Washington v. U.S. Dep't of Homeland Sec., NO: 4:19-CV-5210-RMP

• Court: United States District Courts. 9th Circuit. Eastern District of Washington
• Writing for the Court: ROSANNA MALOUF PETERSON United States District Judge
• Decision Date: 14 September 2020
• Parties: STATE OF WASHINGTON; COMMONWEALTH OF VIRGINIA; STATE OF COLORADO; STATE OF DELAWARE; STATE OF ILLINOIS; COMMONWEALTH OF MASSACHUSETTS; DANA NESSEL, Attorney General on behalf of the people of Michigan; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF RHODE ISLAND; STATE OF MARYLAND; STATE OF HAWAI'I, Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, a federal agency; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; KENNETH T. CUCCINELLI, II, in his official capacity as Senior Official Performing the Duties of Director of United States Citizenship and Immigration Services, Defendants.
• Docket Number: NO: 4:19-CV-5210-RMP

STATE OF WASHINGTON;
COMMONWEALTH OF VIRGINIA;
STATE OF COLORADO; STATE OF DELAWARE;
STATE OF ILLINOIS; COMMONWEALTH OF MASSACHUSETTS;
DANA NESSEL, Attorney General on behalf of the people of Michigan;
STATE OF MINNESOTA; STATE OF NEVADA;
STATE OF NEW JERSEY; STATE OF NEW MEXICO;
STATE OF RHODE ISLAND; STATE OF MARYLAND;
STATE OF HAWAI'I, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
a federal agency; CHAD F. WOLF, in his official capacity
as Acting Secretary of the United States Department of Homeland Security;
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES,
a federal agency; KENNETH T. CUCCINELLI, II,
in his official capacity as Senior Official Performing the Duties
of Director of United States Citizenship and Immigration Services, Defendants.

NO: 4:19-CV-5210-RMP

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

September 14, 2020

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

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BEFORE THE COURT is the Defendants'¹ ("DHS's") Motion to Dismiss, ECF No. 223, Plaintiffs'² (the "States'") Amended Complaint. Having considered DHS's Motion, ECF No. 223; the States' opposition, 233; DHS's reply, ECF No. 236; the supplemental authority submitted by the States and DHS, ECF Nos. 241, 242, and 245; the remaining docket; and the relevant law; the Court is fully informed.

DISMISSAL STANDARDS

Complaints filed in federal court must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).

A motion to dismiss under Fed. R. Civ. P. 12(b)(1) tests whether a complaint alleges grounds for federal subject matter jurisdiction. Under Article III of the U.S. Constitution, the Court has subject matter jurisdiction only over matters brought by a

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party with standing, and an allegation that a party lacks standing is properly raised in a Rule 12(b)(1) motion to dismiss. Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests whether a complaint states a cognizable legal theory as well as essential facts under that theory. See Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). When a defendant challenges a complaint's sufficiency under Fed. R. Civ. P. 12(b)(6), the court must determine whether the complaint bears "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim is plausible when the plaintiff pleads "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.

In deciding both Rule 12(b)(6) and facial Rule 12(b)(1) motions to dismiss, a court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marin Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008); see also Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1052 n.2 (9th Cir. 2009), rev'd on other grounds en banc, 616 F.3d 1019 (9th Cir. 2010) (applying Iqbal, 556 U.S. 662, to a facial motion to dismiss for lack of subject matter jurisdiction). The non-conclusory

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factual allegations need not be detailed but must "raise a right to relief above the speculative level.[]" Twombly, 550 U.S. at 555 (internal citation omitted).

BACKGROUND

The States are challenging the Department of Homeland Security's ("DHS's") regulatory redefinition of who to exclude from immigration status as "likely . . . to become a public charge." 8 U.S.C. § 1182(a)(4)(A); see Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) ("Public Charge Rule"). In the Amended Complaint, the States raise four causes of action: (1) a violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(C), for agency action contrary to the Immigration and Nationality Act ("INA")³, the Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA")⁴, the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA")⁵, the Rehabilitation Act⁶, and the SNAP statute⁷; (2) a violation of the APA, 5 U.S.C. § 706(2)(C), for agency action "in excess of statutory jurisdiction [or] authority" or "ultra vires"; (3) a violation of the APA, 5 U.S.C. § 706(2)(C), for agency action that is "arbitrary, capricious, [or] an abuse of discretion"; and (4) a violation of the

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guarantee of equal protection under the U.S. Constitution's Fifth Amendment Due Process Clause. ECF No. 31 at 161-70.

