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City and County of San Francisco v. U.S. Citizenship and Immigration Services

United States District Court, N.D. California

October 11, 2019

CITY AND COUNTY OF SAN FRANCISCO, et al., Plaintiffs,
v.
U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants. STATE OF CALIFORNIA, et al., Plaintiffs,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. LA CLINICA DE LA RAZA, et al., Plaintiffs,
v.
DONALD J. TRUMP, et al., Defendants.

          PRELIMINARY INJUNCTION

          PHYLLIS J. HAMILTON, UNITED STATES DISTRICT JUDGE.

         This order concerns three motions for a preliminary injunction filed in three related actions. Each of the plaintiffs in those actions moved for preliminary injunctive relief. The motions came on for hearing before this court on October 2, 2019.

         Plaintiff the City and County of San Francisco (“San Francisco”) appeared through its counsel, Matthew Goldberg, Sara Eisenberg, and Yvonne Mere. Plaintiff the County of Santa Clara (“Santa Clara” and together with San Francisco, the “Counties”) appeared through its counsel, Ravi Rajendra, Laura Trice, and Luke Edwards. Plaintiffs the State of California, District of Columbia, State of Maine, Commonwealth of Pennsylvania, and State of Oregon (together, including D.C., the “States”) appeared through their counsel, Anna Rich, Lisa Cisneros, and Brenda Ayon Verduzco. Plaintiffs La Clinica De La Raza and California Primary Care Association (the two together are the “Healthcare Organizations”), Maternal and Child Health Access, Farmworker Justice, Council on American Islamic Relations-California, African Communities Together, Legal Aid Society of San Mateo County, Central American Resource Center, and Korean Resource Center (the “Legal Organizations”) (the Legal Organizations and the Healthcare Organizations together are the “Organizations”) appeared through their counsel, Alvaro Huerta, Nicholas Espiritu, Joanna Cuevas Ingram, Kevin Herrera, Tanya Broder, Max Wolsen, and Mayra Joachin.

         Defendants U.S. Citizenship and Immigration Services (“USCIS”), Department of Homeland Security (“DHS”), Kevin McAleenen as Acting Secretary of DHS, Kenneth T. Cuccinelli as Acting Director of USCIS, and Donald J. Trump, as President of the United States appeared through their counsel, Ethan Davis, Eric Soskin, and Kuntal Cholera.

         Additionally, papers submitted by numerous amici curiae were before the court. Prior to the hearing, the court granted motions to file amicus briefs on behalf of the following non-parties, all of which the court considered in its analysis: American Public Health Association, et al.; Asian Americans Advancing Justice, et al.; City of Los Angeles, et al.; Justice in Aging, et al.; and Members of Congress. A number of other requests to file amici briefs were denied due to the court's insufficient time to consider them on this particular motion, given the already-voluminous filings from the parties, the briefing schedule, and the time-sensitive nature of plaintiffs' request for preliminary relief.

         Having read the papers filed by the parties and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS CERTAIN PLAINTIFFS' MOTIONS AND ISSUES A PRELIMINARILY INJUNCTION, the scope of which is discussed below, for the following reasons.

         EXECUTIVE SUMMARY

         In 1883, Emma Lazarus penned the now-famous sonnet, The New Colossus. Later affixed to the Statue of Liberty in New York Harbor, the poem has been incorporated into the national consciousness as a representation of the country's promise to would-be immigrants:

Not like the brazen giant of Greek fame, With conquering limbs astride from land to land; Here at our sea-washed, sunset gates shall stand A mighty woman with a torch, whose flame Is the imprisoned lightning, and her name Mother of Exiles. From her beacon-hand Glows world-wide welcome; her mild eyes command The air-bridged harbor that twin cities frame.
"Keep, ancient lands, your storied pomp!" cries she With silent lips. "Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!"

         But whether one would prefer to see America's borders opened wide and welcoming, or closed because the nation is full, laws-not poetry-govern who may enter. And the year before Lazarus wrote The New Colossus, Congress had enacted its first comprehensive immigration law, barring entry to “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge, ” among others. An Act to Regulate Immigration, 22 Stat. 214, Chap. 376 § 2. (1882). Although various iterations of similar laws have since come and gone (the operative statute no longer refers to “lunatics” or “idiots”), since the very first immigration law in 1882, this country has consistently excluded those who are likely to become a “public charge.”

         Although Congress has never authored an explicit definition of the term, courts and the executive branch have been considering its meaning as used in the statute for over one hundred and twenty years. As interpretations from those two branches accreted toward a consistent understanding, Congress repeatedly enacted statutes adopting the identical phrase.

         In 1999, the executive branch reviewed its historical application of the term and issued formal guidance to executive employees, explaining that the public charge determination has historically, and should continue to, focus on whether an individual is primarily dependent on the government for subsistence.

         In 2018, DHS published a new rule (scheduled to take effect October 15, 2019) that proposed to dramatically expand the definition of “public charge.” Rather than include only those who primarily depend on the government for subsistence, DHS now proposes for the first time to categorize as a public charge every person who receives 12 months of public benefits (including many in-kind benefits, like Medicaid and SNAP/Food Stamps) over any 36-month period, regardless of how valuable those benefits are, or how much they cost the government to provide (receiving two types of benefits in one month would count as receiving benefits for two months).

