Cook Cnty. v. McAleenan

417 F.Supp.3d 1008

COOK COUNTY, ILLINOIS, an Illinois governmental entity, and Illinois Coalition for Immigrant and Refugee Rights, Inc., Plaintiffs,

v.Kevin K. MCALEENAN, in his official capacity as Acting Secretary of U.S. Department of Homeland Security, U.S. Department of Homeland Security, a federal agency, Kenneth T. Cuccinelli II, in his official capacity as Acting Director of U.S. Citizenship and Immigration Services, and U.S. Citizenship and Immigration Services, a federal agency, Defendants.

19 C 6334

United States District Court, N.D. Illinois, Eastern Division.

Signed October 14, 2019

A Colin Wexler, David E. Morrison, Steven A. Levy, Juan Carlos Arguello, Takayuki Ono, Goldberg Kohn LTD., Jessica Megan Scheller, Lauren Elizabeth Miller, Cook County County State's Attorney's Office, David Andrew Gordon, Marlow Elizabeth Svatek, Tacy Fletcher Flint, Sidley Austin LLP (Chicago), Andrea Marie Kovach, Gavin Michael Kearney, Militza Marie Pagan Lopez, Shriver Center On Poverty Law, Caroline Goodwin Chapman, Meghan Patricia Carter, Nanshelmun Ruth Dashan, Legal Counsel for Health Justice, Katherine Elizabeth Walz, Sargent Shriver National Center on Poverty Law, Chicago, IL, Robert S. Velevis, Pro Hac Vice, Yvette Ostolaza, Sidley Austin LLP, Dallas, TX, for Plaintiffs.

Eric J. Soskin U.S. Department of Justice, Civil Division, Federal Programs Joshua Kolsky, U.S. Department of Justice, Kuntal Cholera, U.S. Department of Justice, Federal Programs Branch, Washington, DC, AUSA, United States Attorney's Office (NDIL - Chicago), Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Gary Feinerman, United States District Judge

In this suit under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. , Cook County and Illinois Coalition for Immigrant and Refugee Rights, Inc. ("ICIRR") challenge the legality of the Department of Homeland Security's ("DHS") final rule, Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (to be codified at 8 C.F.R. pt. 103, 212-14, 245, 248). Doc. 1. The Final Rule has an effective date of October 15, 2019. Cook County and ICIRR move for a temporary restraining order and/or preliminary injunction under Civil Rule 65, or a stay under § 705 of the APA, 5 U.S.C. § 705, to bar DHS (the other defendants are ignored for simplicity's sake) from implementing and enforcing the Rule in the State of Illinois. Doc. 24. At the parties' request, briefing closed on October 10, 2019, and oral argument was held on October 11, 2019. Docs. 29, 81. The motion is granted, and DHS is enjoined from implementing the Rule in the State of Illinois absent further order of court.

Background

Section 212(a)(4) of the Immigration and Nationality Act ("INA") states: "Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible." 8 U.S.C. § 1182(a)(4). The public charge provision has a long pedigree, dating back to the Immigration Act of 1882, ch. 376, §§ 1-2, 22 Stat. 214, 214, which directed immigration officers to refuse entry to "any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge." The provision has been part of our immigration laws, in various but nearly identical guises, ever since. See Immigration Act of 1891, ch. 551, 26 Stat. 1084, 1084; Immigration Act of 1907, ch. 1134, 34 Stat. 898, 899; Immigration Act of 1917, ch. 29 § 3, 39 Stat. 874, 876; INA of 1952, ch. 477, § 212(a)(15), 66 Stat. 163, 183; Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub. L. No. 104-208, § 531(a), 110 Stat. 3009 -546, 3009-674-75 (1996).

Prior to the rulemaking resulting in the Final Rule, the federal agency charged with immigration enforcement last articulated its interpretation of "public charge" in a 1999 field guidance document. Field Guidance on Deportability and Inadmissibility on Public Charge Grounds , 64 Fed. Reg. 28,689 (May 26, 1999). The field guidance defined a "public charge" as a person "primarily dependent on the government for subsistence," and instructed immigration officers to ignore non-cash public benefits in assessing whether an individual was "likely at any time to become a public charge." Ibid. That definition and instruction never made their way into a regulation.

