Mayor and City Council of Baltimore v. Trump

• Decision Date: 20 September 2019
• Docket Number: Civil Action No. ELH-18-3636
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE, Plaintiff, v. Donald J. TRUMP, et al., Defendants.
• Court: U.S. District Court — District of Maryland

416 F.Supp.3d 452

MAYOR AND CITY COUNCIL OF BALTIMORE, Plaintiff,

v.Donald J. TRUMP, et al., Defendants.

Civil Action No. ELH-18-3636

United States District Court, D. Maryland.

Signed September 20, 2019

Benjamin Seel, Pro Hac Vice, John T. Lewis, III, Pro Hac Vice, Karianne Jones, Democracy Forward Foundation, Washington, DC, Suzanne Sangree, City of Baltimore Law Department, Baltimore, MD, for Plaintiff.

James C. Luh, US Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

Ellen Lipton Hollander, United States District Judge

This Memorandum Opinion concerns a challenge to recent amendments to the State Department's Foreign Affairs Manual (the "FAM" or "Manual"). The amendments pertain to the determination of "public charge" for purposes of an immigrant visa application.

Among other things, the FAM sets forth the criteria that consular officers must consider to determine whether a visa applicant is likely to be a "public charge"—a person dependent on the government for subsistence—if admitted to the United States. See ECF 1, ¶ 92. Under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. , enacted in 1952, an applicant deemed "likely ... to become a public charge" is "inadmissible" for entry into the United States. Id. § 1182(a)(4)(A).

The Mayor and City Council of Baltimore (the "City") filed a 70-page lawsuit against Donald J. Trump, in his official capacity as President of the United States; the United States Department of State ("State Department"); and Michael R. Pompeo, in his official capacity as United States Secretary of State, seeking to enjoin defendants from using the revised Manual to process immigrant visas applications. ECF 1 ("Complaint"). Appended to the City's Complaint is a redlined copy of the FAM. See ECF 1-1.

The Complaint contains three counts under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. ("APA"), and one count asserting an equal protection violation under the Due Process Clause of the Fifth Amendment to the United States Constitution. According to the City, the amendments to the FAM's public charge provisions impose financial costs on the City and disrupt its social services. The City also contends that the amendments harm the health and well-being of Baltimore's immigrant communities, which include family members who may be citizens.

In turn, it asserts that "Baltimore as a whole will suffer." ECF 1, ¶ 170.

Defendants (sometimes collectively referred to as the "government") have moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction, and under Fed. R. Civ. P. 12(b)(6), for failure to state a claim. ECF 17. The motion is supported by a memorandum of law (ECF 17-1) (collectively, the "Motion") and a copy of the Manual. ECF 17-2. According to the government, the claims are not ripe and the City lacks standing to pursue them. Further, defendants maintain that even if the City can overcome these jurisdictional obstacles, the City has failed to plausibly allege that the FAM violates either the APA or the Due Process Clause. The City opposes the Motion. ECF 25. Defendants have replied. ECF 56.

Numerous amici curiae have filed memoranda in support of the City. ECF 49; ECF 51; ECF 53.¹

No hearing is necessary to resolve the Motion. Local Rule 105.6. For the reasons that follow, I shall deny the Motion.

I. Background²

A. The Public Charge Statute

The INA contains ten grounds that render a visa applicant inadmissible. 8 U.S.C. § 1182(a). This case concerns one of them: the public charge ground. The statute provides: "Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible." Id. § 1182(a)(4)(A). Thus, under the statute,³ individuals deemed a public charge are "ineligible to receive visas and ineligible to be admitted to the United States." Id. § 1182(a).

The INA does not define the term "public charge." Rather, the INA directs that the government "shall at a minimum consider the alien's—(I) age; (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills." Id. § 1182(a)(4)(B)(i). In making public charge determinations, the government "may also consider any Affidavit of Support[.]" Id. § 1182(a)(4)(B)(ii).

Visa applicants in the United States are processed by U.S. Citizenship and Immigration Services ("USCIS"), which is part of the Department of Homeland Security ("DHS"). ECF 1, ¶ 84. Visa applicants abroad are processed by the State Department through consular offices. Id. ¶ 21. Both DHS and the State Department consider whether a visa applicant is likely to become a "public charge." Id. ¶ 39.

