Ninth Circuit Supports Lifting Injunctions Against Trump Administration’s “Public Charge” Rule

Anti-immigration Policies Enforced by Trump Administration

Written by: Taher Kameli, Esq.

In many cases, the only obstacle to the various efforts by the Trump administration to enforce anti-immigration policies has been the Federal judiciary.  However, Federal courts certainly have not ruled in favor of immigrant rights in each case. As an example of a recent Federal court decision in favor of the Trump administration’s anti-immigration policies, the Ninth Circuit supports lifting injunctions against the Trump administration’s “public charge” rule.

Announced in August and due to take effect on October 15, the Trump administration’s “public charge” rule would amend U.S. Department of Homeland Security (DHS) regulations concerning how DHS determines whether an immigrant is inadmissible to the United States based on his or her likelihood of becoming a “public charge” at any time in the future.  Under the rule, DHS would now consider more kinds of “public benefits” received as relevant in determining “public charge” status; specifically, the term, “public benefits”, would include any cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most forms of Medicaid, and certain housing programs. 

In addition, under the rule, DHS would now define the term, “public charge”, to mean an individual who receives one or more designated “public benefits” for more than 12 months, in the aggregate, within any 36-month period (with receipt of 2 “public benefits” in one month counting as 2 months). The bottom-line of the rule is that it would materially reduce legal immigration (green cards) in the United States by persons who are poor and/or receive government benefits both as the government applies the terms of the rule and as such persons are even discouraged from attempting to immigrate to the United States because of the rule.   

However, just before the intended October 15 effective date of the Trump administration’s “public charge” rule, various Federal district courts, including without limitation, in the Second Circuit (in the case of State of New York v. United States Department of Homeland Security, 2019 U.S. Dist. LEXIS 177323 (S.D.N.Y. 2019)), and in the Ninth Circuit (in the cases of City and County of San Francisco v. U.S. Citizenship and Immigration Services, 2019 U.S. Dist. LEXIS 177379 (N.D. Cal. 2019), and State of Washington v. United States Department of Homeland Security, 2019 U.S. Dist. LEXIS 178854 (E.D. Wash. 2019)), issued preliminary injunctions against the Trump administration’s “public charge” rule.

The Ninth Circuit has now overturned the above-described lower district court rulings in its circuit and issued a stay of their injunctions against the Trump administration’s “public charge” rule.  On December 5, in the case of City and County of San Francisco v. U.S. Citizenship and Immigration Services, 2019 U.S. App. LEXIS 36137 (9th Cir. 2019), the court, in a 2-1 decision, written by Judge Jay Bybee (joined in by Judge Sandra Ikuta, with Judge John Owens writing a dissenting opinion), held, “DHS argues that it is likely to succeed on the merits of its appeal because, contrary to the conclusions of the district courts, the Final Rule is neither contrary to law nor arbitrary and capricious.

 We agree. The Final Rule’s definition of ‘public charge’ is consistent with the relevant statutes, and DHS’s action was not arbitrary or capricious . . . The motion for a stay of the preliminary injunction . . . is GRANTED. The petition for a stay of the preliminary injunction . . . is GRANTED”.  

In addition to his majority opinion, Judge Bybee wrote a separate individual opinion, which he labelled, “concurring, perplexed and perturbed”.  This opinion is noteworthy for its criticism of Congress, stating, “By constitutional design, the branch that is qualified to establish immigration policy and check any excesses in the implementation of that policy is Congress. . . . And, so far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates. . . . It matters not to me as a judge whether Congress embraces or disapproves of the administration’s actions, but it is time for a feckless Congress to come to the table and grapple with these issues.  Don’t leave the table and expect us to clean up”.

On December 9, the Fourth Circuit proceeded consistently with the Ninth Circuit and also overturned a lower district court ruling in its circuit to issue a stay of its injunction against the Trump administration’s “public charge” rule. 

It should be highlighted that this ruling by the Fourth Circuit and the above-described ruling by the Ninth Circuit are of limited practical effect because the above-described lower district court ruling in the Second Circuit, which imposed a nationwide preliminary injunction against the Trump administration’s “public charge” rule, is still in effect.  Thus, the Trump administration’s “public charge” rule is still subject to injunction, and therefore cannot yet take effect.

The above-described continued injunction in the Second Circuit shows how litigation can protect immigrant rights.  To be successful in immigration litigation, immigrants need to hire skilled immigration lawyers, such as the Law Offices of Kameli and Associates, which has had years of success and experience in representing immigration clients.  If you need assistance with any immigration matter, please contact the Law Offices of Kameli and Associates, at taher@kameli.com or 312-233-1000, for help.