         Today, the court is presented with a challenge to DHS's new definition. The plaintiffs seek to prevent defendants from implementing it before this court can consider this case on the merits. The plaintiffs argue that the new definition will lead to widespread disenrollment[1] from public benefits by those who fear being labeled a public charge (and by those confused that they may be swept up in the rule), which will cause plaintiffs to lose a substantial amount funding (for example, the federal government heavily subsidizes state expenses for those enrolled in Medicaid).

         The court finds that the plaintiffs are likely to prevail on the merits, for numerous reasons. DHS's new definition of “public charge” is likely to be outside the bounds of a reasonable interpretation of the statute. Moreover, plaintiffs are likely to prevail on their entirely independent arguments that defendants acted arbitrarily and capriciously during the legally-required process to implement the changes they propose. Because plaintiffs are likely to prevail and will be irreparably harmed if defendants are permitted to implement the rule as planned on October 15, this court will enjoin implementation of the rule in the plaintiff states until this case is resolved on the merits, as discussed in more detail below.

         BACKGROUND

         In each of the actions before the court, the plaintiffs challenge and seek to preliminarily enjoin implementation of a proposed rule entitled “Inadmissibility on Public Charge Grounds, ” proposed by DHS and published in the Federal Register on August 14, 2019. See Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41, 292 (August 14, 2019) (“the Rule”). The Rule is scheduled to take effect nationwide on October 15, 2019.

         A. The Three Actions

         In City and County of San Francisco v. U.S. Citizenship and Immigration Services, Case No. 19-cv-04717-PJH, San Francisco and Santa Clara (together, the “Counties”) filed a complaint naming as defendants USCIS; DHS; McAleenen as Acting Secretary of DHS; and Cuccinelli as Acting Director of USCIS. The complaint asserts two causes of action under the Administrative Procedure Act (“APA”): (1) Violation of APA, 5 U.S.C. § 706(2)(A)-Not in Accordance with Law; and (2) Violation of APA, 5 U.S.C. § 706(2)(A)-Arbitrary, Capricious, and Abuse of Discretion. The Counties filed the present motion for preliminary injunction on August 28, 2019.

         In State of California v. U.S. Department of Homeland Security, Case No. 19-cv-04975-PJH, the States filed a complaint naming the same defendants as the Counties: USCIS; DHS; McAleenen as Acting Secretary of DHS; and Cuccinelli as Acting Director of USCIS. The complaint asserts six causes of action: (1) Violation of APA, 5 U.S.C. § 706-Contrary to Law, the Immigration and Nationality Act and the Illegal Immigration Reform and Immigrant Responsibility Act; (2) Violation of APA, 5 U.S.C. § 706-Contrary to Law, Section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794 (the “Rehabilitation Act”); (3) Violation of APA, 5 U.S.C. § 706-Contrary to Law, State Healthcare Discretion; (4) Violation of APA, 5 U.S.C. § 706-Arbitrary and Capricious; (5) Violation of the Fifth Amendment's Due Process clause requiring Equal Protection based on race; (6) Violation of the Fifth Amendment's Due Process clause, based on a violation of Equal Protection principles based on unconstitutional animus. The States filed the present motion for preliminary injunction on August 26, 2019. On August 27, 2019, this court ordered the action brought by the States related to the action brought by the Counties.

         In La Clinica De La Raza v. Trump, Case No. 19-cv-04980-PJH, the Organizations filed a complaint naming the same defendants as the Counties, and also added Donald J. Trump: USCIS; DHS; McAleenen as Acting Secretary of DHS; and Cuccinelli as Acting Director of USCIS; and Donald J. Trump, as President of the United States. The complaint asserts four causes of action: (1) Violation of APA, 5 U.S.C. § 706-Contrary to the Statutory Scheme; (2) Violation of APA, 5 U.S.C. § 706-Arbitrary, Capricious, or otherwise not in accordance with law; (3) Violation of the Fifth Amendment based on Equal Protection for discriminating against non-white immigrants; (4) under the Declaratory Judgment Act, seeking a determination that the Rule is invalid because it was issued by an unlawfully-appointed agency director. On August 30, 2019, this court ordered the action brought by the Organizations related to the action brought by the Counties. The Organizations filed the present motion for preliminary injunction on September 4, 2019.

         B. The Dispute

         The Immigration and Nationality Act, 8 U.S.C. §§ 1101, et seq. (“INA”), requires that all noncitizens seeking to be lawfully admitted into the United States or to become lawful permanent residents (“LPRs”) prove they are not inadmissible. 8 U.S.C. § 1361; 8 U.S.C. § 1225(a). A noncitizen may be deemed inadmissible on any number of grounds, including that they are “likely at any time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A).

         The specific INA provision relating to whether an alien is likely to become a “public charge” at issue in this litigation provides, in relevant part:

Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States: . . . .
(4) Public charge
(A) In general
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.
(B) Factors to be taken into account
(i) In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General 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.
(ii) In addition to the factors under clause
(i), the consular officer or the Attorney General may also consider any affidavit of support under section 1183a[2] of this title for purposes of exclusion under this paragraph.

8 U.S.C. § 1182(a)(4).

         The statute directs a “consular officer” or “the Attorney General” to form an opinion as to whether the applicant “is likely at any time to become a public charge.” Id. In forming that opinion, immigration officers must consider “at a minimum” five statutorily-defined factors: (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; (5) education and skills. 8 U.S.C. § 1182(a)(4)(B)(i).

         An officer may additionally consider an affidavit of support, which is a legally-enforceable contract between the sponsor of the applicant and the Federal Government. See 8 U.S.C. § 1182(a)(4)(B)(ii); 8 U.S.C. § 1183a(a). The sponsor pledges to accept financial responsibility for the applicant and to maintain the applicant at an income of “not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable[.]” 8 U.S.C. § 1183a(a)(1)(A).