The INA sets forth ten grounds of inadmissibility, all of which make a person "ineligible to receive visas and ineligible to be admitted to the United States." 8 U.S.C. § 1182(a). This case concerns one of those grounds: a likelihood of becoming a public charge. Id. § 1182(a)(4)(A).

In its current form, the INA provides that "[a]ny 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."⁸ 8 U.S.C. § 1182(a)(4)(A). The same provision requires the officer determining whether an applicant is inadmissible as a public charge to consider "at a minimum" the applicant's

(I) age;
(II) health;
(III) family status;
(IV) assets, resources, and financial status; and
(V) education and skills.

8 U.S.C. § 1182(a)(4)(B)(i).

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The officer "may also consider any affidavit of support under section 213A [8 U.S.C. § 1183a] for purposes of exclusion" on the public charge ground. Id. § 1182(a)(4)(B)(ii).

A. Redefinition of "Public Charge"

The Public Charge Rule, in its final format, defines "public charge" to denote "an alien who receives one or more public benefits, as defined in paragraph (b) of this section, for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months)." 84 Fed. Reg. at 41,501 (to be codified at 8 C.F.R. § 212.21(a))⁹. The Public Charge Rule redefines "public benefit" to include: "(1) [a]ny Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits)," including Supplemental Security Income ("SSI"), Temporary Assistance for Needy Families ("TANF") or state "General Assistance"; (2) Supplemental Nutrition Assistance Program ("SNAP," colloquially known as "food stamps"); (3) housing assistance vouchers under Section 8 of the U.S. Housing Act of 1937; (4) Section 8 "Project-Based" rental assistance, including "Moderate Rehabilitation"; (5) Medicaid, with exceptions for benefits for an emergency medical condition, services or benefits under the Individuals with Disabilities Education Act ("IDEA"), school-based services or benefits, and benefits for immigrants under age 21 or to a woman during

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pregnancy or within 60 days after pregnancy; and (6) public housing under Section 9 of the U.S. Housing Act of 1937. 8 C.F.R. § 212.21(b).

B. Weighted Factors for Totality of the Circumstances Determination

The Public Charge Rule instructs officers to evaluate whether an applicant is "likely to become a public charge" using a "totality of the circumstances" test that "at least entail[s] consideration of the alien's age; health; family status; education and skills; and assets, resources, and financial status" as described in the Rule. 8 C.F.R. § 212.22(a), (b). The Public Charge Rule then prescribes a variety of factors to weigh "positively," in favor of a determination that an applicant is not a public charge, and factors to weigh "negatively," in favor of finding the applicant inadmissible as a public charge. 8 C.F.R. § 212.22(a), (b), and (c); see also, e.g., 84 Fed. Reg. 41,295 ("Specifically, the rule contains a list of negative and positive factors that DHS will consider as part of this determination, and directs officers to consider these factors in the totality of the alien's circumstances. . . . The rule also contains lists of heavily weighted negative factors and heavily weighted positive factors."). The Public Charge Rule attributes heavy negative weight to the following circumstances:

(1) "not a full-time student and is authorized to work, but is unable to demonstrate current employment, recent employment history, or a reasonable prospect of future employment";
(2) "certified or approved to receive one or more public benefits . . . for more than 12 months in the aggregate within any 36-month period, beginning no earlier than 36 months prior to the alien's application for admission or adjustment of status";

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(3) "diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien's ability to provide for himself or herself, attend school, or work; and . . . uninsured and has neither the prospect of obtaining private health insurance, nor the financial resources to pay for reasonably foreseeable medical costs related to such medical condition"; and
(4) "previously found inadmissible or deportable on public charge grounds[.]"

8 C.F.R. § 212.22(c)(1)(i)-(iv).

Conversely, the Public Charge Rule attributes heavy positive weight to three factors:

(1) an annual household income, assets, or resources above 250 percent of the Federal Poverty Guidelines ("FPG") for the household size;
(2) an annual individual income of at least 250 percent of the FPG for the household size; and
(3) private health insurance that is not subsidized under the Affordable Care Act.

See 8 C.F.R. § 212.22(c)(2)(i)-(iii).

The Public Charge Rule also directs officers to consider whether the applicant (1) is under the age of 18 or over the minimum early retirement age for social security; (2) has a medical condition that will require extensive...