Cook Cnty. v. Mayorkas
| Decision Date | 17 August 2021 |
| Docket Number | 19 C 6334 |
| Parties | COOK COUNTY, ILLINOIS, an Illinois governmental entity, and ILLINOIS COALITION FOR IMMIGRANT AND REFUGEE RIGHTS, INC., Plaintiffs, v. ALEJANDRO MAYORKAS, in his official capacity as Secretary of U.S. Department of Homeland Security, U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency, UR M. JADDOU, in her official capacity as Director of U.S. Citizenship and Immigration Services, and U.S. CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Cook County and Illinois Coalition for Immigrant and Refugee Rights, Inc. (“ICIRR”) alleged in this suit that the Department of Homeland Security's (“DHS”) final rule, Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41, 292 (Aug. 14, 2019) (“Final Rule” or “Rule”), was unlawful under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. and the equal protection component of the Fifth Amendment's Due Process Clause. Doc. 1. In November 2020 after over a year of proceedings (detailed below) at all three levels of the judiciary, this court entered a partial final judgment under Civil Rule 54(b) vacating the Rule under the APA while allowing ICIRR's equal protection claim to proceed. Docs. 221-223 (reported at 498 F.Supp.3d 999 (N.D Ill. 2020)). DHS appealed the judgment, Doc. 224, but then dismissed its appeal, Docs. 249-250, and on March 11, 2021 the parties stipulated to the dismissal of the equal protection claim, Doc. 253, ending the case, Doc. 254.
Two months later, after stops at the Seventh Circuit and the Supreme Court, the States of Texas, Alabama, Arizona, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, and West Virginia (collectively, “States”) appeared in this court and moved to intervene under Rule 24 and for relief from the judgment under Rule 60(b)(6). Docs. 255-256, 259. Their motions are denied.
Cook County and ICIRR claimed that the Final Rule violated the APA, and ICIRR alone brought an equal protection claim. Doc 1 at ¶¶ 140-188. On October 14, 2019, this court issued a preliminary injunction, limited to the State of Illinois, enjoining DHS from enforcing the Rule on the ground that it likely violated the APA by interpreting the term “public charge” in the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(4)(A), in a manner incompatible with its statutory meaning. Docs. 85, 87, 106 (reported at 417 F.Supp.3d 1008 (N.D. Ill. 2019)).
DHS appealed. Doc. 96. The Seventh Circuit denied DHS's motion to stay the preliminary injunction pending appeal, No. 19-3169 (7th Cir.), ECF No. 41 (Dec. 23, 2019), but the Supreme Court issued a stay, 140 S.Ct. 681 (2020) (mem.). This court then denied DHS's motion to dismiss Plaintiffs' claims and granted ICIRR's request for extra-record discovery on its equal protection claim, which alleged that racial animus toward nonwhite immigrants motivated the Rule's promulgation. Docs. 149-150 (reported at 461 F.Supp.3d 779 (N.D. Ill. 2020)). Shortly thereafter, the Seventh Circuit affirmed the preliminary injunction, reasoning that the Rule likely violated the APA, though on grounds different from those articulated by this court. 962 F.3d 208 (7th Cir. 2020). DHS filed a petition for a writ of certiorari at the Supreme Court. No. 20-450 (U.S. filed Oct. 7, 2020).
Meanwhile, Plaintiffs moved for summary judgment on their APA claims. Doc. 200. In its opposition brief, DHS conceded that the Seventh Circuit's opinion in the preliminary injunction appeal effectively required this court to grant Plaintiffs' motion. Doc. 209 at 7 (); Doc. 219 at 1 (“Plaintiffs have argued, and Defendants do not dispute, that the Court may grant Plaintiffs' pending [summary judgment motion] in light of the Seventh Circuit's decision affirming the Court's preliminary injunction order.”). On November 2, 2020, this court granted Plaintiffs' motion, entering a partial final judgment under Rule 54(b) that vacated the Rule under the APA and allowing ICIRR's equal protection claim to proceed. 498 F.Supp.3d at 1007-10.
DHS appealed the judgment that day. Doc. 224. The Seventh Circuit stayed the judgment pending appeal, and it stayed briefing on the appeal pending the Supreme Court's resolution of DHS's petition for certiorari challenging its affirmance of the preliminary injunction. No. 20-3150 (7th Cir.), ECF No. 21 (Nov. 19, 2020).
