaning of the text as enacted in 1996. Cf. Sec'y of the

14

Interior v. California, 464 U.S. 312, 375 n.36 (1984) (the “view of a subsequent Congress

15

. . . is not without persuasive value”).

16

The analysis is also informed to some degree by what Congress decided not to

17

pass, in addition to what it specifically rejected. “Congress does not intend sub silentio to

18

enact statutory language that it has earlier discarded in favor of other language.”

19

Cardoza-Fonseca, 480 U.S. at 442–43; Albemarle Paper Co., 422 U.S. at 414 n.8

20

(rejecting construction of statute that would implement provision Conference Committee

21

rejected); Bob Jones Univ., 461 U.S. at 600–01 (interpretation of statute informed by the

22

fact that Congress had a “prolonged and acute awareness” of an established agency

23

interpretation of a statute, considered the precise issue, and rejected bills to overturn the

24

prevailing interpretation); see also Merrill Lynch, 456 U.S. at 381–82 (interpretation of

25

statute informed by the fact that Congress amended large portions of statute, but not

26

provision at issue).

27

Of particular relevance here, parts of Congress have explicitly and repeatedly

28

rejected efforts to define “public charge” to include those who receive certain in-kind
45

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1

benefits for a period of 12 months—efforts that are strikingly similar to the definition now

2

adopted for the first time by the executive in the Rule. E.g., 142 Cong. Rec. 24313,

3

24425 (1996); S. Rep. No. 113-40, at 42 (2013); S. Rep. No. 113-40, at 63 (2013).

4

Congress’s rejection in 1996 is particularly instructive. As described above, Congress at

5

that time considered a scheme similar to the Rule, wherein use of means-tested benefits

6

for 12 months would qualify one as a public charge. On September 24, 1996, the

7

conference committee recommended passage of a version of the bill with that definition.

8

See 142 Cong. Rec. 24389 (conference committee recommendation), 24425 (public

9

charge definition). President Clinton had previously praised the legislation generally, but
specifically criticized that bill’s disincentive to obtain public benefits. He called for

11

United States District Court
Northern District of California

10

revision of the statute. He said “it still goes too far in denying legal immigrants access to

12

vital safety net programs which could jeopardize public health and safety. Some work

13

still needs to be done. I urge the Congress to move quickly to finalize and send me this

14

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

15

Responsibility Act of 1996”, President William J. Clinton, Weekly Compilation of

16

Presidential Documents Volume 32, Issue 18 (May 6, 1996) at p. 783. On September 30,

17

1996, the bill was signed into law, following the removal of the definition of public charge

18

that included use of means-tested public benefits. This exchange, which deals with the

19

precise issue presented by this litigation, is particularly instructive not because of the

20

president’s words but because of Congress’s response to those words—it intentionally

21

considered and rejected a definition similar to what the Rule now proposes. Afterall it is

22

Congress, not the President, who is responsible for writing legislation.

23

Given the term’s long-standing focus on the individual’s ability and willingness to

24

work or otherwise support himself, and its longstanding allowance for short-term aid, and

25

the legislative history of the 1996 revision, it is likely that the Rule’s interpretation defining

26

anyone who receives any quantity of benefits for 12 months (or fewer) out of a floating

27

36-month window as a public charge is not a permissible or reasonable construction of

28

the statute. For example, defendants do not contest that someone receiving less than 50
46

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1

cents per day—which is a standard SNAP benefit amount for recipients at the higher end

2

of income eligibility, Shing Decl. ¶ 17—would be deemed a public charge under the Rule.

3

That could also be calculated as $182 over 36 months—or an average of less than 17

4

cents a day. At no point over the long history described above could that have qualified

5

one as a public charge, unless the bill for those charges was presented to the recipient

6

and he refused to pay. Moreover, the Rule’s double-counting of months where multiple

7

benefits are received raises serious questions with respect to whether the Rule

8

impermissibly considers temporary or short-term relief, receipt of which has never been

9

sufficient to qualify someone as a public charge (absent repayment, following

10

United States District Court
Northern District of California

11

presentation of an invoice).
Deciding otherwise would put this court at odds with persuasive Supreme Court

12

and Ninth Circuit precedent. The Supreme Court has defined the term to allow exclusion

13

only “on the ground of permanent personal objections accompanying them [the excluded

14

aliens] irrespective of local conditions[.]” Gegiow, 239 U.S. at 10. In that case, “the

15

aliens came from a remote province of Russia. They knew no trade. They knew no

16

language but their own. Only one could read or write in his own language. They had

17

sums aggregating slightly more than $25 each. They were not employed, and had no

18

promise of employment. They were ticketed through to Portland, Or., where, owing to

19

depressed labor conditions, the prospect of their obtaining work ‘was most unfavorable.’”

20

Ex parte Hosaye Sakaguchi, 277 F. at 916 (citing Gegiow, 239 U.S. at 10). Still, they

21

were not likely to become public charges within the meaning of the statute. The Ninth

22

Circuit reaffirmed that definition following reorganization of the statute. Id. (“change of

23

location of the words does not change the meaning that should be given them”). Since

24

Gegiow and Ex parte Hosaye Sakaguchi, Congress has not altered the term “public

25

charge,” which the Ninth Circuit has defined standing alone, irrespective of its placement

26

or context within the list of excluded persons in the statute. The court therefore sees no

27

good reason to depart from those precedential opinions, which suggest that an able-

28

bodied, working-age individual who is willing to engage in honest work is not excludable
47

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1

based on a prediction that he will become a public charge unless a particular reason can

2

be articulated to exclude him. This reasoning does not allow for exclusion based on the

3

increasing generosity of society’s public assistance to provide for more than the barest

4

requirements of subsistence. Gegiow, in fact, explicitly precludes consideration of local

5

labor conditions.
The likely unreasonableness of the rule is further demonstrated by just how

6

expansive the definition is. The history of the term, evidenced by its repeated verbatim

8

reenactment, excluded those who were likely to become public charges based on

9

poverty, or idiocy and poverty, or disease and poverty, etc. But plaintiffs demonstrate

10

that in a single year, roughly a quarter U.S.-born citizens receive one or more benefits

11

United States District Court
Northern District of California

7

used to define who is a public charge under the Rule. And plaintiffs demonstrate that,

12

over the course of their lifetimes, about 40% of U.S.-born citizens are expected to receive

13

one or more of those benefits. Although these figures do not indicate what percent of

14

U.S.-born citizens would actually be deemed public charges under the Rule (that would

15

require determining how many individuals receive multiple benefits per month, in addition

16

to how many months benefits are received over any 3-year period), it suggests that the

17

Rule is substantially outside the bounds of a reasonable interpretation of the statute.

18

With regard to plaintiffs’ claim that the Rule is not in accordance with law, for the

19

foregoing reasons, and given the above discussion of the term’s long-standing use and

20

evolution in the immigration statutes, this court finds that plaintiffs are likely to succeed on

21

the merits with respect to their claim that the Rule’s definition of public charge is

22

unreasonable and not based on a permissible construction of the statute, under the

23

second prong of the Chevron analysis.15 Alternatively, plaintiffs have raised at least

24

serious questions with respect to whether “the statute, read in context, unambiguously

25

forecloses” the precise question at issue, namely DHS’s expansive interpretation of the

26

term to include individuals willing and able work productively in the national economy,

27
28

15

For the same reasons that plaintiffs are likely to succeed on this question, they have
undoubtedly raised serious questions with respect to it.
48

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1

under the first prong of the Chevron analysis. See Esquivel-Quintana v. Sessions, 137 S.

2

Ct. 1562, 1572 (2017); see also Whitman v. Am. Trucking Associations, 531 U.S. 457,

3

471 (2001) (finding a particular construction “unambiguously bar[red]” when “interpreted

4

in its statutory and historical context”).

5
6

b.

Not in Accordance with Law—Rehabilitation Act

The Rehabilitation Act prohibits “any program or activity receiving federal financial

7

assistance” or “any program or activity conducted by any Executive agency,” from

8

excluding, denying benefits to, or discriminating against persons with disabilities. 29

9

U.S.C. § 794(a).

10

“To establish a violation of § 504 of the RA [Rehabilitation Act], a plaintiff must

United States District Court
Northern District of California

11

show that (1) she is handicapped within the meaning of the RA; (2) she is otherwise

12

qualified for the benefit or services sought; (3) she was denied the benefit or services

13

solely by reason of her handicap; and (4) the program providing the benefit or services

14

receives federal financial assistance.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir.

15

2002); 29 U.S.C. § 794(a) (“[n]o otherwise qualified individual with a disability . . . shall,

16

solely by reason of her or his disability, be . . . subjected to discrimination under . . . any

17

program or activity conducted by any Executive agency”).

18

The States argue that the Rule will exclude some individuals solely based on

19

disability because a disability will predictably be responsible for a number of negative

20

factors in some individuals: (1) a negative health factor because the Rule adopts a

21

definition of “health” that strongly overlaps with disability; (2) a negative factor if the

22

applicant lacks private insurance; and (3) a negative factor if the applicant has received

23

Medicaid for 12 of the last 36 months, even though use of Medicaid is common for the

24

disabled because it covers services that no other insurer provides.

25

Defendants first argue that the Rule’s multi-factor test means the Rehabilitation

26

Act is not violated because disability cannot be the “sole” determinative factor. Second,

27

they argue that even if the statutes are in conflict, a specific, later statutory command—

28

such as the INA’s requirement that the agency consider health—supersedes section
49

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1

504’s general proscription.
First, the Rehabilitation Act requires that a plaintiff show that a disabled person

2
3

was denied services “solely” by reason of her disability. The Rule does not deny any

4

alien admission into the United States, or adjustment of status, “solely by reason of”

5

disability. All covered aliens, disabled or not, are subject to the same inquiry: whether

6

they are likely to use one or more covered federal benefits for the specified period of

7

time. Even though a disability is likely to be an underlying cause of some individuals

8

qualifying for additional negative factors, it will not be the sole cause. As such, disability

9

is one non-dispositive factor.16
Second, the INA explicitly lists “health” as a factor that an officer “shall . . .

11

United States District Court
Northern District of California

10

consider” in making a public charge determination. 8 U.S.C. § 1182(a)(4)(B)(i). “Health”

12

includes an alien’s disability and whatever impact the disability may have on the alien’s

13

expenses and ability to work. Congress, not the Rule, requires DHS to take this factor

14

into account, and the caselaw has long considered this factor. See, e.g., Knutzen v.

15

Eben Ezer Lutheran Hous. Ctr., 815 F.2d 1343, 1353 (10th Cir. 1987) (section 504 may

16

not “revoke or repeal . . . a much more specific statute . . . absent express language by

17

Congress”).
As such, plaintiffs have not demonstrated even serious questions going the merits

18
19

with respect to this claim.

20

c.

21

Section 4 of the APA, 5 U.S.C. § 553, prescribes a three-step
procedure for so-called “notice-and-comment rulemaking.”
First, the agency must issue a “[g]eneral notice of proposed rule
making,” ordinarily by publication in the Federal
Register. § 553(b). Second, if “notice [is] required,” the agency
must “give interested persons an opportunity to participate in

22
23
24
25
26
27
28

Arbitrary and Capricious

Plaintiffs’ citation to Lovell is unavailing. They claim the case found a multi-factor test
violated the Act, “notwithstanding other factors” unrelated to disability. But in Lovell,
defendants asked the court to look at a multifactored system, but the court declined and
instead looked at treatment of the disabled under a single program. It was “undisputed
that disabled people who, but for their disability, were eligible for healthcare benefits from
the State under” that single program “were denied coverage because of the categorical
exclusion of the disabled from” that program. Lovell, 303 F.3d at 1053.
50
16

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1
2
3
4
5

the rule making through submission of written data, views, or
arguments.” § 553(c). An agency must consider and respond
to significant comments received during the period for public
comment. Third, when the agency promulgates the final rule,
it must include in the rule's text “a concise general statement of
[its] basis and purpose.” § 553(c). Rules issued through the
notice-and-comment process are often referred to as
“legislative rules” because they have the “force and effect of
law.” Chrysler Corp. v. Brown, 441 U.S. 281 (1979).
Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1203 (2015) (citations omitted).

6
7

“‘[A]rbitrary and capricious’ review under the APA focuses on the reasonableness
of an agency’s decision-making processes.” CHW W. Bay v. Thompson, 246 F.3d 1218,

8
1223 (9th Cir. 2001). Agency action is invalid if the agency fails to give adequate
9
10

reasons for its decisions, fails to examine the relevant data, or offers no “rational
connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of

11

United States District Court
Northern District of California

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see also Encino
12
Motorcars, 136 S. Ct. at 2125. A rule is arbitrary and capricious if the agency has
13

“entirely failed to consider an important aspect of the problem, offered an explanation for

14
its decision that runs counter to the evidence before the agency, or is so implausible that
15
16

it could not be ascribed to a difference in view or the product of agency expertise.” Id.
Agencies are required to “reflect upon the information contained in the record and

17
grapple with contrary evidence.” Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630, 638
18
19

(D.C. Cir. 2017). Where “the agency has failed to ‘examine the relevant data’ or failed to
‘articulate a rational explanation for its actions,’” its decision is arbitrary and capricious.

