Case Document 195 Filed 07/29/20 Page 1 of 31

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK


STATE OF NEW YORK, CITY OF NEW YORK,
STATE OF CONNECTICUT, and STATE OF
VERMONT,

Plaintiffs, MEMORANDUM DECISION
AND ORDER
~aga1nst?
19 Civ. 7777 (GBD)
UNITED STATES DEPARTMENT OF HOMELAND
KEVIN K. MCALEENAN, in his o?iciai
capacity as Acting Secretary of the United States
Department ofHorneiand Security; UNITED STATES
CITIZENSHIP AND IMMIGRATION 
KENNETH T. CUCCINELLI II, in his o?iciai capacity
as Acting Director of United States Citizenship and
Immigration Services; and UNITED STATES OF
AMERICA,

Defendants.



MAKE THE ROAD NEW YORK, AFRICAN
SERVICES COMMITTEE, ASIAN AMERICAN
FEDERATION, CATHOLIC CHARITIES 
COMMUNITY SERVICES (ARCHDIOCESE OF NEW.
YORK), and CATHOLIC LEGAL IMMIGRATION
NETWORK, INC.,
. MEMORANDUM DECISION
Plaintiffs, AND ORDER

?aeainst- 19 Civ, 7993 (GBD)

KEN CUCCINELLI, in his o?iciai capacity as Acting
Director of United States Citizenship and Immigration
Services; UNITED STATES CITIZENSHIP 
IMMIGRATION KEVIN K.
MCALEENAN, in his o?iciai capacity as Acting .
Secretary of Homeland Security; and UNITED STATES 
DEPARTMENT OF HOMELAND SECURITY,

Defendants.


 

Case Document 195 Filed 07/29/20 Page 2 of 31

GEORGE B. DANIELS, United States District Judge:

Before this Court is a now-consolidated action, (see Endorsed Letter, No. 19 Civ. 7777,
ECF No. 142; Endorsed Letter, No. 19 Civ. 7993, ECF No. 178), in which Plaintiffs challenge
Defendants? promulgation, implementation, and enforcement of a rule, Inadmissibility on Public
Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (the ?Rule?). The Rule rede?nes the term
?public charge? and establishes new criteria for determining whether a noncitizen seeking entry
into the United States or adjustment of status is ineligible because he or she is likely to become a
?public charge.?

In one action, the State of New York, the City of New York, the State of Connecticut, and
the State of Vermont (together, the ?Governmental Plaintiffs?) filed suit against Defendants United
States Department of Homeland Security United States Citizenship and Immigration
Services Secretary Kevin K. McAleenan, in his of?cial capacity as Acting Secretary
of 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 (?Gov?t Pls.
No. 19 Civ. 7777, ECF No. 17.) In a separate case, Plaintiffs Make the Road New York,
African Services Committee, Asian American Federation, Catholic Charities Community Services
(Archdiocese of New York), and Catholic Legal Immigration Network, Inc. (together, the
?Organizational Plaintiffs?) brought claims against Defendants Ken Cuccinelli, in his of?cial
capacity as Acting Director of Kevin K. McAleenan, in his of?cial capacity as Acting
Secretary of and DHS. (Compl. (?Org Pls. No. 19 Civ. 7993, ECF No.
1.)

On October 1 l, 2019, this Court issued a preliminary injunction in both actions preventing

implementation of the Rule. (Mem. Decision and Order (?Gov?t Pls. Decision?), No. 19 Civ. 7777,

Case Document 195 Filed 07/29/20 Page 3 of 31

ECF No. 110 (reported at 408 F. Supp. 3d 334 (S.D.N.Y. 2019)); Mem. Decision and Order 
Pls. Decision?), No. 19 7993, ECF No. 147 (reported at 419 F. Supp. 3d 647 (S.D.N.Y.
2019)).) Speci?cally, this Court issued a nationwide injunction, as well as a stay postponing the
effective date of the Rule, pending adjudication on the merits or further order of the Court (the
?October 2019 Injunction?). (Gov?t Pls. Decision at 24; Org. Pls. Decision at 26.) Between
October 11 and October 14, four other district courts issued similar injunctions, two of which were
also nationwide in scope. Cook Cry, Illinois v. McAieenan, 417 F. Supp. 3d 1008, 1014 (ND. 111.
2019) (injunction as to Illinois); Casa do Md, Inc. v. rump, 414 F. Supp. 3d 760, 767 (D. Md.
2019) (nationwide); City Cly. ofSan Francisco v. USCIS, 408 F. Supp. 3d 1057, 1073 (N .D.
Cal. 2019) (injunction as to San Francisco City or County, Santa Clara County, California, Oregon,
the District of Columbia, Maine, and Washington v. US. D619 of Homeland Sec. 
408 F. Supp. 3d 1191, 1199 (ED. Wash. 2019) (nationwide).

Defendants appealed to the Second Circuit, seeking to vacate this Court?s orders.
Defendants? also moved before this Court to stay the October 2019 Injunction, pending resolution
of Defendants? appeal. That application was denied by this Court. (See Mem. Decision and Order,
No. 19 7777, ECF No. 122; Mem. Decision and Order, No. 19 7993, ECF No. 159.)
Defendants then moved for a stay before the Second Circuit. The Circuit court also denied
Defendants? stay request, instead setting an expedited brie?ng schedule on the merits of their
appeal. New York v. US. Dep ?t ofHomelandSec. Nos. 19-3591, 19?3595, 2020 WL 95815, at *1
(2d Cir. Jan. 8, 2020). Defendants next sought emergency relief from the Supreme Court. On
January 27, 2020, the Supreme Court granted Defendants? request and stayed this Court?s
preliminary injunctions, pending disposition of Defendants? appeal in the Second Circuit and

further petition for a writ of certiorari, if timely sought. Dep ?t of Homoiand Sec. v. New York, 140

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S. Ct. 599 (2020) (mem). Following the Supreme Court?s stay, the Rule went into effect on
February 24, 2020.1

Much has signi?cantly changed since January 27. Today, the world is in the throes of a
devastating pandemic, triggered by the novel coronavirus In six months,
approximately 16.5 million people around the globe have been af?icted by the disease caused by
this virus. That disease has claimed over 650,000 lives worldwide. In the United
States alone, COVID-19 has spread rapidly, infecting over four million people. Close to 150,000
American residents have died. All of these staggering numbers continue to climb on a daily basis.

The Secretary of Health and Human Services declared a public health emergency in
response to the virus on January 31, 2020. As of March 12, 1,645 people from 47 states had been
infected. On March 13, the President declared a state of national emergency, beginning March 1,
2020, which is ongoing. Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 13, 2020). Thousands
continue to die indiscriminately. Attempting to effectively combat this plague has immediately
come in con?ict with the federal governmentis new ?public charge? policy, a policy which is
intended to discourage immigrants from utilizing government bene?ts and penalizes them for
receipt of ?nancial and medical assistance. In an effort to ensure that the Rule will not deter
immigrants from seeking necessary medical treatment and preventive services related to
the federal government issued an ?alert,? contemporaneous with the President?s
declaration of a national emergency, that excludes COVID-19 medical treatment and services from

public charge determinations. Public Charge Alert, US Citizenship Immigr. Servs.,

 

1 The relevant factual background regarding the Rule and the framework for public charge determinations
prior to the Rule is set forth in greater detail in this Court?s October 1 l, 2019 decisions. (Gov?t Pls. Decision
at 245; Org. Pls. Decision at Such background is incorporated by reference herein.

4

 

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. (last
updated March 27, 2020) (the ?Alert?).