B. Visa Application Process

The Consular Visa Process is the process by which non-citizens apply for a visa to enter the United States. Id. ¶ 18. There are two primary types of visas: (1) immigrant visas, for individuals who seek to become permanent residents of the United States; and (2) nonimmigrant visas, for individuals seeking a temporary stay in the United States. Id. ¶ 19; see also 8 U.S.C. §§ 1181(a) ; 1182(a)(7).

The "vast majority" of foreign nationals must travel to a U.S. consulate to apply for a visa. ECF 1, ¶ 20. "Consular processing" requires the visa applicant to submit various documents, undergo a medical screening, and be interviewed in person by a consular officer. Id. ¶ 21; see also 8 U.S.C. §§ 1202(a), (e) ; 22 C.F.R. § 42.62. During the interview, the consular officer reviews the applicant's criminal, financial, and medical records to decide if the applicant is admissible to the United States. ECF 1, ¶ 28.

The applicant bears the burden to demonstrate "to the satisfaction of the consular officer" that he or she is eligible for the type of visa for which the applicant has applied. 8 U.S.C. § 1361. No visa "shall be issued to an alien" if "it appears to the consular officer" from the application papers "that such alien is ineligible to receive a visa" or if "the consular officer knows or has reason to believe" that the alien is ineligible. Id. § 1201(g); see 22 C.F.R. § 40.6 (explaining that the term " ‘reason to believe’ ... shall be considered to require a determination based upon facts or circumstances which would lead a reasonable person to conclude that the applicant is ineligible to receive a visa").⁴

An individual illegally residing in the United States must satisfy additional requirements to obtain a visa. ECF 1, ¶ 22. Those individuals must leave the country and undergo consular processing abroad in order to obtain a visa. Id. ¶ 29.⁵ The individual must remain abroad while the consulate processes his or her application. This can take weeks or months or may last indefinitely if the individual's visa is denied or put into administrative processing. Id.

Individuals may obtain an immigrant visa through three channels. First, a United States employer may file for an employment-based visa for the immigrant. Id. ¶ 23. Second, an individual may submit a diversity visa application to the diversity visa lottery. Id. Third, a lawful permanent resident or United States citizen may file on behalf of a relative for a family-based visa. Id. ¶¶ 23, 25. Where an applicant files for a family-based visa, the family member sponsor must submit an Affidavit of Support (Form I-864) on the applicant's behalf. Id. ¶ 25. Consular officials use the Affidavit to determine whether a visa applicant will have sufficient financial support should he or she receive a visa. Id. ¶ 26. The Affidavit also serves as a contract between the visa applicant, the sponsor, and the federal government, in which the sponsor pledges to support the applicant if he or she is not self-sufficient.⁶ Id. According to the City, "an immigrant who can depend on a reliable source of support from a sponsor is dramatically less likely to need any public benefits." Id.

C. The Foreign Affairs Manual

The State Department's website describes the FAM as "a single, comprehensive, and authoritative source for the Department's organization structure, policies, and procedures that govern the operation of the State Department, the Foreign Service, and, when applicable, other federal agencies." Id. ¶ 42 (quoting Foreign Affairs Manual and Handbook, U.S. Dep't of State, http://fam.state.gov/ ). Along with the State Department's handbooks, the Manual "convey[s] codified information to Department staff and contractors so they can carry out their responsibilities in accordance with statutory, executive, and Department mandates." Id. ; see also Sheikh v. U.S. Dep't of Homeland Sec. , 685 F. Supp. 2d 1076, 1090 (C.D. Cal. 2009) ("FAM contains the functional statements, organizational responsibilities, and authorities of each of the major components of the U.S. Department of State, including Consular Officers.").

1. The Prior FAM Public Charge Rule

Volume Nine of the Manual contains instructions that consular officers are to follow when assessing whether a visa applicant is a public charge. Prior to January 3, 2018, the FAM defined "public charge" as a non-citizen "likely to become primarily dependent on the U.S. Government for subsistence." ECF 1, ¶ 44; ECF 17-2 (9 FAM § 302.8 (2017)) at 3. This occurred either from "[r]eceipt of public cash assistance for income maintenance" or "[i]nstitutionalization for long-term care at U.S. Government expense." ECF 1, ¶ 44; ECF 17-2 at 3.

"When considering the likelihood of an applicant becoming such a ‘public charge,’ [the consular officer] must take into account, the totality of the alien's circumstances at the time of visa application." ECF 17-2 at 3. However, the FAM clarified that the officer "must assess only the ‘totality of the circumstances’ existing at the time of visa application." Id. at 11. In other words, the officer "may not refuse a visa on the basis of ...