Case Document 110 Filed 10/11/19 aige 1 of 24 Tuna-?WW :1 315%wa 1% UNITED STATES DISTRICT COURT 1: b?gw?ga er EX SOUTHERN DISTRICT OF NEW YORK at! Egg; J3 ,3 Egg $5 i STATE OF NEW YORK, CITY OF NEW YORK, A 3 1 mg i STATE OF CONNECTICUT, and STATE OF ?iiwgm?m VERMONT, Plaintiffs, -against? UNITED STATES DEPARTMENT OF HOMELAND MEMOPJANDUM DECISION SECRETARY KEVIN K. MCALEENAN, in his official capacity as Acting Secretary of the United States Department of Homeland Security, agent of Acting '19 Secretary of the United States Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION DIRECTOR KENNETH T. CUCCINELLI II, in his official capacity as Acting Director of United States Citizenship and Immigration Service; and UNITED STATES OF AMERICA, Defendants. GEORGE B. DANIELS, United States District Judge: State of Vermont bring this action against Defendants the United States Dep AND ORDER piv. 7777 (GBD) rtment of Homeland Plaintiffs the State of New York, the City of New York, the State offonnecticut, and the Security the United States Citizenship and Immigration Services Kevin K. McAleenan, in his of?cial capacity as Acting Secretary of Secretary Director Kenneth T. Cuccinelli II, in his Of?cial capacity as Acting Director of and the United States of America. (Compl. for Declaratory and Injunctive Relief ECF No. 17.) Plaintiffs challenge Defendants? promulgation, implementation, and enforcement of a rule, Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (to be codi?ed at 8 C.F.R. pts. 103, 212, 213, 214, 245, 248) (the ?Rule?), which rede?nes the term ?public charge? and establishes new criteria for determining Whether a noncitizen applying for admission into the 1 Case Document 110 Filed 10/11/19 3 United States or for adjustment of status is ineligible because he or! she is likely charge.? (See id. jl 2.) Plaintiffs seek, inter alia, (1) a judgment: declaring th Defendants? statutory authority, violates the law, and is arbitrary; and caprici discretion; (2) a vacatur of the Rule; and (3) an injunction enjoining DHSifro Rule. (Id. at 83?84.) Plaintiffs now move pursuant to Federal Rule of Civil Procedure 6 i injunction enjoining Defendants from implementing or enforcing the Rule, take effect on October 15, 2019. (Pls.? Notice of Mot, ECF No.133.) They lage 2 of 24 to become a ?public at the Rule exceeds Bus and an abuse of implementing the 5 for a preliminary hich is scheduled to lso move under the Administrative Procedure Act, 5 U.S.C. 705, for a stay postponing the effec ive date of the Rule pending adjudication of this action on the merits. (Id) Plairltiffs? mbtio i injunction and stay of its effective date is GRANTED.1 I. FACTUAL BACKGROUND 3 A. Current Framework for Public Charge Determination. The Immigration and Nationality Act (the provides that the may deny admission or adjustment of status to any noncitizen who it determi . 3 time to become a public charge.? 8 U.S.C. 1182(a)(4)(A). In 1996, Congres of legislation focusing on noncitizens? eligibility for public benefits: an determinations. It ?rst passed the Personal Responsibility and Work Opport i Act, Pub. L. No. 104?193, 403, 110 Stat. 2105, 2265?67 (1996) (the which established a detailed?and restrictive?scheme governing lnon benefits. It also passed the Illegal Immigration Reform and Immigrant Respm a Pub. L. No. 104-208, 531, 110 Stat. 3009, 3674?75 (1996) yvhi i 1 This Court also grants, under separate order, the same preliminary injunction and 5 Make the Road New York v. Cuccinelli, 19 Civ. 7993 (GBD). a 2 for a preliminary federal government .nes is ?likely at any enacted two pieces :1 on public charge unity Reconciliation alfare Reform Act?), citizens? access to isibility Act of 1996, ch amended the INA tay in a related action, i Case Document 110 Filed 10/11/19 Paige 3 of 24 by codifying ?ve factors relevant to a public charge determination. Speci?cal that in assessing whether an applicant is likely to fall within the de?nition? of ly, IIRIRA provides public charge, DHS should, ?at a minimum,? take into account the applicant?s age; healtli; family status; assets, resources, and ?nancial status; and education and skills. 8 U.S.C. In 1999, predecessor, the Immigration and Naturalization Service issued its Field Guidance on Deportability and Inadmissibility on Public Charge Gr 28,689 (May 26, 1999) (the ?Field Guidance?), as well as a pardllel propose 28,676, which ?summarize[d] longstanding law with respect to public charge guidance on public charge determinations? in light of IIRIRA, the Welfare Ri recent legislation. 64 Fed. Reg. at 28,689. Both the Field Guidance and p1 ounds, 64 Fed. Reg. (1 rule, 64 Fed. Reg. and provide[d] new :form Act, and other 'oposed rule de?ned ?public charge? as a noncitizen who has become or is likely to become ?primarily dependent on the government for subsistence, as demonstrated by either the receipt bf for income maintenance or (ii) institutionalization for long-term care at gover (internal quotation marks omitted). Consistent with the INA, INS regulatio Board of Immigration Appeals, and Attorney General decisions, they instru evaluate a noncitizen?s likelihood of becoming a public charge by examini noncitizen?s circumstances at the time of his or her application. Id. at 28,690 noted that ?