20
Genuine Parts Co. v. EPA, 890 F.3d 304, 311–12 (D.C. Cir. 2018). And where an
21
22
23
24
25

agency is uncertain about the effects of agency action, it may not rely on “‘substantial
uncertainty’ as a justification for its actions.” Greater Yellowstone Coal., Inc. v. Servheen,
665 F.3d 1015, 1028 (9th Cir. 2011). Instead, it must “rationally explain why the
uncertainty” supports the chosen approach. Id. (“Otherwise, we might as well be
deferring to a coin flip.”). “[A]n internally inconsistent analysis is arbitrary and capricious.”

26
Nat'l Parks Conservation Ass'n v. E.P.A., 788 F.3d 1134, 1141 (9th Cir. 2015).
27

But “[t]he scope of review under the ‘arbitrary and capricious’ standard is narrow

28
51

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 52 of 93

1

and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs.

2

Ass’n, 463 U.S. at 43; San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581,

3

601 (9th Cir. 2014) (“Although our inquiry must be thorough, the standard of review is

4

highly deferential; the agency's decision is ‘entitled to a presumption of regularity,’ and

5

we may not substitute our judgment for that of the agency.”). An agency’s obligation to

6

respond to comments on a proposed rulemaking is “not ‘particularly demanding.’” Ass’n

7

of Private Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 441–42 (D.C. Cir. 2012).

8

“[T]he agency’s response to public comments need only ‘enable [courts] to see what

9

major issues of policy were ventilated . . . and why the agency reacted to them as it did.’”

10

Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993).

United States District Court
Northern District of California

11

Rule changes face a higher burden when departing from prior policy:

12

Agencies are free to change their existing policies as long as
they provide a reasoned explanation for the change. When an
agency changes its existing position, it need not always provide
a more detailed justification than what would suffice for a new
policy created on a blank slate. But the agency must at least
display awareness that it is changing position and show that
there are good reasons for the new policy. In explaining its
changed position, an agency must also be cognizant that
longstanding policies may have engendered serious reliance
interests that must be taken into account. In such cases it is
not that further justification is demanded by the mere fact of
policy change; but that a reasoned explanation is needed for
disregarding facts and circumstances that underlay or were
engendered by the prior policy. It follows that an unexplained
inconsistency in agency policy is a reason for holding an
interpretation to be an arbitrary and capricious change from
agency practice. An arbitrary and capricious regulation of this
sort is itself unlawful and receives no Chevron deference.

13
14
15
16
17
18
19
20
21
22

Encino Motorcars, 136 S. Ct. at 2125–26 (internal quotation marks and citations omitted);

23

accord F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (agency must

24

“provide a more detailed justification than what would suffice for a new policy created on

25

a blank slate . . . when, for example, its new policy rests upon factual findings that

26

contradict those which underlay its prior policy; or when its prior policy has engendered

27

serious reliance interests that must be taken into account”).

28

Plaintiffs raise numerous procedural challenges to the Rule. The court addresses
52

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1

them in two general categories. First, the court considers plaintiffs arguments that DHS

2

failed to adequately consider and address the Rule’s costs and benefits. Second, the

3

court considers plaintiffs’ remaining procedural challenges.
i.

4

DHS Failed to Adequately Consider Costs and Benefits

5

Plaintiffs argue that DHS failed to consider costs and benefits in three ways. First,

6

DHS failed to adequately consider significant costs to local and state governments raised

7

in comments, as well as the related issue of DHS’s failure to consider evidence when

8

estimating disenrollment figures. Second, DHS failed to consider concerns about health

9

effects like disease outbreaks. Third, DHS acted impermissibly with respect to the

10

burden the I-944 form would impose.
Based on plaintiffs’ first and second arguments, discussed presently, this court

United States District Court
Northern District of California

11
12

finds that they are likely to succeed on the merits with respect to their claim that the Rule

13

is arbitrary and capricious.17
A.

14

Local and State Government Costs and
Disenrollment Rates

15

Plaintiffs argue that commenters documented the dangers to individuals and public

16
17

health generally that stem from disenrollment in public benefits, and explained that local

18

and state governments will face higher costs because of this disenrollment. See 84 Fed.

19

Reg. at 41,310-12 (explaining that “[m]any commenters particularly emphasized that

20

disenrollment or foregoing enrollment would be detrimental to the financial stability and

21

economy of communities, States, local organizations, hospitals, safety net providers,

22

foundations, and healthcare centers”); id. at 41,469–70; Case No. 19-cv-04717-PJH,

23

Dkt. 44, Exs. C–E (letters submitted in response to NPRM). Numerous comments

24

included specific cost calculations. See, e.g., 84 Fed. Reg. at 41,475 (citing specific cost

25

estimates from comments); Cho Decl., Ex. C at 22–23 (estimating losses to California at

26

$1.76 billion in revenue from federal government and 17,700 jobs), Ex. J at 11

27
28

17

For the same reasons that plaintiffs are likely to succeed on this claim, they have
undoubtedly raised serious questions with respect to it.
53

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1

(estimating that the Rule would cost hospitals more than $17 billion in uncompensated

2

care), Ex. K at 5–7 (detailing expected costs to hospitals).
Plaintiffs relatedly argue that DHS under-estimated disenrollment figures and the

3
4

accompanying effects, including the effects on state and local governments.18 For

5

example, despite its concession that the Rule will cause members of mixed-status

6

households (i.e., those including U.S. citizens) to disenroll from benefits, 84 Fed. Reg. at

7

41,300, DHS refused to consider the costs associated with such disenrollment, stating:

8

“DHS believes that it would be unwarranted for U.S. citizens and aliens exempt from

9

public charge inadmissibility to disenroll from a public benefit program or forego
enrollment in response to this rule when such individuals are not subject to this rule.

11

United States District Court
Northern District of California

10

DHS will not alter this rule to account for such unwarranted choices.” Id. at 41,313.
Defendants correctly argue that they are not required to quantify every potential

12
13

cost and benefit and precisely weigh them out. They respond to these challenges both in

14

the Rule and before the court with three essential points. First, DHS read the comments,

15

but the forward-looking economic impact to states, cities, hospitals, and others was too

16

difficult to assess. Second, with respect to the disenrollment of those who will not be

17

subject to a public charge assessment in the future, the Rule’s effect was too difficult to

18

assess. Third, even if DHS had assessed those costs, they would be outweighed by the

19

benefits of excluding aliens who would rely on public assistance, and of promoting self-

20

sufficiency of aliens already in the United States. Those benefits are in line with

21

Congressional statements of policy.
DHS was required to a certain extent to grapple with estimates and credible data

22
23
24
25
26
27
28

DHS argues that it’s 2.5% figure is not part of the regulatory analysis and cannot be
challenged because it was calculated pursuant to an executive order. The court
disagrees. See Council of Parent Attorneys & Advocates, Inc. v. DeVos, 365 F. Supp. 3d
28, 54 n.11 (D.D.C. 2019) (“The government contended . . . that because its regulatory
impact analysis was conducted pursuant to Executive Orders, it is not subject to judicial
review. . . . These arguments are contrary to D.C. Circuit precedent. Because the
government relied on its cost-benefit analysis . . . a flaw in that analysis can render the
regulation arbitrary and capricious.”).
18

54

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 55 of 93

1

explained in the comments, and in turn explain why DHS chose not to credit them. See

2

Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053, 1068–69 (9th Cir. 2018) (finding

3

agency action arbitrary and capricious where the agency did not explain why it did not

4

credit available data that did not support its action). Defendants are correct that DHS

5

was not required to parse costs and benefits precisely. But to the extent the exact harms

6

are unknown or difficult to predict, that does not justify “disregarding the effect entirely.”

7

Pub. Citizen v. Fed. Motor Carrier Safety Admin., 374 F.3d 1209, 1219 (D.C. Cir. 2004).

8
9

Here, even under the deferential APA analysis, DHS appears to have wholly failed
to engage with this entire category of comments. DHS failed to grapple with the Rule’s
predictable effects on local governments, and instead concluded that the harms—

11

United States District Court
Northern District of California

10

whatever they may be—are an acceptable price to pay. At minimum, the APA requires

12

more than reading public comments and responding with a general statement that,

13

however correct the comments may be, the agency declines to consider the issues and

14

costs identified because doing so would contravene the government’s favored policy.

15

For example, under the heading “Increased Costs to Health Care Providers,

16

States, and Localities,” the government summarized the comments it was responding to:

17

Many commenters particularly emphasized that disenrollment
or foregoing enrollment would be detrimental to the financial
stability and economy of communities, States, local
organizations, hospitals, safety net providers, foundations, and
healthcare centers. Commenters offering estimates on the
number of people who would disenroll from Medicaid under the
proposed rule warned that the costs associated with the
resultant rise in uncompensated care would be borne by health
systems, hospitals, and insured patients.

18
19
20
21
22

84 Fed. Reg. at 41,312.

23

The government’s response, in part, was:

24
25
26
27
28

Response: With respect to the rule's potential “chilling effects”
or disenrollment impacts, DHS notes that (1) the rule's
overriding consideration, i.e., the Government's interest as set
forth in PRWORA, is a sufficient basis to move forward; (2) it is
difficult to predict the rule's disenrollment impacts with respect
to the regulated population, although DHS has attempted to do
so in the accompanying Final Regulatory Impact Analysis; and
(3) it is also difficult to predict the rule's disenrollment impacts
with respect to people who are not regulated by this rule,
55

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1
2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18

although, again, DHS has attempted to do so in the
accompanying Final Regulatory Impact Analysis.
First, as discussed above, this rule is rationally related to the
Government's interest, as set forth in PRWORA, to: (1)
Minimize the incentive of aliens who attempt to immigrate to, or
adjust status in the United States due to the availability of public
benefits; and (2) Promote the self-sufficiency of aliens within
the United States. DHS has defined public benefits by focusing
on cash assistance programs for income maintenance, and an
exhaustive list of non-cash food, housing, and healthcare,
designed to meet basic living needs. This definition does not
include benefits related exclusively to emergency response,
immunization, education, or social services, nor does it include
exclusively state and local non-cash aid programs. DHS
acknowledges that individuals subject to this rule may decline
to enroll in, or may choose to disenroll from, public benefits for
which they may be eligible under PRWORA, in order to avoid
negative consequences as a result of this final rule. However,
DHS has authority to take past, current, and likely future receipt
of public benefits into account, even where it may ultimately
result in discouraging aliens from receiving public benefits.
Although individuals may reconsider their receipt of public
benefits as defined by this rule in light of future immigration
consequences, this rule does not prohibit an alien from
obtaining a public benefit for which he or she is eligible. DHS
expects that aliens seeking lawful permanent resident status or
nonimmigrant status in the United States will make purposeful
and well-informed decisions commensurate with the
immigration status they are seeking. But regardless, DHS
declines to limit the effect of the rulemaking to avoid the
possibility that individuals subject to this rule may disenroll or
choose not to enroll, as self-sufficiency is the rule's ultimate
aim.

24

Second, DHS finds it difficult to predict how this rule will affect
aliens subject to the public charge ground of inadmissibility,
because data limitations provide neither a precise count nor
reasonable estimate of the number of aliens who are both
subject to the public charge ground of inadmissibility and are
eligible for public benefits in the United States. This difficulty is
compounded by the fact that most applicants subject to the
public charge ground of inadmissibility and therefore this rule
are generally unlikely to suffer negative consequences
resulting from past receipt of public benefits because they will
have been residing outside of the United States and therefore,
ineligible to have ever received public benefits.

25

....

26

Third, DHS finds it difficult to predict the rule's disenrollment
impacts with respect to people who are not regulated by this
rule, such as people who erroneously believe themselves to be
affected. . . . This rule does not prohibit or otherwise discourage
individuals who are not subject to the public charge

19
20
21
22
23

27
28

56

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1

inadmissibility from receiving any public benefits for which they
are eligible.

2

....

3

Because DHS will not consider the receipt of public benefits by
U.S. citizens and aliens not subject to public charge
inadmissibility, the receipt of public benefits by these
individuals will not be counted against or made attributable to
immigrant family members who are subject to this rule.
Accordingly, DHS believes that it would be unwarranted for
U.S. citizens and aliens exempt from public charge
inadmissibility to disenroll from a public benefit program or
forego enrollment in response to this rule when such individuals
are not subject to this rule. DHS will not alter this rule to account
for such unwarranted choices.

4
5
6
7
8
9

14

DHS appreciates the potential effects of confusion regarding
the rule's scope and effect, as well as the potential nexus
between public benefit enrollment reduction and food
insecurity, housing scarcity, public health and vaccinations,
education health-based services, reimbursement to health
providers, and increased costs to states and localities. In
response to comments, DHS will also issue clear guidance that
identifies the groups of individuals who are not subject to this
rule, including, but not limited to, U.S. citizens, lawful
permanent residents returning from a trip abroad who are not
considered applicants for admission, and refugees.

