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Cook County v. McAleenan

United States District Court, N.D. Illinois, Eastern Division

October 14, 2019

KEVIN K. McALEENAN, in his official capacity as Acting Secretary of U.S. Department of Homeland Security, U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency, KENNETH T. CUCCINELLI II, in his official capacity as Acting Director of U.S. Citizenship and Immigration Services, and U.S. CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency, Defendants.



         In this suit under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., Cook County and Illinois Coalition for Immigrant and Refugee Rights, Inc. (“ICIRR”) challenge the legality of the Department of Homeland Security's (“DHS”) final rule, Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41, 292 (Aug. 14, 2019) (to be codified at 8 C.F.R. pt. 103, 212-14, 245, 248). Doc. 1. The Final Rule has an effective date of October 15, 2019. Cook County and ICIRR move for a temporary restraining order and/or preliminary injunction under Civil Rule 65, or a stay under § 705 of the AP A, 5 U.S.C. § 705, to bar DHS (the other defendants are ignored for simplicity's sake) from implementing and enforcing the Rule in the State of Illinois. Doc. 24. At the parties' request, briefing closed on October 10, 2019, and oral argument was held on October 11, 2019. Docs. 29, 81. The motion is granted, and DHS is enjoined from implementing the Rule in the State of Illinois absent further order of court.


         Section 212(a)(4) of the Immigration and Nationality Act (“INA”) states: “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.” 8 U.S.C. § 1182(a)(4). The public charge provision has a long pedigree, dating back to the Immigration Act of 1882, ch. 376, §§ 1-2, 22 Stat. 214, 214, which directed immigration officers to refuse entry to “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” The provision has been part of our immigration laws, in various but nearly identical guises, ever since. See Immigration Act of 1891, ch. 551, 26 Stat. 1084, 1084; Immigration Act of 1907, ch. 1134, 34 Stat. 898, 899; Immigration Act of 1917, ch. 29 § 3, 39 Stat. 874, 876; INA of 1952, ch. 477, § 212(a)(15), 66 Stat. 163, 183; Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, § 531(a), 110 Stat. 3009-546, 3009-674-75 (1996).

         Prior to the rulemaking resulting in the Final Rule, the federal agency charged with immigration enforcement last articulated its interpretation of “public charge” in a 1999 field guidance document. Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28, 689 (May 26, 1999). The field guidance defined a “public charge” as a person “primarily dependent on the government for subsistence, ” and instructed immigration officers to ignore non-cash public benefits in assessing whether an individual was “likely at any time to become a public charge.” Ibid. That definition and instruction never made their way into a regulation.

         On October 10, 2018, DHS published a Notice of Proposed Rulemaking, Inadmissibility on Public Charge Grounds, 83 Fed. Reg. 51, 114 (Oct. 10, 2018), which was followed by a sixty- day public comment period. Some ten months later, DHS published the Final Rule, which addressed the comments, revised the proposed rule, and provided analysis to support the Rule. See Inadmissibility on Public Charge Grounds, supra. As DHS described it, 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).” 84 Fed. Reg. at 41, 295.

         By adopting a duration-based standard, the Rule covers aliens who receive only minimal benefits so long as they receive them for the requisite time period. As the Rule explains: “DHS may find an alien inadmissible under the standard, even though the alien who exceeds the duration threshold may receive only hundreds of dollars, or less, in public benefits annually.” Id. at 41, 360-61. The 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.” Ibid. The Rule sets forth several nonexclusive factors DHS must consider in determining whether an alien is likely to become a public charge, including “the alien's health, ” any “diagnosed … medical condition” that “will interfere with the alien's ability to provide and care for himself or herself, ” and past applications for the enumerated public benefits. Id. at 41, 502-04. The Rule provides that persons found likely to become public charges are ineligible “for a visa to come the United States temporarily or permanently, for admission, or for adjustment of status to that of a lawful permanent resident.” Id. at 41, 303. The Rule also “potentially affect[s] individuals applying for an extension of stay or change of status because these individuals would have to demonstrate that they have not received, since obtaining the nonimmigrant status they are seeking to extend or change, public benefits for” more than the allowed duration. Id. at 41, 493.