[t]he existence or absence of a particular factor should never be ublic cash assistance nment expense.? Id. ns, and several INS, cted INS of?cials to ng the totality of the The Field Guidance the sole criterion for determining if an alien is likely to become a public charge.? Id. (emphasis omitted). Although the I I parallel proposed rule was never ?nalized, the Field Guidance sets forth the public charge determinations. urrent framework for Case Document 110 Filed 10/11/19 Page 4 of 24 i B. The 2018 Proposed Rulemaking and Rule. 1 On October 10, 2018, DHS published a notice of proposed rulemaking I Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (Oct. 10, 2018), which with?irew the 1999 proposed 1 1 rule that INS had issued with the Field Guidance. Id at 51,114. This newly roposed rule sought, among other things, to rede?ne ?public charge,? and to amend the totality-C f?the-circumstances standard that is currently used in public charge determinations. See id. The day period for public comments on the proposed rule. Id. DHS collected 266 vast majority of which opposed the rule.? 84 Fed. Reg. at 41,297; see? als (describing and responding to public comments). Subsequently, on August 14, 2019, DHS issued the Rule. It was ?r changes, as the proposed rule described in the October 2018 notice. Id. at 4 41,297?303 (summarizing changes in Rule). Under the Rule, ?public charge? is to be de?ned as any noncitizen more public bene?ts . . period.? Id at 41,501. The Rule de?nes ?public bene?t,? in turn, ad bo noncash bene?ts such as Supplemental Nutrition Assistance Program, 1\ housing and Section 8 housing assistance. Id. Each bene?t is to be calculating the duration of use, such that, for example, receipt of two bene?t 1 count as two months. Id. The Rule also proVides a new framework for assessing whether a hon time to become a public charge. Speci?cally, the Rule enumerates an expan of factors relevant to analyzing whether a person is likely to receive 12 inoi within 36 months. See id. at 41,502w04. It includes, for example, family 3 . for more than 12 months in the aggregate vs otice provided a 60- 077 comments, ?the 0 id. at 41,304?484 1alized, with several 1,292; see also id. at who receives one or rithin any 36-month th cash bene?ts and ledicaid, and public ounted separately in 3 in one month would citizen is likely at any fled non-exclusive list 1ths of public bene?ts ize, English-language Case Document 110 Filed 10/11/19 Page 5 of 24 pro?ciency, credit score, and any application for the enumerated public benefits, regardless of the actual receipt or use of such bene?ts. Id. The Rule designates the factors as ?positive,? ?negative,? ?heavily weighted positive,? or ?heavily weighted negative,? and the DHS of?cer to ?weigh? all such factors ?individually and cumulatively.? Id. at 41,397,; sed also id. at 41,502? 04. Under this framework, if the negative factors outweigh the positiyfe factors, the applicant would be found likely to receive 12 months of public bene?ts in the: future. The applicant would then be found inadmissible as likely to become a public charge. Conversely, if the positive factors outweigh the negative factors, the applicant would not be found?inadmislsibl a as likely to receive 12 months of public bene?ts and thereby become a public charge. at 411,3 97. DHS published various corrections to the Rule as redently as October 2, 2019. Inadmissibility on Public Charge Grounds; Correction, 84 Fed. Reg. 52,357 (Oct. 2, 2019). None of these corrections materially alter the new public charge determination framework as outlined above. The Rule, as corrected, is set to go into effect on Octdber 15, 2019. II. LEGAL STANDARD 1 preliminary injunction is ?an extraordinary remedy Enever awarded as of right.?? Benisek v. Lamone, 138 S. Ct. 1942, 1943 (2018) (per curiani) (citation omitted). To obtain a preliminary injunction, the moving party must establish ?that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public int rarest.? Winter v. Nat. Res. Def Council, Inc, 555 US. 7, 20 (2008). i . . 111. PLAINTIFFS HAVE DEMONSTRATED A LIKELIHOOD OF SUCCESS ON THE MERITS OF THEIR pL AIMS 1 The Administrative Procedure Act authorizes judicial review of agency rules. Under the APA, a reviewing court must ?hold unlawful and Set aside agency action? that is ?in 3 i 5 Case Document 110 Filed 10/11/19 excess of statutory jurisdiction, authority, or limitations?; is ?not in accOrdai ?arbitrary, capricious, [or] an abuse of discretion.? 5 U.S.C (C). likely to succeed on the merits of their claim that the Rule con?icts! withithe respects. A. Plaintiffs Satisfy the Threshold Justiciability Requirements. As a preliminary matter, Defendants raise several arguments that Plait justiciable. Speci?cally, they assert that Plaintiffs lack standing, the claims are review, and Plaintiffs fall outside the zone of interests regulated by the Rule. 1. Plaintiffs Have Standing. Article of the U.S. Constitution limits the judicial power of federal ?Controversies.? U.S. Const. art. 2, cl. 1. To invoke this power, a standing to sue. Clapper v. Amnesty Int '1 USA, 568 U.S. 398, 408 plaintiff bears the burden of establishing standing, Rajamin v. Deutsche Ban F.3d 79, 84 (2d Cir. 2014) (citing Lujan v. De?. ofWildlife, 504 U.S. 555, 560? Mortg. Corp. v. Equifax, Inc, 583 F.3d 103, 108 (2d Cir. 2009)),iand such bu claim and form of relief sought, Corp. v. Cuno', 547 U.S. 3 demonstrate Article standing, the plaintiff must show that (1) ?it has Sufi particularized injury that is either actual or imminent,? (2) ?the: injury is fa defendant,? and (3) ?it is likely that a favorable decision will rediess that inju v. EPA, 549 U.S. 497, 517 (2007) (citing Lujan, 504 U.S. at ?[T]he with standing is suf?cient to satisfy Article case-or?controversy require Forum for Acad. Institutional Rights, Inc., 547 U.S. 47, 52 n.2.(2006) (cita i 1 age 6 of 24 tree with law?; or is Here, Plaintiffs are APA in all of these [tiffs? claims are not not ripe for judicial courts to ?Cases? or plaintiff must have ation omitted). The i: Nat?l Tr. C0., 757 61 (1992); Premium rden applies to each 32, 352 (2006). To 'ered a concrete and irly traceable to the try.? Massachusetts resence of one party ment.? Rumsfeld v. tion omitted). Case Document 110 Filed 10/11/19 Page 7 of 24 Defendants, focusing on the ?rst element, argue that Plaintiffs have not alleged any injury suf?cient to confer standing. They principally argue that Plaintiffs? claims of irreparable injury ?consist of potential future harms that, if they ever came to pass, would be spurred by decisions of I third parties not before the Court,? and that these injuries are therefore too? attenuated and speculative. (Mem. of Law in Opp?n to Pls.? Mot. for a Prelim: Inj. (?Defs.? Opp?n?), ECF No. 99, at 7). In Defendants? view, the Rule governs only DHS perso;pnel and certain noncitizens, but does not directly affect Plaintiffs, either by requiring or forbidding any action on Plaintiffs? part or by expressly interfering with any of Plaintiffs? programs. (Icil) Defendants argue that in the context of challenges to federal immigration policies, courts have5 found state standing only where ?the States? claims arise out of their proprietary interests as employers or operators of state universities.? They further insist that certain of Plaintiffs? alleged injuries, such as the health effects arising from noncitizens forgoing health care, ?would be borne by [the] affected individuals, not [Plaintiffs].? (Id. at 9.) Finally, Defendants dismiss the alleged programmatic and administrative harm as ?