15

....

16

In sum, DHS does not believe that it is sound policy to ignore
the longstanding self-sufficiency goals set forth by Congress or
to admit or grant adjustment of status applications of aliens who
are likely to receive public benefits designated in this rule to
meet their basic living needs in an [sic] the hope that doing so
might alleviate food and housing insecurity, improve public
health, decrease costs to states and localities, or better
guarantee health care provider reimbursements. . . . DHS
believes that it will ultimately strengthen public safety, health,
and nutrition through this rule by denying admission or
adjustment of status to aliens who are not likely to be selfsufficient.

10

United States District Court
Northern District of California

11
12
13

17
18
19
20
21
22
23

84 Fed. Reg. at 41,312–14 (footnotes omitted).

24

That answer entirely fails to discuss costs being borne by the states, hospitals, or

25

others, other than to say DHS will issue guidance in an effort to mitigate confusion. The

26

answer discusses disenrollment rates being difficult to measure, but flatly refuses to

27

account for certain types of disenrollment (for example those who “erroneously believe

28

themselves to be affected” and make “unwarranted choices”). DHS’s response
57

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 58 of 93

1

constitutes a thinly-veiled abdication of the responsibility to consider the issue. Rather

2

than engage, the response simply elides the issue that the APA requires consideration of.

3

Ending the analysis with the conclusion that “DHS believes that it will ultimately

4

strengthen public safety, health, and nutrition through this rule” fails to show that DHS

5

“examine[d] the relevant data and articulate[d] a satisfactory explanation for its action

6

including a rational connection between the facts found and the choice made.” Encino

7

Motorcars, 136 S. Ct. at 2125 (quoting Motor Vehicle Mfrs. Assn., 463 U.S. at 43);

8

Sorenson Commc’ns Inc. v. F.C.C., 755 F.3d 702, 708 (D.C. Cir. 2014) (“Though an

9

agency’s predictive judgments about the likely economic effects of a rule are entitled to
deference, deference to such judgments must be based on some logic and evidence, not

11

United States District Court
Northern District of California

10

sheer speculation.”) (internal quotation marks and citations omitted). DHS fails to explain

12

how those benefits will come about with any evidentiary support. In fact, ample evidence

13

cited in the comments shows exactly the opposite—that use of public benefits improves

14

public health and welfare. DHS’s bare assertion to the contrary simply is not enough to

15

satisfy its obligations. Even ignoring the fact that the conclusion lacks a reasoned

16

explanation of how it was reached, DHS also fails to address why the supposed benefits

17

will outweigh the likely costs (DHS had at this point already declined to discuss what the

18

likely costs are in fact are). Plaintiffs have shown it is likely that, with respect to

19

consideration of costs imposed on states and localities by the Rule, DHS offers no “path

20

[that] may reasonably be discerned” in its reasoning. Motor Vehicle Mfrs. Ass'n, 463 U.S.

21

at 43.

22

Moreover, DHS may not discount an undisputed impact of the Rule simply

23

because DHS believes it is “unwarranted.” See Michigan, 135 S. Ct. at 2707

24

(“reasonable regulation ordinarily requires paying attention to the advantages and the

25

disadvantages of agency decisions”). DHS flatly refused to consider the costs associated

26

with predicted, likely disenrollment of those not subject to the public charge determination

27

by stating: “DHS believes that it would be unwarranted for U.S. citizens and aliens

28

exempt from public charge inadmissibility to disenroll from a public benefit program or
58

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 59 of 93

forgo enrollment in response to this rule when such individuals are not subject to this rule.

2

DHS will not alter this rule to account for such unwarranted choices.” 84 Fed. Reg. at

3

41,313. But DHS’s disagreement with the source of a cost does not make it go away,

4

and it does not discharge DHS’s obligation to consider it. DHS must consider the costs

5

of widespread disenrollment that it anticipates—it cannot ignore costs by calling their

6

causes “unwarranted.” Plaintiffs have shown it is likely that DHS understood that

7

individuals would disenroll even though they are not subject to the public charge

8

determination, yet DHS refused to consider that cost entirely. Doing so would have been

9

arbitrary and capricious. Michigan, 135 S. Ct. at 2707 (“‘cost’ includes more than the

10

expense of complying with regulations; any disadvantage could be termed a cost. . . .

11

United States District Court
Northern District of California

1

Consideration of cost reflects the understanding that reasonable regulation ordinarily

12

requires paying attention to the advantages and the disadvantages of agency

13

decisions.”); accord Metlife, Inc. v. Fin. Stability Oversight Council, 177 F. Supp. 3d 219,

14

223 (D.D.C. 2016) (“focus[ing] exclusively on the presumed benefits . . . and ignor[ing]

15

the attendant costs . . . is itself unreasonable under the teachings of Michigan v.

16

Environmental Protection Agency”); Regents of Univ. of California v. United States Dep't

17

of Homeland Sec., 279 F. Supp. 3d 1011, 1046 (N.D. Cal.), aff'd sub nom. Regents of the

18

Univ. of California v. U.S. Dep't of Homeland Sec., 908 F.3d 476 (9th Cir. 2018), cert.

19

granted sub nom. Dep't of Homeland Sec. v. Regents of the Univ. of California, 139 S.

20

Ct. 2779 (2019) (same).

21

B.

Health Effects

22

Plaintiffs argue that DHS ignored comments describing how loss of benefits would

23

trigger negative health consequences, including the spread of disease and aggravation of

24

chronic illness. DHS received ample commentary regarding this issue. See, e.g., 84

25

Fed. Reg. at 41,384 (summarizing certain comments); Cho Decl., Ex. M at 4 (Kaiser

26

Permanente comment linking the rule’s impacts on prescription adherence with increased

27

chance of outbreaks of communicable disease), Ex. N at 9 (Pub. Health Inst. Comment:

28

“We cannot achieve universally agreed upon public health goals, such as reducing
59

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1

chronic diseases throughout the U.S., when we directly or indirectly deny large segments

2

of our population the very building blocks they need for good health”), Ex. O at 4 (Nat’l

3

Assoc. Ped. Nurse Practitioners comment discussing “worse health outcomes”), P at 7

4

(Children’s HealthWatch comment warning of “increased prevalence of communicable

5

diseases”).
Defendants offer the same general defenses in response. First, DHS read the

6

comments, but the forward-looking impact to health was too difficult to assess. Second,

8

even if DHS had assessed those costs, they would be outweighed by the benefits of

9

excluding aliens who would rely on public benefits and promoting self-sufficiency of aliens

10

already in the United States. Those benefits are in line with Congressional statements of

11

United States District Court
Northern District of California

7

policy.

12

Relevantly here, similar negative health outcomes were a key rationale for prior

13

agency action. When issuing the 1999 guidance, INS described its primary motivation “to

14

reduce the negative public health consequences generated by the existing confusion.”

15

64 Fed. Reg. at 28,689; see also id. at 28,692 (adopting regulation on an interim basis

16

because “confusion . . . has deterred eligible [immigrants] and their families, including

17

U.S. citizen children, from seeking important health and nutrition benefits,” and that

18

“reluctance to access benefits has an adverse impact not just on the potential recipients,

19

but on public health and the general welfare”). In reversing the 1999 guidance,

20

defendants must “‘display awareness that it is changing position’ and ‘show that there are

21

good reasons for the new policy.’” Encino Motorcars, 136 S. Ct. at 2126 (quoting FCC v.

22

Fox, 556 U.S. at 515). Moreover, where the prior policy engendered reliance, “a

23

reasoned explanation is needed for disregarding facts and circumstances that underlay

24

or were engendered by the prior policy.” Id.

25
26
27
28

Under the heading “Vaccinations,” the government summarized the comments it
was responding to:
Commenters indicated that the public charge rule would make
immigrant families afraid to seek health-care, including
vaccinations against communicable diseases, and therefore,
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2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13

endanger the U.S. population. . . . . The commenter indicated
that engaging with the public health system was critical to
ensuring robust immunization to protect the population overall;
if a subset of the community were fearful to access government
healthcare services, regardless of whether a specific type of
service qualified for a narrow exception, it would have a
significant impact on the country's ability to protect and promote
the public health. Another commenter indicated that its health
department anticipated that promulgation of the rule, as written
in the NPRM, will result in decreased utilization of children's
healthcare, including vaccinations, which will increase the risk
for vaccine preventable diseases . . . increasing the likelihood
of an outbreak.
Some commenters stated that since many immigrants live in
communities alongside people of the same national origin,
reduced vaccinations could result in unvaccinated or undervaccinated clusters of individuals. Commenters warned that
research shows that uninsured individuals are much less likely
to be vaccinated. One commenter stated that a recent study
found that even a five percent reduction in vaccine coverage
could trigger a significant measles outbreak. . . . Another
commenter stated that the rule would increase the incidence of
childhood diseases like chickenpox, measles, mumps and
rubella and deter parents from vaccinating their children.

14

84 Fed. Reg. at 41,384.

15

The government’s response was:

16
17
18
19
20
21
22
23
24
25
26
27
28

With this rulemaking, DHS does not intend to restrict the access
of vaccines for children or adults or intend to discourage
individuals from obtaining the necessary vaccines to prevent
vaccine-preventable diseases. The purpose of this rulemaking
is to ensure that those seeking admission to the United States
are self-sufficient and rely on themselves or family and friends
for support instead of relying on the government for
subsistence. As noted above, this final rule does not consider
receipt of Medicaid by a child under age 21, or during a person's
pregnancy, to constitute receipt of public benefits. This should
address a substantial portion, though not all, of the vaccinations
issue.
Vaccinations obtained through public benefits programs are not
considered public benefits under 8 CFR 212.21(b), although if
an alien enrolls in Medicaid for the purpose of obtaining
vaccines, the Medicaid itself qualifies as a public benefit. DHS
also notes that free or low cost vaccines are available to
children who are not insured or underinsured through the
Vaccines for Children (VFC) Program. In addition, local health
centers and state health departments provide preventive
services that include vaccines that may be offered on a sliding
scale fee based on income. Therefore, DHS believes that
vaccines would still be available for children and adults even if
they disenroll from Medicaid.
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1
2

84 Fed. Reg. at 41,384–85 (footnotes omitted).
DHS’s response to the comments was essentially that it understood that fewer

3

people would get vaccines following the Rule, which would present a risk, but there are

4

ways to get vaccines without Medicaid. As a result, DHS acknowledged that fewer

5

people will get vaccines, but it failed engage at all in the consequences of that fact.

6

Plaintiffs have demonstrated a likelihood of success based upon this argument.

7

This change departs from a longstanding prior policy, as explained in the 1999 Field

8

Guidance, that is likely to have engendered reliance. That guide explained that certain

9

rules were needed because uncertainty had “deterred eligible aliens and their families,
including U.S. citizen children, from seeking important health and nutrition benefits[,

11

United States District Court
Northern District of California

10

which] . . . has an adverse impact not just on the potential recipients, but on public

12

health and the general welfare.” 64 Fed. Reg. at 28,692 (emphasis added). Given that

13

the 1999 Field Guidance was both longstanding precedent and specifically concerned

14

benefits supporting general public health (not simple health of the aliens—e.g., vaccines),

15

DHS must provide “a reasoned explanation . . . for disregarding facts and circumstances

16

that underlay or were engendered by the prior policy.” FCC v. Fox, 556 U.S. at 515–16;

17

accord Encino Motorcars, 136 S. Ct. at 2126 (“an unexplained inconsistency in agency

18

policy is a reason for holding an interpretation to be an arbitrary and capricious change

19

from agency practice”) (internal quotation marks omitted).

20

Although DHS acknowledged departure from the 1999 Field Guidance as a

21

general matter (e.g., 84 Fed. Reg. at 41,307–08), DHS simply declined to engage with

22

certain, identified public-health consequences of the Rule. It made no attempt,

23

whatsoever, to investigate the type or magnitude of harm that would flow from the reality

24

which it admittedly recognized would result—fewer people would be vaccinated. Instead,

25

and just as with its refusal to consider “unwarranted” choices to disenroll from Medicaid

26

discussed above, DHS responded only that it “believes that vaccines would still be

27

available” through some other channels. The response is devoid of rationale, but

28

additionally it fails entirely to provide a reasoned explanation for disregarding the facts
62

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1

and circumstances underlying the prior policy.
C.

2

Form I-944

Plaintiffs argue that defendants’ estimate of the time and cost burden that the new

4

Form I-944, entitled Declaration of Self Sufficiency, will have on applicants is implausible.

5

They argue that the Rule provides too-low of an estimate for the time required to fill out

6

the form, based on its estimate about the time it takes to fill out another related form.

