2nd Circ. Breathes New Life Into 'Public Charge' Rule

By Suzanne Monyak
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Law360 (August 12, 2020, 6:33 PM EDT) -- The Second Circuit on Wednesday revived the Trump administration's wealth test for immigrants, narrowing a New York federal judge's earlier ruling that had blocked the contested immigration rule nationwide during the coronavirus pandemic.

In a brief order signed by U.S. Circuit Judge Peter W. Hall, the appeals court said that U.S. District Judge George Daniels' July 29 order temporarily halting the administration's so-called public charge rule across the U.S. during the pandemic would only apply within New York, Connecticut and Vermont.

In blocking the immigration rule, Judge Daniels had found that the policy, which allows the U.S. Department of Homeland Security to deny green cards to low-income immigrants, deters immigrants from seeking COVID-19 testing and could threaten efforts to curb the spread of the disease.

Under the public charge rule, DHS may negatively weigh immigrants' past usage of public benefits programs, including food stamps and housing subsidies, as well as their age, health and education level to determine if they will likely become a public charge in the future.

"As a direct result of the rule, immigrants are forced to make an impossible choice between jeopardizing public health and personal safety or their immigration status," Judge Daniels wrote in his ruling.

The federal government, which has enforced the immigration restrictions since February, had quickly asked the Second Circuit to pause that ruling to "preserve that status quo." The nonprofits and states challenging the policy, however, had urged the Second Circuit to preserve the nationwide injunction, arguing that they are likely to ultimately win their case.

A spokesperson for the New York Attorney General's Office, which led the state coalition, said that the states are glad that the appeals court has continued to shield New York, Vermont and Connecticut from the immigration rule and promised to "continue to fight against the Trump Administration's harmful rule."

The now-narrowed July ruling marked the second time that Judge Daniels blocked the public charge rule. Last year, he was one of five federal judges to rule that the rule is likely illegal, calling it "repugnant to the American dream." However, all of those judges' injunction orders have been paused while the cases progressed through the courts.

The states and nonprofits challenging the rule in New York federal court then renewed their efforts to halt it earlier this year as the coronavirus spread across the U.S., prompting Judge Daniels to issue a second injunction blocking the policy nationwide during the national emergency stemming from the pandemic.

Earlier this month, the Second Circuit upheld but narrowed Judge Daniels' first injunction to apply only within the circuit's three states.

Dan Hetlage, a spokesperson for U.S. Citizenship and Immigration Services, the DHS agency that processes green card requests, said on Thursday that the agency is "currently reviewing" the Second Circuit's order and "will determine the administrative viability of reimplementing the Inadmissibility on Public Charge Grounds Final Rule where applicable."

The states are represented by the attorneys general of New York, Connecticut and Vermont, and the Corporation Counsel of the City of New York.

The nonprofit organizations are represented by attorneys with Paul Weiss Rifkind Wharton & Garrison LLP, the Center for Constitutional Rights and the Legal Aid Society.

The federal government is represented by Jack Starcher of the U.S. Department of Justice's Civil Division.

The case is State of New York v. U.S. Department of Homeland Security, case number 20-2537, in the U.S. Court of Appeals for the Second Circuit.

--Editing by Breda Lund.

Update: This story has been updated with comments from USCIS and the New York Attorney General's office.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

State of New York v. United States Department of Ho

Case Number



Appellate - 2nd Circuit

Nature of Suit

2899 Other Statutes

Date Filed

August 04, 2020

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