Washington v. U.S. Dep't of Homeland Sec.

408 F.Supp.3d 1191

State of WASHINGTON; Commonwealth of Virginia; State of Colorado; State of Delaware; State of Hawai'i; State of Illinois; State of Maryland; Commonwealth of Massachusetts; Dana Nessel, Attorney General on behalf of the people of Michigan; State of Minnesota; State of Nevada; State of New Jersey; State of New Mexico; and State of Rhode Island, Plaintiffs,

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

NO: 4:19-CV-5210-RMP

United States District Court, E.D. Washington.

Signed October 11, 2019

Rene David Tomisser, Joshua Weissman, Attorney General of Washington-Ecology Division, Olympia, WA, Bryan MS Ovens, Washington Office of the Attorney General, Kennewick, WA, Jeffrey T. Sprung, Nathan Bays, Paul Michael Crisalli, Zachary P. Jones, Washington State Attorney General's Office, Seattle, WA, Alice Anne Lloyd, Mamoona Hafeez Siddiqui, Pro Hac Vice, Michelle S Kallen, Pro Hac Vice, Ryan Spreague Hardy, Pro Hac Vice, Office of the Attorney General, Richmond, VA, Eric R. Olson, Pro Hac Vice, Office of the Attorney General, Denver, CO, Monica A. Horton, Pro Hac Vice, Delaware Department of Justice, Wilmington, DE, Elizabeth Roberson-Young, Pro Hac Vice, Office of the Attorney General, Chicago, IL, Abigail B. Taylor,, Pro Hac Vice, Angela R. Brooks, Pro Hac Vice, David Urena, Pro Hac Vice, Office of Attorney General, Boston, MA, Fadwa Alawieh Hammoud, Pro Hac Vice, Toni Lynn Harris, Pro Hac Vice, Michigan Department of Attorney General, Lansing, MI, Ralph J. Detrick, Pro Hac Vice, Minnesota Attorney General's Office, St Paul, MN, Heidi Parry Stern, Pro Hac Vice, Office of the Attorney General, Las Vegas, NV, Glenn J. Moramarco, Pro Hac Vice, Office of the New Jersey Attorney General, Trenton, NJ, Tania Maestas, Pro Hac Vice, Office of the Attorney General, Santa Fe, NM, Lauren E. Hill, Pro Hac Vice, Office of the Attorney General, Providence, RI, Jeffrey Paul Dunlap, Pro Hac Vice, Office of the Attorney General, Baltimore, MD, Lili A. Young, Pro Hac Vice, Department of the Attorney General, Honolulu, HI, for Plaintiffs.

Joshua Michael Kolsky, Keri L. Berman, United States Department of Justice, Washington, DC, for Defendants.

ORDER GRANTING PLAINTIFF STATES' MOTION FOR SECTION 705 STAY AND PRELIMINARY INJUNCTION

ROSANNA MALOUF PETERSON, United States District Judge

Fourteen states challenge the Department of Homeland Security's expansive revision of the Public Charge Rule. Congress and the U.S. Constitution authorize this Court to provide judicial review of agency actions. The Plaintiff States ask the Court to serve as a check on the power asserted by the Department of Homeland Security to alter longstanding definitions of who is deemed a Public Charge. After reviewing extensive briefing and hearing argument, the Court finds that the Plaintiff States have shown that the status quo should be preserved pending resolution of this litigation.¹ Therefore, the Court GRANTS the motion to stay the effective date of the Public Charge Rule until the issues can be adjudicated on their merits.

The Motion for a Section 705 Stay and for Preliminary Injunction, ECF No. 34, is brought by Plaintiffs State of Washington, Commonwealth of Virginia, State of Colorado, State of Delaware, State of Hawai'i, State of Illinois, State of Maryland, Commonwealth of Massachusetts, Attorney General Dana Nessel on behalf of the People of Michigan, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, and State of Rhode Island (collectively, "the Plaintiff States").

Defendants are the United States Department of Homeland Security ("DHS"), Acting Secretary of DHS Kevin K. McAleenan, United States Citizenship and Immigration Services ("USCIS"), and Acting Director of USCIS Kenneth T. Cuccinelli II (collectively, "the Federal Defendants"). Pursuant to the Administrative Procedure Act and the guarantee of equal protection under the Due Process Clause of the U.S. Constitution, the Plaintiff States challenge the Federal Defendants' redefinition of who may be denied immigration status as a "public charge" in federal immigration law among applicants for visas or legal permanent residency.