Defendants and Plaintiffs have each filed additional motions in the instant actions.
Defendants move to dismiss all of Plaintiffs? claims for lack of subj eet matter jurisdiction pursuant ..
to Federal Rule of Civil Procedure and for failure to state a claim pursuant to Federal
Rule of Civil Procedure (See Mot. to Dismiss, No. 19 Civ. 7777, ECF No. 140; Mot. to
Dismiss, No. 19 Civ. 7993, ECF No. 176.) Plaintiffs, on the other hand, seek additional
preliminary injunctive relief in light of the COVID-19 pandemic. Specifically, Plaintiffs move,
pursuant to FederalRule of Civil Procedure 65, for a new limited preliminary injunction enjoining
Defendants from implementing, applying, or taking any action under the Rule, during the national
emergency. (See Pls.? Notice of Mot, No. 19 Civ. 7777, ECF No. 168.) Alternatively, Plaintiffs
seek, pursuant to the Administrative Procedure Act 5 U.S.C. 705, a stay postponing
the effective date of the Rule during the national emergency. (Id) Plaintiffs also request that this
Court issue an indicative ruling under Federal Rule of Civil Procedure 62.1, stating that this Court
would issue the new preliminary injunction, and factual ?ndings supporting that injunction, if the
Second Circuit determines that this Court eun'ently lacks jurisdiction and remands the case for that

ose.2 (Id) Plaintiffs? motion for a preliminary injunction enjoining the application of the
1?

 

2 Federal Rule of Civil Procedure 62.1 details a court?s options for addressing a motion when a pending
appeal divests the court of jurisdiction to grant such motion. In particuiar, under Rule 62.1, a court may 
defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the
court of appeals remands for that purpose or that the motion raises a substantial issue. Fed. R. Civ. P.


Case Document 195 Filed 07/29/20 Page 6 of 31

Rule during the national public health emergency, and issuance of an indicative ruling, is
GRANTED.3
Defendants? motion to dismiss is GRANTED to the extent that Count 111 of Organizational
Plaintiffs? complaint, claiming that DHS and USCIS lacked authority to promulgate the Rule, is
dismissed.
I. MOTIONS TO DISMISS

A. Rule 12(b)(1) Lack of Subject Matter Jurisdiction.

 

Defendants contend that Plaintiffs cannot meet the jurisdictional requirements of standing 

and ripeness. The proper procedural route for such a challenge is a motion to dismiss for lack of
subject matter jurisdiction pursuant to Rule See Ail. for Envtl. Renewal, Inc. v. Pyramid
Crossgaz?es Co. 436 F.3d 82, 88 n.6 (2d Cir. 2006) proper procedural route [fora standing
challenge] is a motion under Rule Duane Reade, Inc. v. St. Paul ire Marine Ins.
Co. 261 F. Supp. 2d 293, 294 (S.D.N.Y. 2003) (?Ripeness is jurisdictional in nature and therefore
properly considered on a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule
12(b)(1) of the Federal Rules?).

Defendants raise several arguments that Plaintiffs? claims are not justiciable. This Court
has heard these arguments before and need not revisit in great detail its analysis of whether
Plaintiffs have standing or whether their claims are ripe for judicial review. (See Gov?t Pls.
Decision at 6?9; Org. Pls. Decision at 6?11.) First, as this Court previously found, Plaintiffs
suf?ciently allege ?concrete and particularized? injuries stemming from Defendants?

promulgation of the Rule. Organizational Plaintiffs establish that they have already diverted

 

3 Today, this Court also grants a preliminary injunction enjoining Department of State and Department of
Health and Human Services actions relevant to public charge determinations in a related action, Make the
Road New York v. Pompeo, 19 Civ. 11633 (GBD).

Case Document 195 Filed 07/29/20 Page 7 of 31

substantial resources to mitigate the Rule?s harmful effects and will continue to do so.
Governmental Plaintiffs adequately demonstrate that the Rule will continue to have a chilling
effect on enrollment in bene?ts programs that directly reduces Governmental Plaintiffs? revenue,
shifts certain healthcare costs to Governmental Plaintiffs who offer subsidized healthcare services,
and causes economic harm in the form of lost jobs and tax revenue. Second, Plaintiffs? claims are
ripe for review because the legal questions presented do not depend on any factual contingencies.
Plaintiffs bring facial challenges to the Rule, which is already in effect. And as Plaintiffs have
demonstrated, they will suffer signi?cant harm by further delay. Defendants? motions to dismiss
for lack of subject matter jurisdiction are denied.

B. Rule 12(b)(6) Failure to State a Claim.

?To survive a motion to dismiss, a complaint must contain suf?cient factual matter,
accepted as true, to ?state a claim to relief that is plausible on its face.? Ashcroft v. Iqbal, 556
US. 662, 678 (2009) (quoting BellA?. Corp. v. Twombiy, 550 US. 544, 570 (2007)). The plaintiff
must demonstrate ?more than a sheer possibility that a defendant has acted unlawfully?; stating a
facially plausible claim requires the plaintiff to plead facts that enable the court ?to draw the
reasonable inference that the defendant is liable for the misconduct alleged.? Id. (citation omitted).
The factual allegations pled must therefore ?be enough to raise a right to relief above the
speculative level.? Twombly, 550 US at 555 (citation omitted).4

A district court must ?rst review a plaintiff?s complaint to identify allegations that,

?because they are no more than conclusions, are not entitled to the assumption of truth.? IqbaZ,

 

4 ?In deciding a motion to dismiss under Rule the court may refer ?to documents attached to the
complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken,
or to documents either in plaintiffs? possession or of which plaintiffs had knowledge and relied on in
bringing suit.? Fishbein v. Miranda, 670 F. Supp. 2d 264, 271 (S.D.N.Y. 2009) (quoting Brass v. Am.
Film Tech, Inc, 937 F.2d 142, 150 (2d Cir. 1993)).

 

Case Document 195 Filed 07/29/20 Page 8 of 31

556 U.S. at 679. The court then considers whether the plaintiff 3 remaining well-pleaded factual
allegations, assumed to be true, ?plausibly give rise to an entitlement to relief.? Int; see also
Targum v. Citrin Cooperman Co., LLP, No. 12 Civ. 6909 (SAS), 2013 WL 6087400, at *3
(S.D.N.Y. Nov. 19, 2013). In deciding the 12(b)(6) motion, the court must also draw all reasonable
inferences in the non?moving party?s favor. See NJ Carpenters Health Fund v. Royal Bank of
Scot. Grp., PLC, 709 F.3d 109, 119?20 (2d Cir. 2013).

This Court previously found that Plaintiffs are likely to succeed on their claims under the
APA that promulgation of the Rule was contrary to the Immigration and Nationality Act 
and arbitrary and capricious.5 Such claims also meet the lower threshold of surviving a motion to
dismiss.6 See Fashibn Television Assess, LP. v. Spiegel, Inc, 849 F. Supp. 19, 22 n.7 (S .D.N.Y.
1994) standard in deciding a motion for a preliminary injunction is more stringent than
that used in a motion to dismiss . . . Defendants, however, argue that this Court should
reconsider its analysis of the merits of Plaintiffs? claims.

This Court speci?cally concluded that Plaintiffs are likely to prevail on their claim that
Defendants lacked the authority to redefine ?public charge? as they have in the Rule, contrary to
the INA and in violation of the APA. (See Gov?t Pls. Decision at 11414; Org. Pls. Decision at 13?

15.) The longstanding de?nition of ?public charge? is someone who is primarily dependent on the

 

5 These claims are re?ected in Counts I and HI of the Governmental Plaintiffs? complaint and Counts I and
II of the Organizational Plaintiffs? complaint.