         Certain groups of noncitizens, such as asylum seekers and refugees, are not subject to exclusion based on an assessment that they are likely to become a public charge. See 8 U.S.C. § 1157 (refugee); 8 U.S.C. § 1158 (asylum); 8 U.S.C. § 1159(c) (refugee).

         An alien found to be inadmissible as a public charge may “be admitted in the discretion of the Attorney General . . . upon the giving of a suitable and proper bond or undertaking approved by the Attorney General, in such amount and containing such conditions as he may prescribe . . . holding the United States and all States . . . harmless against such alien becoming a public charge.” 8 U.S.C. § 1183.

         The public charge ground may arise when, inter alia, an alien seeks LPR status, or when noncitizens apply for visas. 8 U.S.C. § 1182(a); 8 U.S.C. § 1255(a). Aliens “to whom a permit to enter the United States has been issued to enter the United States” are also subject to an inadmissibility determination by DHS at ports of entry when they enter and re-enter the United States. 8 U.S.C. § 1185(d).

         Immigrants with LPR status may also be subject to the public charge analysis. For example, an LPR is considered to be “seeking admission” under various circumstances, for example when returning to the United States after being “absent from the United States for a continuous period in excess of 180 days” or after engaging in any “illegal activity after having departed the United States[.]” 8 U.S.C. § 1101(a)(13)(C)(ii)-(iii). LPRs can also be denied citizenship and/or placed in removal proceedings if DHS determines retrospectively that they were inadmissible as a public charge at the time of their adjustment. 8 U.S.C. § 1227(a)(1)(A); 84 Fed. Reg. at 41, 328 & n.176 (discussing possible impact on naturalizations).

         Under a separate provision in the INA, an alien can be deported upon a determination that he has in fact become a public charge since his admission, from causes “not affirmatively shown to have arisen since entry[.]” 8 U.S.C. 1227(a)(5).[3]

         On October 10, 2018, DHS began the rule-making process to create a new framework for the public charge assessment by publishing a Notice of Proposed Rulemaking. See Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51, 114 (Oct. 10, 2018) (the notice of proposed rulemaking is the “NPRM”). The NPRM provided a 60-day public comment period, during which 266, 077 comments were collected. See 84 Fed. Reg. at 41, 297. On August 14, 2019, DHS published the Rule in the Federal Register. Id. at 41, 292. It is set to become effective on October 15, 2019. On October 2, 2019-the morning of the hearing on the pending motions for preliminary injunction- DHS published a 25-page list of “corrections” to the proposed final rule.[4] See Case No. 19-cv-04717-PJH, Dkt. 106, Ex. A. DHS stated that its October 2 amendments to the rule would not delay its planned implementation on October 15.

         The Rule sets out what the parties have referred to as the “12/36 standard.” That is, the Rule “redefines the term ‘public charge' to mean an alien who receives one or more designated public benefits 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). This Rule defines the term ‘public benefit' to include cash benefits for income maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing.” 84 Fed. Reg. at 41, 295.

         Because the INS directs immigration officers to opine as to whether an alien “is likely at any time to become a public charge, ” the Rule's new definition requires immigration officers to opine as to whether an alien is likely to receive certain public benefits for more than 12 months in the aggregate within any future 36-month period to determine whether he is likely to become a public charge. The rule sets out a number of positive, negative, heavily-weighted, and normally-weighted factors to assist in making that determination, and those factors are considered as part of a “totality of the circumstances” assessment of whether an alien is likely to use more than 12 months' worth of benefits in any future 36-month period.

         DISCUSSION

         A. Legal Standard

         Federal Rule of Civil Procedure 65 provides federal courts with the authority to issue preliminary injunctions. Fed.R.Civ.P. 65(a). Generally, the purpose of a preliminary injunction is to preserve the status quo and the rights of the parties until a final judgment on the merits can be rendered. See U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010).

         An injunction is a matter of equitable discretion and is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); see also Munaf v. Geren, 553 U.S. 674, 689-90 (2008). A preliminary injunction “should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam).

         “A plaintiff seeking a preliminary injunction must establish that [1] he is likely to succeed on the merits, that [2] he is likely to suffer irreparable harm in the absence of preliminary relief, that [3] the balance of equities tips in his favor, and that [4] an injunction is in the public interest.” Winter, 555 U.S. at 20.

         Alternatively, “‘serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011). “That is, ‘serious questions going to the merits' and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Id. at 1135; see also Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017).

         If a plaintiff satisfies its burden to demonstrate that a preliminary injunction should issue, “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979).

         Separately, the APA permits this court to “postpone the effective date of action . . . pending judicial review.” 5 U.S.C. § 705; Bakersfield City Sch. Dist. of Kern Cty. v. Boyer, 610 F.2d 621, 624 (9th Cir. 1979) (“The agency or the court may postpone or stay agency action pending such judicial review.”) (citing 5 U.S.C. § 705). Any such postponement must be made “[o]n such conditions as may be required and to the extent necessary to prevent irreparable injury[.]” 5 U.S.C. § 705. The factors considered when issuing such a stay substantially overlap with the Winter factors for a preliminary injunction. See, e.g., Bauer v. DeVos, 325 F.Supp.3d 74, 104-07 (D.D.C. 2018).

