New York v. U.S. Dep't of Homeland Sec., Docket No. 20-2537

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: PER CURIAM.
• Citation: 974 F.3d 210
• Decision Date: 11 September 2020
• Docket Number: August Term, 2020,Docket No. 20-2537
• Parties: State of NEW YORK, City of New York, State of Connecticut, State of Vermont, Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services, (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Secretary Chad F. Wolf, in his official capacity as Acting Secretary of the United States Department of Homeland Security, United States Citizenship and Immigration Services, Director Kenneth T. Cuccinelli II, in his official capacity as Acting Director of United States Citizenship and Immigration Services, United States of America, Defendants-Appellants.

974 F.3d 210

State of NEW YORK, City of New York, State of Connecticut, State of Vermont, Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services, (Archdiocese of New York), Catholic Legal Immigration Network, Inc., Plaintiffs-Appellees,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Secretary Chad F. Wolf, in his official capacity as Acting Secretary of the United States Department of Homeland Security, United States Citizenship and Immigration Services, Director Kenneth T. Cuccinelli II, in his official capacity as Acting Director of United States Citizenship and Immigration Services, United States of America, Defendants-Appellants.

Docket No. 20-2537
August Term, 2020

United States Court of Appeals, Second Circuit.

Submitted: August 19, 2020
Decided September 11, 2020

Judith N. Vale, Senior Assistant Solicitor General, State of New York, New York, NY (Letitia James, Attorney General, Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, Matthew Colangelo, Chief Counsel for Federal Initiatives, Elena Goldstein, Deputy Bureau Chief, Civil Rights, Ming-Qi Chu, Section Chief, Labor Bureau, State of New York, New York, NY, William Tong, Attorney General, State of Connecticut, Hartford, CT, Thomas J. Donovan, Jr., Attorney General, State of Vermont, Montpelier, VT, James E. Johnson, Corporation Counsel, City of New York, New York, NY, on the brief), for Plaintiffs-Appellees State of New York, City of New York, State of Connecticut, State of Vermont.

Jonathan H. Hurwitz, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY (Andrew J. Ehrlich, Elana R. Beale, Robert J. O'Loughlin, Daniel S. Sinnreich, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Ghita R. Schwarz, Brittany Thomas, Baher A. Azmy, Center for Constitutional Rights, New York, NY, Susan E. Welber, Kathleen Kelleher, Susan Cameron, Hasan Shafiqullah, The Legal Aid Society of New York, New York, NY, on the brief), for Plaintiffs-Appellees Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services, (Archdiocese of New York), Catholic Legal Immigration Network, Inc.

Gerard Sinzdak, Appellate Staff Attorney, Civil Division, United States Department of Justice, Washington, DC (Joseph H. Hunt, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, DC, Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, Daniel Tenny, Joshua Dos Santos, Appellate Staff Attorneys, Civil Division, United States Department of Justice, Washington, DC on the brief), for Defendants-Appellants United States Department of Homeland Security, Acting Secretary Chad F. Wolf, United States Citizenship and Immigration Services, Acting Director Kenneth T. Cuccinelli, United States of America.

William E. Havemann, Office of General Counsel, United States House of Representatives, Washington, DC (Douglas N. Letter, General Counsel, Todd B. Tatelman, Principal Deputy General Counsel, Megan Barbero, Josephine Morse, Adam A. Grogg, Office of General Counsel, United States House of Representatives, Washington, DC, Robert M. Loeb, Thomas M. Bondy, Peter E. Davis, Orrick, Herrington & Sutcliffe LLP, Washington, DC, Rene Kathawala, Orrick, Herrington & Sutcliffe LLP, New York, NY, on the brief), for Amicus Curiae United States House of Representatives, in support of Plaintiffs-Appellees.

Before: Leval and Lynch, Circuit Judges.^*

PER CURIAM:

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On January 27, 2020, the Supreme Court stayed a preliminary injunction issued by the United States District Court for the Southern District of New York (George B. Daniels, J .) that had enjoined the Department of Homeland Security ("DHS") from implementing a final rule setting out a new agency interpretation of our immigration law that expands the meaning of "public charge" in determining whether a non-citizen is admissible to the United States. While the appeal of that preliminary injunction was pending before us, the district court issued a new, nationwide, preliminary injunction preventing DHS from enforcing that same rule based on its finding that the COVID-19 pandemic heightened the need for the stay. The initial issue here is whether the district court had jurisdiction to enter a second preliminary injunction, given the then pending appeal of the first injunction. Because DHS has demonstrated likelihood of success on the merits, given our doubt that the district court had jurisdiction to enter the preliminary injunction while its prior, virtually identical injunction was pending appeal before this Court, we grant DHS's motion to stay.

PROCEDURAL HISTORY

This case involves a challenge to the implementation of a DHS rule that introduced a new framework for determining the admissibility of non-citizens to the United States, expanding the meaning of the "public charge" ground of inadmissibility, see 8 U.S.C. § 1182(a)(4), to include significantly more people than would have been found inadmissible under previous administrative understandings of that ground. See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) ("the Rule" or "the Final Rule"). In October 2019, the district court enjoined DHS from implementing the Rule anywhere in the United States, in a set of orders in two now consolidated cases. New York v. Dep't of Homeland Sec., No. 19-cv-7777 (S.D.N.Y.); Make the Road New York v. Cuccinelli , No. 19-cv-7993 (S.D.N.Y.). Several other district courts, in the District of Maryland, the Northern District of Illinois, the Northern District of California, and the Eastern District of Washington, issued similar preliminary injunctions prohibiting DHS's enforcement of the Rule nationwide. See CASA de Maryland, Inc. v. Trump, No. 19-cv-2715 (D. Md.); Cook Cty. v. Wolf, No. 19-cv-6334 (N.D. Ill.); City and Cty. of San Francisco v. USCIS, No. 19-cv-4717 (N.D. Cal.); California v. Dep't of Homeland Sec., No. 19-cv-4975 (N.D. Cal.); Washington v. Dep't of Homeland Sec., No. 19-cv-5210 (E.D. Wash.).

DHS appealed the October 2019 preliminary injunctions, and a motions panel of this Court denied its motion to stay the injunctions pending its appeal. New York v. U.S. Dep't of Homeland Sec. , No. 19-3591, 2020 WL 95815 (2d Cir. Jan. 8, 2020). While that appeal was pending in this Court, the Supreme Court granted DHS's application for a stay of the injunction:

[The] October 11, 2019 orders granting a preliminary injunction are stayed pending disposition of the Government's

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appeal in the United States Court of Appeals for the Second Circuit and disposition of the Government's petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

Dep't of Homeland Sec. v. New York , ––– U.S. ––––, 140 S. Ct. 599, 206 L.Ed.2d 115 (2020). With the district court's preliminary injunctions thus stayed, the...