6 Defendants also argue that these claims, along with the rest of Plaintiffs? claims, fail because Plaintiffs
fall outside the zone of interests regulated by the Rule. However, as this Court already concluded, Plaintiffs
plainly satisfy the lenient zone?of?interests test. (See Gov?t Pls. Decision at 10m11; Org. Pls. Decision at
11412.) Plaintiffs? interests are not ?so marginally related to or inconsistent with the purposes implicit in
the that it cannot reasonably be assumed that Congress intended to permit the suit.? March-E?Be-
Nash-She?Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (citation omitted).
Governmental Plaintiffs are administrators of public bene?ts programs targeted by the Rule and
Organizational Plaintiffs? very mission is to assist, advise, and advocate for immigrants, including in
immigration proceedings. Moreover, all plaintiffs allege economic injury as a result of the Rule.

 

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government for subsistence. (See Gov?t Pls. Decision at 11?13; Org. Pls. Decision at 13?14.)
Further, it is undisputed that the term has never been construed as receipt of 12 months of bene?ts
within a 36-month period. (See Gov?t Pls. Decision at 13; Org. Pls. Decision at 14.) Rather, prior
to the implementation of the Rule, public charge determinations were an inquiry about self-
subsistence, not about lawful receipt of bene?ts that are in many cases temporary and
supplemental. Moreover, there is no evidence that Congress ever intended for a rede?nition of the
term as set forth in the Rule, including the consideration of non?cash assistance. (See Gov?t Pls.
Decision at 13?14; Org. Pls. Decision at 15.) In fact, Congress repeatedly rejected attempts to
implement such a framework, (see Gov?t Pls. Compl. 37?42; Org. Pls. Compl. ?l?l 
fact that strongly favors ?nding that Defendants acted in excess of statutory authority, see Hamdan
v. Rumsfefd, 548 US. 557, 579?80 (2006) (?Congress? rejection of the very language that would
have achieved the result the Government urges here weighs heavily against the Government's
interpretation?). Simply put, Defendants? de?nition is outside the bounds of the Statute,
considering the inherent meaning of the words ?public charge? and its historical context. And
because Defendants fail to provide any reasonable justi?cation for this change in the de?nition of
?public charge,? or the framework for determining whether an individual is likely to become a
public charge, the Rule is also arbitrary and capricious. (See Gov?t Pls. Decision at 14?17; Org.
Pls. Decision at 15?19.)

Defendants claim that the Supreme Court?s order staying the October 2019 Injunction and
the Ninth Circuit?s decision to stay preliminary injunctions issued by judges in the Eastern District
of Washington and the Northern District of California, City cf: Cry. ofSan Francisco v. USCIS,
944 F.3d 773 (9th Cir. 2019), provide reason to revisit this Court?s analysis and dismiss Plaintiffs?

complaints, (Mem. of Law in Supp. of Defs.? Mot. to Dismiss (?Gov?t MTD No. 19 Civ.

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7777, ECF No. 141, at 1; Mem. of Law in Supp. of Defs.? Mot. to Dismiss (?Org MTD 
No. 19 Civ. 7993, ECF No. 177, at 1). To the contrary, the Supreme Court did not address the
merits of the claim that the Rule is unlawful. See Wolf v. Cook Cty., Illinois, 140 S. Ct. 681, 682
(2020) (Sotomayor, ., dissenting) (noting that in issuing a stay of the October 2019 Injunction,
Member of the [Supreme] Court discussed the application?s merit apart from its challenges
to the injunction?s nationwide scope?). Further, the Ninth Circuit?s analysis stands in contrast to
the Seventh Circuit?s recent decision to affirm the preliminary injunction issued in the Northern
District of Illinois.7 See Cook Cry, Illinois v. Wolf, 962 F.3d 208 (7th Cir. 2020). Here,
Defendants? appeal of this Court?s prior order issuing the October 2019 Injunction is currently
pending before the Second Circuit. As such, this Court?s determination regarding the propriety of
a preliminary injunction remains undisturbed.

I. Governmental Plainti?fs State a Claim that the Rule is Contrary to the
Rehabilitation Act.

Governmental Plaintiffs allege in Count II of their complaint that the Rule is ?not in
accordance with law? in Violation of the APA, because it con?icts with (1) Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. 794 (?Rehabilitation Act?), (2) the Supplemental Nutrition
Assistance Program statute, 7 U.S.C. 2017(b), and (3) the Welfare Reform Act,

8 U.S.C. 1612(b)(1). (Gov?t Pls. Compl. 272478.) This Court already concluded that

 

7 The Ninth Circuit determined that ?Congress has not spoken directly to the interpretation of ?public
charge? in the and did not ?unambiguously foreclose the interpretation articulated in the [Rule].? City
ty. of San Francisco v. USCIS, 944 F.3d at 798. The panel concluded, inter alia, that ?the phrase ?public
charge? is ambiguous? and interpretation of ?public charge? is a permissible construction of the
including its decision to consider non?cash bene?ts for the ?rst time. Id. at 79 8499. In contrast, the
Seventh Circuit found that interpretation ?falls outside the boundaries set by the statute,? because,
inter alia, ?it does Violence to the English language and the statutory context to say that [the term ?public
charge?] covers a person who receives only de minimis bene?ts for a de minimis period of time? and the
?term requires a degree of dependence that goes beyond temporary receipt of supplemental in?kind bene?ts
from any type of public agency.? Cook Cry, IZIinoz's 12. Wolf, 962 F.3d at 229.

10

 

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Plaintiffs raise ?at least a colorable argument that the Rule as to be applied may violate? Section
504 of the Rehabilitation Act, (see Gov?t Pls. Decision at 18; Org. Pls. Decision at 19-20), which
prohibits government discrimination against a person with a disability ?solely by reason of her or
his disability,? 29 U.S.C. 794(a). ?Exclusion or discrimination [under Section 504] may take the
form of disparate treatment, disparate impact, or failure to make a reasonable accommodation.?
B. C. v. Mount Vernon Sch. Dist, 837 F.3d 152, 158 (2d Cir. 2016). Defendants do not dispute
that a disability is considered a negative factor under the public charge framework. Indeed, the
Rule indicates that DHS will consider whether ?the alien has been diagnosed with a medical
condition that is likely to require extensive medical treatment or institutionalization or that will
interfere with the alien?s ability to provide and care for himself or herself, to attend school, or to
work.? 84 Fed. Reg. 41,502. Defendants, however, justify this treatment by pointing to the fact
that the INA lists ?health? as a factor for consideration in public charge determinations. (Gov?t
MTD Mem. at 28?29; Org. MTD Mem. at 30?31.) While the INA directs of?cials to consider an
individual?s health, it does not provide license to penalize an applicant solely because of a
disability. Defendants apparently make no distinction between a disabled individual who is not
self?suf?cient and one who is able to cope with his or her disability, even if it requires extensive
medical treatment or accommodation. The Rule treats disabilities as a per se negative health factor,
in apparent violation of the Rehabilitation Act.8 Governmental Plaintiffs therefore adequately state

a claim that the Rule is ?not in accordance with law.?

3 The Seventh Circuit recently found, for similar reasons, that ?the Rule penalizes disabled persons in
contravention of the Rehabilitation Ac Cook 013)., Illinois v. Woif, 962 F.3d at 228. The Seventh Circuit
concluded the Rule ?disproportionately burdens disabled people and in many instances makes it all but
inevitable that a person?s disability will be the but?for cause of her being deemed likely to become a public
charge.? Id.

