Make the Rd. N.Y. v. Pompeo

• Decision Date: 29 July 2020
• Docket Number: 19 Civ. 11633 (GBD)
• Parties: MAKE THE ROAD NEW YORK, African Services Committee, Central American Refugee Center New York, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Alicia Doe, Brenda Doe, Carl Doe, Diana Doe, and Eric Doe, Plaintiffs, v. Michael POMPEO, in his official capacity as Secretary of State; United States Department of State; Donald Trump, in his official capacity as President of the United States; Alex Azar, in his official capacity as Secretary of the Department of Health and Human Services ; and United States Department of Health & Human Services, Defendants.
• Court: U.S. District Court — Southern District of New York

475 F.Supp.3d 232

MAKE THE ROAD NEW YORK, African Services Committee, Central American Refugee Center New York, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Alicia Doe, Brenda Doe, Carl Doe, Diana Doe, and Eric Doe, Plaintiffs,

v.Michael POMPEO, in his official capacity as Secretary of State; United States Department of State; Donald Trump, in his official capacity as President of the United States; Alex Azar, in his official capacity as Secretary of the Department of Health and Human Services ; and United States Department of Health & Human Services, Defendants.

19 Civ. 11633 (GBD)

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

Signed July 29, 2020

Ghita Schwarz, Brittany Thomas, Christopher Lee Filburn, Andrew James Ehrlich, Center for Constitutional Rights, Susan Elizabeth Welber, Susan Joan Cameron, The Legal Aid Society, Jonathan Hillel Hurwitz, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Joanna Elise Cuevas Ingram, National Immigration Law Center, Brooklyn, NY, Max Wolson, Washington, DC, Tanya Broder, National Immigration Law Center, Berkeley, CA, for Plaintiffs Make the Road New York, Catholic Charities Community Services (Archdiocese of New York).

Ghita Schwarz, Christopher Lee Filburn, Andrew James Ehrlich, Center for Constitutional Rights, Susan Elizabeth Welber, Susan Joan Cameron, The Legal Aid Society, Jonathan Hillel Hurwitz, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Joanna Elise Cuevas Ingram, National Immigration Law Center, Brooklyn, NY, Max Wolson, Washington, DC, Nicholas David Espiritu, National Immigration Law Center, Los Angeles, CA, Tanya Broder, National Immigration Law Center, Berkeley, CA, for Plaintiff African Services Committee.

Ghita Schwarz, Brittany Thomas, Christopher Lee Filburn, Andrew James Ehrlich, Center for Constitutional Rights, Susan Elizabeth Welber, Susan Joan Cameron, The Legal Aid Society, Jonathan Hillel Hurwitz, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Joanna Elise Cuevas Ingram, National Immigration Law Center, Brooklyn, NY, Max Wolson, Washington, DC, Nicholas David Espiritu, National Immigration Law Center, Los Angeles, CA, Tanya Broder, National Immigration Law Center, Berkeley, CA, for Plaintiffs Central American Refugee Center New York, Catholic Legal Immigration Network, Inc., Alicia Doe, Brenda Doe, Carl Doe, Diana Doe, Eric Doe.

James Luh, Washington, DC, for Defendants.

MEMORANDUM DECISION AND ORDER

GEORGE B. DANIELS, United States District Judge:

Plaintiffs Make the Road New York, African Services Committee, Central American Refugee Center New York, Catholic Charities Community Services (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Alicia Doe, Brenda Doe, Carl Doe, Diana Doe, and Eric Doe bring this action against Defendants Michael Pompeo, in his official capacity as Secretary of State; Alex Azar, in his official capacity as Secretary of the Department of Health and Human Services; Donald Trump, in his official capacity as President of the United States; the United States Department of State ("DOS"); and the United States Department of Health and Human Services ("HHS"). (Compl., ECF No. 1.)

At issue are multiple government actions that apply to individuals seeking to become lawful permanent residents ("LPRs"). First, Plaintiffs challenge DOS's January 2018 changes to Section 302.8 of Volume 9 of its Foreign Affairs Manual ("FAM"), which governs consular officer determinations of whether an individual applying for a visa is ineligible because he or she is likely to become a "public charge" (the "2018 FAM Revisions"). (See Compl. ¶ 3.) Second, Plaintiffs challenge DOS's October 11, 2019 rule, Visas: Ineligibility Based on Public Charge Grounds, 84 Fed. Reg. 54,996 (Oct. 11, 2019) (codified at 22 C.F.R. § 40.41 ) (the "DOS Rule"), which redefines the term "public charge" and establishes new criteria for public charge determinations during consular processing. (See Compl. ¶ 3.) The DOS Rule went into effect on February 24, 2020. (Defs.’ Letter dated Feb. 11, 2020, ECF No. 50, at 1.) And third, Plaintiffs challenge the President's October 4, 2019 Proclamation, 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, Proclamation No. 9945, 84 Fed. Reg. 53,991 (Oct. 9, 2019) (the "Proclamation"), as well as subsequent government actions to implement the Proclamation. (Compl. ¶ 3.) The Proclamation was scheduled to go into effect on November 3, 2019. (Id. ¶ 10.) However, on November 2, 2019, a federal district court in the District of Oregon issued a temporary restraining order enjoining the implementation of the Proclamation, Doe #1 v. Trump , 414 F. Supp. 3d 1307, 1319 (D. Or. 2019), and subsequently, on November 26, 2019, issued a preliminary injunction, Doe v. Trump , 418 F. Supp. 3d 573, 605 (D. Or. 2019). On May 4, 2020, the Ninth Circuit denied the government's request to stay the district court's preliminary injunction. Doe #1 v. Trump , 957 F.3d 1050, 1070 (9th Cir. 2020).