Discovery continued in this court on ICIRR's equal protection claim. Docs. 232, 236, 238. DHS asserted the deliberative process privilege as to certain documents, and ICIRR countered that the privilege did not apply. Doc. 214 at 2-13; Doc. 232 at 3. In December 2020, the court held that in camera review was necessary to resolve the privilege dispute. Docs. 234-235 (reported at 2020 WL 7353408 (N.D. Ill.Dec. 15, 2020)). On January 22, 2021, days after the change in presidential administration, the court sought DHS's views as to whether a live dispute remained concerning the documents. Doc. 240. In particular, the court asked DHS to file a status report by February 4 addressing whether it planned to pursue its appeal before the Seventh Circuit and its certiorari petition before the Supreme Court, and whether it would continue to assert the deliberative process privilege. Ibid.
On February 2, President Biden issued an Executive Order that, among other things, directed DHS to review the Final Rule. See Exec. Order No. 14, 012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, 86 Fed. Reg. 8277 (Feb. 5, 2021). Section 1 of the Order declared:
Consistent with our character as a Nation of opportunity and of welcome, it is essential to ensure that our laws and policies encourage full participation by immigrants, including refugees, in our civic life; that immigration processes and other benefits are delivered effectively and efficiently; and that the Federal Government eliminates sources of fear and other barriers that prevent immigrants from accessing government services available to them.
Id. at 8277. Section 4, titled “Immediate Review of Agency Actions on Public Charge Inadmissibility, ” directed the Secretary of DHS and other officials to “consider and evaluate the current effects of [the Final Rule] and the implications of [its] continued implementation in light of the policy set forth in [S]ection 1 of this order.” Id. at 8278.
The next day, DHS notified the court that, in light of the Executive Order, it “intend[ed] to confer with [ICIRR] over next steps in this litigation, ” and that it “continue[d] to assert the deliberative process privilege over the documents submitted to the Court for in camera review.” Doc. 241 at 2 & n.1. DHS sought an extension of time to file its status report, id. at 2, which the court granted, Doc. 244. On February 19, in a joint status report, ICIRR objected to a stay of proceedings on its equal protection claim, arguing that it should be allowed to continue probing through discovery the motivations behind the Final Rule. Doc. 245 at 3. ICIRR and DHS agreed, however, to a two-week stay to “provide DHS and DOJ with additional time to assess how they wish to proceed.” Id. at 3-4. DHS stated that “further developments during that time period may … moot [ICIRR's] equal protection claim.” Id. at 4. In a March 5 joint status report, ICIRR objected to any further stay because DHS at that point was continuing to seek reversal of the judgment vacating the Rule under the APA. Doc. 247 at 2.
Four days later, on March 9, 2021, DHS moved to voluntarily dismiss its appeal of this court's judgment, and the Seventh Circuit promptly granted the motion and issued its mandate, thereby dissolving the stay it had imposed on this court's vacatur of the Rule. No. 20-3150 (7th Cir.), ECF Nos. 23-24 (Mar. 9, 2021). Also that day, the parties filed a joint stipulation dismissing DHS's petition for certiorari before the Supreme Court, and the petition was dismissed. Joint Stipulation to Dismiss, No. 20-450 (U.S. Mar. 9, 2021). In a public statement, DHS explained that during its review of the Rule pursuant to the Executive Order, it concluded that continuing to defend the Rule was “neither in the public interest nor an efficient use of government resources.” Press Release, Dep't of Homeland Sec., DHS Statement on Litigation Related to the Public Charge Ground of Inadmissibility (Mar. 9, 2021) (reproduced at Doc. 252-1). DHS also announced that, in compliance with this court's judgment, it would no longer enforce the Rule. Press Release, Dep't of Homeland Sec., DHS Secretary Statement on the 2019 Public Charge Rule (Mar. 9, 2021) (reproduced at Doc. 252-2).
DHS notified this court of those developments the next day. Doc. 252. On March 11, the parties filed a joint stipulation dismissing ICIRR's equal protection claim with prejudice under Rule 41(a)(1)(A)(ii). Doc. 253. Because “a Rule 41(a)(1)(A) notice of dismissal is self-executing and effective without further action from the court, ” Kuznar v. Kuznar, 775 F.3d 892, 896 (7th Cir. 2015), the court simply noted the stipulation and closed the case, Doc. 254.
On March 15, DHS promulgated a direct final rule, without notice and comment, striking the Final Rule's text from the Code of Federal Regulations. See Inadmissibility on Public Charge Grounds; Implementation of Vacatur, 86 Fed. Reg 14, 221, 14, 227-29 (Mar. 15, 2021) (“Vacatur Rule”). The Vacatur Rule's preamble stated that “[b]ecause [the Vacatur Rule]...
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