[b]ureaucratic inconvenience? and ?voltmtary expenditures? that do not give rise to standing. (Id. at 10.) i i Plaintiffs suf?ciently allege ?concrete and particularized? injuries. They adequately demonstrate, for example, that the Rule will have a chilling effect and decrease enrollment in bene?ts programs, which will harm Plaintiffs? proprietary interests as operators of hospitals and healthcare systems. (Pls.? Reply in Supp. of Their Mot. for Preliin. Inj. and Stay Pending Judicial Review Reply?), ECF No. 102, at 1.) Namely, Plaintiffs allege that this dr0p in participation will reduce Plaintiffs? consumers and revenue, including thIOLigh Medicaid participants, while simultaneously shifting costs of providing emergency healthcare and shelter bene?ts from the federal government to Plaintiffs, who offer subsidized healthcare services. Other injuries a Case Document 110 Filed 10/11/19 Page 8 of 24 include increased healthcare costs as noncitizen patients avoid preventative care; programmatic costs since Plaintiffs are the administrators of the public benefits implicated by the Rule;2 and economic harm, including $3.6 billion in ?economic ripple 26,000 los:t jobs, and $175 million in lost tax revenue. (Mem. of Law in Supp. of Pls.? Mot. ifor Prelim. Inj. and Stay Pending Judicial Review ECF No. 35, at 10?13.) Such Sactual and imminent injuries are ?fairly traceable? to Defendants? promulgation of the Rule. Accordingly, Plaintiffs, have standing to assert their claims. 2. Plaintiffs? Claims Are Ripe for Judicial Reviewi. To be justiciable, Plaintiffs? claims must also be ripe?that is, they ?must present ?a real, substantial controversy, not a mere hypothetical question.?? Nat?l Org. for Marriage, Inc. v. Walsh, 714 .3d 682, 687 (2d Cir. 2013) (quoting AMSAT Cable v. lCablevision of Conn, 6 F.3d 867, 872 (2d Cir.1993)). ?Ripeness ?is peculiarly a question of timing,? and claim is not ripe if it depends upon ?contingent future events that may occur as anticipated, or indeed may not occur at all.?? Id. (quoting Thomas v. Union Carbide iigric. Prods. Co., 473 U.S. 568, 580?81 (1985)). i ?Ripeness encompasses two overlapping doctrines concerning the exercise of federal court jurisdiction.? Entergy Nuclear Vt. Yankee, LLC v. Shumlin, 733 F.3d 393: 429 (2d Cir. 2013) (citing Reno v. Catholic Soc. Servs., Inc, 509 U.S. 43, 57 n.18 (1993)) marks omitted). The ?rst, constitutional ripeness, ?overlaps with the stilanding d6ctrine,ll?most notably in the shared requirement that the plaintiff?s injury be imminent rather than conjectural or i hypothetical.?? In re Methyl Tertiary Butyl Ether (MT BE) Prods. Liab. Litig, 725 F.3d 65, 110 2 Plaintiffs allege that such programmatic costs include those alsociated ;with updating Plaintiffs? ?enrollment, processing, and recordkeeping systems; retraining staff aj?rd preparing updated materials; and responding to public concerns.? (Id. at 3.) Case Document 110 Filed iO/11/19 (2d Cir. 2013) (quoting Ross v. Bank of Am, NA, 524 F.3d 217, i226 (2nd Ci i ripeness, meanwhile, is ??an important exception to the usual rule that where federal court must exercise it,? and allows a court to determine ?that the case later.? Id. (quoting Simmonds v. Immigration Naturalization 839112., 326 F: 2003)). In determining whether a case is prudentially ripe, courts examine is ?t for judicial decision and (2) whether and to what extent the parties wi i decision is withheld.? Simmonds, 326 F.3d at 359 (citing Abbott. Labs. v. Ga I 148?49 (1967)). One can conceive of no issue of greater ripeness than that pres?nte scheduled to go into effect in a matter of days, at which point hundreds of th01 who were previously eligible for admission and permanent residence in the 1 longer be eligible because of this change of law. Adverse consequences and soon begin to have their effect. The Rule is intended to inimediately population to avoid public bene?ts. Plaintiffs must be prepared td immediatel of this change in policy. No further factual predicate is necessary for purposes of determining is clearly a legal question about whether the Rule exceeds Defendants? violates the law, and is arbitrary and capricious. Moreover, for the same re suf?ciently allege an injury under the standing inquiry, they have shown signi?cant hardship with any delay. Accordingly, Plaintiffs? ilaims are constitutionally and prudentially2008)). Prudential jurisdiction exists a vill be better decided 5d 351, 357 (2d Cir. 1) whether [the case] ll eridure hardship if "drier, 387 US. 136, Ll here. The Rule is tsands of individuals Jnited States will no determinations will ause the immigrant adjust to the results ipeness, where there delegated authority, asons that Plaintiffs hat they will endure Lpe for review, both Case Document 110 Filed 10/11/19 Pa 3. Plaintiffs Are Within the Zone of Interests Regulated By tl The ?nal threshold question raised by Defendants is whether Plaintiff ?fall within the zone of interests protected by the law invoked.? Lexmark Control Components, Inc., 572 US. 118, 129 (2014) (citation and interr omitted). The zone-of-interests test is ?not ?especially demanding,?? particu the APA and its ?generous review provisions.? Id. at 130 (citation and inter