Make the Road New York et al v. Pompeo et al

Filing 137

ORDER granting 136 Letter Motion to Stay re: 136 LETTER MOTION to Stay re: 134 Order on Motion to Stay, (joint status letter and unopposed request to extend the stay of proceedings) addressed to Magistrate Judge Ona T. Wang from James C. Luh; Andrew J. Ehrlich dated January 17, 2023. Application GRANTED. The stay is extended to April 17, 2023. SO ORDERED. (Signed by Magistrate Judge Ona T. Wang on 1/18/2023) (jca)

Case 1:19-cv-11633-GBD-OTW Document 137 Filed 01/18/23 Page 1 of 2

January 17, 2023
By ECF
Hon. Ona T. Wang
United States District Court
Southern District of New York
500 Pearl Street, Room 1310
New York, NY 10007
Re:

MEMO ENDORSED.

Joint status letter and unopposed request to extend the stay of proceedings in
Make the Road New York v. Blinken, No. 19-cv-11633

Dear Judge Wang:
The parties are submitting this joint status letter in light of the Court’s October 19, 2022,
Order, ECF No. 134, which extended the stay in this case to January 17, 2023. The defendants
request that the Court extend the stay of proceedings in this action for 90 days (until April 17,
2023) as detailed further below.
The plaintiffs in this case are challenging three Government actions that pertain to the
entry of persons into the United States: (1) a January 2018 revision to portions of the Department
of State Foreign Affairs Manual, 9 FAM § 302.8-2, pertaining to evaluation of whether a visa
applicant is likely to become a “public charge” under the Immigration and Nationality Act, 8
U.S.C. § 1182(a)(4); (2) the President’s October 2019 Proclamation concerning Suspension of
Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order
to Protect the Availability of Healthcare Benefits for Americans, Proclamation No. 9945, 84 Fed.
Reg. 53,991 (Oct. 4, 2019); and (3) the October 2019 interim final rule published by the
Department of State amending its regulation governing the application of the “public charge”
provision, 22 C.F.R. § 40.41, Visas: Ineligibility Based on Public Charge Grounds, 84 Fed. Reg.
54,996 (Oct. 11, 2019).
None of these actions is currently being applied. The January 2018 guidance was
superseded by new guidance reflecting the October 2019 rule and is no longer in use. The
President revoked the October 2019 Proclamation on May 14, 2021. Proclamation No. 10,209,
86 Fed. Reg. 27,015 (May 14, 2021). The defendants’ view is that the claims pertaining to the
January 2018 guidance and the October 2019 Proclamation are moot.
The Court entered a preliminary injunction in July 2020 barring enforcement of all three
challenged actions. Mem. Decision and Order 52, ECF No. 88. The defendants filed an appeal
from the July 2020 preliminary injunction, but the parties stipulated to dismissal of the appeal.
See Mandate, ECF No. 118.
On February 2, 2021, the President issued an Executive Order calling for the Secretary of
State to review agency actions related to implementation of the public charge ground of
inadmissibility, 8 U.S.C. § 1182(a)(4)(A). Exec. Order No. 14,012, 86 Fed. Reg. 8277 (Feb. 2,
2021). In light of that Executive Order and the review the Department of State is conducting

Case 1:19-cv-11633-GBD-OTW Document 137 Filed 01/18/23 Page 2 of 2
-2under that Order, the defendants requested a 90-day stay of proceedings. Judge Daniels granted
that request in a February 22, 2021, Order, ECF No. 110. This Court extended that stay until
November 22, 2021, and then until March 22, 2022, July 20, 2022, October 18, 2022, and
January 17, 2023. See Order, ECF No. 117; Order, ECF No. 122; Order, ECF No. 125; Order,
ECF No. 130; Order, ECF No. 132; Order, ECF No. 134.
In light of changed circumstances since the publication of the October 2019 rule, on
November 17, 2021, the Department of State published a notice in the Federal Register soliciting
additional information from the public and reopening the comment period for 60 days. Visas:
Ineligibility Based on Public Charge Grounds, 86 Fed. Reg. 64,070 (Nov. 17, 2021). The
additional comment period closed on January 18, 2022. In November 2022, the Department of
State submitted a draft final action to the Office of Information and Regulatory Affairs within the
White House Office of Management and Budget, which is now pending regulatory review
pursuant to Executive Order No. 12,866, 3 C.F.R. 638 (1994), see https://www.reginfo.gov
/public/do/eoDetails?rrid=281812. The Department of State is also preparing a notice of
proposed rulemaking proposing revision of its public charge rule, as noted in the Fall 2022
Unified Agenda of Regulatory and Deregulatory Actions. See https://www.reginfo.gov/public/do
/eAgendaViewRule?pubId=202210&RIN=1400-AE87.
In light of the Executive Order, the review the Department of State is conducting under
the Order, and the further anticipated action described above, the defendants request that the
Court extend the stay of proceedings in this action for 90 days (until April 17, 2023). The
plaintiffs do not oppose the request in light of this Court’s preliminary injunction remaining in
effect, though they reserve the right to seek to advance the case if circumstances change. The
defendants agree that a stay should not preclude either side from making a request to lift the stay
if circumstances change.
Accordingly, the defendants respectfully request that the Court extend the stay of
proceedings in this action for 90 days (until April 17, 2023).
Application GRANTED. The stay is extended to
April 17, 2023.
SO ORDERED.

____________________________
Ona T. Wang
1/18/23
U.S.M.J.
Cc: All counsel of record via ECF

Sincerely,
/s/ James C. Luh
James C. Luh
Senior Trial Counsel
United States Department of Justice
/s/ Andrew J. Ehrlich
Andrew J. Ehrlich
Paul, Weiss, Rifkind, Wharton, & Garrison
LLP
Counsel to Plaintiffs