11

 

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2. Governmental Plainti?ft State a Claim that the Rule Violates Procedural
Requirements ofthe APA

In Count IV of their complaint, Governmental Plaintiffs claim that Defendants failed to
meet the procedural requirements of the APA in promulgating the Rule. (Gov?t Pls. Compl. 11 29 0?
95.) Speci?cally, Governmental Plaintiffs allege that Defendants did not ?give interested persons
an opportunity to participate in the rulemaking through submission of written data, views, or
arguments,? 5 U.S.C. 553(c). They argue that the Rule?s de?nition of ?public charge? was not
a logical outgrowth of notice of proposed rulemaking, lnadmissibility on Public Charge
Grounds, 83 Fed. Reg. 51,114 (Oct. 10, 2018) in two respects. First, Governmental
Plaintiffs point to the fact that the NPRM included a value threshold 15% of the Federal
Poverty Guidelines) for counting public bene?ts as relevant to the public charge determination.
That value threshold was eliminated in the Rule in favor of a purely durational standard. (Gov?t
Pls. Compl. 124.) Second, Governmental Plaintiffs argue that DHS did not provide public notice
of the so?called ?stacking scheme? for counting multiple bene?ts received in a given month when
calculating the 12/ 3 6?month durational threshold each bene?t received in a month counts as
one month of bene?ts towards the threshold). (Id. 1] 125.) Governmental Plaintiffs claim that
these policies were neither discussed in, nor a logical outgrowth of, the NPRM. ?nal rule
quali?es as a logical outgrowth ?if interested parties ?should have anticipated? that the change was
possible, and thus reasonably should have ?led their comments on the subject during the notice-
and?comment period.?? CSX Tramp, Inc. v. Surface Transp. Bd, 584 F.3d 1076, 1079?80 (DC.
Cir. 2009) (citations omitted). Here, both the value threshold and the stacking scheme on the
12/3 6-month standard were discussed in the NPRM, but the former was limited to monetizable
bene?ts cash bene?ts and SNAP) and the latter was proposed for non?monetizable bene?ts

Medicaid). 83 Fed. Reg. 51,163w66, 51,289w90. Ultimately, DHS decided to apply the

12

 

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12/36?month standard, including the stacking scheme, to all bene?ts, whether monetizable or not.
Governmental Plaintiffs had an opportunity to comment on the stacking structure, but this Court
cannot conclude that they should have anticipated DHS eliminating the value threshold and
replacing it with an entirely durational threshold for all bene?ts. DHS only proposed the 12/3 6?
month durational threshold because it lacked ?an easily administrable standard for assessing the
monetary value of an alien?s receipt of some non?cash bene?ts.? Id. at 51,165. DHS even sought
comments on ?other potential approaches to monetizing these bene?ts.? Id. at 51,166. If anything,
Governmental Plaintiffs could have anticipated a valuation?based standard for all bene?ts in the
?nal rule. They could not have reasonably expected DHS to do away with the valuation?based
threshold entirely. Accordingly, Governmental Plaintiffs sufficiently allege that the Rule violates
procedural requirements of the APA. I

3. Plaintiff? State a Claim that the Rule Violates the Equal Protection Guarantee of
the ifth Amendment.

In Count IV of their complaint, Organizational Plaintiffs claim that the Rule violates the
equal protection guarantee of the Fifth Amendment. This Court previously determined that
Organizational Plaintiffs have ?at the very least, raised serious questions going to the merits of
their Equal Protection Claim.? (Org. Pls. Decision at 21 (quoting Saget v. rump, 375 F. Supp. 3d
280, 374 (E.D.N.Y. 2019).) In particular, this Court concluded that the Rule likely fails to satisfy
even the highly deferential standard of rational basis scrutiny, because it disproportionately harms
noncitizens of color, and Defendants have not articulated a ?rational relationship between the
disparity of treatment. and some legitimate government purpose.? Lewis v. Thompson, 252 F.3d
567, 582 (2d Cir. 2001) (quoting Heller v. Doe, 509 US. 312, 320 (1993)). Governmental
Plaintiffs bring similar claims under Count of their complaint, which likewise survive

Defendants? motion to dismiss. Plaintiffs also suf?ciently plead animus required for an equal

13

 

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protection claim under the legal standard set forth in Village of Arlington Heights v. Metropolitan
Housing Deveiopment Corporation, 429 US. 252 (1977). In addition to their allegations that the
Rule will disparately impact immigrants of color, (Gov?t Pls. Comp]. 15 1?5 6, 25 8?62; Org. Pls.
Compl. 235M37), which Defendants do not dispute, Plaintiffs provide extensive evidence of
statements that may evince discriminatory intent made by hi gh-level of?cials who were allegedly
the decision-makers behind the Rule or in?uenced such decision?makers, (Gov?t Pls. Compl. 
174?78; Org. Pls. Compl. 203m34). Plaintiffs include, inter alia, statements by the President
allegedly expressing ?dismay that [the United States] do [es] not ?have more people from places
like Norway,? contrasting such immigrants with those from [expletive deleted] countries? such as
Haiti and countries in Africa.? (Org. Pls. Compl. 211; see also Gov?t Pls. Compl. 1] 175.)

The Supreme Court recently rejected an equal protection challenge to the decision to
rescind the Deferred Action for Childhood Arrivals (DACA) program that was based, in part, on
disparate impact on Latinos and alleged discriminatory statements by the President. Dept of
Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1915?16 (2020). Defendants
argue that the plurality opinion in Regents strongly supports dismissal of Plaintiffs? equal
protection claims in this case. (Defs.? Letter dated June 26, 2020, No. 19 Civ. 7777, ECF No. 193;
Defs.? Letter dated June 26, 2020, No. 19 Civ. 7993, ECF No. 219.) Defendants point to two
aspects of the plurality opinion, in particular. First, the plurality discounted the disparate impact
of the rescission of DACA because ?Latinos make up a large share of the unauthorized alien
population,? and so ?one would expect them to make up an outsized share of recipients of any
cross?cutting immigration relief program.? Regents, 140 S. Ct. at 1915. The Court explained that
?[w]ere this fact suf?cient to state a[n] [equal protection] claim, Virtually any generally applicable

immigration policy could be challenged on equal protection grounds.? Id. at 1916. But here,

14

 

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Plaintiffs are not simply alleging that more immigrants of color are hurt by the agency action at
issue. Instead, Plaintiffs cite evidence regarding the disproportionate percentage of nonwhite
immigrants that would be hurt by the agency action at issue, as compared to the percentage of
immigrants from predominantly white countries. (See, 6. g, Gov?t Pls. Compl. 111] 151, 262; Org.
Pls. Compl. 11?? 23 5?36.) This ?nding is unaffected by the share of the immigrant population that
is nonwhite.

Second, the Regents plurality dismissed the President?s statements as ?unilluminating?
because they were ?remote in time and made in unrelated contexts.? Id. at 1916. Here, the
President?s statements cited by Plaintiffs were not ?remote in time? to Defendants? promulgation
of the Rule and actions by the President that allegedly precipitated promulgation of the Rule. (See,
Gov?t Pls. Compl. 11 175; Org. Pls. Compl. 93?94, 203m11.) For instance, Plaintiffs cite
statements from January 2018, May 2018, and July 2019. (Gov?t Pls. Compl. 1[ 175; Org. Pls.
Compl. 208~209, 211.) The Rule?s development fits squarely within this timeframe. Drafts of
the Rule were obtained by the news outlets in February and March 2018, (Org. Pls. Compl. 11 94),
the NPRM was published in October 2018, and the Rule was issued in August 2019. Plaintiffs
allegations also extend beyond the President?s statements to include statements by high-level
of?cials that are responsible for the Rule. Indeed, Defendant Cuccinelli, a day after announcing
the Rule, stated that the Emma Lazarus poem etched on the base of the Statue of Lib erty welcoming
?tired,? ?poor,? and ?huddled masses? of immigrants was referring to ?people coming from
Europe.? (Gov?t Pls. Compl. 1[ 176; Org. Pls. Compl. 1[ 227.) Drawing reasonable inferences in
Plaintiffs? favor, Plaintiffs have plausibly alleged that issuance of the Rule was based, at least in

part, on discriminatory motives and their claims survive Defendants? motions to dismiss.