omitted). Indeed, in the APA context, the Supreme Court has ?often ?conspic word ?arguably? in the test to indicate that the bene?t of any doubt goes tc (citation omitted). ?The test forecloses suit only when a plaintiff? ?interes age 10 of 24 1e ?ule. "s have concerns that Int Inc. v. Static 1a] quotation marks larly with respect to nal i{quotation marks :uously included the the plaintiff.?? Id. ts are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.?? Match?E-Be-Nash Pottawatomi Indians v. Patchak, 567 US. 209, 225 (2012) (citation omitted). Plaintiffs plainly fall within the zone of interests. The interest state and local governments are inextricably intertwined. Among a state obligations are representing and protecting the rights and welfare of administrators of the public bene?ts programs targeted by the Rule, (see Pls.? Reply at 4 (noting direct reference to states? roles as bene?t admini: interests are all the more implicated. Furthermore, the zone-of?interests test plaintiff to be an intended bene?ciary of the law in question,? but instead a ?She-Wish Band of ofiimmigrants and government?s many its residents. As vien'i. at strators)), Plaintiffs? does not require the llows parties simply ?who are injured? to seek redress. Citizens for Responsibility Ethics in Wash. Trump, No. 18- 474, 2019 WL 4383205, at *16 (2d Cir. Sept. 13, 2019). The Supreme Ccurt has consistently found that economic injuries like those alleged here satisfy the test. See, cg. ,0 Bcink of Am. Corp. v. City of Miami, 137 1296, 1304?05 (2017) (?nding city?s discriminatory lending claims 10 Case Document 110 Filed 10/11/19 A within zone of interests of Fair Housing Act, despite economic nature of harm of any indication that Act was intended to protect municipal budgets). B. Plaintiffs Sufficiently Allege That the Rule Exceeds Statutory Contrary to Law. Turning to the merits of Plaintiffs? claims, Plaintiffs argue that the R1 because it exceeds delegated authority under the INA and is contrary (C). In analyzing an agency?s interpretation of a statute and vs action exceeds statutory authority, courts often apply the two-step frame Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 US. question . . . is always whether the agency has gone beyond what Congress City ofArlington v. FCC, 569 U.S. 290, 298 (2013). Under Chew age. 11 of 24 :?alleged and absence 1 i Authority and Is 1:16 violates the APA to law. See 5 U.S.C rhether the agency?s ilzvork articulated in ,837, (1984). ?[T]he :7 has permitted it to "on, courts ?rst ask whether the statute is clear. Chevron, 467 US. at 842. If so, ?that is the end; of the matter[,] for the court, as well as the agency, must give effect to the unambiguously Congress.? Id. at 842?43. Where there is ambiguity, however, courts th agency?s interpretation of the statute is reasonable. Id. at 843?44. Such def on the theory that a statute?s ambiguity constitutes an implicit delegation fr agency to ?ll in the statutory gaps.? FDA v. Brown Williamson Tobacco 159 (2000). Notwithstanding this implicit delegation, ?agencies must operate expressed intent of en ask whether the erence ?is premised dm Congress to the wbrp., 529 US. 120, E?within the bounds . . i 3 r. of reasonable interpretation,?? and ?reasonable statutory 1nterpretat10n must accohnt for both the speci?c context in which . . . language is used? and ?the broader context whole.? Util. Air Regulatory Grp. v. EPA, 573 US. 302, 321 (2014) (citatio 1. Long-Standing Definition of ?Public Charge.? Plaintiffs argue that the new Rule?s de?nition of ?public charge? is a dr the unambiguous and well-established meaning of the term that has ex 11 lof the statute as a ifs omitted). i astic deviation from isted for over 130 Case Document 110 Filed 10/11/19 Page 12 of 24 years. (Pls.? Mem. at 2, They assert that the term has consisten?ily been interpreted narrowly to mean ?an individual who is or is likely to become primarily and permanently dependent on the government for subsistence.? (Id. at 3.) Going as far back as 1882, when Congress passed the ?rst federal immigration statute, Plaintiffs note that the statute rendered excludable ?convicts, lunatics, idiots, and any person unable to take care 10f "himself without becoming a public charge,? (id. at 20 (quoting Immigration Act of 1882, chi. 376, 22 Stat. 214, 47th Cong. and that it sought to ?prevent long-term residence in the United States of those ?who ultimately become lzfe-long dependents on our public charities,? "(id (quoting 13 Cong. Rec. 5108?10 (June 19, 1882) (statement of Rep. Van Voorhis)).) As Plaintiffs note, ?[f]ar from excluding as public charges immigrants who received temporary assistance, the same law authorized immigration of?cials to provide ?support and relief? to immigrahts who may ?need public aid? after their arrival.? (Id. (quoting Immigration Act of 1882 at Plaintiffs point to court decisions in the years that followed, con?rming this de?nition of ?public charge,? as well as the INA itself, which adopted this interpretation glupon its passage in 1952. (Id. at 21?22.) According to Plaintiffs, federal agencies have also consistently viewed . ?public charge? to mean someone who is ?primarily dependent on the government for cash assistance or on long-term institutionalization,? as evidenced by (1) 1?9;99 Field Guidance, which formally codi?ed this de?nition; (2) ?extensive[]? consultations Ewith other agencies prior to issuing the guidance; and (3) the Department of ustice?s use of the ?pi?imarily dependent? standard in the deportation context. (Id. at 22?23.) In opposition, Defendants assert that the de?nition of ?public charge? in the Rule ?is consistent with the plain meaning of the statutory text, which ?is to be determined at the time that 1 it became law.?? (Defs.? Opp?n at 13 (quoting One West Bank v. Melina, 827 F.3d 214, 220 (2d 12 Case Document 110 Filed 10/11/19 Page 13 of 24 Cir. 2016)).) They direct this Court to dictionaries used in the 1880s, when the Immigration Act of 1882 was passed, which allegedly ?make clear? that a noncitizen becomes a ?public charge? ?when his inability to achieve self-suf?ciency imposes an ?obligation? or ?lieibility? on ?the body of the citizens? to provide for his basic necessities.? (Id. at 13?14.) Upon review of the plain language of the INA, the history and common-law meaning of ?public charge,? agency interpretation, and Congress?s repeated reenactment of the public charge provision without material change, one thing is abundantly clear?