I. BACKGROUND

On August 14, 2019, DHS published in the Federal Register a final rule, Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (to be codified at 8 C.F.R. pts. 103, 212, 213, 214, 245 and 248) ("Public Charge Rule"), that redefines whether a visa applicant seeking admission to the United States and any applicant for legal permanent residency is considered inadmissible because DHS finds him or her "likely at any time to become a public charge." See 8 U.S.C. § 1182(a)(4). The Public Charge Rule is scheduled to take effect on October 15, 2019. 84 Fed. Reg. at 41,292.

A. The Immigration and Nationality Act's Public Charge Ground of Inadmissibility

The Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1101 et seq. , requires visa applicants and individuals applying to become permanent legal residents to demonstrate that they are not "inadmissible." 8 U.S.C. §§ 1361, 1225(a), and 1255(a).² The INA sets forth ten grounds of inadmissibility, all of which make a person "ineligible to receive visas and ineligible to be admitted to the United States." 8 U.S.C. § 1182(a). This case concerns one of those grounds: a likelihood of becoming a public charge. Id. § 1182(a)(4)(A).

In its current form, the INA provides that "[a]ny 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."³ 8 U.S.C. § 1182(a)(4)(A). The same provision requires the officer determining whether an applicant is inadmissible as a public charge to consider "at a minimum" the applicant's

(I) age;

(II) health;

(III) family status;

(IV) assets, resources, and financial status; and

(V) education and skills.

8 U.S.C. § 1182(a)(4)(B)(i).

The officer "may also consider any affidavit of support under section 213A [ 8 U.S.C. § 1183a ] for purposes of exclusion" on the public charge ground. Id. § 1182(a)(4)(B)(ii).

B. Public Charge Rulemaking Process and Content of the Public Charge Rule

The Public Charge Rule followed issuance of a proposed rule on October 10, 2018. Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51,114 (proposed Oct. 10, 2018) (to be codified at 8 C.F.R. pts. 103, 212, 213, 214, 245 and 248). According to the Public Charge Rule, DHS received "266,077 comments" on the proposed rule, "the vast majority of which opposed the rule." 84 Fed. Reg. at 41,297.

The final rule made several changes to the proposed rule. See 84 Fed. Reg. At 41,297-41,300. For instance:

Under the proposed rule, DHS would not have considered the receipt of benefits below the applicable threshold in the totality of the circumstances. As a consequence, USCIS would have been unable to consider an alien's past receipt of public benefits below the threshold at all, even if such receipt was indicative, to some degree, of the alien's likelihood of becoming a public charge at any time in the future. Under this final rule, adjudicators will consider and give appropriate weight to past receipt of public benefits below the single durational threshold described above in the totality of the circumstances.

84 Fed. Reg. at 41,297.

In addition, while the proposed rule provided for consideration of the receipt of Medicaid benefits by applicants under age 21, the Public Charge Rule does not negatively assess applicants for being enrolled in Medicaid while under the age 21, while pregnant, or "during the 60-day period after pregnancy." 84 Fed. Reg. at 41,297.

1. Redefinition of "Public Charge"

The Public Charge Rule, in its final format, defines "public charge" to denote "an alien who receives one or more public benefits, as defined in paragraph (b) of this section, 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 41,501 (to be codified at 8 C.F.R. § 212.21(a) )⁴ . The Public Charge Rule redefines "public benefit" to include: "(1) [a]ny Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits)," including Supplemental Security Income ("SSI"), Temporary Assistance for Needy Families ("TANF") or state "General Assistance"; (2) Supplemental Nutrition Assistance Program ("SNAP," colloquially known as "food stamps"); (3) housing assistance vouchers under Section 8 of the U.S. Housing Act of 1937; (4) Section 8 "Project-Based" rental assistance, including "Moderate Rehabilitation"; (5) Medicaid, with exceptions for benefits for an emergency medical condition, services or benefits under the Individuals with Disabilities Education Act ("IDEA"), school-based services or benefits, and benefits for immigrants under age 21 or to a woman during pregnancy or within 60 days after pregnancy; and (6) public housing under Section 9 of the U.S. Housing Act of 1937. 8 C.F.R. § 212.21(b).

2. Weighted Factors for Totality of the Circumstances Determination

The Public Charge Rule instructs officers to evaluate whether an applicant is "likely to become a public charge" using a "totality of the circumstances" test that "at least entail[s] consideration of the alien's age; health; family status; education and skills; and assets, resources, and financial status" as described in the Rule. 8 C.F.R. § 212.22(a), (b). The Public Charge Rule then prescribes a variety of factors to weigh "positively," in favor of...