         B. Analysis

         In considering plaintiffs' motions for preliminary injunction, the court considers the Winter factors (and the alternative All. for the Wild Rockies) factors in turn. First, the court considers whether plaintiffs have demonstrated they are likely to succeed on the merits of their claims, or alternatively whether they have demonstrated serious questions going to the merits. Because a plaintiff must be within a statute's “zone of interest” to succeed on an APA challenge based on the underlying statute, the court considers whether each plaintiff is within the relevant statute's zone of interests when assessing its likelihood of success on the merits.

         Second, the court considers whether plaintiffs have demonstrated they are likely to suffer irreparable harm in the absence of preliminary relief. Because plaintiffs' alleged irreparable harms are also their alleged bases for standing, the court considers whether each plaintiff has standing to bring a ripe claim when assessing its irreparable harms.

         Third, the court considers whether plaintiffs have demonstrated that the balance of equities tip in their favor, and whether the balance of hardships tip sharply in their favor.

         Fourth, the court considers whether plaintiffs have demonstrated that an injunction is in the public interest.

         Fifth, the court addresses the scope of injunctive relief necessary and capable of providing complete relief to the harms plaintiffs have demonstrated they are likely to suffer prior to a determination on the merits, absent such relief.

         1. The State and County Plaintiffs Are Likely to Succeed on the Merits and Have Raised Serious Questions

         Plaintiffs argue that they are likely to succeed on three of their causes of action, each alleging a violation of the APA: (1) that the Rule violates the APA because it is not in accordance with the term “public charge” as used in the INA; (2) that the Rule violates the APA because it is not in accordance with the Rehabilitation Act § 504; and (3) that the Rule violates the APA because it is arbitrary, capricious, and an abuse of discretion.[5]

         Under the APA, “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C. § 706.

         “In the usual course, when an agency is authorized by Congress to issue regulations and promulgates a regulation interpreting a statute it enforces, the interpretation receives deference if the statute is ambiguous and if the agency's interpretation is reasonable. This principle is implemented by the two-step analysis set forth in Chevron.” Encino Motorcars, LLC v. Navarro, 136 S.Ct. 2117, 2124 (2016) (citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)). “At the first step, a court must determine whether Congress has ‘directly spoken to the precise question at issue.' If so, ‘that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.' If not, then at the second step the court must defer to the agency's interpretation if it is ‘reasonable.'” Encino Motorcars, 136 S.Ct. at 2124-25 (citations omitted) (quoting Chevron, 467 U.S. at 842-44).

         “[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843; see also Michigan v. E.P.A., 135 S.Ct. 2699, 2707 (2015) (“Even under this deferential standard, however, agencies must operate within the bounds of reasonable interpretation.”) (internal quotation marks omitted).

         The Chevron analysis calls upon the court to “employ[] traditional tools of statutory construction” to fulfill its role as “the final authority on issues of statutory construction[.]” Chevron, 467 U.S. at 843 n.9; accord Epic Sys. Corp. v. Lewis, 138 S.Ct. 1612, 1630 (2018).

         “Chevron deference, however, is not accorded merely because the statute is ambiguous and an administrative official is involved. To begin with, the rule must be promulgated pursuant to authority Congress has delegated to the official.” Gonzales v. Oregon, 546 U.S. 243, 258 (2006). “The starting point for this inquiry is, of course, the language of the delegation provision itself. In many cases authority is clear because the statute gives an agency broad power to enforce all provisions of the statute.” Id (drawing a distinction between delegation of authority to carry out the act generally, and authority to execute the functions assigned to the agency).

         First, the court assesses whether plaintiffs are likely to succeed on their claims under the APA that the Rule is not in accordance with law, as provided in 8 U.S.C. § 1182(a)(4). Second, the court assesses whether plaintiffs are likely to succeed on their claims under the APA that the Rule is not in accordance with law, as provided in the Rehabilitation Act § 504. Third, the court assess whether plaintiffs are likely to succeed on their claims under the APA, that the Rule is arbitrary and capricious. Fourth, the court assesses whether each plaintiff is within the relevant zone of interests, which is required to succeed on an APA claim.

         a. Not in Accordance with Law-8 U.S. Code § 1182(a)(4)

         Plaintiffs argue that the Rule is not in accordance with the definition of “public charge” as used in 8 U.S. Code § 1182(a)(4) for three reasons: (1) DHS's interpretation should not be accorded any deference, and the Rule's definition is inconsistent with the statute; (2) even if the term is accorded deference, the term plainly and unambiguously means “primarily dependent on the government for subsistence, ” and the Rule conflicts with that definition; and (3) the Rule's definition of “public charge” is not reasonable or based on a permissible construction of the statute.

         The court did not understand plaintiffs to have raised the first argument in their moving papers, although the Counties may have raised it obliquely in their reply. But the court and defendants were surprised to learn at the hearing that plaintiffs were advancing an argument that DHS's promulgation of the Rule was wholly outside of Congressionally-delegated authority. Cf Counties' Reply at 8-9 (“Counties do not contest DHS's authority to issue rational regulations governing the case-by-case application of the statutory standard, so long as they do not misconstrue the term ‘public charge.'”); States' Reply at 9-10 (“the States have never disputed the commonsense point that Congress in 8 U.S.C. § 1182(a)(4)(A) assigned responsibility to Defendants to make individual public charge determinations”); Organizations' Reply at 9 (“even if Defendants were correct, Congress could delegate to DHS the power only to adopt reasonable interpretations of the statute”). Nevertheless, plaintiffs have not sufficiently supported, or even explained, their argument to satisfy their burden to show likelihood of success on the merits based on it.[6] Accordingly, the court analyzes the Rule pursuant to the framework set out by Chevron.

