By Hailey Konnath

Law360 (March 16, 2020, 9:48 PM EDT) -- A New York federal judge on Monday agreed to push back oral arguments in a dispute over the federal government's "public charge" rule penalizing green card applicants who use public benefits, granting a request from the government that cited COVID-19.

Attorneys general for the District of Columbia and 15 states, including New York, Vermont and Connecticut, have urged the federal government to stop enforcing the policy as coronavirus spreads. Last week, the states argued that continued enforcement of the public charge rule would discourage immigrants from using the public health care system and could help the virus spread.

Oral arguments in three related cases over the rule were set for Tuesday, but on Sunday, two defendants — the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services — requested that the hearing be postponed or conducted by phone.

In a brief order Monday, U.S. District Judge George B. Daniels delayed the hearing until May 5. Judge Daniels did not explain his reasoning.

The states, along with immigrant and refugee advocacy groups, sued DHS and its acting security secretary, Chad Wolf; and CIS and its acting director, Kenneth T. Cuccinelli, over the rule last year.

The DHS finalized the measure in August, expanding the agency's definition of "public charge" and deeming certain immigrants who use housing subsidies, government health benefits or food stamps ineligible for permanent residency or entry into the U.S.

Under a new test, the department will consider a range of factors — including past use of public assistance programs, English proficiency and age — to determine whether an immigrant is likely to become a so-called public charge in the future.

Last month, the U.S. Supreme Court gave the Trump administration the green light to implement its new test for immigrants in all 50 states, temporarily lifting one last remaining injunction shielding Illinois residents from the contested immigration rule. U.S. Citizenship and Immigration Services was cleared to start enforcing the rule in all states, including Illinois, on Feb. 24.

On March 11, the states and the District of Columbia called DHS' implementation of the rule during the coronavirus outbreak "irresponsible and reckless."

"Failure to immediately stay implementation of the rule so that we can take the steps necessary to contain and mitigate the outbreak of the disease puts the public health and safety of our communities at increased risk," the states said.

In Sunday's request, the federal government said the hearing should be pushed back or held via telephone in light of the "exigent circumstances associated with" COVID-19.

"If oral argument were to proceed as currently scheduled, the government's principal counsel would need to travel from Washington, D.C., to New York," the government said.

The feds said they had conferred with the plaintiffs in the cases, who opposed pushing back the hearing but said they'd support a telephone hearing.

Counsel for New York and the advocacy groups did not immediately return requests for comment, and the DOJ, which is representing the federal government, declined to comment Monday.

The plaintiff states and local governments in the New York case are represented by the attorneys general of New York, Vermont and Connecticut and the corporation counsel of the City of New York.

The advocacy groups are represented by Andrew J. Ehrlich, Jonathan H. Hurwitz and Christopher Filburn of Paul Weiss Rifkind Wharton & Garrison LLP, Ghita Schwarz, Brittany Thomas and Baher Azmy of the Center for Constitutional Rights, Susan E. Welber, Kathleen Kelleher, Susan Cameron and Hasan Shafiqullah of the Legal Aid Society and Joanna Elise Cuevas Ingram, Nicolas Espiritu, Max S. Wilson and Tanya Broder of the National Immigration Law Center.

The federal government is represented by Eric Soskin, Joseph H. Hunt, Keri L. Berman, Kuntal V. Cholera and Joshua M. Kolsky of the U.S. Department of Justice's Civil Division.

The cases are State of New York et al. v. U.S. Department of Homeland Security et al., case number 1:19-cv-07777; Make the Road New York et al. v. Michael Pompeo et al., case number 1:19-cv-11633; and Make the Road New York et al., case number 1:19-cv-07993; all in the U.S. District Court for the Southern District of New York.

--Additional reporting by Craig Clough and Suzanne Monyak. Editing by Peter Rozovsky.

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