Plaintiffs seek, inter alia , (1) a judgment declaring that the DOS Rule, 2018 FAM Revisions, Proclamation, and agency actions implementing the Proclamation are unauthorized by and contrary to law, (2) a vacatur of the 2018 FAM Revisions, DOS Rule, and Proclamation, and (3) an injunction enjoining Defendants from implementing, or taking any actions to enforce or apply, the 2018 FAM Revisions, DOS Rule, or Proclamation. (Compl. at 109–10.) Plaintiffs now move pursuant to Federal Rule of Civil Procedure 65 and the Administrative Procedure Act, 5 U.S.C. § 705, for a preliminary injunction enjoining Defendants from applying or implementing the 2018 FAM Revisions, DOS Rule, and Proclamation. (Notice of Mot., ECF No. 43.) Defendants, in turn, move to dismiss Plaintiffs’ complaint 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). (Notice of Mot. to Dismiss, ECF No. 53.) Plaintiffs’ motion for a preliminary injunction enjoining the application or implementation of the 2018 FAM Revisions, DOS Rule, and Proclamation is GRANTED. Defendants’ motion to dismiss is GRANTED to the extent that the President is dismissed as a party to this action.

I. FACTUAL BACKGROUND¹

A. Immigrant Visas and Public Charge Determinations.

Under the Immigration and Nationality Act (the "INA"), an intending immigrant seeking permanent residence in the United States must apply for and be issued an immigrant visa through consular processing at a United States embassy or consulate. See 8 U.S.C. § 1202(a), (e) ; 22 C.F.R. § 42.62. Immigrants who are unlawfully present in the United States must also seek permanent residence through the consular process, as they are generally ineligible to adjust their status domestically. See 8 U.S.C. § 1255(a), (c)(2). Such individuals, however, are barred from returning to the United States for a set time period if their unlawful presence exceeds 180 days, unless they are granted an I-601A waiver of inadmissibility. 8 U.S.C. § 1182(a)(9)(B)(i), (v). To secure an I-601A waiver, an immigrant must establish that he or she is the spouse or child of a United States citizen or LPR who would suffer extreme hardship if he or she were refused admission. Id. at § 1182(a)(9)(B)(v).

For those seeking family-sponsored immigrant visas, the first step is for a qualifying family member to submit a sponsorship petition (Form I-130) on behalf of the applicant. Once the petition is approved, the beneficiary must complete a visa application and, in most cases, be interviewed by a consular officer who will determine whether to grant or deny the application. See 8 U.S.C. § 1202(a), (e) ; 22 C.F.R. § 42.62. Part of the consular officer's evaluation entails determining whether the applicant is ineligible for a visa under the so-called "public charge" provision of the INA. See 8 U.S.C. § 1182(a)(4). As set out at 8 U.S.C. § 1182(a)(4), the government may find as inadmissible any noncitizen "who, in the opinion of the consular officer at the time of application for a visa, ... is likely at any time to become a public charge." Id. at § 1182(a)(4)(A). In determining whether an applicant is likely to become a public charge, the consular officer must consider, at a minimum, the applicant's (1) age, (2) health, (3) family status, (4) assets, resources, and financial status, and (5) education and skills. Id. at § 1182(a)(4)(B).

Prior to the government actions at issue, "public charge" was defined as a noncitizen who has become or is likely to become "primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense." Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689 (May 26, 1999) (internal quotation marks omitted). This definition was set forth in field guidance issued in 1999 (the "Field Guidance") by the Immigration and Naturalization Service ("INS")—the predecessor agency to United States Citizenship and Immigration Services ("USCIS") and United States Immigration and Customs Enforcement ("ICE")—that "summarize[d] longstanding law with respect to public charge" determinations. Id.

B. The 2018 FAM Revisions.

Until recently, consistent with the Field Guidance, the FAM defined "public charge" as a noncitizen who is likely to become "primarily dependent on the U.S. Government" for subsistence either from "[r]eceipt of public cash assistance for income maintenance" or "[i]nstitutionalization for long-term care at U.S. Government expense." (See Decl. of Andrew J. Ehrlich in Supp. of Pls.’ Mot. for a Prelim. Inj. ("Pls.’ Decl."), Ex. 3 (Illustration of...