7

They argue that DHS did not adequately consider the differences between the forms

8

when arriving at their estimate. Yet DHS considered and responded to comments

9

regarding the time commitment required by Form I-944. In response DHS modified the

10

form, removed some duplicative questions, and explained that it is important to be filed

11

United States District Court
Northern District of California

3

separately because it is filed by the immigrant himself. 84 Fed. Reg. at 41,484. Plaintiffs

12

have not demonstrated a likelihood of success or serious questions with respect to this

13

argument.

14

ii.

Other Challenges

15

Plaintiffs raise a number of other procedural challenges under the APA. The court

16

finds that plaintiffs have not demonstrated a likelihood of success on the merits or serious

17

questions with respect to any, and it will address some of them briefly.

18

Plaintiffs argue that the Rule stops treating sponsors’ affidavits of support as

19

sufficient assurance that immigrant applicants will not become overly dependent on

20

public benefits, yet Congress specified in 8 U.S.C. § 1182(a)(4)(B)(ii) that the executive

21

simply “may also” consider such affidavits. Although plaintiffs argue that in practice

22

USCIS has accepted affidavits of support as conclusive, the controlling statute and 1999

23

Field Guidance make clear that this is not a change in policy. See 64 Fed. Reg. at

24

28,690 (“Where such an AOS has been filed on an alien's behalf, it should be considered

25

along with the statutory factors in the public charge determination.”).

26

Plaintiffs argue the Rule is inconsistent because DHS included an exemption for

27

individuals under the age of 21 who receive Medicaid benefits, but did not include a

28

similar exemption for individuals under the age of 21 who receive SNAP benefits. DHS
63

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1

considered this issue and provided a reasoned explanation for providing Medicaid to

2

children, including that it can provide funding for “in-school health services and serve as

3

an important way to ensure that children receive the vaccines needed to protect public

4

health and welfare.” 84 Fed. Reg. at 41,380.

5

Plaintiffs argue the Rule is inconsistent because the statute requires consideration

6

of “education and skills” and “health,” but the Rule requires a much more searching

7

inquiry into health than education and skills. For example, the Rule considers details

8

about an individual’s health insurance, benefits receipt, and financial status of household

9

members, but inconsistently fails to take into account admission or attendance in a
college or trade school. But the Rule in fact allows for consideration of admission or

11

United States District Court
Northern District of California

10

attendance in a college or trade school, and DHS adequately addressed these issues in

12

response to comments. See 84 Fed. Reg. at 41,436 (“the exact nature of the education

13

(or lack thereof) and employment would have to be considered”).

14

Plaintiffs argue the Rule is inconsistent because it considers past immigration-

15

related fee waivers, which may be submitted before a noncitizen is legally eligible to work

16

and as a result punish that individual for applying to work legally. DHS adequately

17

responded, noting that “[s]ince fee waivers are based on an inability to pay, seeking or

18

obtaining a fee waiver for an immigration benefit suggests an inability to be self-

19

sufficient.” 84 Fed. Reg. at 41,424–25.

20

Plaintiffs argue the Rule is inconsistent because Medicaid use by pregnant women

21

or children (who are not penalized for using Medicaid under the rule) is counted against

22

them, because Medicaid is not counted as an asset that could offset the negative factor

23

of their illness that Medicaid is paying to treat. Plaintiffs argue that is not consistent,

24

because private insurance is considered an asset. Defendants argue that the Rule does

25

not count a severe medical condition as a heavily weighed negative factor if the alien has

26

“the financial resources to pay for reasonably foreseeable medical costs related to such

27

medical condition,” and such “financial resources” can include Medicaid benefits for those

28

pregnant or under 21. See 84 Fed. Reg. at 41,504 (“resources . . . to pay for reasonably
64

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1

foreseeable medical costs” includes “health insurance not designated as a public benefit

2

under 8 CFR 212.21(b)”).

3

Plaintiffs argue the Rule is irrational because an income of 125% of the federal

4

poverty guideline rate counts as a positive factor, yet individuals whose incomes exceed

5

that qualify for non-cash benefits considered under the Rule. But not all factors in a

6

multifactor test are required to align in outcome to be rational.

7

Plaintiffs argue the Rule is irrational because while it considers large family size as

8

a negative factor in a public charge assessment, DHS’s own data indicates that non-cash

9

benefit is higher among families of three than families of four, and that noncitizens’ use of
cash benefits decreases as family size grows. 84 Fed. Reg. at 41,395. The parties

11

United States District Court
Northern District of California

10

appear to disagree about which studies are “good studies” here, but DHS’s response

12

explained its interpretation of the studies and concluded that “the data properly reflects

13

that receipt of noncash benefits generally increases with an increase in family size.” Id.

14

Plaintiffs argue the Rule is irrational because it considers the mere application for

15

benefits in the public charge determination. Plaintiffs argue that an application for

16

benefits does not indicate a noncitizen is actually financially and otherwise eligible for the

17

benefit or will decide to use the benefit. DHS reasonably explained that an “application

18

for a public benefit is not the same as receipt but is indicative of an alien's intent to

19

receive such a benefit.” 84 Fed. Reg. at 41,422.

20

Plaintiffs argue the Rule is irrational because it is ultimately a vague and entirely

21

unpredictable framework for weighing the statutorily-authorized and newly-added factors,

22

which results in limitless discretion. The precise nature of the procedural challenge is

23

unclear here, but the underlying statute requires consideration of “at minimum” five

24

factors, and then specifically mentions another factor that “may” be considered.

25

Moreover, the statute specifically targets those who are likely to be a public charge “in the

26

opinion of the Attorney General,” who as DHS recognized has long been given discretion

27

to make such determinations under the statute. 84 Fed. Reg. at 41,398 (“DHS notes that

28

officer discretion is not a new concept in USCIS immigration benefits adjudications.”).
65

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Plaintiffs argue the Rule is irrational because some factors are actually

1
2

determinative, and impossible to overcome because the factors significantly overlap. As

3

a result, the Rule funnels officials’ decision-making towards favoring high-income

4

individuals at the expense of the poor and other marginalized groups. To the extent

5

plaintiffs challenge the Rule favoring admission of the wealthy over the poor, the plaintiffs’

6

appropriate target is the underlying statute rather than the Rule implementing it. The

7

statute itself calls for consideration of a number of factors, ultimately aimed at excluding

8

from the country a group comprised of those who are more likely to be poor than rich.
d.

9

Zone of Interests

In order to succeed on the merits, plaintiffs must be within the zone of interests of

10

United States District Court
Northern District of California

11

the statute that forms the basis of their challenge. The zone of interests analysis asks

12

“whether Congress created a private cause of action in legislation” (Organized Vill. of

13

Kake v. U.S. Dep't of Agric., 795 F.3d 956, 964 (9th Cir. 2015)), such that “this particular

14

class of persons has a right to sue under this substantive statute” (Lexmark Int'l, Inc. v.

15

Static Control Components, Inc., 572 U.S. 118, 127 (2014)). It is “not a question of

16

Article III standing” (Organized Vill. of Kake, 795 F.3d at 964), but rather is more

17

appropriately assessed with plaintiffs’ likelihood of success.19
“[A] person suing under the APA must satisfy not only Article III's standing

18
19

requirements, but an additional test: The interest he asserts must be ‘arguably within the

20

zone of interests to be protected or regulated by the statute’ that he says was

21

violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567

22

U.S. 209, 224 (2012) (quoting Ass'n of Data Processing Serv. Organizations, Inc. v.

23

Camp, 397 U.S. 150, 153 (1970)). In the APA context, “[t]he ‘zone of interest’ test is a

24

guide for deciding whether, in view of Congress’ evident intent [when enacting the APA]

25

to make agency action presumptively reviewable, a particular plaintiff should be heard to

26
27
28

The “zone of interests” requirement was formerly referred to as an assessment of
“prudential standing,” but “prudential standing is a misnomer as applied to the zone-ofinterests analysis[.]” Lexmark, 572 U.S. at 127 (internal quotation marks omitted); accord
Organized Vill. of Kake, 795 F.3d at 964 (9th Cir. 2015).
66
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1

complain of a particular agency decision. In cases where the plaintiff is not itself the

2

subject of the contested regulatory action, the test denies a right of review if the plaintiff’s

3

interests are so marginally related to or inconsistent with the purposes implicit in the

4

statute that it cannot reasonably be assumed that Congress intended to permit the suit.

5

The test is not meant to be especially demanding; in particular, there need be no

6

indication of congressional purpose to benefit the would-be plaintiff.” Clarke v. Sec.

7

Indus. Ass'n, 479 U.S. 388, 399–400 (1987) (footnote omitted); see also Pottawatomi

8

Indians, 567 U.S. at 225–26 (2012).

9

“Whether a plaintiff comes within the ‘zone of interests’ is an issue that requires us
to determine, using traditional tools of statutory interpretation, whether a legislatively

11

United States District Court
Northern District of California

10

conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark, 572 U.S.

12

at 127. “In answering this question, we recognize that ‘the breadth of the [applicable]

13

zone of interests varies according to the provisions of law at issue.’” Sierra Club v.

14

Trump, 929 F.3d 670, 700 (9th Cir. 2019) (quoting Lexmark, 572 U.S. at 130). “When the

15

[Supreme] Court has applied the zone of interests test in APA actions, however, it has

16

analyzed the zone of interests of the statute the agency is alleged to have violated, not

17

any zone of interests of the APA itself.” Id. at 702; accord Mendoza v. Perez, 754 F.3d

18

1002, 1016 (D.C. Cir. 2014). Nevertheless, “when analyzing whether a plaintiff falls

19

within the zone of interests of a particular statute, courts should be particularly lenient if a

20

violation of that statute is being asserted through an APA claim.” Id. at 703 n.26; accord

21

Pottawatomi Indians, 567 U.S. at 225 (“we have always conspicuously included the word

22

‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff”); Pit

23

River Tribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1155–56 (9th Cir. 2015) (“The

24

zone-of-interests test should be applied consistent with Congress's intent ‘to make

25

agency action presumptively reviewable’ under the APA.”).

26

Procedural and substantive challenges under the APA are subject to the same

27

analysis, because “a party within the zone of interests of any substantive authority

28

generally will be within the zone of interests of any procedural requirement governing
67

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1

exercise of that authority[.]” Int'l Bhd. of Teamsters v. Pena, 17 F.3d 1478, 1484 (D.C.

2

Cir. 1994).
“Whether a plaintiff's interest is ‘arguably ... protected ... by the statute’ within the

4

meaning of the zone-of-interests test is to be determined not by reference to the overall

5

purpose of the Act in question (here [in the context of the Endangered Species Act],

6

species preservation), but by reference to the particular provision of law upon which the

7

plaintiff relies.” Bennett v. Spear, 520 U.S. 154, 175–76 (1997). Put differently, “the

8

plaintiff must establish that the injury he complains of ... falls within the ‘zone of interests'

9

sought to be protected by the statutory provision whose violation forms the legal basis for

10

his complaint.” Id. at 176 (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 883 (1990))

11

United States District Court
Northern District of California

3

(citing Air Courier Conference v. Postal Workers, 498 U.S. 517, 523–24 (1991)). For

12

example, an allegation that § 4 of the Bank Service Corporation Act was violated

13

considers whether plaintiffs are within the zone of interests of § 4 itself, not “the overall

14

purpose of the Bank Service Corporation Act of 1962[.]” Id. (citing Data Processing, 397

15

U.S. at 155–156); accord Air Courier Conference, 498 U.S. at 529–30 (The “relevant

16

statute” is generally not the entire act, because “to accept this level of generality in

17

defining the ‘relevant statute’ could deprive the zone-of-interests test of virtually all

18

meaning.”); Pit River Tribe, 793 F.3d at 1157 (“ability to challenge . . . cannot be

19

determined by looking to the broad objectives of the” act); but see E. Bay Sanctuary

20

Covenant v. Trump, 932 F.3d 742, 768 n.9 (9th Cir. 2018) (“E. Bay Sanctuary I”) (“‘[W]e

21

are not limited to considering the [specific] statute under which [plaintiffs] sued, but may

22

consider any provision that helps us to understand Congress' overall purposes in the

23

[INA].’”) (quoting Clarke, 479 U.S. at 401).

24

Although the relevant statute “is the statute whose violation is the gravamen of the

25

complaint” and not the entire act, the court may also look to provisions that “have any

26

integral relationship” with the relevant statute. Air Courier Conference, 498 U.S. at 529–

27

30 (quoting Lujan, 497 U.S. at 886) (citing Clarke, 479 U.S. at 388). For example, when

28

the challenged statutory section operates as an enumerated exception to another
68

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section, the court may consider both sections when determining whether a plaintiff falls

2

within the zone of interests of the challenged section. Clarke, 479 U.S. at 401

3

(considering related statutory section to which challenged statute was an exception);

4

accord Air Courier Conference, 498 U.S. at 529 (recognizing the exception in Clarke as

5

limited: “This statement [that the court may look beyond the specific challenged section],

6

like all others in our opinions, must be taken in the context in which it was made. In the

7

next paragraph of the opinion, the Court pointed out that 12 U.S.C. § 36, which the

8

plaintiffs in that case claimed had been misinterpreted by the Comptroller, was itself ‘a

9

limited exception to the otherwise applicable requirement of [12 U.S.C.] § 81,’ . . . . Thus

10

the zone-of-interests test was to be applied not merely in the light of § 36, which was the

11

United States District Court
Northern District of California

1

basis of the plaintiffs' claim on the merits, but also in the light of § 81, to which § 36 was

12

an exception.”).

