Make the Road N.Y. v. Cuccinelli

Decision Date11 October 2019
Docket Number19 Civ. 7993 (GBD)
Citation419 F.Supp.3d 647
Parties MAKE THE ROAD NEW YORK, African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), and Catholic Legal Immigration Network, Inc., Plaintiffs, v. Ken CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services; United States Citizenship & Immigration Services; Kevin K. McAleenan, in his official capacity as Acting Secretary of Homeland Security; and United States Department of Homeland Security, Defendants.
CourtU.S. District Court — Southern District of New York

Andrew James Ehrlich, Steven Craig Herzog, Paul Weiss, Amy Bowles, Daniel Shiah Sinnreich, Elana Rose Beale, Robert Joseph O'Loughlin, III, Jonathan Hillel Hurwitz, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Ghita Schwarz, Brittany Thomas, Center for Constitutional Rights, Hasan Shafiqullah, Kathleen Mary Kelleher, Susan Joan Cameron, Susan Elizabeth Welber, The Legal Aid Society, New York, NY, for Plaintiffs.

Joshua Kolsky, Department of Justice, Eric Soskin, Ethan Price Davis, Washington, DC, for Defendants.

MEMORANDUM DECISION AND ORDER

GEORGE B. DANIELS, United States District Judge:

Plaintiffs Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services (Archdiocese of New York), and Catholic Legal Immigration Network, Inc. bring this action against Defendants Kenneth T. Cuccinelli II, in his official capacity as Acting Director of the United States Citizenship and Immigration Services ("USCIS"); Kevin K. McAleenan, in his official capacity as Acting Secretary of the United States Department of Homeland Security ("DHS"); USCIS; and DHS. (Compl., ECF No. 1.) Plaintiffs challenge Defendants' promulgation, implementation, and enforcement of a rule, Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (to be codified at 8 C.F.R. pts. 103, 212, 213, 214, 245, 248) (the "Rule"), which redefines the term "public charge" and establishes new criteria for determining whether a noncitizen applying for admission into the United States or for adjustment of status is ineligible because he or she is likely to become a "public charge." (See id. ¶¶ 1–3.) Plaintiffs seek, inter alia , (1) a judgment declaring that the Rule is unauthorized and contrary to law, (2) a vacatur of the Rule, and (3) an injunction enjoining Defendants from implementing the Rule. (Id. at 115.)

Plaintiffs now move pursuant to Federal Rule of Civil Procedure 65 for a preliminary injunction enjoining Defendants from implementing or enforcing the Rule, which is scheduled to take effect on October 15, 2019. (See Notice of Mot., ECF No, 38.) Plaintiffs' motion for a preliminary injunction is GRANTED.1

I. FACTUAL BACKGROUND
A. Current Framework for Public Charge Determination.

The Immigration and Nationality Act (the "INA") provides that the federal government may deny admission or adjustment of status to any noncitizen who it determines is "likely at any time to become a public charge." 8 U.S.C. § 1182(a)(4)(A). In 1996, Congress enacted two pieces of legislation focusing on noncitizens' eligibility for public benefits and on public charge determinations. It first passed the Personal Responsibility and Work Opportunity Reconciliation Act, Pub. L. No. 104-193, § 403, 110 Stat. 2105, 2265–67 (1996) (the "Welfare Reform Act"), which established a detailed—and restrictive—scheme governing noncitizens' access to benefits, It also passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 531, 110 Stat. 3009, 3674–75 (1996) ("IIRIRA"), which amended the INA by codifying five factors relevant to a public charge determination. Specifically, IIRIRA provides that in assessing whether an applicant is likely to fall within the definition of public charge, DHS should, "at a minimum," take into account the applicant's age; health; family status; assets, resources, and financial status; and education and skills. 8 U.S.C. § 1182(a)(4)(B)(i).

