New York v. U.S. Dep't of Homeland Sec., Docket Nos. 19-3591

969 F.3d 42

State of NEW YORK, City of New York, State of Connecticut, State of Vermont, Plaintiffs-Appellees,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Secretary Chad F. Wolf, in his official capacity as Acting Secretary of the United States Department of Homeland Security, United States Citizenship and Immigration Services, Director Kenneth T. Cuccinelli II, in his official capacity as Acting Director of United States Citizenship and Immigration Services, United States of America, Defendants-Appellants.

Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services, (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Plaintiffs-Appellees,

v.Kenneth T. Cuccinelli, in his official capacity as Acting Director of United States Citizenship and Immigration Services, United States Citizenship and Immigration Services, Chad F. Wolf, in his official capacity as Acting Secretary of Homeland Security, United States Department of Homeland Security, Defendants-Appellants.

Docket Nos. 19-3591

19-3595

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: March 2, 2020

Decided: August 4, 2020

Judith N. Vale, Senior Assistant Solicitor General, State of New York, New York, NY (Letitia James, Attorney General, Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, Matthew Colangelo, Chief Counsel for Federal Initiatives, Elena Goldstein, Deputy Bureau Chief, Civil Rights, Ming-Qi Chu, Section Chief, Labor Bureau, State of New York, New York, NY, William Tong, Attorney General, State of Connecticut, Hartford, CT, Thomas J. Donovan, Jr., Attorney General, State of Vermont, Montpelier, VT, James E. Johnson, Corporation Counsel, City of New York, New York, NY, on the brief), for Plaintiffs-Appellees State of New York, City of New York, State of Connecticut, State of Vermont.

Jonathan H. Hurwitz, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY (Andrew J. Ehrlich, Elana R. Beale, Robert J. O'Loughlin, Daniel S. Sinnreich, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Ghita R. Schwarz, Brittany Thomas, Baher A. Azmy, Center for Constitutional Rights, New York, NY, Susan E. Welber, Kathleen Kelleher, Susan Cameron, Hasan Shafiqullah, The Legal Aid Society of New York, New York, NY, on the brief), for Plaintiffs-Appellees Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services, (Archdiocese of New York), Catholic Legal Immigration Network, Inc.

Gerard Sinzdak, Appellate Staff Attorney, Civil Division, United States Department of Justice, Washington, DC (Joseph H. Hunt, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC, Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, Daniel Tenny, Joshua Dos Santos, Appellate Staff Attorneys, Civil Division, United States Department of Justice, Washington, DC on the brief), for Defendants-Appellants United States Department of Homeland Security, Acting Secretary Chad F. Wolf, United States Citizenship and Immigration Services, Acting Director Kenneth T. Cuccinelli, United States of America.

William E. Havemann, Office of General Counsel, United States House of Representatives, Washington, DC (Douglas N. Letter, General Counsel, Todd B. Tatelman, Principal Deputy General Counsel, Megan Barbero, Josephine Morse, Adam A. Grogg, Office of General Counsel, United States House of Representatives, Washington, DC, Robert M. Loeb, Thomas M. Bondy, Peter E. Davis, Orrick, Herrington & Sutcliffe LLP, Washington, DC, Rene Kathawala, Orrick, Herrington & Sutcliffe LLP, New York, NY, on the brief), for Amicus Curiae United States House of Representatives, in support of Plaintiffs-Appellees.

Additional amici curiae listed in Appendix A.

Before: Leval, Hall, and Lynch, Circuit Judges.

Gerard E. Lynch, Circuit Judge:

In August 2019, the Department of Homeland Security ("DHS") issued a final rule setting out a new agency interpretation of a longstanding provision of our immigration law that renders inadmissible to the United States any non-citizen who is likely to become a "public charge." See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) ("the Rule" or "the Final Rule"). The Rule expands the meaning of "public charge," with the likely result that significantly more people will be found inadmissible on that basis. Lawsuits challenging the lawfulness of the Rule were quickly filed around the country, including two cases in the Southern District of New York, which we now consider in tandem on appeal.

These two cases – one brought by New York State, New York City, Connecticut, and Vermont, and the other brought by five non-profit organizations that provide legal and social services to non-citizens – raise largely identical challenges to the Rule, centering on the Rule's validity under the Administrative Procedure Act. After hearing combined oral argument on the Plaintiffs’ motions for preliminary injunctions filed in both cases, the district court (George B. Daniels, J. ) concluded that the Plaintiffs had demonstrated a likelihood of success on the merits of their claims and that the other preliminary injunction factors also favored interim relief. The district court enjoined DHS from implementing the Rule throughout the United States in the pair of orders from which DHS now appeals.