13
14

i.

The County and State Plaintiffs

The County and State plaintiffs’ interests are squarely within the challenged

15

statute’s zone of interests. For example, that statute allows the Attorney General to

16

consider an affidavit of support under 8 U.S. Code § 1183a when determining whether to

17

exclude an alien as a likely public charge. See 8 U.S.C. §§ 1182(a)(4)(B)(ii). Although

18

distinct, Section 1183a is specifically referred to and incorporated into the public charge

19

analysis set out in the challenged statute. As a result, § 1183a has an integral

20

relationship with § 1182(a)(4), such that it should be considered when determining

21

whether plaintiffs are within the zone of interests of the challenged statute.

22

Section 1183a explains that someone can sponsor an alien by guaranteeing to

23

financially support him, and thereby alleviate the concern that he may become a public

24

charge. That statute also provides that any such sponsorship can only be considered in

25

the public charge analysis if it is supported by an affidavit that is “legally enforceable

26

against the sponsor by . . . any State (or any political subdivision of such State), or by any

27

other entity that provides any means-tested public benefit[.]” § 1183a(a)(1)(B); see also

28

§ 1183a(b)(1)(A) (“Upon notification that a sponsored alien has received any means69

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1

tested public benefit, the . . . appropriate entity of the Federal Government, a State, or

2

any political subdivision of a State shall request reimbursement by the sponsor in an

3

amount which is equal to the unreimbursed costs of such benefit.”). Moreover, the

4

sponsor must agree to submit to jurisdiction in state courts for actions to compel

5

reimbursement of benefits those states paid to the alien. §§ 1183a(a)(1)(C), (e)(2).

6

By recognizing that states (and political subdivisions of states) would be paying

7

means-tested public benefits to those subject to a public charge analysis, requiring that

8

states and their subdivisions have legally-enforceable rights to recover those expenses

9

when an alien is admitted based on consideration of an affidavit of support, and
guaranteeing state-court jurisdiction for such enforcement actions, Congress clearly

11

United States District Court
Northern District of California

10

intended to protect states and their political subdivisions with the challenged statute.

12

Moreover, given the attention paid to states’ rights to recover payment of “any

13

means-tested public benefit” from affiants in § 1183a, it is also more than arguable that

14

Congress intended to protect states and their political subdivisions’ coffers when

15

providing for the exclusion of any alien “likely at any time to become a public charge” in

16

the first place. 8 U.S.C. §§ 1182(a)(4)(A). So, the State and County plaintiffs’ financial

17

interests are also at least arguably protected by the statute for this independent reason.

18
19

Therefore, the States’ and Counties’ interests are more than arguably related to
the challenged statute’s purpose, and they satisfy the zone-of-interests requirement.
ii.

20

The Organizations

21

The Organizations move for an injunction based on one claim that the Rule

22

violates the APA because it is substantively contrary to the term “public charge” as used

23

in 8 U.S.C. § 1182(a)(4), and a related procedural APA claim based on the same

24

underlying statute. As such, the Organizations must be within that statute’s zone of

25

interest.

26

Their papers argue that they are within the statute’s zone of interests for three

27

reasons. First, the Rule itself counts health care providers and nonprofit organizations

28

among those who will be affected by it. Second, plaintiffs’ interests in serving low70

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1

income, immigrant communities by providing medical or legal services and advice are

2

related to and consistent with the statute’s purpose to provide procedures and policies for

3

immigration relief. Third, and relatedly, the Ninth Circuit has recently held that similar

4

plaintiffs are within the INA’s zone of interests.

5

First, the Organizations argue the Rule itself contemplates that organizations like

6

them will be adversely affected by it. But being negatively affected by a rule

7

implementing a statute is not sufficient to establish that the statute conferred a cause of

8

action encompassing that plaintiff’s claim. The Organizations’ argument that they will be

9

hurt by the Rule speaks to their standing to challenge it, rather than whether they are
within the statute’s zone of interest. See Air Courier Conference, 498 U.S. at 524 (“injury

11

United States District Court
Northern District of California

10

in fact does not necessarily mean one is within the zone of interests to be protected by a

12

given statute”); see also Lujan, 497 U.S. at 883 (“for example, the failure of an agency to

13

comply with a statutory provision requiring ‘on the record’ hearings would assuredly have

14

an adverse effect upon the company that has the contract to record and transcribe the

15

agency's proceedings; but since the provision was obviously enacted to protect the

16

interests of the parties to the proceedings and not those of the reporters, that company

17

would not be ‘adversely affected within the meaning’ of the statute”).

18

Second, the Organizations argue that their interests align with the statute. Yet

19

their briefing failed to identify or explain what statutory provisions support their argument.

20

That failure is fatal given the Supreme Court’s direction that the zone of interests analysis

21

“requires us to determine, using traditional tools of statutory interpretation, whether a

22

legislatively conferred cause of action encompasses a particular plaintiff’s claim.”

23

Lexmark, 572 U.S. at 127. When asked at the hearing what specific statutory provisions

24

they are relying upon, the Organizations for the first time identified 8 U.S.C. § 1611. That

25

section outlines the federal public benefits for which aliens are eligible. But the

26

Organizations do not assert a challenge based on a violation of § 1611, and it is not at all

27

clear that § 1611 has “any integral relationship with” 8 U.S.C. § 1182(a)(4) such that it is

28

proper for the court to consider it in the zone of interests inquiry. See Air Courier
71

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1

Conference, 498 U.S. at 529 (without a particular reason to suggest otherwise, sections

2

within the same act are not sufficiently related); cf. Clarke, 479 U.S. at 401 (considering

3

related statutory section to which challenged statute was an exception).

4

Even if the court were to consider § 1611, the Organizations leave the court to

5

guess at what connection those statutory provisions share, much less how 8 U.S.C.

6

§ 1182(a)(4) is related to the Organizations’ purposes in light of § 1611. Finally, the

7

Organizations do not even explain how their interests are more than marginally related to

8

§ 1611 itself—which does not even “give institutions like the Organizations a role[.]” E.

9

Bay Sanctuary I, 932 F.3d at 769.
At this stage of litigation, the Organizations have not met their burden to

11

United States District Court
Northern District of California

10

demonstrate that there are serious questions concerning whether they are within the

12

challenged statute’s zone of interest, and certainly they have failed to demonstrate a

13

likelihood that they are able to bring the APA actions underlying their present motion.

14

Taking a step back, the Organizations simply fail to explain how their interests

15

relate to § 1182(a)(4)’s purpose of excluding immigrants likely to become public charges.

16

This may be because the Organizations identify, without explanation, the statute’s

17

purpose as providing “procedures and policies for immigration relief.” That may be based

18

on an argument about the INA’s overall statutory purpose, untethered to the statutory

19

challenge underlying this motion. In support of that argument, the Organizations rely on

20

E. Bay Sanctuary I, 932 F.3d at 771. But the statute at issue in that action concerned

21

asylum seekers, and the very statute underlying that challenge contained a provision

22

requiring the Attorney General to refer asylum seekers to pro bono legal aid

23

organizations, such as the plaintiff entities in that action. The court identified specific

24

references to the role of pro bono legal organizations within the challenged statute itself,

25

and it found that was sufficient. That is very different from the facts presented here. See

26

E. Bay Sanctuary I, 932 F.3d at 768 (“Within the asylum statute [underlying the

27

preliminary injunction, 8 U.S.C. § 1158(a)(1)], Congress took steps to ensure that pro

28

bono legal services of the type that the Organizations provide are available to asylum
72

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1

seekers. See 8 U.S.C. § 1158(d)(4)(A)–(B)”).20

2

2.

Plaintiffs are Likely to Suffer Irreparable Harm

3

The three distinct issues of (i) standing, (ii) ripeness, and (iii) irreparable harm in

4

the absence of an injunction are supported by the same factual analysis for each plaintiff.

5

Although each of the three requirements is independent for plaintiffs to succeed on this

6

motion, a finding that plaintiffs are likely to suffer irreparable harm in the absence of an

7

injunction here is sufficient to establish standing and ripeness. For the Organizations, the

8

court assesses only standing and ripeness.
The court first addresses the legal standards, and then assesses each plaintiff’s

9
10

demonstrated harms.
a.

United States District Court
Northern District of California

11

Legal Standards
i.

12

Standing

Federal courts may adjudicate only actual cases or controversies, see U.S. Const.

13
14

Art. III, § 2, and may not render advisory opinions as to what the law ought to be or

15

affecting a dispute that has not yet arisen. Aetna Life Ins. Co. of Hartford, Conn. v.

16

Haworth, 300 U.S. 227, 240 (1937). Article III's “standing” requirements limit the court’s

17

subject matter jurisdiction. See Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir.

18

2004). The burden of establishing standing rests on the party asserting the claim.

19

Renne v. Geary, 501 U.S. 312, 316 (1991).
The “irreducible constitutional minimum of standing contains three elements. First,

20
21

the plaintiff must have suffered an injury in fact—an invasion of a legally protected

22

interest which is (a) concrete and particularized, and (b) actual or imminent, not

23

conjectural or hypothetical. Second, there must be a causal connection between the

24

injury and the conduct complained of—the injury has to be fairly traceable to the

25
26
27
28

20

To the extent the Organizations argue that E. Bay Sanctuary I, 932 F.3d at 771 allows
this court to look to unrelated provisions in the INA for a section justifying their interest in
the action, the court is at a loss as how to how reconcile that interpretation with Bennett,
520 U.S. at 175–76, Air Courier Conference, 498 U.S. at 529, and Pit River Tribe, 793
F.3d at 1157. Absent clarity from an en banc determination of this issue, the court hews
to Supreme Court and prior panel authority on the question.
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1

challenged action of the defendant, and not the result of the independent action of some

2

third party not before the court. Third, it must be likely, as opposed to merely speculative,

3

that the injury will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504

4

U.S. 555, 560–61 (1992) (citations and internal quotation marks omitted); see also

5

Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

6

“At least one plaintiff must have standing to seek each form of relief

7

requested, and that party bears the burden of establishing the elements of standing with

8

the manner and degree of evidence required at the successive stages of the litigation.”

9

E. Bay Sanctuary I, 932 F.3d at 763–64 (internal quotation marks and citations omitted).
At this preliminary stage, plaintiffs “may rely on the allegations in their Complaint and

11

United States District Court
Northern District of California

10

whatever other evidence they submitted in support of their” motion to meet their

12

burden. Id. at 764. They “need only establish a risk or threat of injury to satisfy the

13

actual injury requirement.” Id.

14

Organizations can establish standing two different ways.

15

First, “Organizations can demonstrate organizational standing by showing that the

16

challenged ‘practices have perceptibly impaired [their] ability to provide the services [they

17

were] formed to provide.’” Id. at 765. “[A] diversion-of-resources injury is sufficient to

18

establish organizational standing for purposes of Article III if the organization shows that,

19

independent of the litigation, the challenged policy frustrates the organization's goals and

20

requires the organization to expend resources in representing clients they otherwise

21

would spend in other ways.” Id. (internal quotation marks and citations omitted) (citing

22

inter alia, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d

23

936, 943 (9th Cir. 2011) (en banc) (advocacy groups had organizational standing to

24

challenge an anti-solicitation ordinance that targeted day laborers based on the

25

resources spent by the groups in assisting day laborers during their arrests and meetings

26

with workers about the status of the ordinance); Nat'l Council of La Raza v. Cegavske,

27

800 F.3d 1032, 1039–40 (9th Cir. 2015) (civil rights groups had organizational standing to

28

challenge alleged voter registration violations where the groups had to “expend additional
74

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1

resources” to counteract those violations that “they would have spent on some other

2

aspect of their organizational purpose”); El Rescate Legal Servs., Inc. v. Exec. Office of

3

Immigration Review, 959 F.2d 742, 748 (9th Cir. 1991) (legal services groups had

4

organizational standing to challenge a policy of providing only partial interpretation of

5

immigration court proceedings, noting that the policy “frustrate[d]” the group's “efforts to

6

obtain asylum and withholding of deportation in immigration court proceedings” and

7

required them “to expend resources in representing clients they otherwise would spend in

8

other ways.”); Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013) (finding

9

organizational standing where the plaintiffs “had to divert resources to educational
programs to address its members’ and volunteers’ concerns about the [challenged] law's

11

United States District Court
Northern District of California

10

effect”)).

