Doe #1 v. Trump, Case No. 3:19-cv-01743-SB

• Court: U.S. District Court — District of Oregon
• Writing for the Court: Michael H. Simon, District Judge.
• Citation: 414 F.Supp.3d 1307
• Parties: John DOE #1; Juan Ramon Morales; Jane Doe #2; Jane Doe #3; Iris Angelina Castro; Blake Doe; Brenda Villarruel; and Latino Network, Plaintiffs, v. Donald TRUMP, in His Official Capacity as President of the United States; U.S. Department of Homeland Security; Kevin McAleenan, in His Official Capacity as Acting Secretary of the Department of Homeland Security; U.S. Department of Health and Human Services; Alex M. Azar II, in His Official Capacity as Secretary of the Department of Health and Human Services ; U.S. Department of State; Michael Pompeo, in His Official Capacity as Secretary of State; and United States of America, Defendants.
• Docket Number: Case No. 3:19-cv-01743-SB
• Decision Date: 02 November 2019

414 F.Supp.3d 1307

John DOE #1; Juan Ramon Morales; Jane Doe #2; Jane Doe #3; Iris Angelina Castro; Blake Doe; Brenda Villarruel; and Latino Network, Plaintiffs,
v.
Donald TRUMP, in His Official Capacity as President of the United States; U.S. Department of Homeland Security; Kevin McAleenan, in His Official Capacity as Acting Secretary of the Department of Homeland Security; U.S. Department of Health and Human Services; Alex M. Azar II, in His Official Capacity as Secretary of the Department of Health and Human Services ; U.S. Department of State; Michael Pompeo, in His Official Capacity as Secretary of State; and United States of America, Defendants.

Case No. 3:19-cv-01743-SB

United States District Court, D. Oregon.

Signed November 2, 2019

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Nadia H. Dahab, Stoll Stoll Berne Lokting & Shlachter P.C., Stephen W. Manning, Innovation Law Lab Immigrant Law Group PC, Portland, OR, for Plaintiffs.

TEMPORARY RESTRAINING ORDER

Michael H. Simon, District Judge.

On October 4, 2019, the President of the United States issued Proclamation No. 9945, titled "Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System" (the "Proclamation"). President Donald J. Trump directed that the Proclamation become effective at 12:01 a.m. eastern daylight time on November 3, 2019. On October 29, 2019, the U.S. Department of State issued a "Notice of Information Collection" for "Emergency Review" (the "Emergency Notice"), which was published in the Federal Register on October 30, 2019, and provided a comment period of less than 48 hours. The Emergency Notice states that "to implement [the Proclamation] when it goes into effect on November 3, 2019," consular officers "will verbally ask immigrant visa applicants covered by [the Proclamation] whether they will be covered by health insurance in the United States within 30 days of entry to the United States and, if so, for details relating to such insurance." If the applicant says yes, "consular officers will ask for applicants to identify the specific health insurance plan, the date coverage will begin, and such other information related to the insurance plan as the consular officer deems necessary." The Emergency Notice further adds that visa applicants will not be suspended "if they do not have coverage but possess financial resources to pay for reasonably foreseeable medical expenses." It defines "reasonably foreseeable medical expenses" as "those expenses related to existing medical conditions, relating to health issues existing at the time of visa adjudication."

On October 30, 2019, seven U.S. citizens and a nonprofit organization (collectively, "Plaintiffs") filed a nationwide class action complaint against the President, the U.S. Department of Homeland Security, the U.S. Department of Health and Human Services, the U.S. Department of State, and related Cabinet Secretaries (collectively, "Defendants"), challenging both the Proclamation and the Emergency Notice. Plaintiffs contend that the Proclamation is contrary to law. Plaintiffs also argue that the Emergency Notice is "arbitrary and capricious" under the Administrative Procedure Act ("APA") and also fails to follow the "notice and comment" procedures required by the APA. On November 1, 2019, Plaintiffs filed a Motion for Temporary Restraining Order ("TRO"), seeking to preserve the status quo and prevent Defendants from implementing or enforcing the Proclamation, at least until after the Court can hear and decide a motion for preliminary injunction. On Saturday, November 2, 2019, at 2:00 p.m. Pacific daylight time, the Court held a hearing pursuant

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to Rule 65(b) of the Federal Rules of Civil Procedure to consider Plaintiffs' TRO motion. All parties appeared through counsel, although Defendants have not yet had an opportunity to submit their arguments in writing.

