Make the Rd. N.Y. v. Pompeo
| Decision Date | 24 April 2023 |
| 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 |
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 M 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 inj unction enj oining 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.
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 1-601A waiver of inadmissibility. 8 U.S.C. § 1182(a)(9)(B)(i), (v). To secure an 1-601A 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 1-130) 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.
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 "[institutionalization for long-term care at U.S. Government expense." (See Decl. of Andrew J. Ehrlich in Supp. of Pls.' Mot. for a Prelim. Inj, ( ), Ex. 3 (Illustration of changes from pre-2018 FAM to post-2018 FAM) ("Illustration of 2018 FAM Revisions") Prior to 2018, the FAM expressly prohibited consular officers from considering use of non-cash benefits in determining whether an applicant is likely to become a public charge, and provided a non-exclusive list of such non-cash benefits programs, including, inter alia, Supplemental Nutritional Assistance Program ("SNAP"), Medicaid, and Child Health Insurance Program ("CHIP"). (See Illustration of 2018 FAM Revisions at 4.) The FAM also directed consular officers to normally consider a valid affidavit of support sufficient to meet the requirements under 8 U.S.C. § 1182(a)(4)(A). (Id. at 23.)
On January 3, 2018, DOS implemented the 2018 FAM Revisions. The 2018 FAM Revisions did not explicitly redefine the term "public charge," but for the first time directed consular officers to negatively weigh the receipt (past or current) of any type of public assistance, including non-cash benefits, in determining whether to issue a visa to an applicant. (See Id. at 8.) Among other changes, the 2018 FAM Revisions also reduced the value given to an affidavit of support, specifying that it would merely be a "positive" factor rather than normally sufficient to satisfy the requirements under 8 U.S.C. § 182(a)(4)(A). (See Id. at 6.)
On October 10, 2018, DHS published a notice of proposed rulemaking, Inadmissibility on Public Charge Grounds, 83 Fed.Reg. 51,114 (Oct. 10, 2018), which sought, inter alia, to redefine "public charge" and amend the...
To continue reading
Request your trial