Doe v. Trump

984 F.3d 848

John DOE #1, Juan Ramon Morales; Jane Doe, # 2; Iris Angelina Castro; Blake Doe; Brenda Villarruel; Latino Network; Jane Doe, # 3; Gabino Soriano Castellanos, Plaintiffs-Appellees,

v.Donald TRUMP, in his official capacity as President of the United States; U.S. Department of Homeland Security; Chad F. Wolf, Secretary, U.S. Department of Homeland Security; U.S. Department of Health & Human Services; Alex M. Azar II, Secretary of Health and Human Services; U.S. Department of State; Michael Pompeo, Secretary of State, in his official capacity; United States of America, Defendants-Appellants.

No. 19-36020

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 3, 2020 Seattle, Washington

Filed December 31, 2020

COLLINS, Circuit Judge:

On October 4, 2019, the President of the United States issued Proclamation No. 9945, entitled "Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order [t]o Protect the Availability of Healthcare Benefits for Americans." The Proclamation restricts entry of immigrant visa applicants who cannot demonstrate that they either (1) will acquire qualifying healthcare coverage within 30 days of entry or (2) have the ability to pay for reasonably foreseeable healthcare expenses. See Proclamation No. 9945, 84 Fed. Reg. 53991, 53992 (Oct. 9, 2019). In November 2019, the district court granted a universal preliminary injunction blocking the implementation of this Proclamation and denied the Government's request for a stay pending appeal. See Doe #1 v. Trump , 418 F. Supp. 3d 573, 605 (D. Or. 2019). The Government filed motions for an administrative stay and for a stay pending appeal, which this court denied by a divided vote. See Doe #1 v. Trump , 944 F.3d 1222, 1223 (9th Cir. 2019) ; Doe #1 v. Trump , 957 F.3d 1050, 1070 (9th Cir. 2020). We conclude that the Proclamation was within the President's statutory authority and therefore reverse the district court's order enjoining the Proclamation's implementation.

I

A

Under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. , an alien seeking lawful permanent residence in the United States generally must apply for and be issued an immigrant visa. Id . § 1181(a). The process for acquiring this type of visa is lengthy. An alien ordinarily either must first obtain a sponsorship from a prospective employer or from a family member who is a United States citizen or lawful permanent resident or must qualify for a diversity-based visa. See id. §§ 1151, 1153. For family-based and employment-based visas, the alien's sponsor typically must submit, on the alien's behalf, a petition to U.S. Citizenship and Immigration Services establishing the sponsor-applicant relationship. Id . § 1154(a)(1)(A)–(B), (F); 8 C.F.R. §§ 204.1(a)(1), 204.5(a). If that petition is approved, the alien then may "apply for a visa by submitting the required documents and appearing at a United States Embassy or consulate for an interview with a consular officer." Kerry v. Din , 576 U.S. 86, 89, 135 S.Ct. 2128, 192 L.Ed.2d 183 (2015) (plurality) (citing 8 U.S.C. §§ 1201(a)(1), 1202 ). A consular officer then determines whether to issue or refuse the visa application. 8 U.S.C. § 1201(a)(1)(A), (g) ; id . § 1204; 22 C.F.R. §§ 42.71(a), 42.81(a).

Before the consular officer may issue a visa, he or she must first "ensure the alien is not inadmissible under any provision of the INA." Din , 576 U.S. at 89, 135 S.Ct. 2128 (plurality) (citing 8 U.S.C. § 1361 ). There are a number of reasons why an alien may be inadmissible under the INA. See 8 U.S.C. § 1182(a). An alien may be deemed inadmissible, for example, based on health-related grounds, the alien's prior criminal convictions, security-related grounds (such as ties to terrorist activities), or the likelihood that the alien will "become a public charge." See id . In addition, under § 212(f) of the INA, the President may, by proclamation, and "for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens" or "impose on the entry of aliens any restrictions he may deem to be appropriate" whenever he "finds that the entry of [such] aliens or ... class of aliens ... would be detrimental to the interests of the United States." Id . § 1182(f) ; see also INA § 215(a)(1), 8 U.S.C. § 1185(a)(1) ("Unless otherwise ordered by the President, it shall be unlawful ... for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.").