On October 10, 2018, DHS published a Notice of Proposed Rulemaking, Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (Oct. 10, 2018), which was followed by a sixty-day public comment period. Some ten months later, DHS published the Final Rule, which addressed the comments, revised the proposed rule, and provided analysis to support the Rule. See Inadmissibility on Public Charge Grounds, supra. As DHS described it, the Rule "redefines the term ‘public charge’ to mean an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months)." 84 Fed. Reg. at 41,295.

By adopting a duration-based standard, the Rule covers aliens who receive only minimal benefits so long as they receive them for the requisite time period. As the Rule explains: "DHS may find an alien inadmissible under the standard, even though the alien who exceeds the duration threshold may receive only hundreds of dollars, or less, in public benefits annually." Id. at 41,360 -61. The Rule "defines the term ‘public benefit’ to include cash benefits for income maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing." Ibid. The Rule sets forth several nonexclusive factors DHS must consider in determining whether an alien is likely to become a public charge, including "the alien's health," any "diagnosed ... medical condition" that "will interfere with the alien's ability to provide and care for himself or herself," and past applications for the enumerated public benefits. Id. at 41,502 -04. The Rule provides that persons found likely to become public charges are ineligible "for a visa to come the United States temporarily or permanently, for admission, or for adjustment of status to that of a lawful permanent resident." Id. at 41,303. The Rule also "potentially affect[s] individuals applying for an extension of stay or change of status because these individuals would have to demonstrate that they have not received, since obtaining the nonimmigrant status they are seeking to extend or change, public benefits for" more than the allowed duration. Id. at 41,493.

Cook County and ICIRR challenge the Rule's legality and seek to enjoin its implementation. Cook County operates the Cook County Health and Hospitals System ("CCH"), one of the largest public hospital systems in the Nation. Doc. 27-1 at p. 326, ¶ 5. ICIRR is a membership-based organization that represents nonprofit organizations and social and health service providers throughout Illinois that deliver and seek to protect access to health care, nutrition, housing, and other services for immigrants regardless of immigration status. Id. at pp. 341-342, ¶¶ 3-10. Cook County and ICIRR maintain that the Rule will cause immigrants to disenroll from public benefits—or to not seek benefits in the first place—which will in turn generate increased costs and cause them to divert resources from their existing programs meant to aid immigrants and safeguard public health. Doc. 27-1 at pp. 330-338, ¶¶ 25-52; id. at pp. 342-350, ¶¶ 11-42. Cook County and ICIRR argue that the Rule exceeds the authority granted to DHS under the INA and that DHS acted arbitrarily and capriciously in promulgating the Rule.

Discussion

"To win a preliminary injunction, the moving party must establish that (1) without preliminary relief, it will suffer irreparable harm before final resolution of its claims; (2) legal remedies are inadequate; and (3) its claim has some likelihood of success on the merits." Eli Lilly & Co. v. Arla Foods, Inc. , 893 F.3d 375, 381 (7th Cir. 2018). "If the moving party makes this showing, the court balances the harms to the moving party, other parties, and the public." Ibid. "In so doing, the court employs a sliding scale approach: the more likely the plaintiff is to win, the less heavily need the balance of harms weigh in [its] favor; the less likely [it] is to win, the more need [the balance] weigh in [its] favor." Valencia v. City of Springfield , 883 F.3d 959, 966 (7th Cir. 2018) (alteration and internal quotation marks omitted). "The sliding scale approach is not mathematical in nature, rather it is more properly characterized as subjective and intuitive, one which permits district courts to weigh the competing considerations and mold appropriate relief." Stuller, Inc. v. Steak N Shake Enters. , 695 F.3d 676, 678 (7th Cir. 2012) (internal quotation marks omitted). "Stated another way, the district court sits as would a chancellor in equity and weighs all the factors, seeking at all times to minimize the costs of being mistaken." Ibid. (alteration and internal quotation marks omitted). A request for a temporary restraining order is analyzed under the same rubric, see Carlson Grp., Inc. v. Davenport , 2016 WL 7212522, at *2 (N.D. Ill. Dec. 13, 2016), as is a request for a stay under 5 U.S.C. § 705, see Cronin v. U.S. Dep't of Agric. , 919 F.2d 439, 446 (7th Cir. 1990) ("The standard is the same whether a preliminary injunction against agency action is being sought in the district court or a stay of that action [under 5 U.S.C. § 705 ] is being sought in [the appeals] court.").

I. Likelihood of Success on the Merits

A. Standing

DHS argues at the outset that Cook County and ICIRR lack Article III standing. Doc. 73 at...