New York v. U.S. Dep't of Homeland Sec.

475 F.Supp.3d 208

State of NEW YORK, City of New York, State of Connecticut, and State of Vermont, Plaintiffs,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY; Kevin K. McAleenan, in his official capacity as Acting Secretary of the United States Department of Homeland Security; United States Citizenship and Immigration Services; Kenneth T. Cuccinelli II, in his official 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., Plaintiffs,

v.Ken Cuccinelli, in his official capacity as Acting Director of United States Citizenship and Immigration Services; United States Citizenship & Immigration Services; Kevin K. McAleenan, in his official capacity as Acting Secretary of Homeland Security; and United States Department of Homeland Security, Defendants.

19 Civ. 7777 (GBD), 19 Civ. 7993 (GBD)

United States District Court, S.D. New York.

Signed July 29, 2020

Andrew James Ehrlich, Steven Craig Herzog, Paul Weiss, Ghita Schwarz, Brittany Thomas, Center for Constitutional Rights, Susan Elizabeth Welber, Hasan Shafiqullah, Susan Joan Cameron, Kathleen Mary Kelleher, The Legal Aid Society, Amy Bowles, Daniel Shiah Sinnreich, Elana Rose Beale, Robert Joseph O'Loughlin, III, Jonathan Hillel Hurwitz, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, for Plaintiffs.

Joshua Kolsky, Department of Justice, Eric Soskin, Ethan Price Davis, Keri Lane Berman, DOJ-Civ, Washington, DC, for Defendants.

MEMORANDUM DECISION AND ORDER

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 redefines 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 ("DHS"); United States Citizenship and Immigration Services ("USCIS"); Secretary Kevin K. McAleenan, in his official capacity as Acting Secretary of DHS; Director Kenneth T. Cuccinelli II, in his official capacity as Acting Director of USCIS; and the United States of America. (Compl. for Declaratory and Injunctive Relief ("Gov't Pls. Compl."), 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 official capacity as Acting Director of USCIS; Kevin K. McAleenan, in his official capacity as Acting Secretary of DHS; USCIS; and DHS. (Compl. ("Org. Pls. Compl"), No. 19 Civ. 7993, ECF No. 1.)

On October 11, 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, ECF No. 110 (reported at 408 F. Supp. 3d 334 (S.D.N.Y. 2019) ); Mem. Decision and Order ("Org. Pls. Decision"), No. 19 Civ. 7993, ECF No. 147 (reported at 419 F. Supp. 3d 647 (S.D.N.Y. 2019) ).) Specifically, 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 Cty., Illinois v. McAleenan , 417 F. Supp. 3d 1008, 1014 (N.D. Ill. 2019) (injunction as to Illinois); Casa de Md., Inc. v. Trump , 414 F. Supp. 3d 760, 767 (D. Md. 2019) (nationwide); City & Cty. of San 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 Pennsylvania); Washington v. U.S. Dep't of Homeland Sec. , 408 F. Supp. 3d 1191, 1199 (E.D. 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 Civ. 7777, ECF No. 122; Mem. Decision and Order, No. 19 Civ. 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 briefing schedule on the merits of their appeal. New York v. U.S. Dep't of Homeland Sec. , 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 Homeland Sec. v. New York , ––– U.S. ––––, 140 S. Ct. 599, 206 L.Ed.2d 115 (2020) (mem.). Following the Supreme Court's stay, the Rule went into effect on February 24, 2020.¹

Much has significantly changed since January 27. Today, the world is in the throes of a devastating pandemic, triggered by the novel coronavirus SARS-CoV-2. In six months, approximately 16.5 million people around the globe have been afflicted by the disease caused by this virus. That disease (COVID-19) 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 conflict with the federal government's new "public charge" policy, a policy which is intended to discourage immigrants from utilizing government benefits and penalizes them for receipt of financial 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 COVID-19, 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 , U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge (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 subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (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 Federal Rule 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 ("APA"), 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 findings supporting that injunction, if the Second Circuit determines that this Court currently lacks jurisdiction and remands the case for that purpose.² (Id. ) Plaintiffs’ motion for a preliminary injunction enjoining the application of the 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 III of Organizational Plaintiffs’ complaint, claiming that DHS and USCIS lacked authority to promulgate the Rule, is dismissed.

I. DEFENDANTS’ 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 12(b)(1). See All. for Envtl. Renewal, Inc. v. Pyramid Crossgates Co. , 436 F.3d 82, 88 n.6 (2d Cir. 2006) ("[T]he proper procedural route [for a standing challenge] is a motion under Rule 12(b)(1)."); Duane Reade, Inc. v. St. Paul...