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Case Document 195 Filed 07/29/20 Page 16 of 31

4. Organizational Plainti?s Fail to State a Claim that DHS and USCIS Lack
Rulemaking Authority to Issue the Rafe.

Organizational Plaintiffs allege in Count of their complaint that DHS and USCIS lack
rulemaking authority to issue the Rule. (See Org. Pls. Oompl. 179?83, 285m91.) Section 103
of the INA, as amended by the Homeland Security Act of 2002 sets forth the powers and
duties of the Secretary of Homeland Security (the ?Secretary?) as it relates to the immigration
laws. See 8 U.S.C. 1103. Speci?cally, the Secretary is ?charged with administration and
enforcement of this chapter and all other laws relating to the immigration and naturalization of
aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties
conferred upon the . . . Attorney General.? Id. 1103(a)(1). The Secretary is authorized to
?establish such regulations . . . as he deems necessary for carrying out his
authority.? Id. 1103(a)(3). Additionally, under the HSA, Congress speci?cally conferred on
DHS the authority to ?carry[] out the immigration enforcement functions,? 6 U.S.C. 202(3),
and ?establish[] and administer[] rules . . . governing the granting of visas or other forms of
permission, including parole, to enter the United States to individuals who are not a citizen or an
alien lawfully admitted for permanent residence in the United States,? id. 202(4).

The public charge provision states that the Attorney General is responsible for public
charge determinations for those seeking admission or adjustment of status,
see 8 U.S.C. 1182(a)(4)(A), which Organizational Plaintiffs argue divests the Secretary of
responsibility for making such determinations, pursuant to 8 U.S.C. 1103(a)(1), and therefore
also any associated rulemaking authority. However, as Defendants note, under the HSA, Congress
also made clear that such references to the Attorney General should be construed as references to
the Secretary. See 6 U.S.C. 557 (?With respect to any function transferred by or under this

chapter, . . . reference in any other Federal law to . . . any of?cer or of?ce the functions of which

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Case Document 195 Filed 07/29/20 Page 17 of 31

are so transferred shall be deemed to refer to the Secretary, other of?cial, or component of 
to which such function is so transferred?). The Secretary is thus at least concurrently responsible
for administering public charge determinations and any associated rulernaking.9 Cf Scheerer v.
US. Atty. Gen. 513 F.3d 1244, 1251 n.6 (11th Cir. 2008). Count 111 of Organizational Plaintiffs?

complaint is dismissed.

 

9 To be sure, there must be some set of powers, functions and duties conferred on the Attorney General that
are excluded from the purview of DHS and the Secretary for the plain language of 8 U.S.C. 1103(a)(1),
as amended by the HSA, to carry meaning. As Defendants aptly point out, we ?nd a likely set of such
duties elsewhere in Section 1103. Under clause also added as part of the HSA, the Attorney General
explicitly retains the authorities and functions exercised by the Executive Of?ce for Immigration Review.
8 U.S.C. 1103(g)(1).

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Case Document 195 Filed 07/29/20 Page 18 of 31

II. MOTION FOR A NEW TEMPORARY INJUNCTION

preliminary injunction is ?an extraordinary remedy never awarded as of
right.?? Beniselc v. Lamone, 138 S. Ct. 1942, 1943 (2018) (per curiam) (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 interest.? Winter v. Nat.
Res. Def Council, Inc, 555 US. 7, 20 (2008). The standard for a stay of agency action under
5 U.S.C. 705 is the'same as the standard for a preliminary injunction. Nat. Res. Def Council v.
US. Dep?t ofEnergy, 362 F. Supp. 3d 126, 149 (S.D.N.Y. 2019).

Plaintiffs now seek a limited preliminary injunction temporarily halting implementation of
the Rule in light of new circumstances not previously considered by the Court??namely, the
outbreak and the attendant consequences of Defendants implementing the Rule in the
midst of a public health crisis. Plaintiffs bring their motion in this Court after first seeking relief
from the Supreme Court to lift its stay of this Court?s October 20191njunction. On April 13, 2020,
the Governmental Plaintiffs ?led a motion in the Supreme Court to temporarily lift or modify the
Supreme Court?s stay for the duration of the national emergency. Mot. by Gov?t Pls. to
Temporarily Lift or Modify the Court?s Stay of the Orders Issued by the US. Dist. Ct. for S.D.N.Y.
(?Gov?t Pls. SCOTUS Mot?) at l, Dep ?l of Homeland Sec. v. New York, 2020 WL 1969276 (US.
Apr. 24, 2020) (No. (see also Mem. of Law in Supp. of Pls.? Mot. for Prelim. Inj. and
Stay or TRO Pending National Emergency (?Emergency No. 19 Civ. 7777, ECF No.
169, at 2.) Alternatively, Governmental Plaintiffs asked the Supreme Court to clarify that the stay
?does not preclude the district court here from considering whether the new circumstances caused

by the novel coronavirus warrant temporarily halting implementation of the Rule.? Gov?t P13.

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Case Document 195 Filed 07/29/20 Page 19 of 31

SCOTUS Mot. at 1W2. In a two-line order, the Supreme Court denied the request to modify or lift

the stay, but indicated that the order ?does not preclude a ?ling in the District Court as counsel

considers appropriate.? Dep ?t of Homeland Sec. v. New York, No. 19A785, 2020 WL 1969276, at

*1 (U.S. Apr. 24, 2020) Consistent with that order, Plaintiffs then filed the instant motion

in this Court. 
A. This Court Has Jurisdiction to Issue A New Temporary Injunction.

Defendants challenge whether this Court retains jurisdiction to issue a limited preliminary
injunction. Speci?cally, they argue this Court lacks authority to provide such preliminary relief
because (1) Defendants? interlocutory appeal seeking to vacate the October 2019 Injunction is still
pending before the Second Circuit and (2) a new preliminary injunction would effectively overrule
the Supreme Court?s stay of the October 2019 Injunction. (See Opp?n to Pls.? Mot. for Prelim. Inj.
and Stay or TRO Pending Nat?l Emergency (?Emergency PI Opp?n?), No. 19 Civ. 7777, ECF No.
176, at 

?As a general rule, an appeal may be taken only from a ?nal judgment.? N. Y. State Nat.
Org. for Women v. Terry, 886 F.2d 1339, 1349 (2d Cir. 1989). As an exception to this rule,
?Congress permits . . . an immediate appeal from an interlocutory order that either grants or denies
a preliminary injunction.? Id. at 1350. Such an appeal, however, does not prevent the matter from
otherwise proceeding in the district court. See id. at 1350. notice of appeal only divests the
district court of jurisdiction respecting the questions raised and decided in the order that is on
appeal.? Id at 1350 (citations omitted); see also Griggs v. Provident Consumer Disc. Ca, 459
U.S. 56, 58 (1982) (?The ?ling of a notice of appeal . . . confers jurisdiction on the court of appeals
and divests the district court of its control over those aspects of the case involved in the appeal?)

(citations omitted). Moreover, the ?divestiture of jurisdiction rule rule.? United

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Case Document 195 Filed 07/29/20 Page 20 of 31

States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996). The rule is judicially crafted and is ?rooted
in the interest of judicial economy.? Id. Therefore, ?its application is guided by concerns of
ef?ciency and is not automatic.? Id. (citing Webb v. GAF Corp, 78 F.3d 53, 55 (2d Cir. 1996)
and United States v. Salerno, 868 F.2d 524, 539?40 (2d Cir. 1989)).