~?public charge? has never been understood to mean receipt of 12 months of bene?ts Within a 36-month period. Defendants admit that this is a ?new de?nition? under the Rule. (11.7.: at 5.) And at oral argument, they did not dispute that this de?nition has never been referenced in the history of US. immigration law or that there is zero precedent supporting this particular de?nition. (See, e. g. Tr. of Oral Arg. dated Oct. 7, 2019 at 51 :8?1 1, 5221?3.) No ordinary or legal dictionary de?nition of ?public charge? references Defendants? proposed meaning of that term. As such, Plaintiffs raise a compelling argument that Defendants lack the authority to rede?ne ?public charge? as they have. 2. Congress?s Intent. Nor is there any evidence that Congress intended for a rede?nition of ?public charge,? and certainly not in the manner set forth in the Rule. No legislative intent or historical precedent alludes to this new de?nition. Defendants have made no showing that Congress was anything but content with the current de?nition set forth in the Field Guidance, which de?nes public charge as someone who has become or is likely to become primarily dependent on the government for cash assistance. Indeed, Congress has repeatedly endorsed this de?nition and rejected efforts to expand it. For example, during the 1996 debate over IIRIRA, several members of Congress tried and failed to extend the meaning of public charge to include the use of non?cash: bene?ts. See 142 13 Case Document 110 Filed 10/11/19 Sage 14 of 24 Cong. Rec. S11612, at S1 1712 (daily ed. Sept. 16, 1996). Congress rejected similar efforts in 2013 because of its ?strict bene?t restrictions and requirements.? S. Rep. 113-40, at 42 (2013). In addition, if Congress wanted to deny immigrants any of the public bene?ts enumerated in the Rule, it could have done so, as it similarly has in the past. The Welfare Reform Act, for example, restricted certain noncitizens? eligibility for certain bene?ts. Speci?cally, it provided that only ?quali?ed? noncitizens?Hwhich, in most cases, meant those who had remained in the United States for ?ve years?could have access to most federal means-tested public bene?ts. 8 U.S.C 1612, 1613. Therefore, the absence of any Congressional inten' to rede?ne public charge also counsels in favor of a preliminary injunction. C. Plaintiffs Sufficiently Demonstrate That the Rule Is Arbitrary andl- Capricious. Plaintiffs additionally argue that the Rule is arbitrary and capricious. See 5 U.S.C. ?The scope of review under the ?arbitrary and capricious? standard is Motor Vehicle M?s. ASS ?n of us, Inc. v. State Farm Mat. Auto. Ins. Co., 463 us. 291 43 (1983). Nevertheless, the APA requires an agency to ?engage in ?reasoned decisionmaking,?? Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015) (citation omitted), and to ?articulate a satisfactory explanation for its action,? State Farm, 463 US. at 43 (citation omitted). An agency rule is'arbitrary and capricious if the agency: relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. Where an agency action changes prior policy, the agency need not demonstrate ?that the reasons for the new policy are better than the reasons for the old one.? FCC v. Fox Television Stations, Inc, 556 US. 502, 515 (2008). It must, however, ?show that there are good reasons for the new policy.? Id. This requirement is heightened where the ?new policyirests upon factual l4 Case Document 110 Filed 10/11/19 Page 15 of 24 ?ndings that contradict those which underlay its prior policy,? id. (citation omitted), as ?a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy,? id. at 516. 1. Defendants? Justi?cation of Rule. Here, Defendants fail to provide any reasonable explanation for changing the de?nition of ?public charge? or the framework for evaluating whether a noncitizen is likelyto become a public charge. As noted above, ?public charge? has never been interpreted as sonreone ?i?who receives one or more public bene?ts . . . for more than 12 months in the aggregate Within any 36-month period.? 84 Fed. Reg. at 41,501. This new de?nition essentially changes. the public charge assessment into a bene?ts issue, rather than an inquiry about self-subsistance, such that any individual who is deemed likely to accept a bene?t is considered a public charge. Receipt of a bene?t, however, does not necessarily indicate that the individual is unable to support herself. One could envision, for example, a scenario where an individual is fully capable of supporting herself without government assistance but elects to accept a bene?t, such as public housing, simply because she is entitled to it. Under the Rule, although this individual is legally entitled to public housing, if she takes advantage of this right, she may be penalized with denial of adjustment of status. There is no logic to this framework. Moreover, considering that the federal welfare program was not established in the United States until the 19303, whereas ?re concept of public charge existed at least as early as 1882, there must be some de?nition of public charge separate and apart from mere receipt of bene?ts. At oral argument, Defendants were afforded numerous opportunities to articulate a rational basis for equating public charge with receipt of bene?ts for 12 months within a 36-month period, particularly when this has never been the rule. Defendants failed each and every time. When 15 Case Document 110 Filed 10/11/19 Page 16 of 24 asked, for example, why the standard was 12 months and 36 months as opposed to any other number