Written by: Taher Kameli, Esq.
It has been a generally consistent pattern in U.S. immigration policy during the Trump administration – the Trump administration issues an anti-immigration policy, litigation is filed to challenge the policy, and a Federal court issues an injunction to stop the policy from being implemented. As another example of this occurrence of “government by injunction”, a Federal judge in Oregon has temporarily blocked the Trump administration from preventing immigrants who cannot afford health care from obtaining visas.
On October 4, President Trump issued, “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System” (the “Proclamation”). Section 1 of the Proclamation states, “The entry into the United States as immigrants of aliens who will financially burden the United States healthcare system is hereby suspended and limited . . . An alien will financially burden the United States healthcare system unless the alien will be covered by approved health insurance . . . within 30 days of the alien’s entry into the United States, or unless the alien possesses the financial resources to pay for reasonably foreseeable medical costs”. The Proclamation was due to take effect on November 3.
However, on November 2, in the case of John Doe #1 v. Trump, 2019 U.S. Dist. LEXIS 190469 (D. Ore. 2019), United States District Court for the District of Oregon Judge Michael H. Simon issued a temporary restraining order and injunction against the Proclamation. Judge Simon’s opinion states, “The Proclamation’s reliance on the health care insurance status of an individual as the sole factor for determining inadmissibility as a public charge conflicts with 8 U.S.C. [Section] 1182(a)(4) in at least five ways. First, Congress has spoken directly to the circumstances in which an individual may be deemed to become a ‘financial burden’ to the United States and has rejected the Proclamation’s core premise. . . . The statute outlines the permissible factors in the public charge determination and nowhere mentions an individual’s health care insurance status as one of the permissible factors. . . . Second the statute precludes any single factor from being a dispositive factor. . . . The Proclamation, however, conflicts with the statutory text by deeming an individual to be a financial burden based solely on her health care insurance status and eschewing all the other statutory factors including, perhaps most incongruously, the health of the individual herself. Third, the Proclamation’s dispositive reliance on health care insurance status contravenes decades of agency interpretation. Fourth, the Proclamation’s reliance on an individual’s accessing short-term health care benefits as a reason to find the person a ‘financial burden’ has been expressly rejected. City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., 2019 WL 5100718, at *28 (N.D. Cal. Oct. 11, 2019) . . . Fifth, the Proclamation revives a test for financial burden – the receipt of non-cash benefits – that Congress has rejected. . . . For these reasons, Plaintiffs have shown, at least at this stage of the litigation, a substantial likelihood of success, or at least serious questions going to the merits, on whether Defendants’ actions are ultra vires and also ‘not in accordance with law’ under the [Administrative Procedure Act]. . . . Further, for similar reasons, Plaintiffs have satisfied their burden of showing Defendants’ implementation of the Proclamation likely constitutes final agency action that is ‘arbitrary, capricious, [or] an abuse of discretion.’ . . . In addition, Plaintiffs have shown a substantial likelihood that many, if not all, of the options the Proclamation provides as ‘approved health insurance’ are legally or practically impossible for the individual Plaintiffs and the members and clients of Latino Network to acquire. Plaintiffs also have shown irreparable harm. . . . Facing a likely risk of being separated from their family members and a delay in obtaining a visa to which family members would otherwise be entitled is irreparable harm. . . . Plaintiffs have sufficiently shown that temporary injunctive relief is in the public interest because of the widespread detrimental effects that the Proclamation will cause if it takes effect before the parties can be heard on whether the Court should issue a preliminary injunction pending a final resolution on the merits”.
Judge Simon further advised that the court “will hold a hearing on Friday, November 22, 2019 . . . to determine whether a preliminary injunction should be issued” and that “[t]his order shall expire twenty-eight (28) days after entry”.
As evidenced by the John Doe #1 case, litigation appears to be an effective strategy to challenge an anti-immigration policy of the Trump administration. Immigrants need to hire skilled immigration litigation counsel, such as the Law Offices of Kameli and Associates, which has had years of experience and success in representing immigration clients, to prevail in immigration litigation against the Trump administration. If you need help with any immigration issue, please contact the Law Offices of Kameli and Associates, at firstname.lastname@example.org or 312-233-1000, for assistance.