In 1999, DHS's predecessor, the Immigration and Naturalization Service ("INS"), issued its Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689 (May 26, 1999) (the "Field Guidance"), as well as a parallel proposed rule, 64 Fed. Reg. 28,676, which "summarize[d] longstanding law with respect to public charge and provide[d] new guidance on public charge determinations" in light of IIRIRA, the Welfare Reform Act, and other recent legislation, 64 Fed. Reg. at 28,689. Both the Field Guidance and proposed rule defined "public charge" 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." Id. (internal quotation marks omitted). Consistent with the INA, INS regulations, and several INS, Board of Immigration Appeals, and Attorney General decisions, they instructed INS officials to evaluate a noncitizen's likelihood of becoming a public charge by examining the totality of the noncitizen's circumstances at the time of his or her application. Id. at 28,690. The Field Guidance noted that "[t]he existence or absence of a particular factor should never be the sole criterion for determining if an alien is likely to become a public charge." Id. (emphasis omitted). Although the parallel proposed rule was never finalized, the Field Guidance sets forth the current framework for public charge determinations.

B. The 2018 Proposed Rulemaking and Rule.

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 withdrew the 1999 proposed rule that INS had issued with the Field Guidance. Id. at 51,114. This newly proposed rule sought, among other things, to redefine "public charge," and to amend the totality-of-the-circumstances standard that is currently used in public charge determinations. See id. The notice provided a 60-day period for public comments on the proposed rule. Id. DHS collected 266,077 comments, "the vast majority of which opposed the rule." 84 Fed. Reg. at 41,297 ; see also id. at 41,304 –484 (describing and responding to public comments).

Subsequently, on August 14, 2019, DHS issued the Rule. It was finalized, with several changes, as the proposed rule described in the October 2018 notice. Id. at 41,292 ; see also id. at 41,297 –303 (summarizing changes in Rule).

Under the Rule, "public charge" is to be defined as any noncitizen "who receives one or more public benefits ... for more than 12 months in the aggregate within any 36-month period." Id. at 41,501, The Rule defines "public benefit," in turn, as both cash benefits and noncash benefits such as Supplemental Nutrition Assistance Program, Medicaid, and public housing and Section 8 housing assistance. Id. Each benefit is to be counted separately in calculating the duration of use, such that, for example, receipt of two benefits in one month would count as two months. Id.

The Rule also provides a new framework for assessing whether a noncitizen is likely at any time to become a public charge. Specifically, the Rule enumerates an expanded non-exclusive list of factors relevant to analyzing whether a person is likely to receive 12 months of public benefits within 36 months. See id. 41,502 –04. It includes, for example, family size, English-language proficiency, credit score, and any application for the enumerated public benefits, regardless of the actual receipt or use of such benefits. Id. The Rule designates the factors as "positive," "negative," "heavily weighted positive," or "heavily weighted negative," and instructs the DHS officer to "weigh" all such factors "individually and cumulatively." Id. , at 41,397 ; see also id. 41,502 –04. Under this framework, if the negative factors outweigh the positive factors, the applicant would be found likely to receive 12 months of public benefits in the future. The applicant would then be found inadmissible as likely to become a public charge. Conversely, if the positive factors outweigh the negative factors, the applicant would not be found inadmissible as likely to receive 12 months of public benefits and thereby become a public charge. Id. at 41,397.

DHS published various corrections to the Rule as recently as October 2, 2019. Inadmissibility on Public Charge Grounds; Correction, 84 Fed. Reg. 52,357 (Oct. 2, 2019). None of these corrections materially alter the new public charge determination framework as outlined above. The Rule, as corrected, is set to go into effect on October 15, 2019.

C. Plaintiffs' Services.

Plaintiffs are nonprofit organizations that work with and for immigrants. (Compl. ¶¶ 21–46.) They provide direct services, including legal, educational, and health-related. (Id. ¶¶ 21–22, 26, 31, 34–36, 40–42.) Make the Road New York, for instance, conducts educational workshops on issues affecting immigrants, represents immigrants in removal proceedings, and assists immigrants in applying for benefits and accessing health services. (Id. ¶ 22.) Similarly, African Services Committee provides legal representation in immigration proceedings, including those for adjustment of status; health-related services; emergency financial support; and food pantry and nutrition services. (Id. ¶ 26.) Plaintiffs also administer community outreach programs that, for example, disseminate information on immigration policies, (id. ¶¶ 21, 26), make referrals to social service providers, (id. ¶ 36), and host in-person trainings on immigration-related matters, (id. ¶ 40).

II. LEGAL STANDARD

"[A] preliminary injunction is ‘an extraordinary remedy never awarded as of right.’ " Benisek v. Lamone , ––– U.S. ––––, 138 S. Ct. 1942, 1943, 201 L.Ed.2d 398 (2018) (per curiam) (citation...

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