Here, Plaintiffs seek ?new relief based upon new facts and circumstances that were not_
and could not have beenmbefore the Court when it issued its prior order.? (Emergency PI Mom.
at 14.) In deciding Defendants? pending appeal, the Second Circuit is charged with reviewing this
Court?s analysis and conclusions based on the information available to this Court at the time of its
original decision. Therefore, by considering new, materially different evidence and issuing a new,
narrowly tailored, temporary injunction, this Court does not disturb its prior orders or interfere
with the particular questions presented by Defendants? pending appeal.

Overlapping legal issues between this Court?s previous order and Plaintiffs? instant motion
do not automatically divest this Court of jurisdiction. A district court may advance a case despite
a pending interlocutory appeal and, in doing so, is often required to rule on issues relevant to those
'on appeal. The Second Circuit has held that a district court retains jurisdiction to issue a permanent
injunction despite a pending appeal from an order granting a preliminary injunction. Webb, 78
F.3d at 55; cf Int?l Ass ?71 of Machinists Aerospace Workers, AFL-CIO v. E. Air Lines, Inc, 847
F.2d 1014, 1019 (2d Cir. 1988) (affirming issuance of an injunction by the district court based on
new evidence while the district court?s previous denial of an injunction was pending appeal).
Indeed, Defendants ask this Court to revisit its prior legal analysis in deciding their instant motion
to dismiss. Moreover, the judicial efficiency concerns that guide the divestiture of urisdiction rule
counsel against depriving this Court of authority to hear Plaintiffs? motion. As Plaintiffs correctly

note, this Court, as a district court, is best suited to make factual findings and issue concordant,

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Case Document 195 Filed 07/29/20 Page 21 of 31

narrowly tailored relief. (Reply Mem. of Law in Supp. of Pls.? Mot. for Prelim. Inj. and Stay or
TRO Pending Nat?l Emergency (?Emergency Pl Reply?), No. 19 Civ. 7777, ECF No. 183, at 2.)
By issuing such relief, this Court would also not be ignoring the Supreme Court?s stay of
the October 2019 Injunction. First, as discussed above, there is no indication that the Supreme
Court disagreed with this Court?s analysis of the merits of Plaintiffs? case. Second, the Supreme
Court issued its stay on a signi?cantly different factual record. In issuing a stay of a lower court?s
?exercise of equitable discretion [in granting a preliminary injunction], [the Supreme Court]
bring[s] to bear an equitable judgment of [its] own.? Trump v. Int? Re?igee Assistance Project,
137 S. Ct. 2080, 2087 (2017) (citing Nken v. Holder, 556 US. 418, 433 (2009)). Speci?cally,
before issuing a stay, the Supreme Court ?balanee[s] the equities?to explore the relative harms to
applicant and respondent, as well as the interests of the public at large.? Id. (quoting Barnes v. 
Systems, Inc. Grp. Hosp. Med. Surgical Ins. PZan, 501 US. 1301, 1305 (1991) (Scalia, ., in
chambers)). Here, the Supreme Court provided no analysis for its decision to stay the October
2019 Injunction, nor any insight into its equitable judgment. What is clear, however, is that the
irreparable harm and public interests that warrant an injunction have come into sharper focus in
the intervening months since the Supreme Court issued its stay. What were previously theoretical
harms have proven to be true. We no" longer need to imagine the worst?case scenario; we are
experiencing its dramatic effects in very real time. Equitable relief has become nothing short of
critical. In issuing temporary relief today, this Court certainly is mindful of the Supreme Court?s
stay of the previously issued injunctions, but exercises equitable discretion based on the record
now before it??one the Supreme Court never had the opportunity to consider when it stayed the

pending October 2019 Injunction.10

 

?0 Though the Supreme Court denied Governmental Plaintiffs? recent motion to temporarily lift or modify
the Supreme Court?s stay of the October 2019 Injunction, the Justices did not indicate whether they

21

 

Case Document 195 Filed 07/29/20 Page 22 of 31

B. The Pandemic Warrants Temporary Equitable Relief

As an initial matter, this Court has already found that Plaintiffs are likely to succeed on the
merits of their claims. As to the remaining factors to be considered for preliminary injunctive
relief, Plaintiffs argue that the ?pandemic has drastically altered the nature and magnitude of the
irreparable harms faced by Plaintiffs, their residents, and the nation due to the Rule and tipped the
balance of the equities decisively in favor of granting injunctive relief While the COVID-19
emergency continues.? (Emergency PI Mem. at 16.)

showing of irreparable harm is ?the single most important prerequisite for the issuance
of a preliminary injunction.?9 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 can 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). Though Plaintiffs need not Show ?that irreparable harm
already ha[s] occurred,? Mullins v. City of New York, 626 F.3d 47, 55 (2d. Cir. 2010), they have
done just that here.

1. Plaintif?r Are Subject to Pressing and Substantial Harms.

In addition to the national emergency, Governmental Plaintiffs have declared public-health

emergencies in their respective jurisdictions. (Emergency PI Mem. at 5.) Officials have taken a

variety of dramatic measures to reverse the course of the pandemic, including ?requir[ing] all

 

considered the evidence regarding COVID-19 and rejected Governmental Plaintiffs? motion on that basis.
Further, the Supreme Court did not state that its stay of the October 2019 Injunction, or refusal to modify
such stay, precluded Governmental Plaintiffs? from seeking new temporary relief tailored to the national
emergency in the district court. Instead, the Supreme Court instructed that its denial ?does not preclude a
?ling in the District Court as counsel considers appropriate.?

22

 

Case Document 195 Filed 07/29/20 Page 23 of 31

nonessential employees to work from home, clos[ing] schools, and issu[ing] orders to increase
hospital capacity to care for COVID-19 patients.? (Id) Medical care is a vital component of these
efforts to ?slow[] infection rates, preserv[e] hospital capacity and medical equipment, and sav[e]
lives.? (Id. at 6.) Infected individuals who are not tested or receive inadequate medical care are
more likely to spread the Virus to others and experience serious complications from COVID-19,
including death. (Id. at 6; see also Decl. of Elena Goldstein, Ex. 16 (Decl. of Leighton Ku), No.
19 Civ. 7777, ECF No. 170-16, 11??12, 20, 22.)

Plaintiffs provide ample evidence that the Rule deters immigrants from seeking testing and
treatment for COVID-19, which in turn impedes public efforts .. in the Governmental Plaintiffs?
jurisdictions to stem the spread of the disease. Doctors and other medical personnel, state and
local of?cials, and staff at nonpro?t organizations have all witnessed immigrants refusing to enroll
in Medicaid or other publicly funded health coverage, or forgoing testing and treatment for
out of fear that accepting such insurance or care will increase their risk of being
labeled a ?public charge.? (See, Decl. of Elena Goldstein, EX. 8 (Decl. of Eden Almasude),
No. 19 Civ. 7777, ECF No. 170-8, 4?8; Ex. 14 (Decl. of Dana Kennedy), No. 19 Civ. 7777,
ECF No. 170-14, 5?9, 11m13; Ex. 15 (Decl. of Camille Kritzman), No. 19 Civ. 7777,
ECF No. 170?15, 2?4; Ex. 16 (Decl. of Leighton-K11), No. 19 Civ. 7777, ECF No. 170-16,
10?11; Ex. 17 (Decl. of Pedro Moreno), No. 19 Civ. 7777, ECF No. 170-17, 11 4; EX. 18 (Decl.
of Bitta Mosto?), No. 19 Civ. 7777, ECF No. 170-18, ill 13, 15; Ex. 21 (Decl. of Rachel Pryor),
No. 19 Civ. 7777, ECF No. 170?21, 1347, 19; Ex. 22 (Decl. of Aaron Coskey Voit),
No. 19 Civ. 7777, ECF No. 170?22, 27?28, 30; EX. 27 (Decl. of Alejandra Aguilar),
No. 19 Civ. 7777, ECF No. 170-27, ?I?l 7~?13, 18.) As a direct result of the Rule, immigrants are

forced to make an impossible choice between jeopardizing public health and personal safety or