of months, Defendants merely responded that they do not need to ?Show a case from 100 years ago that also adopted this precise standard.? (Tr. of Oral Arg. dated Oct. 7, 2019 at Defendants were asked to explain how the new framework would operate and to provide an example of the ?typical person? that Defendants could predict is going to receive 12 months of bene?ts in a 36-month period. (Id Defendants again stumbled along and were unable to adequately explain what the determinative factor is under the Rule, what individual would fall across the line and be considered a public charge, and what evaluation of the factors enumerated in the Rule would make the DHS of?cer con?dent that she could make an appropriate prediction. (Id) And yet, according to Defendants, the Rule is intiended to ?provide[] a number of concrete guidelines to assist in making [the public charge] determination? and is ?designed . . . to make it more predictable for people on both sides of the adjudicatory process.? (Id. at Quite the opposite appears to be the case. Defendants suggest that the totality-of?circumstances test remains and that receipt of bene?ts for 12 months out of a 36-month period is only one of several factors to be considered. (Id. at 52:17w22.) This characterization of the Rule is plainly incorrect. Under the Rule, receipt of such bene?ts is not one of the factors considered; it is the factor. That is, if a DHS of?cer believes that an individual is likely to have bene?ts for 12 months out of a 36-month period, the inquiry ends there, and the individual is automatically considered a public :charge. As such, Defendants are not simply expanding or elaborating on the list of factors to corii'sider in the totality of the circumstances. Rather, they are entirely reworking the framework, and with no rational basis. 16 Case Document 110 Filed 10/11/19 Defendants also fail to demonstrate rational relationships between ma factors enumerated in the Rule and a ?nding of bene?ts use. One illustra addition of English-language pro?ciency as a factor. Defendants do not di never been an English?language requirement in the public charge analysis. Tl that it was ?entirely reasonable? to add English pro?ciency as a factor, giver ?6 the INA to consider an applicant?s education and skills,? and the ?correlatio English language skills and public bene?t usage, lower incomes, and lower rat (Defs.? Opp?n at 27.) Defendants? suggestion that an individual is likely to bee age" 17 of 24 ny {if the additional ?ve, example is the spute that there has I i icy argue, however, 1 the requirement in I between a lack of I es of employment.? Dme apublic charge i simply by virtue of her limited English pro?ciency is baseless, as one can certainly be a productive and self-suf?cient citizen without knowing any English. The United States of?cial language. Many, if not most, immigrants who arrived at these shores di It is simply offensive to contend that English pro?ciency is a valid predictor In short, Defendants do not articulate why they are changing the publi why this new de?nition is needed now, or why the de?nition set forth in th absolutely no support in the history of US immigration law?is reasonable. a new agency policy of exclusion in search of a justi?cation. It is repugnaint Dream of the opportunity for prosperity and success through hard work an Immigrants have always come to this country seeking a better life for th posterity. With or without help, most succeed. 3 Similarly, it is unclear how the credit score of a new immigrant??who, for exar recently opened her ?rst credit account and therefore has a short credit history, wh impact her credit score?is indicative of her likelihood to receive 12 months of public blithely argue that a low credit score ?is an indication that someone has made ?nanc not necessarily entirely responsible? and that ?those irresponsible ?nancial decision of someone who doesn?t have very much money to work with.? (Tr. of Oral Arg. 17 1 of America has no i noit speak English. climge de?nition, Ri?e??which has The: Rule is simply the American :1 upward mobility. ems'ilelves and their i nple, may have only ich Would negatively ben-?ts. Defendants .ial decisions that are mziy be the product dated Oct. 7, 2019 at Case Document 110 Filed 10/11/19 Page 18 of 24 2. Rehabilitation Act. Plaintiffs further argue that the Rule discriminates against individuals with disabilities, in contravention of Section 504 of the Rehabilitation Act, Pub. L. No. 93-112, 87 Stat. 394 (1973) (codi?ed at 29 U.S.C. 794). Section 504 provides that no individual with a disability ?shall, solely by reason of her or his disability, be excluded from the participation in, be denied the bene?ts of, or be subjected to discrimination . . . under any program or activity conducted by any Executive agency.? 29 U.S.C. 794(a). DHS, in particular, is prohibited from denying access to bene?ts and services on the basis of disability, 6 C.F.R. and from using discriminatory criteria or methods of administration, id. See also id. 15.49. ?Exclusion or discrimination [under Section 504] may take the form of disparate treatment, disparate impact, or failure to make reasonable accommodation.? B. C. v. Mount Vernon Sch. Dist, 837 F.3d 152, 158 (2d Cir. 2016). The Rule clearly considers disability as a negative factor in the public charge assessment. Defendants acknowledge that disability is ?one factor . . . that may be considered? and that it is ?relevant . . . t0 the extent that an alien?s particular disability tends to show that he is ?more likely than not to become a public charge? at any time.? (Defs.? Opp?n at 30 (quot1 ng 84 Fed. Reg. at 41,3 Defendants do not explain how disability alone is itself a negative factor indicative of being more likely to become a public charge. In fact, it is inconsistent with the reality that many individuals with disabilities live independent and productive lives. As such, Plaintiffs have raised at least a colorable argument that the Rule as to be applied may violate the Rehabilitation Act, and further discovery and development of the record is warranted prior to its implementation. 