Thursday, December 3, 2020

Ninth Circuit Halts Public Charge Rule

The Ninth Circuit affirmed a preliminary injunction yesterday that halted the administration's "public charge" rule--the ban on admission of aliens to the United States who are likely to receive certain public benefits for more than 12 months within any 36 month period. But the court vacated a lower court's nationwide injunction; instead, the ruling temporarily halted the rule within the Ninth Circuit and in other outside states that brought the case.

The ruling aligns with similar rulings in the Second Circuit and Seventh Circuit (where then-Judge Amy Coney Barrett dissented), but conflicts with a ruling out of the Fourth Circuit.

Ordinarily, this case would seem destined for the Supreme Court. But DHS may reverse course in the Biden Administration and render it moot.

The case arose when DHS adopted a rule in August 2019 that re-defined "public charge" under the Immigration and Naturalization Act provision that renders inadmissible any alien who is likely to become a "public charge." In particular, DHS defined "public charge" to mean "an alien who receives one or more [specified] public benefits . . . for more than 12 months in the aggregate within any 36-month period."

The change in definition broke with a long history, "from the Victorian Woodhouse to agency guidance in 1999," defining "public charge" to mean dependence on public assistance for survival--and not "short-term use of in-kind benefits that are neither intended nor sufficient to provide basic sustenance."

The court ruled that the 2019 rule was contrary to law and arbitrary and capricious in violence of the Administrative Procedure Act. It held that the rule violated the long-running meaning of "public charge" under the INA and thus violated the Act. It also held that DHS failed to consider the financial impact of the rule and the health consequences of the rule for immigrants and the public as a whole, and failed to explain its reversal in position (from the 1999 guidance).

Judge VanDyke dissented, relying on the reasoning in the Fourth Circuit ruling, then-Judge Barrett's dissent in the Seventh Circuit case, the earlier Ninth Circuit ruling staying a district court injunction pending appeal, and "the Supreme Court's multiple stays this year of injunctions virtually identical to those the majority today affirms." 

https://lawprofessors.typepad.com/conlaw/2020/12/ninth-circuit-halts-public-charge-rule.html

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