         Cook County and ICIRR challenge the Rule's legality and seek to enjoin its implementation. Cook County operates the Cook County Health and Hospitals System (“CCH”), one of the largest public hospital systems in the Nation. Doc. 27-1 at p. 326, ¶ 5. ICIRR is a membership-based organization that represents nonprofit organizations and social and health service providers throughout Illinois that deliver and seek to protect access to health care, nutrition, housing, and other services for immigrants regardless of immigration status. Id. at pp. 341-342, ¶¶ 3-10. Cook County and ICIRR maintain that the Rule will cause immigrants to disenroll from public benefits-or to not seek benefits in the first place-which will in turn generate increased costs and cause them to divert resources from their existing programs meant to aid immigrants and safeguard public health. Doc. 27-1 at pp. 330-338, ¶¶ 25-52; id. at pp. 342-350, ¶¶ 11-42. Cook County and ICIRR argue that the Rule exceeds the authority granted to DHS under the INA and that DHS acted arbitrarily and capriciously in promulgating the Rule.


         “To win a preliminary injunction, the moving party must establish that (1) without preliminary relief, it will suffer irreparable harm before final resolution of its claims; (2) legal remedies are inadequate; and (3) its claim has some likelihood of success on the merits.” Eli Lilly & Co. v. Arla Foods, Inc., 893 F.3d 375, 381 (7th Cir. 2018). “If the moving party makes this showing, the court balances the harms to the moving party, other parties, and the public.” Ibid. “In so doing, the court employs a sliding scale approach: the more likely the plaintiff is to win, the less heavily need the balance of harms weigh in [its] favor; the less likely [it] is to win, the more need [the balance] weigh in [its] favor.” Valencia v. City of Springfield, 883 F.3d 959, 966 (7th Cir. 2018) (alteration and internal quotation marks omitted). “The sliding scale approach is not mathematical in nature, rather it is more properly characterized as subjective and intuitive, one which permits district courts to weigh the competing considerations and mold appropriate relief.” Stuller, Inc. v. Steak N Shake Enters., 695 F.3d 676, 678 (7th Cir. 2012) (internal quotation marks omitted). “Stated another way, the district court sits as would a chancellor in equity and weighs all the factors, seeking at all times to minimize the costs of being mistaken.” Ibid. (alteration and internal quotation marks omitted). A request for a temporary restraining order is analyzed under the same rubric, see Carlson Grp., Inc. v. Davenport, 2016 WL 7212522, at *2 (N.D. Ill.Dec. 13, 2016), as is a request for a stay under 5 U.S.C. § 705, see Cronin v. U.S. Dep't of Agric., 919 F.2d 439, 446 (7th Cir. 1990) (“The standard is the same whether a preliminary injunction against agency action is being sought in the district court or a stay of that action [under 5 U.S.C. § 705] is being sought in [the appeals] court.”).

         I. Likelihood of Success on the Merits

         A. Standing

         DHS argues at the outset that Cook County and ICIRR lack Article III standing. Doc. 73 at 20-23. “To assert [Article III] standing for injunctive relief, [a plaintiff] must show that [it is] under an actual or imminent threat of suffering a concrete and particularized ‘injury in fact'; that this injury is fairly traceable to the defendant's conduct; and that it is likely that a favorable judicial decision will prevent or redress the injury.” Common Cause Ind. v. Lawson, 937 F.3d 944, 949 (7th Cir. 2019) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)).

         On the present record, Cook County has established its standing. In Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 (1979), where a municipality alleged under the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq., that real estate brokers had engaged in racial steering, the Supreme Court held for Article III purposes that “[a] significant reduction in property values directly injures a municipality by diminishing its tax base, thus threatening its ability to bear the costs of local government and to provide services.” Id. at 110-11. That was so even though the causal chain resulting in the municipality's injury involved independent decisions made by non-parties; as the Court explained, “racial steering effectively manipulates the housing market” by altering homebuyers' decisions, which “reduce[s] the total number of buyers in the … housing market, ” particularly where “perceptible increases in the minority population … precipitate an exodus of white residents.” Id. at 109-10. That reduction in buyers, in turn, meant that “prices may be deflected downward[, ] … directly injur[ing] a municipality by diminishing its tax base.” Id. at 110-11.

         Applying Gladstone, the Seventh Circuit in City of Chicago v. Matchmaker Real Estate Sales Center, Inc., 982 F.2d 1086 (7th Cir. 1992), held that Chicago had standing in a similar FHA case, reasoning that “racial steering leads to resegregation” and to “[p]eople … becom[ing] panicked and los[ing] interest in the community, ” generating “destabilization of the community and a corresponding increased burden on the City in the form of increased crime and an erosion of the tax base.” Id. at 1095. The Seventh Circuit added that Chicago's standing also rested on the fact that its “fair housing agency ha[d] to use its scarce resources to ensure compliance with the fair housing laws” rather than to “perform its routine services.” Ibid.