18 Case Document 110 Filed 10/11/19 Page 19 of 24 IV. PLAINTIFFS HAVE DEMONSTRATED THAT THEY WILL SUFFER IRREPARABLE HARM ABSENT A PRELIMINARY INJUNCTION showing of irreparable harm is ?the single most important prerequisite for the issuance of a preliminary injunction.? Faiveley Transp. Malmo AB v. Wabtec Corp, .559 F.3d 110, 118 (2d Cir. 2009) (citation omitted). ?To satisfy the irreparable harm requirement, Plaintiffs must demonstrate that absent a preliminary injunction they will suffer ?an injury that is neither remote nor speculative, but actual and imminent,? and one that cannot be remedied ?if a court waits until the end of trial to resolve the harm.? Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (citation omitted). However, Plaintiffs need only show ?a threat of irreparable harm, not that irreparable harm already ha[s] occurred.? Mullins v. City of New 0rk,l626 .3d 47, 55 (2d Cir. 2010). The irreparable injury to Plaintiffs by shifting the burden of providing services to those who can no longer obtain federal bene?ts without jeopardizing their status in the United States, and the immediate response that is necessary by this shift of burden to Plaintiffs, is a direct and inevitable consequence of the impending implementation of the Rule. As discussed above, Plaintiffs allege that their injuries will include proprietary and economic harm, as well as increased healthcare and programmatic costs, and that they will suffer substantial hardship without a preliminary injunction. See supra Parts Plaintiffs provide declarations extensively describing and calculating such injuries. (See Decl. of Elena Goldstein, ECF No. 3:4 (attaching additional declarations and comment letters on proposed rule).) No less important is the immediate and signi?cant impact that the implementation of the Rule will have on law?abiding residents who have come to this country to seek a better life. The consequences that Plaintiffs must address, and America must endure, will be personal and public disruption, much of which cannot be undone. Overnight, the Rule will expose individuals to 19 Case Document 110 Filed 10/11/19 A economic insecurity, health instability, denial of their path to citizen deportation?none of which is the result of any conduct by those such injuriq rule that will punish individuals for their receipt of bene?ts provided by 0 discourages them from lawfully receiving available assistance intended to air contributing members of our society. It is impossible to argue that there is no these individuals, Plaintiffs, and the public at large. V. THE BALANCE OF HARDSHIPS AND PUBLIC INT TIP IN FAVOR Finally, Plaintiffs must demonstrate that ?the balance of equities tips that ?an injunction is in the public interest.? Winter, 555 U.S. at 20. ?These the Government is the opposing party.? Nken v. Holder, 556 U.S. 418, 435 (. these factors, the court must ?balance the competing claims of injury and mus on each party of the granting or withholding of the requested relief,? as i consequences in employing the extraordinary remedy of injunction.? Wint (citations omitted). Here, preventing the alleged economic and public health harms pro public benefit. As discussed above, these harms are not speculative or insuff In fact, the notice of pr0posed rulemaking itself acknowledged that the Rule cc cc 3 health outcomes [i]ncreased use of emergency rooms and emergent care as a health care due to delayed treatment?; ?[i]ncreased prevalence of comn including among members of the U.S. citizen population who are not vaccinat uncompensated care in which a treatment or service is not paid for by an 1 cc 9 ?[i]ncreased rates of poverty and housing instability attainment?; and other ?unanticipated consequences and indirect costs.? 83 Fe 20 [r]educed productivi age 20 of 24 sihip, and potential is will affect. It is a government, and i them in becoming irreparable harm for 11 [their] favor? and factors:merge when 2009). In assessing consider the effect well as ?the public er, 555 U.S. at 24 vides a signi?cant iciently immediate. Juld cause ?[w]orse method of primary tunicable diseases, ed?; ?[i]ncreases in nsurer or patient?; ty and: educational d. Reg. at 51 ,270. Case Document 110 Filed 10/11/19 Moreover, there is no public interest in allowing Defendants to procee arbitrary, and capricious rule that exceeds their statutory authority. See Plat NKC., Inc. V. U.S. Dep?t ofHealth Human Servs., 337 F. Supp. 3d 308, 3 (?It is evident that ?[t]here is generally no public interest in the perpetuation action.? . . . The inverse is also true: ?there is a substantial public interest in ?h agencies abide by the federal laws that govern their existence and operations ofWomen Voters v. Newby, 838 F.3d 1, 12 (DC. Cir. 2016)).) To be sure, Defendants have a legitimate interest in administering the system. However, that interest is not paramount in this instance, particularly fail to demonstrate why or how the current public charge framework is inad: have applied their current rules for decades, and the current concept of ?publ age 21 of 24 with? an unlawful, med PEarenthood of 43 2018) of uniawful agency . avmg governmental ii 933 (quoting League 1 ational? immigration l} where Defendants Equine? Defendants 1 1c charge? has been i .1 accepted for over a century. Aside from conclusory allegations that they wil ?be harmed by an 1mped1ment?to the 1mm1grat10n system, (Defs.? Opp?n at 38), ?efendants do not?? and cannot?articulate what actual hardship they will suffer by maintaining th Accordingly, because Plaintiffs are likely to succeed on the merits and 1 harm absent preliminary relief, and the balance of hardships and public intere Plaintiffs are entitled to a preliminary injunction. VI. As to the scope of the relief, a nationwide injunction is necessary. The injunctive relief generally should be ?no broader than necessary to cure the caused by the violation? and ?not impose unnecessary burdens on lawful ac Dwight Ca. V. SPD Swiss Precision Diagnostics, 843 F.3d 48, 72 (2d omitted). However, there is no requirement that an injunction affect only the 21 THE INJUNCTION SHOULD APPLY NATIONWIILE i status quo. to irreparable st tip ijfi their favor, cope ojf preliminary effects: of the harm 15 3, 2016) (citations 1 tivity. Church cf: . . . partle-s 1n the su1t. i i Case Document 110 Filed 10/11/19 Page 29 of 24 See Califano v. Yamasaki, 442 US. 682, 702 (1979) scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the Here, a nationwide injunction is appropriate. First, national immigration pelicies, such as [1 the Rule, require uniformity. Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), tit-e12 ?d on other grounds, 138 S. Ct. 2392 (2018); see also Batalla Vidal v. Nielsen, 279 F. Supp} 3d 401, 438 (E.D.N.Y. 2018) (granting nationwide injunction preventing rescission of Deferred Action for Childhood Arrivals program in part because ?there is a strong federal interest in the niformity of federal immigration law?); US. Const. art. I, 8, cl. 4 (?The Congress shall have Power . . . To establish uniform Rule of Naturalization?). A geographically limited i 'unction that would result in inconsistent applications of the Rule, and different public charge d.termirLations based upon similar factors, is inimical to this need for uniformity in immigration enforcem: nt. Indeed, at least nine lawsuits have already been filed challenging the Rule, inbluding State of California v. US. Department of Homeland Security, 19 Civ. 4975 (PJH) (N.D. C211.) and State of Washington v. United States Department of Homeland Security, 19 Civ. 5210 (RMP) (E.D. Wash).4 In just these two actions alone, Plaintiffs include the State of CaliforniE District of Columbia, State of Maine, Commonwealth of State of Oregon, State onLVashington, Commonwealth of Virginia, State of Colorado, State of Delaware, State elf Illinhis, State of Maryland, Commonwealth of Massachusetts, Attorney General Dana Nessel on dehalf of the People of Michigan, State of Minnesota, State of Nevada, State of New Jersey, Etate of New Mexico, and State of Rhode Island. Combined with the instant action, that means thiat nearly two 4 In addition to the instant action and the related action both before this Court, these other actions include Mayor and City Council of Baltimore v. United States Department of Homeland Security, E19 Civ. 2851 (PJM) (D. Casa De Maryland, Inc. V. Trump, 19 Civ. 2715 (PWG) (D. City and County of San Francisco v. US. Citizenship and Immigration Services, 19 Civ. 4717 (PJH) (N.D. Ca1.); La Clinica De La Raza v. Trump, 19 Civ. 4980 (PJH) (N.D. Cal.); and Cook County, Illinois v. McAleenan,l19 Civ. 6334 (GP) (ND. 111.). 22 Case Document 110 Filed 10/11/19 Plage 2?3 of 24 dozen jurisdictions have already brought suit. It would clearly wreak havoc system if limited injunctions were issued, resulting in different public charge across the country, based solely on geography. Batalla, 279 F. Supp. at 438 injunction where more limited injunction ?would likely create administratii Defendants?). There is no reasonable basis to apply one public charge framework to and a different public charge framework to a second set of individuals merely different states. It would be illogical, for example, if a New York reside adjustment of status but a resident of a sister state with the same exact backgrOL only because the second resident had the misfortune of living somewhere not injunction. Relatedly, a nationwide injunction is necessary to accord Plaintiffs 8 parties with complete redress. In particular, an individual should not have 1 from one state to another could result in a denial of adjustment of status. 1 injunction were limited to New York, Connecticut, and Vermont, and a New to New Jersey where the injunction would not apply, this individual could th public charge and face serious repercussions simply for crossing state borde travel throughout the United States has long been recognized as a has Constitution.? United States v. Guest, 383 US. 745, 758 (1966) (citations on considered a ?right so elementary [that it] was conceived from the beginning on the 1mm1gratlon frame?works spread grantingg nationwide re problems for the he set (if individuals because they live in nt waii eligible for wai not eligible, overed by a limited md othEer interested fearithat moving ior example, if the ork resEident moved are be Ebonsidered a :rs. ?[iF]reedom to LC rigiit under the I I It has been i hitted). to be; a necessary Ii concomitant of the stronger Union the Constitution created.? 1d,; see also Grif v. Breckenridge, 403 US. 88, 105 (1971) (?Our cases have ?rmly established that the right 0 intersitate travel is constitutionally protected, does not necessarily rest on the Fourteenth A 23 i endn?mnt, and is t: Case Document 110 Filed 10/11/19 Pjage 24 of 24 assertable against private as well as governmental interference?) The Supi'eme Court?s recognition of the preeminence of this right lends further support for a natior would not interfere with individuals? ability to move from one place to anothe 279 F. Supp. 3d at 438 (?nding nationwide injunction appropriate ?partly i1 fact that people move from state to state and job to job?). Accordingly, this Court grants a nationwide injunction, as well as a [wide iinjunction that Sea: 6. g. Batalla, 1 light of the simple i stay piostponing the effective date of the Rule pending a final ruling on the merits, or further order of thci Court.5 VII. CONCLUSION Plaintiffs? motion for issuance of a preliminary injunction, (ECF No. Dated: New York, New York October 11, 2019 SO ORDERED. M60 ORQE B. United States District 5 The standard for a stay under 5 U.S.C. 705 is the same as the standard for a prelin Res. Def Council v. US. Dep ?t of Energy, 362 F. Supp. 3d 126, 149 (S.D.N.Y. 20 Court grants the stay for the same reasons it grants the injunction. 24 33), is EGRANTED. mtfm?um i linary injunction. Nat. 19). Apcordingly, this i i