12

In E. Bay Sanctuary I, the Ninth Circuit held that plaintiffs established

13

organizational standing by declaring that enforcement of a regulation “frustrated their

14

mission of providing legal aid” to asylum applicants by “significantly discourage[ing] a

15

large number of those individuals from seeking asylum given their ineligibility.” 932 F.3d

16

at 766. That regulation would require plaintiffs “to partially convert their affirmative

17

asylum practice into a removal defense program, an overhaul that would require

18

‘developing new training materials’ and ‘significant training of existing staff.’” Id. “Finally,

19

the [plaintiff] Organizations have each undertaken, and will continue to undertake,

20

education and outreach initiatives regarding the new rule, efforts that require the

21

diversion of resources away from other efforts to provide legal services to their local

22

immigrant communities.” Id.

23

Second, “Organizations can demonstrate organizational standing by showing that

24

the Rule will cause them to lose a substantial amount of funding. For standing purposes,

25

a loss of even a small amount of money is ordinarily an ‘injury.’ We have held that an

26

organization that suffers a decreased amount of business and lost revenues due to a

27

government policy easily satisfies the ‘injury in fact’ standing requirement.” Id. at 766–67

28

(internal quotation marks and citations omitted).
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1

In E. Bay Sanctuary I, the Ninth Circuit held that plaintiffs established

2

organizational standing by declaring that they received a large portion of their funding

3

based on the number of asylum applications they pursue, and that if their prospective

4

clients “became categorically ineligible for asylum, East Bay would lose a significant

5

amount of business and suffer a concomitant loss of funding.” Id. at 767.
ii.

6
7

Ripeness

“Ripeness is an Article III doctrine designed to ensure that courts adjudicate live

8

cases or controversies and do not ‘issue advisory opinions [or] declare rights in

9

hypothetical cases.’ A proper ripeness inquiry contains a constitutional and a prudential
component.” Bishop Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1153 (9th Cir. 2017)

11

United States District Court
Northern District of California

10

(citations omitted).

12

“For a case to be ripe, it must present issues that are definite and concrete, not

13

hypothetical or abstract. Constitutional ripeness is often treated under the rubric of

14

standing because ripeness coincides squarely with standing’s injury in fact prong.” Id.

15

(internal quotation marks and citations omitted); Thomas v. Anchorage Equal Rights

16

Comm'n, 220 F.3d 1134, 1138–39 (9th Cir. 2000) (“Sorting out where standing ends and

17

ripeness begins is not an easy task. . . . . [I]n ‘measuring whether the litigant has

18

asserted an injury that is real and concrete rather than speculative and hypothetical, the

19

ripeness inquiry merges almost completely with standing.’”). Allegations that a “threat” to

20

a “concrete interest is actual and imminent” are sufficient to allege “an injury in fact that

21

meets the requirements of constitutional ripeness.” Bishop Paiute Tribe, 863 F.3d at

22

1154. Therefore, if plaintiffs satisfy the Article III standing requirements under Lujan v.

23

Defs. of Wildlife, addressed above, the action here is ripe. In this case, the analysis for

24

both requirements is the same. See, e.g., Thomas, 220 F.3d at 1139 (“Whether the

25

question is viewed as one of standing or ripeness, the Constitution mandates that prior to

26

our exercise of jurisdiction there exist a constitutional ‘case or controversy,’ that the

27

issues presented are ‘definite and concrete, not hypothetical or abstract.’ . . . We need

28

not delve into the nuances of the distinction between the injury in fact prong of standing
76

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 77 of 93

1
2

and the constitutional component of ripeness: in this case, the analysis is the same.”).
“In evaluating the prudential aspects of ripeness, our analysis is guided by two

3

overarching considerations: ‘the fitness of the issues for judicial decision and the

4

hardship to the parties of withholding court consideration.’” Thomas, 220 F.3d at 1141.

5

When the question presented “is ‘a purely legal one’” that “constitutes ‘final agency

6

action’ within the meaning of § 10 of the APA,” that suggests the issue is fit for judicial

7

decision. Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 812 (2003). However,

8

an issue may not be ripe for review if “further factual development would ‘significantly

9

advance our ability to deal with the legal issues presented.’” Id.

10

United States District Court
Northern District of California

11

iii.

Irreparable Harm

“A plaintiff seeking preliminary relief must ‘demonstrate that irreparable injury is

12

likely in the absence of an injunction.’” California v. Azar, 911 F.3d 558, 581 (9th Cir.

13

2018) (quoting Winter, 555 U.S. at 22); Boardman v. Pac. Seafood Grp., 822 F.3d 1011,

14

1023 (9th Cir. 2016) (“A threat of irreparable harm is sufficiently immediate to warrant

15

preliminary injunctive relief if the plaintiff ‘is likely to suffer irreparable harm before a

16

decision on the merits can be rendered.’”) (quoting Winter, 555 U.S. at 22)).

17

“There must be a ‘sufficient causal connection’ between the alleged irreparable

18

harm and the activity to be enjoined, and showing that ‘the requested injunction would

19

forestall’ the irreparable harm qualifies as such a connection.” Nat'l Wildlife Fed'n v. Nat'l

20

Marine Fisheries Serv., 886 F.3d 803, 819 (9th Cir. 2018) (citing Perfect 10, Inc. v.

21

Google, Inc., 653 F.3d 976, 981–82 (9th Cir. 2011)). “However, a plaintiff ‘need not

22

further show that the action sought to be enjoined is the exclusive cause of the injury.’” Id.

23

(quoting M.R. v. Dreyfus, 697 F.3d 706, 728 (9th Cir. 2012)).

24

The irreparable harm “analysis focuses on irreparability, ‘irrespective of the

25

magnitude of the injury.’” Azar, 911 F.3d at 581 (quoting Simula, Inc. v. Autoliv, Inc., 175

26

F.3d 716, 725 (9th Cir. 1999)). “[T]he temporary loss of income, ultimately to be

27

recovered, does not usually constitute irreparable injury.” Sampson v. Murray, 415 U.S.

28

61, 90 (1974). But the general rule that “[e]conomic harm is not normally considered
77

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1

irreparable” does not apply where there is no adequate remedy to recover those

2

damages, such as in APA cases. Azar, 911 F.3d at 581 (citing 5 U.S.C. § 702).
b.

3
4

The Plaintiffs’ Harms

First, the court assesses the Counties’ and States’ standing, the ripeness of their

5

claims, and whether they have demonstrated irreparable harm in absence of an

6

injunction. Second, the court assesses the Organizations’ standing and the ripeness of

7

their claims.
i.

8
9

The States and Counties

The States and Counties argue that they will suffer five categories of irreparable
harm: (A) loss of federal funds, mostly in Medicaid reimbursement; (B) increased

11

United States District Court
Northern District of California

10

operational costs; (C) increased costs to their own healthcare operations (D) public

12

health problems and resulting increased costs; and (E) reduced economic activity due to

13

a decrease in federal funds in the community.
A.

14
15

Loss of Federal Funds

The Counties argue that they will lose millions of dollars in federal Medicaid

16

reimbursement funds. Each provides a broad array of health services to low-income

17

residents, many of which are at least partially reimbursed with federal Medicaid dollars.

18

DHS itself estimates that 2.5% of individuals in households with a noncitizen will disenroll

19

from Medicaid, which would translate to a roughly $7.5 million loss in Medicaid

20

reimbursement funds.

21

The States similarly argue that DHS itself estimates that the Rule will cause a

22

reduction in payments from the federal government due to disenrollment or foregone

23

enrollment by eligible individuals to be over $1.5 billion, nationwide. 83 Fed. Reg. at

24

51,267–69.

25

Defendants argue the harm is too speculative, caused only by third-party actions,

26

and not imminent because the merits can be resolved quickly on summary judgment.

27

Defendants argue that even assuming a 2.5% rate of disenrollment, plaintiffs fail to show

28

that the States and Counties will be harmed, rather than individuals residing within their
78

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1

boundaries. Defendants argue that harm individual citizens will suffer cannot support the

2

States and Counties claims of irreparable harm. Finally, defendants argue that any

3

financial harms the States and Counties identify are not sufficiently large to establish

4

irreparable harm.

5

First, regarding the speculative nature of the harm, defendants themselves predict

6

a 2.5% disenrollment rate when assessing the Rule, subject to the procedural

7

requirements of the APA. 84 Fed. Reg. at 41,463. The Rule itself also estimated that it

8

will cause a reduction in payments from the federal government due to disenrollment or

9

foregone enrollment by eligible individuals of over $1.5 billion. 83 Fed. Reg. at 51,267–
69; see also Cisneros Decl. A at 98-99, Table 18 (annual estimates of $1.46 billion to

11

United States District Court
Northern District of California

10

$4.37 billion in reduced payments). Those figures, which underlie DHS’s analysis in

12

support of the Rule pursuant to the APA’s requirements, are not speculative conjectures

13

as to what might possibly occur. They are meant to be serious efforts by an agency to

14

assess the impact of a proposed rule, and it is difficult to fathom how defendants can

15

argue otherwise. And plaintiffs offer sufficient evidence to demonstrate that disenrollment

16

or non-enrollments will reach at least that level. See 84 Fed. Reg. at 41,463; Wong Decl.

17

¶¶ 18-45; Shing Decl. ¶ 30; Weisberg Decl. ¶12; Ponce Decl. ¶¶ 4–11, 25. This type of

18

predictable result from a broad policy, although not precise to the level of the individual

19

actor, is sufficiently-specific to allege irreparable harm. See Dep’t of Commerce v. New

20

York, 139 S. Ct. 2551, 2565 (2019). Moreover, plaintiffs offer evidence showing that

21

disenrollment due to the public charge rulemaking has already begun. See, e.g., Cody

22

Decl. ¶ 8; Newstrom Decl. ¶ 43; Weisberg Decl. ¶¶ 12–14; Shing Decl. ¶¶ 23–24; Chawla

23

Decl. ¶ 13; Fanelli Decl. ¶ 38; Neville-Morgan Decl. ¶ 16; Ruiz Decl. ¶¶ 10, 12; Kofman

24

Decl. ¶ 6; Medina Decl. ¶¶ 18–22. Plaintiffs offer strong evidence that disenrollment is

25

likely to continue between now and the resolution of this issue on the merits, absent an

26

injunction.

27
28

Plaintiffs also adequately demonstrate that the loss of Medicaid reimbursement is
sure to be immediate, once individuals disenroll. That is apparent from the very
79

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1

mechanics of the harm. Today, the States and Counties are partially reimbursed by the

2

federal government for care provided to Medicaid enrollees. As individuals disenroll, the

3

plaintiffs will no longer be reimbursed for treating them. This will have obvious adverse

4

budgetary consequences. For one, there will indisputably be fewer individuals covered

5

by Medicaid seeking treatment. So, the States and Counties will not be reimbursed for

6

treating those disenrolled individuals (whether they treat them or not). The States and

7

Counties would experience this terminated revenue stream even if they turned away

8

patients without medical insurance (which they will not). Put differently, there will be

9

fewer people on Medicaid to treat and get reimbursed for.

10

To the extent defendants argue that the mechanics will work out as a budgetary

United States District Court
Northern District of California

11

boon to plaintiffs, the argument is not plausible in the context of this preliminary injunction

12

motion. Although it could potentially work out as a total budgetary savings for the plaintiff

13

entities if they reconfigured their operations, reduced staff, reduced provision of services,

14

and undertook other cost-savings measures, such savings could not plausibly be realized

15

prior to the determination of this action’s merits. See, e.g., Lorenz Decl. ¶¶ 19–22.

16

Instead, the plaintiffs will be continuing to operate with most of the costs and expectations

17

associated with the status quo, with one change—no reimbursements.

18

Second, the States and Counties’ argument regarding loss of Medicaid funding

19

does not rely on harms to their citizens. Rather, the arguments concern the plaintiffs’

20

own loss of funds.

21

Third, plaintiffs must demonstrate that they are likely to suffer irreparable harm, but

22

they need not establish a particular quantum of harm to satisfy the requirement. Azar,

23

911 F.3d at 581 (irreparable harm “analysis focuses on irreparability, ‘irrespective of the

24

magnitude of the injury’”). Nor do defendants explain why San Francisco’s likely loss of

25

$7.5 million in Medicaid reimbursements (based on a 2.5% disenrollment rate) is not

26

sufficiently large even under their theory of the requirement. See Wagner Decl. ¶ 5.

27

Santa Clara similarly estimates $4.6 million in foregone Medicaid funds due to more

28

conservative 1.9% decline in enrollment. Shing Decl. ¶ 32 (estimating $4.6 million in
80

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 81 of 93

1

Medicaid fund losses due to 1.9% decline in enrollment). The States similarly

2

demonstrate the harms they are likely to suffer from the loss of Medicaid

3

reimbursements. See Cantwell Decl. ¶¶ 6, 14 (2.5 million noncitizen Medicaid

4

beneficiaries in California); Ferrer Decl. ¶ 19 (predicted disenrollment figures in L.A.