         The second and third arguments concern a challenge under Chevron's framework to the meaning of “public charge” as used in § 1182(a)(4). Plaintiffs' second argument requires the court to determine whether the Rule contravenes the statute's unambiguous meaning, and their third argument requires the court to determine whether defendants' chosen definition is reasonable and based on a permissible construction of the statute. Both questions require a discussion of the long usage of the term by Congress, as well as the expansive evaluation of the term by courts and executive agencies.

         As preface to that discussion, a brief outline helps set the stage. The phrase “public charge” was used in this country's first-ever general immigration statute in 1882. The immigration statutes have been interpreted and modified many time since then, and although many other excluded categories of persons came and went, with each modification through today the phrase “public charge” remained intact. As a result, the meaning that the persistent term had when first used is relevant to understanding the meaning Congress ascribed to it with each subsequent statutory revision, including the now-operative statute, which most recently saw changes to the relevant provisions in 1990 and 1996.

         Ultimately, this dispute concerns the meaning of a statutory term passed in 1990- with clarifying language passed in 1996. As such, the court considers the meaning ascribed to the term by Congress at that time, but in doing so it must afford due consideration to Congress's understanding of the term given the long historical context it was operating within, which the court presently endeavors to describe. See Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239-40 (2009) (“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.”) (quoting Lorillard v. Pons, 434 U.S. 575, 580 (1978)); United States v. Argueta-Rosales, 819 F.3d 1149, 1159 (9th Cir. 2016) (same); J.L. v. Mercer Island Sch. Dist., 592 F.3d 938, 951 (9th Cir. 2010) (Congress does no “abrogate[] sub silentio the Supreme Court's decision[s]”); Bob Jones Univ. v. United States, 461 U.S. 574, 600-01 (1983) (interpretation informed by the fact that Congress had a “prolonged and acute awareness” of an established agency interpretation of a statute, considered the precise issue, and rejected bills to overturn the prevailing interpretation); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 381-82 (1982) (Congress is aware “of the ‘contemporary legal context' in which” it legislates, and amending a statute while leaving certain statutory provisions intact “is itself evidence that Congress affirmatively intended to preserve that” context); see also I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 442-43 (1987) (“Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.”); Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975) (rejecting construction of statute that would implement substance of provision that Conference Committee rejected).

         1. 1882 Act

         In 1882, Congress enacted the country's first general immigration statute. See An Act to Regulate Immigration, 22 Stat. 214 (1882) (the “1882 Act”). That statute provided, in part:

That the Secretary of the Treasury . . . shall have power to . . . provide for the support and relief of such immigrants therein landing as may fall into distress or need public aid . . . and it shall be the duty of such State . . . to examine into the condition of passengers arriving at the ports . . . and if on such examination there shall be found among such passengers any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge . . . such persons shall not be permitted to land.

22 Stat. 214, Chap. 376 § 2.

         Legislative debate on the 1882 Act shows that at least one member of Congress sought to prevent foreign nations from “‘send[ing] to this country blind, crippled, lunatic, and other infirm paupers, who ultimately become life-long dependents on our public charities.'” 13 Cong. Rec. 5108-10 (June 19, 1882) (statement of Rep. Van Voorhis).

         The 1882 Act also imposed on each noncitizen who entered the United States a 50-cent head tax for the purpose of creating an “immigrant fund”:

That there shall be levied, collected, and paid a duty of fifty cents for each and every passenger not a citizen of the United States who shall come by steam or sail vessel from a foreign port to any port within the United States. . . . The money thus collected shall . . . constitute a fund to be called the immigrant fund, and shall be used . . . to defray the expense of regulating immigration under this act, and for the care of immigrants arriving in the United States, for the relief of such as are in distress[.]

22 Stat. 214, Chap. 376, § 1; see also Edye v. Robertson, 112 U.S. 580, 590-91 (1884) (“This act of congress is similar, in its essential features, to many statutes enacted by states of the Union for the protection of their own citizens, and for the good of the immigrants who land at sea-ports within their borders. That the purpose of these statutes is humane, is highly beneficial to the poor and helpless immigrant, and is essential to the protection of the people in whose midst they are deposited by the steam-ships, is beyond dispute.”).

         Nineteenth-century dictionaries defined “charge” as “That which is enjoined, committed, entrusted or delivered to another, implying care, custody, oversight, or duty to be performed by the person entrusted” and “The person or thing committed to anothers [sic] custody, care or management; a trust. Thus the people of a parish are called the ministers charge.” Charge, Webster's Dictionary (1828 Online Edition), http://webstersdictionary1828.com/Dictionary/charge; Charge, Webster's Dictionary (1886 Edition), https://archive.org/details/websterscomplete00webs/page/218 (“person or thing committed or intrusted [sic] to the care, custody, or management of another; a trust; as, to abandon a charge”).[7]

         Another contemporary source defines charge “In its general sense, a charge is an obligation or liability. Thus we speak of . . . a pauper being chargeable to the parish or town.” Stewart; Lawrence Rapalje, Robert L., Dictionary of American and English Law, with Definitions of the Technical Terms of the Canon and Civil Laws (1888), at 196.

         Prior to the 1882 Act's enactment, states had played a larger role in immigration than they do today, and state governments had used and interpreted the term “public charge, ” although of course not in relation to any Congressional act.

