Doe v. Trump

Decision Date04 May 2020
Docket NumberNo. 19-36020,19-36020
Citation957 F.3d 1050
Parties John DOE #1; Juan Ramon Morales; Jane Doe, # 2; Iris Angelina Castro; Blake Doe; Brenda Villarruel; Latino Network; Jane Doe, # 3; Gabino Soriano Castellanos, Plaintiffs-Appellees, v. Donald J. TRUMP, in his official capacity as President of the United States; U.S. Department of Homeland Security; Chad F. Wolf, Secretary, U.S. Department of Homeland Security; U.S. Department of Health & Human Services; Alex M. Azar II, Secretary of Health and Human Services; U.S. Department of State; Michael Pompeo, Secretary of State, in his official capacity; United States of America, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

THOMAS, Chief Judge:

In this case, we consider the government’s motion to stay the district court’s preliminary injunction enjoining a Presidential Proclamation restricting family-sponsored immigrants from entering the United States without acquiring specified health insurance. We deny the motion. We direct the Clerk of Court to expedite the appeal.


The Immigration and Nationality Act ("INA"), Pub. L. No. 82-414, 66 Stat. 163 (1952), allows noncitizens to apply for an immigrant visa to permit them to permanently reside in the United States. 8 U.S.C. §§ 1101(a)(15), 1181(a), 1182(a)(7), 1201(a). Before an individual may apply for an immigrant visa, a prospective employer or a family member who is a United States citizen or lawful permanent resident must file a sponsorship petition on behalf of the individual. Id. §§ 1151(a)(b), 1153. The petition is submitted to and approved by U.S. Citizenship and Immigration Services, which forwards the approved petition to the National Visa Center. See id. § 1201. The immigrant must then complete visa processing and schedule an in-person interview before a consular officer at a U.S. embassy or consulate. See id. § 1202(a), (e); 22 C.F.R. § 42.62. The consular officer then makes a determination to issue or refuse the visa application. See 8 U.S.C. § 1201(a)(1), (g) ; 22 C.F.R. §§ 42.71, 42.81(a). If an immigrant falls into one of the ten categories enumerated in 8 U.S.C. § 1182(a), they are deemed ineligible for a visa and ineligible for admission into the United States. Currently, insured status is not one of the criteria for eligibility. See 8 U.S.C. § 1182(a).

On October 4, 2019, the President issued the Proclamation in dispute, Proclamation No. 9945, entitled Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order to Protect the Availability of Healthcare Benefits for Americans , 84 Fed. Reg. 53,991. The Proclamation identified the perceived problem of uncompensated medical expenses in the United States, stating, without citation to any source, "data show that lawful immigrants are about three times more likely than United States citizens to lack health insurance." To address this issue, the Proclamation barred, with some exceptions, individuals seeking to enter the United States on an immigrant visa from entering the United States unless they could demonstrate that they will be covered by certain approved health insurance within 30 days of entry or that they have the resources to cover foreseeable healthcare costs. Id. at 53,992.

The Proclamation identified a narrow definition of what constitutes "an approved health insurance plan," namely:

(i) an employer-sponsored plan, including a retiree plan, association health plan, and coverage provided by the Consolidated Omnibus Budget Reconciliation Act of 1985;
(ii) an unsubsidized health plan offered in the individual market within a State;
(iii) a short-term limited duration health policy effective for a minimum of 364 days—or until the beginning of planned, extended travel outside the United States;
(iv) a catastrophic plan;
(v) a family member’s plan;
(vi) a medical plan under chapter 55 of title 10, United States Code, including coverage under the TRICARE program;
(vii) a visitor health insurance plan that provides adequate coverage for medical care for a minimum of 364 days—or until the beginning of planned, extended travel outside the United States;
(viii) a medical plan under the Medicare program; or
(ix) any other health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee.


By the terms of the Proclamation, Medicaid does not constitute "approved health insurance" for individuals over the age of 18. Id.

The President directed that the Proclamation become effective at 12:01 a.m. eastern daylight time on November 3, 2019. On October 30, Plaintiffs filed this action. The individual Plaintiffs are seven U.S. citizens who are sponsoring family members for immigrant visas and whose applicant family members have successfully completed the traditional steps for obtaining an immigrant visa, but would be barred from entering the United States under the Proclamation. The organizational Plaintiff is the Latino Action Network, an organization that provides programs aimed at educating and empowering Latinos in Multnomah County, Oregon. The Latino Action Network also provides services to navigate the immigrant visa process.