5

County); Lucia Decl. ¶ 23 (estimates of $957 million in lost funding in California,

6

assuming 15% disenrollment rate); Buhrig I Decl. ¶¶ 4, 8, 10, 27 (330,000 Pennsylvania

7

Medicaid beneficiaries are part of a household with a noncitizen); Allen Decl. ¶¶ 10, 18,

8

36-40 (63,000 noncitizens participate in the Oregon Health Plan system, a federal/state

9

partnership program; other participants are citizen children part of a household with a
noncitizen); Byrd Decl. ¶¶ 18–20 & Ex. A at 2, 4 (16,000 children in the District of

11

United States District Court
Northern District of California

10

Columbia receive Medicaid assistance, and 28% of the District’s children are part of a

12

household with a noncitizen; 9,800 immigrants enrolled in Medicaid reside in the District);

13

Probert Decl. ¶¶ 4–8, 15 (13,918 noncitizens enrolled in Medicaid in Maine).
B.

14

The States argue that the Rule will impose burdens on their ongoing operations.

15
16

Increased Operational Costs

Defendants argue that such costs are self-imposed and not cognizable.
Governmental administrative costs caused by changes in federal policy are

17
18

cognizable injuries. See Cal. v. Trump, 267 F. Supp. 3d 1119, 1126 (N.D. Cal. 2017)

19

(states’ “administrative costs” caused by a disruption to healthcare exchanges they

20

administer were sufficient to demonstrate standing) (collecting cases); see also Azar, 911

21

F.3d at 573–74.21
The Counties have submitted evidence of cognizable, irreparable costs. Santa

22
23

Clara explains that they have already spent over 1,000 hours answering questions about

24

the Rule, processing disenrollment, analyzing the impact of the rule on their services and

25

undertaking community education and outreach—and these activities are likely to

26
27
28

21

The government relies on inapposite case law, most notably Crane v. Johnson, 783
F.3d 244, 253-54 (5th Cir. 2015), which addressed individual public employee claims (not
claims by the public entity itself) that they might have to change their job practices
because of a policy change.
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1

continue to be necessary. E.g., Shing Decl. ¶¶ 8, 11–12; see also Lorenz Decl. ¶ 19;

2

Márquez Decl. ¶¶ 9–10. San Francisco has submitted evidence of similar measures it

3

has already taken and will continue to take in direct response to the Rule. See Pon Decl.

4

¶¶ 13–16; Rhorer Decl. ¶ 11; Smith Decl. ¶¶ 4–9. California and Oregon have submitted

5

evidence showing they are likely to imminently suffer similar harms absent an injunction.

6

Ruiz Decl. ¶ 19 (California); Fernandez Decl. ¶¶ 34–36 (California); Fanelli Decl. ¶ 40

7

(California); Salazar Decl. ¶ 37 (Oregon). Other states submit declarations regarding

8

these issues, but they are too vague or speculative to support issuance of an injunction.

9

E.g., Byrd Decl. ¶¶ 22–23 (discussing past efforts in D.C., and stating the District will
generally “need to train staff” on the issue); Probert Decl. ¶ 16 (speculation concerning

11

United States District Court
Northern District of California

10

costs Maine may face).

12

Additionally, certain plaintiff states use Medicaid and SNAP enrollment to

13

automatically certify children into school lunch programs, meaning that those states

14

would face higher administrative costs to certify student eligibility for free lunch following

15

disenrollment caused by the Rule. To the extent states’ administrative costs increase to

16

assess eligibility for free lunch as children disenroll from the federal programs (as

17

opposed to merely an increased burden on the applicants), that administrative cost

18

increase is cognizable harm. California and D.C. submit competent evidence

19

demonstrating that their costs in administering school lunch programs will increase. See

20

Palmer Decl. ¶ 16 (declaring D.C.’s costs would go up to process school lunch

21

applications); Fernandez Decl. ¶ 30 (declaring California’s “administrative streamlining

22

and efficiency” will suffer when enrolling students for free lunch); see generally Neville-

23

Morgan Decl. ¶ 22 (in California, “paperwork is more burdensome for those without an

24

automatic qualification through Medi-Cal or SNAP, and immigrant eligible families are

25

less likely to obtain school lunch benefits in this way”).

26

These costs that the States and Counties have identified are predictable, likely,

27

and imminent. In fact, DHS specifically contemplated certain of these costs when

28

formulating the Rule. E.g., 83 Fed. Reg. at 51,260 (“The primary sources of the
82

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1

consequences and indirect impacts of the proposed rule would be costs to various

2

entities that the rule does not directly regulate, such as hospital systems, state agencies,

3

and other organizations that provide public assistance to aliens and their households.

4

Indirect costs associated with this rule include familiarization with the rule for those

5

entities that are not directly regulated but still want to understand the changes in federal

6

and state transfer payments due to this rule.”) (emphasis added); see also 84 Fed. Reg.

7

at 41,389 (“DHS agrees that some entities, such as State and local governments or other

8

businesses and organizations would incur costs related to the changes commenters

9

identify.”).
Because the States and Counties have each demonstrated sufficient likely

11

United States District Court
Northern District of California

10

irreparable injury in the form of loss of federal funds to support a preliminary injunction,

12

and the Counties, California, D.C., and Oregon have demonstrated additional irreparable

13

injury in the form of operational costs, the court need not address the remaining three

14

categories of irreparable harm plaintiffs argue they will imminently suffer.

15
16

ii.

The Organizations

“[C]ourts have an ‘independent obligation’ to police their own subject matter

17

jurisdiction, including the parties' standing. Accordingly, we must assure ourselves that

18

Plaintiffs have alleged an injury in fact, fairly traceable to the defendant's conduct, and

19

likely to be redressed by a favorable judicial decision.” Animal Legal Def. Fund v. United

20

States Dep't of Agric., 935 F.3d 858, 866 (9th Cir. 2019) (citations omitted).

21

“[A] diversion-of-resources injury is sufficient to establish organizational standing

22

for purposes of Article III if the organization shows that, independent of the litigation, the

23

challenged policy frustrates the organization's goals and requires the organization to

24

expend resources in representing clients they otherwise would spend in other ways.” E.

25

Bay Sanctuary I, 932 F.3d at 765 (internal quotation marks and citations omitted).

26

Defendants argue that the Organizations fail to identify any injury they will suffer if

27

they do not divert resources towards addressing their concerns, apart from harm to the

28

health care they are able to provide to low income communities. For example, if they
83

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1

failed to divert resources, they would not face staff shortages or provide worse health

2

services.

3

In E. Bay Sanctuary I, the court found standing based on an organization partially

4

converting an asylum practice into a removal defense program, a prediction that

5

applications filed on behalf of the organizations’ clients would become more difficult and

6

reduce available funds for other activities, and education and outreach initiatives

7

regarding the new rule. 932 F.3d at 766; see also, e.g., El Rescate Legal Services, 959

8

F.2d at 748 (standing where legal services groups had expended “resources in

9

representing clients they otherwise would spend in other ways”); Fair Hous. Council of
San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012)

11

United States District Court
Northern District of California

10

(finding organizational standing where the plaintiff responded to allegations of

12

discrimination by “start[ing] new education and outreach campaigns targeted at

13

discriminatory roommate advertising”).

14

The Healthcare Organizations’ missions are to provide high quality health care to

15

low-income and immigrant communities. Castellano-García Decl. ¶ 5; García Decl. ¶ 3,

16

7–10. La Clínica and California-Primary-Care-Association-member-organization Asian

17

Health Services have diverted resources from their core missions to address community

18

and individual patient concerns about the public charge determination. García Decl.

19

¶¶ 13, 16, 21; Quach Decl. ¶¶ 26–29 (evidence of $1 million diversion to education

20

campaigns about the Rule). These education efforts take away from their ability to serve

21

their core organizational purposes. Moreover, they will have to lay off employees and

22

change or cancel programs in response to the Rule. García Decl. ¶ 18; see also Ku

23

Decl. ¶ 65 (estimating nationwide community health center staffing losses of 3,400 to

24

6,100 employees).

25

The Legal Organizations’ missions are to provide advocacy and/or legal services

26

to their clients and members, including obtaining immigration relief and helping to secure

27

public benefits. Kassa Decl. ¶¶ 3–7; Ayloush Decl. ¶¶ 4–7; Sharp Decl. ¶¶ 4–7;

28

Goldstein Decl. ¶¶ 4–5; Seon Decl. ¶¶ 3– 7; Nakamura Decl. ¶¶ 3–8; Kersey Decl. ¶¶ 6–
84

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1
2

7, 14–20.
Plaintiffs have adequately alleged frustration of their purpose because many of

3

their clients will no longer be eligible for immigration relief, or will choose to not enroll or

4

to disenroll from benefits to remain eligible for immigration relief. The Rule plainly

5

hinders their clients’ ability to obtain immigration relief and/or public benefits.

6

Plaintiffs have also adequately alleged that they will have to divert funding

7

because those who may still be eligible for relief or choose to apply for benefits will

8

require additional time and resources from plaintiffs to address the effects of the Rule,

9

and this additional time and rising ineligibility or disenrollment means that plaintiffs will be
able to file fewer cases and help fewer clients. See Kassa Decl. ¶¶ 10–13, 16; Ayloush

11

United States District Court
Northern District of California

10

Decl. ¶¶ 11–14; Sharp Decl. ¶¶ 12–15, 18; Goldstein Decl. ¶ 8; Seon Decl. ¶¶ 10–14;

12

Nakamura Decl. ¶¶ 12, 14–15; Kersey Decl. ¶¶ 23–30. Kassa Decl. ¶¶ 10, 12–13;

13

Ayloush Decl. ¶¶ 11–12; Sharp Decl. ¶ 13; Seon Decl. ¶¶ 10–14; Nakamura Decl. ¶¶ 14–

14

16; Kersey Decl. ¶¶ 34, 36.

15

Some plaintiffs also have increased operational costs as they address the impact

16

of the Rule on their services, such as by hiring additional staff or adding new programs or

17

services. Ayloush Decl. ¶ 14; Seon Decl. ¶ 14; Nakamura Decl. ¶¶ 13–14, 16–17;

18

Kersey Decl. ¶¶ 21, 26–30, 35. Some plaintiffs have had to divert resources from other

19

core services and priorities to staffing, training, education, and public outreach

20

addressing the Rule. Kassa Decl. ¶¶ 11, 14–17; Ayloush Decl. ¶¶ 13, 15–16; Sharp

21

Decl. ¶¶ 14–16; Goldstein Decl. ¶ 7–12; Seon Decl. ¶ 16–19, 21; Nakamura Decl. ¶¶ 13–

22

14, 16–17; Kersey Decl. ¶¶ 26–29, 35–36.

23

Defendants would have this court require more than the Ninth Circuit does for

24

standing. Here, it is enough for plaintiffs to allege that their goals of providing healthcare

25

and legal services to low-income immigrants are frustrated, and that the challenged

26

policy has stimulated the organizations into spending money on things they would not

27

otherwise have spent money on. Plaintiffs’ public education efforts, changes to their

28

programs, increased costs of assisting clients, and other diversions of resources qualify
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1

under the Ninth Circuit’s requirements.22
The Balance of Equities and Hardships Tip Sharply in Plaintiffs’ Favor

2

3.

3

“A court must ‘balance the interests of all parties and weigh the damage to each’ in

4

determining the balance of the equities.” CTIA - The Wireless Ass'n v. City of Berkeley,

5

928 F.3d 832, 852 (9th Cir. 2019) (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109,

6

1138 (9th Cir. 2009)).
There is little question that the balance of equities and hardships tip sharply in

7
8

favor of the States and Counties. Defendants have been operating under a consistent

9

definition of “public charge” since at least 1999, when the INS issued Field Guidance
specifying “that ‘public charge’ means an alien . . . who is likely to become (for

11

United States District Court
Northern District of California

10

admission/adjustment purposes) ‘primarily dependent on the government for subsistence,

12

as demonstrated by either (i) the receipt of public cash assistance for income

13

maintenance or (ii) institutionalization for long-term care at government expense.’” 64

14

Fed. Reg. at 28,689. That standard is specific and workable, and defendants have been

15

administering it for decades. In fact, defendants conceded that do not argue that they

16

would suffer any hardship in the face of an injunction prohibiting them from replacing

17

those standards with the new Rule until resolution of this case on the merits. Defendants’

18

only argument with respect to the balance of equities or hardships and the public interest

19

is that Congress has made a policy judgment that aliens should be self-sufficient, and the

20

executive should not be prevented from implementing a rule that advances that policy.

21

On the other hand, implementing the change defendants propose would upend

22

state and local governments’ operations as they support immigrants while determining

23

how to adjust to the new Rule and provide services that the federal government once

24

predictably assisted with. To the extent this factor is merged with the public interest and

25

considers the effects on non-parties, the most severely affected individuals are the aliens

26
27
28

22

As the issue was not meaningfully addressed by the parties, the court does not decide
at this time whether California Primary Care Association satisfies the requirements for
associational standing.
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seeking LPR status themselves, who would face uncertainty regarding their access to

2

healthcare and subsidized nutrition as they learn to adapt to and attempt to navigate the

3

Rule’s deterrents.