         For example, the New Jersey Supreme Court, when interpreting a statute concerning the procedures to remove an individual from a township in New Jersey, considered whether a pauper was “either chargeable, or likely to become chargeable, to the township of Princeton.” Overseers of Princeton Twp. v. Overseers of S. Brunswick Twp., 23 N.J.L. 169, 170 (Sup. Ct. 1851). Although the case does not make clear what precise relief is necessary to qualify as a public charge, it contemplated that one became a public charge upon seeking such relief from “the church wardens or overseers of the poor[.]” Id. at 173. The concurrence clarified that an “application for relief” is distinct from being “chargeable, ” although “[t]he probability of his becoming chargeable is sufficiently shown by his application for relief.” Id. at 179 (Carpenter, J. concurring). The case does not explain the type or quantum of relief necessary to constitute one's status as a “charge.”

         Another state court opinion, People ex rel. Durfee v. Commissioners of Emigration, 27 Barb. 562, 1858 WL 7084 (N.Y. Sup. Ct. 1858), addressed a statute which contemplated bonds being paid on behalf of immigrants, and required the commissioners of immigration who held those bonds to “indemnify so far as may be the several cities, towns and counties of the state, for any expense or charge which may be incurred for the maintenance and support of the” immigrants. 27 Barb. at 570. The court held that the statute required indemnification of all expenses made on behalf of the immigrants- whether temporary or permanent-so long as the expenses were lawfully made. Id. However, the case did not draw a clean line holding that any expense spent on an individual makes him a public charge. Rather, an equally-plausible reading of the opinion is that the statute requires immunity of all expenses paid to support immigrants for whom bonds have been paid, regardless of whether they are formally considered public charges.[8]

         City of Bos. v. Capen, 61 Mass. 116, 121 (1851) concerned a statute which required a bond for someone likely to become a public charge. The court explained that the statute described various categories of people identified as being at risk of becoming a public charge, and for whom bond may be required. However, what assistance or payment qualified one as a "public charge” was not addressed.[9]

         As a whole, the statutory language and authority underlying the 1882 Act provide some clear guidance as to the definition of public charge. For example, the 1882 Act contemplated that admitted aliens (not excluded on public charge grounds) would receive some assistance from the state. That is made clear by the same statute's establishment of a fund “for the care of immigrants arriving in the United States, for the relief of such as are in distress[.]” 22 Stat. 214, Chap. 376, § 1. Although the quantum of state support necessary to render one a public charge is less clear, the 1882 Act did not consider an alien a public charge for simply receiving some assistance from the state. Also, it appears that contemporary uses of the term would deem one a public charge after taking on a particular, chargeable debt from the state and failing to repay it.

         2. 1891

         In 1891, Congress amended the 1882 Act. That amended statute provided, in part:

That the following classes of aliens shall be excluded from admission into the United States . . .: All idiots, insane persons, paupers or persons likely to become a public charge, persons suffering from a loathsome or a dangerous contagious disease, persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude, polygamists, and . . . .

         An Act in Amendment to the Various Acts Relative to Immigration and the Importation of Aliens Under Contract or Agreement to Perform Labor, 26 Stat. 1084, Chap. 551 (“1891 Act”) § 1 (1891).

         The 1891 amendment also provided that “any alien who becomes a public charge within one year after his arrival in the United States from causes existing prior to his landing therein shall be deemed to have come in violation of law and shall be returned” pursuant to the procedures outline in the statute regarding aliens entering unlawfully. 1891 Act § 11. So, the 1891 Act set out the now-familiar practice of subjecting aliens to two “public charge” assessments-one in which the government is called on to make a forward-looking prediction, and another in which the government is called on to make a backward-looking assessment. The first asks at the time of entry whether the alien is likely to become a public charge. The second asks whether, after some period of time, the alien has in fact become a public charge due to causes existing before he arrived. Although the relevant time periods of the assessments have grown, this scheme generally remains in place today.

         The 1891 Act made a notable change to the law by adding the category “pauper, ” and including the term pauper with “persons likely to become a public charge” to form a single entry in an expanded list of excluded categories of people.

         An early case interpreting the act considered whether “the act of 1891 confers upon the inspection officer power to detain and send back an alien immigrant as being a person liable to become a public charge, in the absence of any evidence whatever tending to establish that fact.” In re Feinknopf, 47 F. 447, 448 (E.D.N.Y. 1891). Although it did not define the term “public charge” in the abstract, the court provided an explanation given the facts before it that essentially laid out a totality-of-the-circumstances test. It held that “[o]f course” the following facts, “if believed, would not warrant the conclusion that the petitioner was a person likely to become a public charge, ” and that the case is “devoid of any evidence whatever of any fact upon which to base a determination that the petitioner is likely to become a public charge”:

the petitioner is 40 years old; that he is a native of Austria; that he is a cabinet-maker by trade, and has exercised that trade for 25 years; that he has no family; that he has baggage with him, worth $20, and 50 cents in cash; that he is a man who can find employment in his trade, and is willing to exercise the same. . . . [I]n addition, that the immigrant has not been an inmate of an almshouse, and has not received public aid or support, and has not been convicted of crime.

Id. at 447-48. A fair reading suggests that each of the enumerated facts could be relevant to predicting whether someone is likely to become a public charge.

