New York v. U.S. Dep't of Homeland Sec.

• Decision Date: 11 September 2020
• Docket Number: August Term, 2020,Docket No. 20-2537
• Citation: 974 F.3d 210
• 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.
• Court: U.S. Court of Appeals — Second Circuit

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:

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 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 Rule went into effect nationwide.

In April 2020, the Plaintiffs asked the Supreme Court to modify its stay of the injunction during the pendency of the national emergency caused by the COVID-19 virus. The Supreme Court denied the request but suggested an alternative route to potential relief, noting that "[t]his order does not preclude a filing in the District Court as counsel considers appropriate." Dep't of Homeland Sec. v. New York , ––– U.S. ––––, ––– S. Ct. ––––, 206 L.Ed.2d 847, 2020 WL 1969276, at *1 (Apr. 24, 2020).

The Plaintiffs returned to the district court. Notwithstanding that the court had already granted a preliminary injunction against implementation of the Rule, the merits of which were on appeal before this Court, and which had been stayed by the Supreme Court, the Plaintiffs filed a new motion for a preliminary injunction. They argued that the COVID-19 pandemic dramatically increases the public harm caused by the Rule, because the Rule deters non-citizens from getting tested for COVID-19 or seeking treatment, thus impeding efforts to prevent COVID-19's spread, and puts the non-citizens themselves at a particular risk given that they make up a significant portion of the work force in essential industries that have continued to work throughout the pandemic and been disproportionately impacted by COVID-19. DHS opposed the motion, asserting that the district court lacked jurisdiction to issue a preliminary injunction while DHS's appeal of the initial preliminary injunction was before this Court.

The district court issued a new injunction on July 29, 2020, concluding that the Rule "impedes public efforts ... to stem the spread of the disease." New York v. U.S. Dep't of Homeland Sec. , No. 19-cv-7777, ––– F.Supp.3d ––––, ––––, 2020 WL 4347264, at *10 (S.D.N.Y. July 29, 2020). It found that it had jurisdiction to issue another preliminary injunction despite "[o]verlapping legal issues" with the prior injunction then pending on appeal before us, because of the new COVID-19-related evidence and because the district court is better suited to make factual findings and provide narrowly tailored relief than an appellate court. Id . at ––––, 2020 WL 4347264 at *9. It opined that this new, nationwide preliminary injunction did not contravene the Supreme Court's stay of the initial preliminary injunction, reasoning that there was "no indication that the Supreme Court disagreed with [its] analysis of the merits," and that the Supreme Court's stay was issued "on a significantly different factual record." Id . Although the district court concluded that it had jurisdiction to issue a new preliminary injunction, it acknowledged the possibility that we might have a different opinion and explained that "[s]hould the Second Circuit determine that this Court does not presently have jurisdiction to...