At this early stage of the proceedings, the Court is satisfied that Plaintiffs have shown either a substantial likelihood of success on the merits or at least serious questions going to the merits regarding their arguments that the Proclamation and its plan of implementation and enforcement conflict with the "public charge" provisions in Congress' Immigration and Nationality Act ("INA") and related federal health care statutes. Plaintiffs have also shown, at least at this stage of the litigation, serious questions going to the merits regarding whether the Emergency Notice was arbitrary and capricious and, thus, in violation of the APA. At this time, the Court declines to reach whether the Emergency Notice also violated the procedural "notice and comment" requirements of the APA. Further, Plaintiffs have shown, at least thus far, that they are likely to suffer irreparable harm in the absence of temporary relief, that the balance of hardships tips sharply toward Plaintiffs, and temporary relief is in the public interest. Accordingly, Plaintiffs' motion for TRO is granted, for a period not to exceed 28 days, to allow the parties sufficient time to brief and argue whether the Court should issue a preliminary injunction suspending the implementation and enforcement of the Proclamation until the issues presented in this lawsuit have been resolved on the merits.

STANDARDS

In deciding whether to grant a motion for TRO, courts look to substantially the same factors that apply to a court's decision on whether to issue a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co. , 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Defense Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) he or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his or her favor; and (4) that an injunction is in the public interest. Id. at 20, 129 S.Ct. 365 (rejecting the Ninth Circuit's earlier rule that the mere "possibility" of irreparable harm, as opposed to its likelihood, was sufficient, in some circumstances, to justify a preliminary injunction).

The Supreme Court's decision in Winter , however, did not disturb the Ninth Circuit's alternative "serious questions" test. All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, " ‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Id. at 1132. Thus, a preliminary injunction may be granted "if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest." M.R. v. Dreyfus , 697 F.3d 706, 725 (9th Cir. 2012).

DISCUSSION

A. Overview of the Immigration and Nationality Act and National Healthcare Statutes

The INA has, through a series of congressional amendments since its enactment

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in 1952, created a system that allows the United States to grant up to 675,000 permanent immigrant visas each year, as well as an unlimited number of permanent immigrant visas for the admission of U.S. citizens' spouses, parents, and children. Congress adopted this system to further four principal goals: reunifying families, admitting immigrants with skills that are useful to the United States economy, protecting refugees and others in need of humanitarian resettlement, and promoting diversity.

Consistent with these goals, Congress has set allocations for "family-based visas" (a minimum of 266,000), "employment-based visas" (a minimum of 144,000) and "diversity-based" visas (a maximum of 55,000). 8 U.S.C. § 1151. In addition to these allocations, Congress has set certain per-country limits on the numbers of visas that can be granted, so that no single nation can receive more than 7% of the total green cards issued in a year. 8 U.S.C. § 1152. In recognition of the singular importance of family reunification, however, Congress has prioritized visas for "immediate relatives," which are defined as "the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age." 8 U.S.C. § 1151(b). There are no limits on the number of visas granted to such individuals, regardless of their country of national origin. Id. Under this system set out in the INA, family-based petitions account for approximately 65% of the immigrant visas granted every year. The diversity lottery visa system accounts for approximately 4.5%.

U.S.-based family members and employers may sponsor a noncitizen for an immigrant visa. Once a sponsorship petition is approved, the noncitizen may apply for an immigrant visa. If the applicant is outside the United States, she must apply to a U.S. consulate abroad and appear for a consular interview. For...