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Case Document 195 Filed 07/29/20 Page 24 of 31

their immigration status. Defendants claim that any such effect of the Rule is based on ?mistaken
beliefs? about the Rule?s application and therefore cannot be fairly attributed to the Rule. (See
Emergency PI Opp?n at 15?17.) Defendants point to statements in Plaintiffs? declarations that
describe instances of immigrants incorrectly believing they are subject to the Rule or declining
benefits that are not treated negatively under the Rule.11 (Id. at 16.) However, even if immigrants
act in part on mistaken belief, the Supreme Court has recognized injury where the plaintiff? harms
are based on the ?predictable effect of Government action on the decisions of third parties,? even
if such decisions are ?motivated by unfounded fears.? Dep ?t of Commerce v. New York, 139 S. Ct.
2551, 2566 (2019). Here, such decisions are more than predictable, they are already occurring.
Any policy that deters residents from seeking testing and treatment for COVID-19
increases the risk of infection for such residents and the public. Adverse government action that
targets immigrants, however, is particularly dangerous during a pandemic. Immigrants make up a
substantial portion of workers in essential industries who have continued to work throughout the
national emergency and interact with large swaths of the population, whether in healthcare,
agriculture, food packing and distribution, or sanitation, among other industries. (See, 9. g. Decl.
of Elena Goldstein, EX. 10 (Decl. of Lawrence L. Benito), No. 19 Civ. 7777, ECF No. 170-10,
11; Ex. 12 (Decl. of Sabrina Fong), No. 19 Civ. 7777, ECF No. 170~12, 12?13; Ex. 14 (Decl.
of Dana Kennedy), No. 19 Civ. 7777, ECF No. 170?14, 1] 15; Ex. 16 (Decl. of Leighton Ku),
No. 19 Civ. 7777, ECF No. 170?16, $1 20; Ex. 22 (Decl. oanron Coskey Voit), No. 19 Civ. 7777,
ECF No. 170?22, 1111 9?10.) Essential workers have been disproportionately affected by

Protecting them is in their best interest and the interest of the public at large. When

 

11 Plaintiffs? declarations also cite instances of immigrants avoiding benefits that may be covered by the
Rule. (See, Decl. of Elena Goldstein, Ex. 8 (Decl. of Eden Almasude), No. 19 Civ. 7777, ECF No.
170-8, 1] 6; EX. 14(Decl. 0f Darla Kennedy), N0. 19 Civ. 7777, ECF No. 170?14, 1] ll.)

24

Case Document 195 Filed 07/29/20 Page 25 of 31

individuals with a high percentage of public exposure are fearful of receiving medical care for a
deadly, contagious disease, the health and security of communities across the country is
jeopardized.

2. USCIS ?3 Alert Does Not Su?cien?y Mitigate the Harms.

own efforts to address these substantial harms are particularly revealing, though
plainly insuf?cient. In the ?rst test of the Rule?s immediate application, Defendants have
determined that the Rule cannot be uniformly or effectively applied in response to this deadly
health crisis. For good reasons, Defendants have now immediately changed the Rule by what it
calls ?informal guidance.? That ?informal guidance? presently indicates that the Rule will not be
applied to certain coronavirus-related bene?ts. Speci?cally, on March 13, 2020, USCIS issued an
alert that excludes ?testing, treatment, [and] preventative care . . . related to from
public charge inadmissibility determinations, ?even if such treatment is provided or paid for by
one or more public bene?ts, as de?ned in the [R]ule federally funded Medicaid).? Public
Charge Alert, US. Citizenship Immigr. Servs., 
(last updated March 27, 2020). That response is a
recognition of ?the possibility that some aliens impacted by may be hesitant to seek
necessary medical treatment or preventive services.? Id. Still, the Alert is unlikely to remedy
Plaintiffs? harms considering its limited scope in the context of the Rule. As Defendants explain,
an immigrant?s enrollment in Medicaid will only be excluded from the public charge analysis if
the immigrant enrolls ?soZeZy in order to obtain COVID-19?related testing, treatment, or
preventative care? and provided the immigrant ?disenrolls from Medicaid once he or she no longer

needs COVID-l9-related care, or provides evidence of a request to disenroll.? (Decl. of Joseph B.

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Case Document 195 Filed 07/29/20 Page 26 of 31

Edlow, No. 19 Civ. 7777, ECF No. 177, 12 (emphasis added); see also Emergency PI Opp?n at
1 3.)

Plaintiffs argue that the Alert exempts testing and treatment related to paid for
by federally funded Medicaid, but not the enrollment in Medicaid itself. But even crediting
Defendants? interpretation leaves immigrants in an impractical position. As this Court explained
at oral argument, few enroll in Medicaid for a single purpose. There is no box for applicants to
check off that limits their use of Medicaid to COVID-l9-related treatment. (See Tr. of Oral Arg.
dated May 18, 2020, at 59:947.) Defendants offer no direction regarding how an immigrant
should establish that he or she enrolled in Medicaid solely to obtain COVID-19-related care. In
sum, an immigrant who uses federally funded Medicaid to access treatment is now told
that he will not be negatively impacted in a future public charge determination by such 
19 treatment, but his em?ollment in Medicaid itself may be counted against him and any use not
determined to be COVID-19 related will count against him. At a minimum, such ambiguity and
strict limitations belie any notion that the Alert adequately encourages immigrants to seek medical
treatment or preventative care related to 

The Alert falls short in a numb er of other respects as well. First, it keeps in place the Rule? 
disincentives for using economic supplemental benefits. The country is experiencing a sharp
economic downturn, as a predictable direct and indirect effect of the pandemic. Accordingly,
many immigrants and citizens alike, who otherwise would not be classified as public charges under
any reasonable de?nition, are experiencing substantial ?nancial burdens as employers slash jobs,
benefits, and pay. Yet, the Rule offers no meaningful relief or incentive for immigrants in such
circumstances to confidently access supplemental bene?ts, such as SNAP. Instead, the Alert

explains that an individual who:

26

 

Case Document 195 Filed 07/29/20 Page 27 of 31

lives and works in a jurisdiction where disease prevention methods such as social

distancing or quarantine are in place, or where [his or her] employer, school, or university

voluntarily shuts down operations to prevent the spread of COVID-19, . . . may submit a

statement with his or her application for adjustment of status to explain how such methods

or policies have affected [him or her] as relevant to the factors USCIS must consider in a

public charge inadmissibility determination.

What an adequate statement should say is unknown. The Alert provides no articulable standard to
which one should conform one?s conduct. US CIS will then take such statement ?into
consideration? to the extent ?relevant and credible.? Such a hollow promise provides little
comfort. Simply relying on the compassion or sympathy of immigration of?cials is not rational,
either in rulernaking or in informally attempting to amend those rules.

Additionally, the exception for coronavirus?related treatment likely does not cover a wide
variety of other reasonable steps that may be taken to protect public health during the pandemic.
At oral argument, Defendants at least implied that if an immigrant obtained Medicaid for purposes
of securing COVID-19 treatment, but during such treatment he or she was also treated for the 
such ?u treatment would not be exempt from the public charge determination because it is
unrelated to COVID-19 treatment. (Tr. of Oral Arg. dated May 18, 2020, at 58?59.) It appears
that an individual. would be similarly penalized for utilizing Medicaid to receive treatment for
medical conditions that place patients at increased risk of suffering severe illness or death if they
contract such as chronic obstructive pulmonary-disease (COPD), Type 2 diabetes, or
serious heart conditions. See Coronavirus Disease 2019 (COVID-IQ) People ofAny Age with
Underlying Medical Conditions, Ctrs. for Disease Control Prevention,

(last updated July 17, 2020).