We agree that a preliminary injunction is warranted in these cases, but modify the scope of the injunctions to cover only the states of New York, Connecticut, and Vermont. The orders of the district court are thus AFFIRMED AS MODIFIED.

TABLE OF CONTENTS

BACKGROUND ...51

I. 1999 Public Charge Guidance ...52

II. 2019 Public Charge Rule ...54

A. The Proposed Rule ...54

B. Revised Definition and Relevant Public Benefits ...55

C. Adjudicative Framework ...56

III. Procedural Posture ...57

DISCUSSION ...58

I. Threshold Arguments ...59

A. Standing ...59

B. Zone of Interests ...62

II. Likelihood of Success on the Merits ...63

A. Legal Framework ...63

B. The Rule is Contrary to the INA...64

1. Origins of the Public Charge Ground ...65

2. The Immigration Act of 1917 ...66

3. The Immigration and Nationality Act of 1952 ...68

4. The Current Public Charge Ground ...69

5. The Settled Meaning of "Public Charge" ...70

6. The Rule's Inconsistency with the Settled Meaning ...74

C. The Rule is Arbitrary and Capricious ...80

1. Explanation for Changed Definition ...81

2. Explanation for Expanded List of Benefits ...83

III. Irreparable Harm to the Plaintiffs ...86

IV. Balance of Equities and the Public Interest ...86

V. Scope of Injunction ...87CONCLUSION...88

Appendix A...89

BACKGROUND

The Immigration and Nationality Act ("INA") contains ten grounds of inadmissibility, each listing various bases on which a non-citizen can be denied admission to the United States. See 8 U.S.C. § 1182(a)(1)-(10). These appeals concern the public charge ground, a constant feature of our immigration law since 1882, which renders inadmissable any non-citizen who "is likely at any time to become a public charge." Id. § 1182(a)(4)(A). The statute itself does not define "public charge," and its precise meaning is the hotly contested question in this litigation. In general terms, however, "public charge" has historically been understood to refer to a person who is not self-sufficient and depends on the government for support. See, e.g. , 84 Fed. Reg. at 41,295.

The grounds of inadmissibility are assessed not only when a person is physically entering the country, but at multiple points in the immigration process. Consequently, the public charge ground of inadmissibility is applied by three agencies that oversee different aspects of our immigration system. The Department of State considers whether non-citizens are inadmissible as likely public charges when adjudicating visa applications overseas. U.S. Customs and Border Protection ("CBP"), a unit of DHS, assesses the public charge ground when it inspects non-citizens arriving at airports or other ports of entry. And U.S. Citizenship and Immigration Services ("USCIS"), another component of DHS, applies the ground when adjudicating applications for adjustment of status, the process by which a non-citizen who is already present in the United States in a temporary immigration status can become a lawful permanent resident ("LPR"), authorized to live and work in the United States indefinitely.¹ See id. at 41,294 n.3.

The Department of Justice also has a role to play when it comes to public charge adjudications, albeit on a different statutory basis. In addition to the public charge ground of inadmissibility, the INA also contains a public charge ground of removal.² 8 U.S.C. § 1227(a)(5). That provision authorizes the government to remove non-citizens who have already been admitted to the country but who became public charges within five years of their date of entry. Id. The public charge ground of removal is primarily applied by the Executive Office for Immigration Review, a component agency of the Department of Justice that houses the immigration courts.

While multiple agencies are tasked with interpreting and applying the public charge grounds of inadmissibility and removal, the Rule at issue in these cases is an interpretation by DHS of the ground of inadmissibility. Accordingly, the Rule governs only public charge determinations carried out by CBP and USCIS, as component agencies of DHS.³ 84 Fed. Reg. at 41,294 n.3. As a practical matter, moreover, the Rule is likely to be applied primarily by USCIS as it adjudicates applications for adjustment of status, as the lengthy application process provides more opportunity for a full consideration of the Rule's provisions than a CBP screening at a port of entry. See id. at 41,478.

I. 1999 Public Charge Guidance

For twenty years preceding the publication of the Rule at issue in these cases, the governing agency...