         A subsequent court provided even more guidance. In United States v. Lipkis, 56 F. 427 (S.D.N.Y. 1893), a man had arrived in America before his wife and child. The wife and child were required to pay a bond because the superintendent of immigration deemed them “likely to become a public charge” based on “the poverty and character of the husband, ” whose residence gave the appearance of “extreme poverty.” Id. at 427. However, that poverty alone did not mean he or the family was a public charge-rather, it meant the family was likely to become a public charge. “About six months after the arrival of the mother she became insane, and was sent to the public insane asylum of the city under the direction of the commissioners of charities and correction, where only poor persons unable to pay for treatment are received, and she was there attended to for a considerable period at the expense of the municipality.” Id. at 428. Thus, the mother became a public charge only when she was committed to the public insane asylum with “no effort to provide for her at his [the husband's] own expense[.]” Id.

         But the court did not require commitment to an institution to make one a public charge. It reasoned in dicta that the family's financial condition generally subjected the family to the risk of becoming “a public charge under the ordinary liabilities to sickness, or as soon as any other additional charges arose beyond the barest needs of existence. . . . The liability of his family to become a public charge through any of the ordinary contingencies of life existed when the bond was taken, because of his poverty and inefficiency.” Id. So, a number of different financial shocks could have rendered the family a public charge.

         The court's analysis drew a distinction between being a public charge (in this case, someone committed to an insane asylum with no effort to cover the expense), and someone likely to become a public charge (in this case, someone who can pay for “the barest needs of existence, ” yet whom an extreme illness could ruin).

         The parties cite to state court decisions published during this time using the term public charge, which are informative of what the term generally meant at the time. Those opinions address the duration of benefits that render one a public charge rather than the quantum, and they tend to suggest that temporary relief did not make one a public charge as the term was understood at the time. However, they do not address whether longer-term receipt of a small amount of public benefits qualifies one as a public charge (as the Rule would do). See Yeatman v. King, 2 N.D. 421 (1892) (state loaning seed grain to farmer using the general tax fund, with obligation of repayment, is designed to prevent farmers “from becoming a public charge by affording them temporary relief”); Cicero v. Falconberry, 14 Ind.App. 237 (1895) (“The mere fact that a person may occasionally obtain assistance from the county does not necessarily make such person a pauper or a public charge.”).[10]

         Following the 1891 Act, two points are relatively clear. First, reaffirming the best interpretation of the 1882 Act, the term was not used at the time to include short-term or temporary relief from the state, as the case law continued to demonstrate. Second, Lipkis could be read to support either of two non-controversial points: either state-funded institutionalization constitutes becoming a public charge, or state-funded institutionalization with “no effort” to pay the expense after being billed does so. Simply being able to pay for the barest needs of existence and nothing more does not render one a public charge (although it may make one likely to become a public charge). A third point begins to materialize in the case law, which is that absent some particularly-identified negative factor, an employable individual is not a public charge. E.g., In re Feinknopf, 47 F. at 447-48 (40-year-old man willing to exercise his trade); Lipkis, 56 F. at 428 (notwithstanding poverty, working man's family is not a public charge until financial calamity strikes); Yeatman, 2 N.D. at 421 (public aid to working farmer).

         3. 1903

         In 1903, Congress passed a revised version of the act. That amended statute provided, in part:

That the following classes of aliens shall be excluded from admission into the United States: All idiots, insane persons, epileptics, and persons who have been insane within five years previous; persons who have had two or more attacks of insanity at any time previously; paupers; persons likely to become a public charge; professional beggars; persons afflicted with a loathsome or with a dangerous contagious disease; persons who have been convicted of a felony or other crime or misdemeanor involving moral turpitude; polygamists; anarchists, or . . . .”

         An Act to Regulate the Immigration of Aliens Into the United States, 32 Stat. 1213, Chap. 1012 § 2 (1903).

         This change separated out “paupers” from “persons likely to become a public charge, ” which the previous act had grouped together as a single item in the list.

         The 1903 amendment also provided that any alien who “shall be found a public charge . . . from causes existing prior to landing, shall be deported . . . at any time within two years after arrival[.]” Id. § 20.

         4. 1907

         In 1907, Congress passed a revised version of the act. That amended statute provided, in part:

That the following classes of aliens shall be excluded from admission into the United States: All idiots, imbeciles, feebleminded persons, epileptics, insane persons, and persons who have been insane within five years previous; persons who have had two or more attacks of insanity at any time previously; paupers; persons likely to become a public charge; professional beggars; persons afflicted with tuberculosis or with a loathsome or dangerous contagious disease; persons not comprehended within any of the foregoing excluded classes who are . . . mentally or physically defective, such mental or physical defect being of a nature which may affect the ability of such alien to earn a living; persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude; polygamists, or . . . .”

         An Act to Regulate the Immigration of Aliens Into the United States, 34 Stat. 898, Chap. 1134 § 2 (1907).

         Nothing relevant to the present action appears to have been changed by this revision.[11]

         5. 1910

         In 1910, Congress amended the 1907 act. The new statute provided, in part:

That the following classes of aliens shall be excluded from admission into the United States: All idiots, imbeciles, feebleminded persons, epileptics, insane persons, and persons who have been insane within five years previous; persons who have had two or more attacks of insanity at any time previously; paupers; persons likely to become a public charge; professional beggars; persons afflicted with tuberculosis or with a loathsome or dangerous contagious disease; persons not comprehended within any of the foregoing excluded classes who are . . . mentally or physically defective, such mental or physical defect being of a nature which may affect the ability of such alien to earn a living; persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude; polygamists, or . . . .”

         An Act to Amend an Act entitled An Act to Regulate the Immigration of Aliens Into the United States, 36 Stat. 263, Chap. 128 § 2 (1910).