Finally, at oral argument, Defendants conceded that USCIS has no obligation to retain the

Alert for any period of time, let alone for the pendency of the public health emergency. (Tr. of

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Case Document 195 Filed 07/29/20 Page 28 of 31

Oral Arg. dated May 18, 2020, at Nor is there any protection from a retroactive change
in policy.12 The characterization of the published ?alert? as ?informal guidance? outside of
rulemaking provides no assurance of its future reliability. Any semblance of a mitigating effect
that the Alert has on the tangible harms caused by the Rule?s general application may be wiped
out at a moment?s notice. The uncertainty surrounding the scope of the Alert?s coronavirus
treatment exception further adds confusion and chaos. It defeats the stated purpose of encouraging
immigrants to seek 9 diagnosis and treatment.

3. The Balance ofthe Equities and Public Interest Decidedly Favor Temporary
Injunctive Relief During the National Health Emergency.

Considering the substantial harm to the public caused by the Rule during the present
pandemic, the balance of the equities and public interest also strongly favor an injunction. While
the Rule has only been in effect since February 24, 2020, the prior public charge framework has
been uniformly applied for decades. (Gov?t Pls. Decision at 21.) Defendants? interest in
effectuating the Rule fails to measure up to the gravity of this global pandemic that continues to
threaten the lives and economic well-being of America?s residents. No person should hesitate to
seek medical care, nor should they endure punishment or penalty if they seek temporary ?nancial
aid as a result of the pandemic?s impact.

Moreover, Defendants? new ?informal guidance? that attempts to carve out a 
exception is an admission that it is neither in the public interest nor compelled by the balance of
equities to currently apply the Rule as written and adopted. Plainly, Defendants have indicated

that the Rule?s uniform application is likely to be injurious to Plaintiffs, immigrants, and the public

 

?2 Defendants asserted at oral argument that ?as long as the policy is in place, people who use benefits in a
way that?s described by the policy, they can be sure that at any point in the future, if they submit an
application for adjustment of status, this is the policy that will be applied to their benefit usage that occurred
while this policy was in place.? (Tr. of Oral Arg. dated May 18, 2020, at This Court is aware of
no legal obligation that accompanies this pledge, in the Alert, the Rule, or otherwise.

28

Case Document 195 Filed 07/29/20 Page 29 of 31

at large during this national public health emergency. The problem is not with the decision to issue
the Alert or declare a public health emergency, but with the Rule. All agree that the Rule should
not to be applied, as written, during this current pandemic. There is also a question of whether it
should be applied to future deadly plagues, earthquakes, hurricanes, tornadoes, ?oods, or other
natural and manmade disasters that threaten the health and safety of citizens and immigrants alike,
through no fault of their own. The Rule has demonstrably failed the first real world test of its
application.
C. A Nationwide Temporary Injunction is Appropriate.

As this Court found with respect to its initial injunction regarding the Rule, and for
additional reasons, a nationwide injunction is both necessary to redress the harms caused by the
Rule, and appropriate given the strong federal interest in uniformity of the national health and
immigration policies at issue here. (See Gov?t Pls. Decision at 21?24; Org. Pls. Decision at 24?
26); see also Texas v. United States, 809 F.3d 134, 187?88 (5th Cir. 2015) (upholding a nationwide
injunction of the Deferred Action for Parents of Americans and Lawful Permanent Residents
(DAPA) immigration relief program, in part, because the Constitution requires and Congress has
called for uniform administration of immigration laws). The scope of preliminary injunctive relief
generally should be ?no broader than necessary to cure the effects of the harm caused by the
Violation,? Church cit Dwight Co. v. SPD Swiss Precision Diagnostics, 843 F.3d 48, 72
(2d Cir. 2016), but ?is dictated by the extent of the Violation established, not by the geographical
extent of the plaintif Cali?mo v. Yamasaki, 442 U.S. 682, 702 (1979). The likely unlawful
agency action in this case applies universally, to every public charge determination made by
immigration officials across the country. Limited-relief would simply not protect the interests of

all stakeholders. A geographically restricted injunction, in particular, would undoubtedly result in

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Case Document 195 Filed 07/29/20 Page 30 of 31

inconsistent applications of the Rule, and different public charge determinations based solely on
location. The effect of the Rule?s application should not depend on what side of the George
Washington bridge between New York and New Jersey one fortuitously finds oneself.

Moreover, as Plaintiffs correctly point out, nationwide relief is critical to curing Plaintiffs?
harms associated with the pandemic, considering the ?interconnected nature of the risks between
and within states, and the realities attendant to the spread of this disease.? (Emergency PI Morn.
at 25.) Even Defendants? limited COVID-19 exception does not distinguish its benefits
geographically. A patchwork public charge framework would only contribute to the spread of
in our communities. As we have all come to recognize, the virus knows no arti?cial
boundaries. And as the country returns to business, so too will interstate travel and commerce.
Each infected individual that travels to Governmental Plaintiffs? jurisdictions risks undoing crucial
progress made in combatting this disease. Discouraging noncitizens nationwide from obtaining
necessary treatment and care certainly undermines those efforts. Issuing geographically limited
relief would not meaningfully abate the public health risk, especially when applied to a population
that represents a significant portion of essential workers who continue to work outside of their
homes and interact with the public at large. Thus, a temporary injunction entirely barring the Rule

is appropriate. 13

 

13 This Court is cognizant of the equitable and constitutional concerns regarding nationwide injunctions.
See, e. g, Dep?t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020) (Gorsuch, 3., concurring).
Nevertheless, in the appropriate circumstances, ?district courts sitting in equity have the authority to issue
nationwide injunctions.? Sager v. rump, 375 F. Supp. 3d 280, 378 (E.D.N.Y. 2019) (citing Lemon v.
Kren?er?Amold Hinge Last 284 US. 448, 451 (1932)). To be sure, a court?s authority to issue
nationwide injunctions is a power that should be exercised sparingly, and certainly cannot be applied in
conflict with each Circuit?s own determination of its appropriateness. This Court certainly does not discount
legitimate concerns, but concludes that the convoluted geographic patchwork of arti?cialiy limited
temporary relief, in this case, is just as likely to be ?patently unworkable, sowing chaos for litigants, the
government, courts, and all those affected.? Dept of Homeland Sec. v. New York, 140 S. Ct. at 600
(Gorsuch, J., concurring) (discussing the costs associated with nationwide injunctions).

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Case Document 195 Filed 07/29/20 Page 31 of 31

CONCLUSION

Defendants? motion to dismiss, (No. 19 Civ. 7993, ECF No. 176), Count 111 of
Organizational Plaintiffs? complaint, claiming that DHS and USCIS lacked authority to
promulgate the Rule, is GRANTED.

Plaintiffs? motion for a preliminary injunction, and temporary stay of the Rule?s application
under 5 U.S.C. 705, (No. 19 Civ. 7777, ECF No. 168), is GRANTED. Defendants are enjoined
from enforcing, applying, implementing, or treating as effective the Rule for any period during
which there is a declared national health emergency in response to the outbreak.

This opinion shall also serve alternatively as an indicative ruling under Federal Rule of
Civil Procedure 62.1. Should the Second Circuit determine that this Court does not presently have
jurisdiction to issue this injunction and remands this case for the purpose of further considering
Plaintiffs? present motion, this Court would issue a preliminary injunction based on factual
findings as set forth herein.

The Court of Clerk is directed to close the motions, (No. 19 Civ. 7777, ECF Nos. 140, 168;

No. 19 Civ. 7993, ECF No. 176), accordingly.

Dated: New York, New York

July 29, 2020
so ORDERED.

89%

OR B. DANIELS
ited ates District Judge

 

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