On November 2, 2019, the district court issued a temporary restraining order precluding the Proclamation from taking effect. See Doe # 1 v. Trump , 414 F. Supp.3d 1307 (D. Or. 2019). On November 26, before the expiration of the temporary restraining order, the district court issued a nationwide preliminary injunction prohibiting implementation of the Proclamation. Doe v. Trump , 418 F. Supp. 3d 573, 604 (D. Or. 2019). In doing so, the district court applied the familiar Winter factors, concluding that the Plaintiffs had shown that (1) they were likely to succeed on the merits; (2) they were likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tipped in their favor; and (4) that a preliminary injunction was in the public interest. Id. at 579 (citing Winter v. Nat. Res. Defense Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ). The United States filed this emergency motion to stay the district court order pending appeal.

While this stay motion was pending, on April 7, 2020, the district court certified the following two subclasses:

The U.S. Petitioner Subclass : Individuals in the United States who currently have or will have an approved or pending petition to the United States government to sponsor a noncitizen family member for an immigrant visa; and whose sponsored family member is subject to the Proclamation and unable to demonstrate to a consular officer’s satisfaction that he or she "will be covered by approved health insurance" within 30 days after entry or will be able "to pay for reasonably foreseeable medical costs;" and
The Visa Applicant Subclass : Individuals who are foreign nationals who (I) have applied for or will soon apply to the United States government for an immigrant visa; (ii) are otherwise eligible to be granted the visa; but (iii) are subject to the Proclamation and unable to demonstrate to the satisfaction of a consular officer that they "will be covered by approved health insurance" within 30 days after entry or will be able "to pay for reasonably foreseeable medical costs."

A request for a stay pending appeal is committed to the exercise of judicial discretion. Virginian Ry. Co. v. United States , 272 U.S. 658, 672, 47 S.Ct. 222, 71 L.Ed. 463 (1926). A party requesting a stay pending appeal "bears the burden of showing that the circumstances justify an exercise of that discretion." Nken v. Holder , 556 U.S. 418, 433–34, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). In considering whether to exercise our discretion in granting the Government’s motion to stay the preliminary injunction, we apply the familiar standard set forth by the Supreme Court in Nken , namely: (1) whether the Government has made a strong showing of the likelihood of success on the merits; (2) whether the appellants will be irreparably injured absent a stay; (3) whether a stay will substantially injure other parties; and (4) where the public interest lies. Id. at 426, 129 S.Ct. 1749. "The first two factors ... are the most critical." Id . at 434, 129 S.Ct. 1749. We consider the last two factors if the first two factors are satisfied. Id. at 435, 129 S.Ct. 1749. We review the scope of the district court’s preliminary injunction for abuse of discretion. California v. Azar , 911 F.3d 558, 568 (9th Cir. 2018), cert. denied sub nom. Little Sisters of the Poor Jeanne Jugan Residence v. California , ––– U.S. ––––, 139 S. Ct. 2716, 204 L.Ed.2d 1111 (2019).


Nken instructed "that if the petition has not made a certain threshold showing regarding irreparable harm ... then a stay may not issue, regardless of the petitioner’s proof regarding the other stay factors." Leiva-Perez v. Holder , 640 F.3d 962, 965 (9th Cir. 2011) (per curium) (citing Nken , 556 U.S. at 433–34, 129 S.Ct. 1749 ). We therefore begin our Nken analysis with consideration of irreparable harm. Cf. Al Otro Lado v. Wolf , 952 F.3d 999, 1007 (9th Cir. 2020) (listing the Nken factors and explaining, "We first consider the government’s showing on irreparable harm, then discuss the likelihood of success on the merits under the sliding scale approach").

The government has failed to meet its burden of showing irreparable harm. In the context of a stay request, "simply showing some possibility of irreparable injury" is insufficient. Nken , 556 U.S. at 434, 129 S.Ct. 1749 (citation and internal quotation marks omitted). Rather, at this juncture, the government has the burden of showing that irreparable injury is likely to occur during the period before the appeal is decided. Leiva-Perez , 640 F.3d at 968. The government did not satisfy its burden.

The government first argues that it will suffer irreparable harm because the preliminary injunction prevents "the President from taking action...

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