4

In short, implementing the Rule after decades of a consistent policy prior to a

5

determination of this action on the merits—which defendants argue will be accomplished

6

in short order—does little to advance the defendants’ interests, and it would entirely

7

upend the plaintiffs’ (and the non-party aliens’) interests.
An Injunction Is in the Public’s Interest

4.

9

“When the government is a party, the last two factors merge.” Azar, 911 F.3d at

10

575. Therefore, the public interest analysis is subsumed in the balance of equities and

11

United States District Court
Northern District of California

8

hardships, addressed above, and the public interest therefore favors and injunction.

12

Even though the public’s interest generally merges with the balance of equities, it

13

can be “appropriate to consider the factors separately,” for example when intervenors

14

present distinct interests. League of Wilderness Defs./Blue Mountains Biodiversity

15

Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014). In those instances, “[t]he

16

public interest inquiry primarily addresses impact on non-parties rather than parties.” Id.

17

Here, the public interest cuts sharply in favor of an injunction. Specifically, the

18

public interest supports continuing the provision of medical services through Medicaid to

19

those who would predictably disenroll absent an injunction, for numerous reasons.

20

Although the court has not reached the issue as to whether plaintiffs’ arguments

21

regarding the impacts on public health support their argument for imminent harm, the

22

parties and numerous amici have explained that the predictable disenrollment from

23

Medicaid absent an injunction would have adverse health consequences not only to

24

those who disenroll, but to the entire populations of the plaintiff states, for example, in the

25

form of decreased vaccination rates. The public certainly has an interest in decreasing

26

the risk of preventable contagion.

27
28

As such, the public interest supports preserving the long-standing status quo
pending final, coherent resolution on the merits.
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1

5.

Scope of the Injunction Necessary to Redress Plaintiffs’ Imminent

2

Harms

3

a.

4

Legal Standard

When a plaintiff satisfies its burden to demonstrate that a preliminary injunction
should issue, “injunctive relief should be no more burdensome to the defendant than

6

necessary to provide complete relief to the plaintiffs.” Califano, 442 U.S. at 702; accord

7

L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (injunction

8

“should be no more burdensome to the defendant than necessary to provide complete

9

relief to the plaintiffs before the court”) (internal quotation mark omitted); Lamb-Weston,

10

Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991) (“Injunctive relief . . . must

11

United States District Court
Northern District of California

5

be tailored to remedy the specific harm alleged.”). “‘The purpose of such interim

12

equitable relief is not to conclusively determine the rights of the parties but to balance the

13

equities as the litigation moves forward.’” Azar, 911 F.3d at 582.

14

But “[t]here is no general requirement that an injunction affect only the parties in

15

the suit.” Bresgal v. Brock, 843 F.2d 1163, 1169 (9th Cir. 1987). “[A]n injunction is not

16

necessarily made over-broad by extending benefit or protection to persons other than

17

prevailing parties in the lawsuit—even if it is not a class action—if such breadth is

18

necessary to give prevailing parties the relief to which they are entitled.” Id. at 1170;

19

accord Regents of the Univ. of California v. U.S. Dep't of Homeland Sec., 908 F.3d 476,

20

511 (9th Cir. 2018), cert. granted sub nom. Dep't of Homeland Sec. v. Regents of the

21

Univ. of California, 139 S. Ct. 2779 (2019).

22

With respect to immigration matters in particular, the Ninth Circuit has “consistently

23

recognized the authority of district courts to enjoin unlawful policies on a universal basis.”

24

E. Bay Sanctuary I, 932 F.3d at 779 (citing Regents of the Univ. of Cal., 908 F.3d at

25

511; Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev'd on other grounds and

26

remanded, 138 S. Ct. 2392 (2018); Washington v. Trump, 847 F.3d 1151, 1166–67 (9th

27

Cir.), reconsideration en banc denied, 853 F.3d 933 & 858 F.3d 1168 (9th Cir. 2017), and

28

cert. denied sub nom. Golden v. Washington, 138 S. Ct. 448 (2017)). “These are,
88

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1

however, ‘exceptional cases.’” E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029

2

(9th Cir. 2019) (“E. Bay Sanctuary II”) (quoting City & Cty. of San Francisco v. Trump,

3

897 F.3d 1225, 1244 (9th Cir. 2018)). That is because, even though courts have the

4

authority to issue nationwide preliminarily injunctions, doing so still requires “an

5

articulated connection to a plaintiff’s particular harm[.]” Id. (“nationwide injunction is [not]

6

appropriate simply because this case presents a rule that applies nationwide”); see also

7

Azar, 911 F.3d at 582–84. That requirement is not lifted in the immigration context. E.g.,

8

E. Bay Sanctuary II, 934 F.3d at 1029 (“Under our case law, however, all injunctions—

9

even ones involving national policies—must be ‘narrowly tailored to remedy the specific
harm shown.’”); E. Bay Sanctuary I, 932 F.3d at 779 (nationwide scope appropriate

11

United States District Court
Northern District of California

10

where it “is necessary to provide the plaintiffs here with complete redress” and district

12

court could not “have crafted a narrower remedy that would have provided complete relief

13

to the [plaintiffs]”) (quoting Regents of the Univ. of Cal., 908 F.3d at 512) (internal

14

quotation mark omitted).23
The Ninth Circuit has emphasized that any preliminary injunction must be

15
16

supported by evidence in the record identifying the likely effect the enjoined conduct

17

would have on the particular plaintiffs. E.g., San Francisco v. Trump, 897 F.3d at 1244

18

(the “record is not sufficient to support a nationwide injunction” where “the Counties'

19

tendered evidence is limited to the effect of the Order on their governments and the State

20

of California. . . . However, the record is not sufficiently developed on the nationwide

21

impact of the Executive Order.”); Azar, 911 F.3d at 584 (“On the present record, an

22
23
24
25
26
27
28

The Ninth Circuit requires an articulated connection to a plaintiff’s particular harms
notwithstanding “the need for uniformity in immigration policy.” See Regents of the Univ.
of Cal., 908 F.3d at 511 (“Allowing uneven application of nationwide immigration policy
flies in the face of these requirements.”); Hawaii v. Trump, 878 F.3d at 701 (“Because this
case implicates immigration policy, a nationwide injunction was necessary to give
Plaintiffs a full expression of their rights.”); see also San Francisco v. Trump, 897 F.3d at
1244 (“These exceptional cases are consistent with our general rule that ‘[w]here relief
can be structured on an individual basis, it must be narrowly tailored to remedy the
specific harm shown’—'an injunction is not necessarily made overbroad by extending
benefit or protection to persons other than prevailing parties in the lawsuit ... if such
breadth is necessary to give prevailing parties the relief to which they are entitled.’”)
(quoting Bresgal, 843 F.2d at 1170–71).
89
23

Case 4:19-cv-04717-PJH Document 115 Filed 10/11/19 Page 90 of 93

1

injunction that applies only to the plaintiff states would provide complete relief to them. It

2

would prevent the economic harm extensively detailed in the record. Indeed, while the

3

record before the district court was voluminous on the harm to the plaintiffs, it was not

4

developed as to the economic impact on other states.”). “District judges must require a

5

showing of nationwide impact or sufficient similarity to the plaintiff states to foreclose

6

litigation in other districts, from Alaska to Puerto Rico to Maine to Guam.” Azar, 911 F.3d

7

at 584.

8
9

Finally, although the scope of the injunction in this action is governed by the
controlling Ninth Circuit law explained above, the court notes that the Ninth Circuit and
the Supreme Court have both credited prudential considerations supporting their

11

United States District Court
Northern District of California

10

admonition that nationwide preliminary injunctions are appropriate only in “exceptional

12

cases.” See San Francisco v. Trump, 897 F.3d at 1244; E. Bay Sanctuary II, 934 F.3d at

13

1029. First, nationwide injunctions unconnected to a plaintiff’s particular harm

14

“unnecessarily ‘stymie novel legal challenges and robust debate’ arising in different

15

judicial districts.” E. Bay Sanctuary II, 934 F.3d at 1029; see also Azar, 911 F.3d at 583

16

(“The Supreme Court has repeatedly emphasized that nationwide injunctions have

17

detrimental consequences to the development of law and deprive appellate courts of a

18

wider range of perspectives.”). That consideration is relevant here, where actions raising

19

similar changes are also currently pending in district courts in New York, Maryland, and

20

Washington, and perhaps more. Second, nationwide injunctions may fail to adequately

21

recognize “the equities of non-parties who are deprived the right to litigate in other

22

forums,” who “are essentially deprived of their ability to participate[.]” Azar, 911 F.3d at

23

583. Third, “[n]ationwide injunctions are also associated with forum shopping, which

24

hinders the equitable administration of laws.” Id.

25
26
27

b.

Analysis

Here, the Counties and the States have demonstrated a likelihood of irreparable
harm based on their loss of Medicaid funding from the federal government and increased

28
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1

operational costs they are likely to carry.24 Those harms stem directly from disenrollment

2

of individuals seeking medical care in their jurisdictions, residing in their jurisdictions, and

3

enrolling in certain other public benefits in their jurisdictions (for example, school lunch

4

programs). Those harms, and the supporting record, are discussed in detail above. In

5

order to preserve the status quo pending resolution on the merits and to prevent certain

6

of these irreparable harms, it is necessary to enjoin implementation of the Rule with

7

respect to those who reside in the States and Counties any time following the date of this

8

order, until this action is resolved on the merits. Moreover, defendants must be

9

additionally enjoined from applying the Rule to any individual who is part of a household
(as defined in the Rule, 8 C.F.R. § 212.21(d)) that includes a person who has resided in a

11

United States District Court
Northern District of California

10

plaintiff State or County any time following the date of this order, until this action is

12

resolved on the merits.

13

Defendants may, of course, continue to process applications and otherwise

14

operate pursuant to the standards employed prior to October 15, 2019—that is, pursuant

15

to the status quo.
The plaintiffs request a nationwide injunction based primarily on what they argue

16
17

would be the inadministrability of an immigration policy that is not administered uniformly

18

nationally. But a nationwide injunction is not “appropriate simply because this case

19

presents a rule that applies nationwide.” E. Bay Sanctuary II, 934 F.3d at 1029; accord

20

San Francisco v. Trump, 897 F.3d at 1244 (record must also be independently

21

“developed on the nationwide impact” and the statewide impact).

22

Plaintiffs also argue that a nationwide injunction is necessary to provide certainty

23

to the public and quell confusion about the implementation of the Rule. They argue that

24

general, nationwide confusion will cause disenrollment even in the States and Counties,

25
26
27
28

24

Because the Organizations have not demonstrated a likelihood of success on—or
serious questions going to—the merits of their APA causes of action (the only claims
underlying their motion for preliminary injunction), they have not demonstrated that an
injunction should issue to prevent the harms they are likely to suffer, so the court does
not consider their alleged harms in determining the scope of the injunction.
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1

causing the above-discussed harms. Plaintiffs have certainly demonstrated that

2

confusion about the nation’s immigration policies is a cause of disenrollment, even for

3

those who will not be subject to the public charge assessment. However, plaintiffs have

4

not demonstrated the marginal effect a nationwide injunction would have on curing that

5

confusion for their residents over and above an injunction limited to their own borders.

6

Although it is conceivable that a nationwide injunction pending resolution on the merits

7

would lead to less disenrollment due to confusion within California than this injunction

8

covering all of California (and the other States), it is plaintiffs’ obligation to demonstrate

9

the necessity of such relief. This court does not suggest that no evidence could support
such an injunction. Nor does the court suggest that the record evidence is necessarily

11

United States District Court
Northern District of California

10

insufficient. Rather plaintiffs, by devoting only a few cursory paragraphs in their briefs to

12

the scope the injunction, have failed to sufficiently tie that evidence to the need for an

13

injunction beyond their borders in order to remedy the specific harms alleged and

14

accepted by the court as likely, imminent, and irreparable.

15

CONCLUSION

16

For the foregoing reasons, the States and Counties’ motion for a preliminary

17

injunction is GRANTED, as explained above. The Organizations’ motion is DENIED,

18

because they do not fall within the zone of interests of the statute forming the basis of

19

their APA claims.

20

PRELIMINARY INJUNCTION

21

Defendants U.S. Citizenship and Immigration Services, Department of Homeland

22

Security, Kevin McAleenen as Acting Secretary of DHS, Kenneth T. Cuccinelli as Acting

23

Director of USCIS, and Donald J. Trump, as President of the United States, are hereby

24

enjoined from applying the Rule, in any manner, to any person residing (now or at any

25

time following the issuance of this order) in San Francisco City or County, Santa Clara

26

County, California, Oregon, the District of Columbia, Maine, or Pennsylvania, or to

27

anyone who is part of a household (as defined by the Rule, 8 C.F.R. § 212.21(d)) that

28

includes such a person. The injunction will remain in effect until a resolution of this action
92

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1
2
3
4
5

on the merits.
IT IS SO ORDERED.
Dated: October 11, 2019
/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge

6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
93