         Nothing relevant to the present action appears to have been changed by this revision.

         In 1915, the Supreme Court addressed the 1910 act in Gegiow v. Uhl, 239 U.S. 3 (1915). “The single question” in that case was “whether an alien can be declared likely to become a public charge on the ground that the labor market in the city of his immediate destination is overstocked.” Id. at 9-10. The immigration commissioners in that action determined that the immigrants were “bound for Portland, Oregon, where the reports of industrial conditions show that it would be impossible for these aliens to obtain employment[.]” Id. at 8.

         The court held that “[t]he statute deals with admission to the United States, not to Portland . . . . It would be an amazing claim of power if commissioners decided not to admit aliens because the labor market of the United States was overstocked.” Id. at 10. Because the immigration authorities could not consider labor conditions in a single location to determine whether immigrants would be able to obtain employment, the factual findings that the immigrants could not find work in Portland was insufficient to support a determination that they were likely to become public charges.

         The court also reasoned that, because the “public charge” ground for exclusion was “mentioned between paupers and professional beggars, and along with idiots, persons dangerously diseased, persons certified by the examining surgeon to have a mental or physical defect of a nature to affect their ability to earn a living, ” the term should be construed as similar with the rest. Id. Under that construction, the court held that those likely to become public charges “are to be excluded on the ground of permanent personal objections accompanying them irrespective of local conditions[.]” Id.[12] That is, the court focused on an alien's general ability and willingness to work and earn a living, rather than the particular wages or labor conditions that existed in the alien's destination.

         A court in 1916 considered “whether the fact that petitioner entered the United States as a gambler, and as one having no other permanent means of support, actual or contemplated, makes him a person ‘likely to become a public charge' within the meaning of the Immigration Act.” Lam Fung Yen v. Frick, 233 F. 393, 396 (6th Cir. 1916):

It seems clear that the term ‘persons likely to become a public charge' is not limited to paupers or those liable to become such; ‘paupers‘ are mentioned as in a separate class. In United States v. Williams (D.C.) 175 Fed. 274, 275, the term ‘persons likely to become a public charge‘ is construed as including, ‘not only those persons who through misfortune cannot be self-supporting, but also those who will not undertake honest pursuits, and who are likely to become periodically the inmates of prisons.' We think this a reasonable construction. . . . Inmates of jails and prisons are for the time being public charges, and we think it open to conclusion by reasonable minds that those who will not work for a living, but rely for that purpose upon gambling, are more likely than citizens following the ordinary pursuits of industry to become, at least intermittently, public charges.

Id. at 396-97 (emphasis added).

         The court reasoned that because the alien was a gambler and gambling is regarded “within the domain of police supervision and public security, ” the petitioner is reasonably likely to become periodically an inmate of a prison. Id. at 397. Under the court's reasoning, someone in a prison is a public charge, akin to someone in an almshouse or insane asylum. Id.; see also United States v. Williams, 175 F. 274, 275 (S.D.N.Y. 1910) (“They are surely public charges, at least during the term of their incarceration.”).

         In 1917, the Second Circuit relied on Gegiow's statutory analysis when deciding a case under the 1910 statute. Howe v. United States, 247 F. 292 (2d Cir. 1917). In Howe, a Canadian who had allegedly “drawn a check . . . which proved bad, ” among other things, entered the United States, and an immigration inspector “believed him guilty of dishonest practice in Canada.” Id. at 293-94. Because the plaintiff had not admitted to or been convicted of a felony, the provision excluding criminals did not apply to him. The court reasoned that (1) the term “public charge” needed to be read in context of its position in the statute's list, and (2) it cannot be interpreted to overlap with other items in the list (e.g., idiots, imbeciles, insane persons, criminals). As such, “[i]f the words covered jails, hospitals, and insane asylums, several of the other categories of exclusion would seem to be unnecessary.” Id. at 294. Instead, “Congress meant the act to exclude persons who were likely to become occupants of almshouses for want of means with which to support themselves in the future.” Id. The Howe court provided a very specific, restrictive, and clear definition of the term. This also demonstrates an early split in the case law as to whether prison inmates are considered public charges.

         By 1917, the Supreme Court, the Second Circuit, and the Sixth Circuit had all published opinions construing the term as used in the 1910 act. These are precisely the sorts of constructions Congress is presumed knowledgeable of when reenacting statutory language. See Forest Grove, 557 U.S. at 239-40. The Supreme Court held that predicting whether someone will become a public charge requires consideration of “permanent personal objections accompanying them irrespective of local conditions[.]” Gegiow, 239 U.S. at 10. The two Circuit decisions are more difficult to reconcile. First, they directly contradicted one another with respect to whether jail inmates were public charges. Second, Howe broke with the weight of prior authority in holding that the term was limited to those occupying almshouses for want of a means of support.

         6. 1917

         In 1917, Congress amended the Act. That amended statute provided, in part:

That the following classes of aliens shall be excluded from admission into the United States: All idiots, imbeciles, feebleminded persons, epileptics, insane persons; persons who have had one or more attacks of insanity at any time previously; persons of constitutional psychopathic inferiority; persons with chronic alcoholism; paupers; professional beggars; vagrants; persons afflicted with tuberculosis in any form or with a loathsome or dangerous contagious disease; persons not comprehended within any of the foregoing excluded classes who are . . . mentally or physically defective, such physical defect being of a nature which may affect the ability of such alien to earn a living; persons who have been ...

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