Invoking his authority under "the Constitution and ... sections 212(f) and 215(a)" of the INA, the President issued Proclamation No. 9945 on October 4, 2019. See 84 Fed. Reg. at 53991. In the Proclamation, the President "find[s] that the unrestricted immigrant entry" of a defined class of aliens—generally consisting of those who lack "approved health insurance" or the "financial resources to pay for reasonably foreseeable medical costs"—would, with certain exceptions, "be detrimental to the interests of the United States." Id . at 53991–92. As explained in the Proclamation, this finding rests on the President's determination that such immigrants contribute to two significant problems facing the U.S. healthcare system. Id . at 53991.

First, the Proclamation states that uninsured persons (including both citizens and aliens) impose "substantial costs" on U.S. healthcare providers and taxpayers. Id . Specifically, "[h]ospitals and other providers often administer care to the uninsured without any hope of receiving reimbursement from them," and "uncompensated care costs ... have exceeded $35 billion in each of the last 10 years" or about $7 million annually per U.S. hospital. Id . These costs, the Proclamation states, "are passed on to the American people in the form of higher taxes, higher premiums, and higher fees for medical services." Id . Moreover, "[b]eyond uncompensated care costs, the uninsured strain Federal and State government budgets through their reliance on publicly funded programs, which ultimately are financed by taxpayers." Id .

Second, the Proclamation also states that "uninsured individuals often use emergency rooms to seek remedies for a variety of non-emergency conditions, causing overcrowding and delays for those who truly need emergency services." Id . This "non-emergency usage" of emergency rooms further "places a large burden on taxpayers, who reimburse hospitals for a portion of their uncompensated emergency care costs." Id .

The Proclamation further finds that the U.S. Government is making these problems worse "by admitting thousands of aliens who have not demonstrated any ability to pay for their healthcare costs." Id . In reaching this conclusion, the Proclamation references data showing that "lawful immigrants are about three times more likely than United States citizens to lack health insurance." Id . Accordingly, the President determined in the Proclamation that "[c]ontinuing to allow entry into the United States of certain immigrants who lack health insurance or the demonstrated ability to pay for their healthcare would be detrimental" to the national interest. Id .

Based on this finding, the Proclamation generally restricts the entry of immigrant visa applicants who cannot demonstrate, "to the satisfaction of a consular officer," that they either (1) "will be covered by approved health insurance" within thirty days of entry, or (2) "possess[ ] the financial resources to pay for reasonably foreseeable medical costs." 84 Fed. Reg. at 53992–93. The Proclamation authorizes the Secretary of State to "establish standards and procedures governing such determinations." Id . at 53993. This review process "is separate and independent" from that "required by other statutes, regulations, or proclamations." Id.

The Proclamation lists numerous healthcare plans that would qualify as "approved health insurance," including "an employer-sponsored plan"; "an unsubsidized health plan offered in the individual market within a State"; "a catastrophic plan"; "a family member's plan"; "a medical plan under the Medicare program"; or "any other health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee."¹ 84 Fed. Reg. at 53992. Except to the extent that a visa applicant alternatively shows that he or she has sufficient resources to cover "reasonably foreseeable medical costs," the applicant need only show that he or she "will be covered" by such approved health insurance "within 30 days of the alien's entry into the United States"—he or she need not necessarily obtain that coverage before entry. Id .

The Proclamation specifically exempts certain aliens from its scope. It does not apply, for example, to "any alien holding a valid immigrant visa issued before the effective date" of the Proclamation or those "entering the United States through means other than immigrant visas." 84 Fed. Reg. at 53992–93. It also exempts "any alien who is the child of a United States citizen or who is seeking to enter the United States pursuant to" specified categories of visas for children. Id . at 53992. Nor does it apply to "any alien under the age of 18, except for any alien accompanying a parent who is also immigrating to the United States and subject to this proclamation." Id . It also does not cover "any alien whose entry would be in the national interest, as determined by the Secretary of State or his designee on a case-by-case basis." Id . at 53993. In addition, the Proclamation specifically does not "affect any individual's eligibility for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture." Id .

The Proclamation also establishes certain periodic review procedures. It instructs the Secretary of State to submit to...