         The Supreme Court's decision earlier this year in Department of Commerce v. New York, 139 S.Ct. 2551 (2019), is of a piece with Gladstone and Matchmaker. In a challenge to the Department of Commerce's addition of a citizenship question to the census, the Court held that the plaintiff States had shown standing by “establish[ing] a sufficient likelihood that the reinstatement of a citizenship question would result in noncitizen households responding to the census at lower rates than other groups, which in turn would cause them to be undercounted and lead to” injuries to the States such as “diminishment of political representation, loss of federal funds, degradation of census data, and diversion of resources.” Id. at 2565. In so holding, the Court explained that the fact that a “harm depends on the independent action of third parties, ” even when such actions stem from the third parties' “unfounded fears, ” does not make an injury too “speculative” to confer standing. Id. at 2565-66.

         Cook County asserts injuries at least as concrete, imminent, and traceable as did the government plaintiffs in Gladstone, New York, and Matchmaker. As the parties agree, the Final Rule will cause immigrants to disenroll from, or refrain from enrolling in, critical public benefits out of fear of being deemed a public charge. Doc. 27-1 at pp. 330-332, ¶¶ 25, 30; id. at pp. 344-345, ¶¶ 19-20, 23; 84 Fed. Reg. at 41, 300 (“The final rule will … result in a reduction in transfer payments from the Federal Government to individuals who may choose to disenroll from or forego enrollment in a public benefits program.”); id. at 41, 485 (same). Cook County adduces evidence showing, consistent with common sense, that where individuals lack access to health coverage and do not avail themselves of government-provided healthcare, they are likely to forgo routine treatment-resulting in more costly, uncompensated emergency care down the line. Doc. 27-1 at pp. 331-333, 335-337, ¶¶ 30-32, 41-50. Additionally, because uninsured persons who do not seek public medical benefits are less likely to receive immunizations or to seek diagnostic testing, the Rule increases the risk of vaccine-preventable and other communicable diseases spreading throughout the County. Id. at pp. 329-330, 333, ¶¶ 20-21, 33; id. at pp. 358-359, ¶¶ 29, 32. Both the costs of community health epidemics and of uncompensated care are likely to fall particularly hard on CCH, which already provides approximately half of all charity care in Cook County, id. at pp. 335-336, ¶¶ 42-43, including to non-citizens regardless of their immigration status, id. at p. 327, ¶ 11. Indeed, DHS itself recognizes that the Rule will cause “[s]tate and local governments … [to] incur costs” stemming from “changes in behavior caused by” the Rule. 84 Fed. Reg. at 41, 389; see also id. at 41, 300-01 (“DHS estimates that the total reduction in transfer payments from the Federal and State governments will be approximately $2.47 billion annually due to disenrollment or foregone enrollment in public benefits programs by foreign-born non-citizens who may be receiving public benefits.”); id. at 41, 469 (“DHS agrees that some entities, such as State and local governments or other businesses and organizations, would incur costs related to the changes.”). DHS specifically noted that “hospital systems, state agencies, and other organizations that provide public assistance to aliens and their households” will suffer financial harm from the Rule's implementation. Id. at 41, 469-70.

         Given its operation of and financial responsibility for CCH, that is more than enough to establish Cook County's standing under the principles set forth in Gladstone, New York, and Matchmaker. DHS's contrary arguments fail to persuade.

         First, DHS suggests that it is “inconsistent” for Cook County to maintain both that immigrants will forgo treatment and that they will come to rely more on uncompensated care from CCH. Doc. 73 at 21. But as Cook County observes, Doc. 80 at 14, there is no inconsistency: immigrants will “avoid seeking treatment for cases other than emergencies, ” Doc. 1 at ¶ 109, and the emergency treatment they seek will involve additional reliance on uncompensated care from CCH, Doc. 27-1 at p. 330, ¶ 21 (“When individuals are uninsured, they avoid seeking routine care and instead risk worse health outcomes and use costly emergency services.”). The Rule itself acknowledges as much. 84 Fed. Reg. at 41, 384 (“DHS ...

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