By Frank G. Runyeon

Law360, New York (May 18, 2020, 10:56 PM EDT) -- A Manhattan federal judge pushed the U.S. Department of Homeland Security for answers Monday on its rule applying a wealth test to immigrants, suggesting that COVID-19 guidance released by the agency could support a renewed bid to freeze the rule.

U.S. District Judge George B. Daniels quizzed government attorneys on how the pandemic had changed both the harms facing immigrants and potentially the so-called public charge rule at issue, as he examined guidance from DHS that said immigrants wouldn't be penalized for seeking government-funded medical care for COVID-19.

The public charge rule, which is being challenged in the case by New York City, New York state, Connecticut, Vermont and nonprofit advocates, disqualifies immigrants for permanent residency if they are deemed likely to use public assistance programs. That, in turn, could indirectly affect their chances for citizenship.

Judge Daniels previously ordered a halt to the rule, calling it "repugnant," but the U.S. Supreme Court overruled the New York court and the agency began enforcing the rule in February. The plaintiffs asked the high court in April to reconsider as COVID-19 had changed facts on the ground, but the justices demurred while leaving the door open for "filing" in the lower courts.

In the three-hour hearing Monday, Judge Daniels himself highlighted how the legal landscape had changed during the pandemic as he pushed the government to explain why he shouldn't issue a new injunction.

For one, the alleged harms immigrants face have come into focus, as the plaintiffs allege in their renewed bid for an injunction, the judge said.

"Now, we are living in the worst-case scenario," Judge Daniels said, citing the lawsuit's claim that the public and immigrants in particular may suffer if they avoid medical care during the pandemic as a result of the rule. "We don't have to guess about what the possible consequences are. ... One of the consequences could be death from coronavirus."

The judge spent considerable time probing the new DHS guidance notifying immigrants that they could receive public benefits for testing, treatment and diagnosis "related" to COVID-19 and how it affected the public charge rule at the center of the lawsuit, positing that the emergency loophole had effectively created a new rule.

Government counsel said the guidance was the "one difference" to the rule presented in earlier litigation and framed the change as "an exception to the rule" but that "the rule itself hasn't changed."

But the judge appeared to solidify his views on the impact on the rule as the hearing wore on, especially following a lengthy fact-finding exercise where he probed exactly what kind of health care the guidance would allow immigrants to receive without it impacting their ability to get a green card.

"No, no, no, it has changed," Judge Daniels said, correcting counsel for DHS who had begun arguing otherwise. "The rule has changed," the judge said, suggesting the public charge rule was effectively amended by DHS's COVID-19 guidance.

Summing up his understanding at another point in the hearing, the judge said that "basically, the rule right now is if I'm dying from coronavirus, it's not used against me, but if I'm dying of cancer, it is used against me."

Such a finding could lend support to a decision where Judge Daniels halts the public charge rule once again, under the logic that the Supreme Court's ruling applies to a pre-COVID-19 DHS rule, not the rule as enforced under the new guidance.

The plaintiffs had focused on a separate theory, arguing that the reality of the harm caused by the rule is more dire now and it changes the facts of the case so much that it tips the scales in their favor.

"What has changed is simply the harm," said Ming-Qi Chu of the New York attorney general's office. "The harms resulting from someone dying from coronavirus are much more magnified and much more real now."

Elena Goldstein of the New York attorney general's office argued — at times over the sounds of a jackhammer somewhere in Queens — that while the judge cannot overrule the Supreme Court, it can issue a "new injunction based on new facts" as the harms to immigrants and the plaintiffs "are not merely predictable, they are actually happening now."

The judge also quibbled with DHS counsel's idea that it had defined what a "public charge" is, calling its use of a formula a "criteria," not a definition.

Addressing the plaintiffs' efforts to renew the injunction, government counsel Keri Berman argued the plaintiffs were now seeking an identical nationwide order that was "twice rejected" to "evade the Supreme Court's judgment."

"The motion is a mere retread of the arguments the Supreme Court most recently rejected," said Berman, referring to the April decision.

"What is your position on why we are back here?" Judge Daniels said, prodding Berman.

Berman said the Supreme Court's one-sentence decision provided scant information, but that the indication that counsel could make filings in the lower court was not a nod to Judge Daniels' court that he would have the jurisdiction to make a ruling on a second preliminary injunction bid, as the plaintiffs argued.

"You don't think that this order is an indication that the Supreme Court was saying there is currently a set of circumstances in relationship with the coronavirus crisis that might merit a record and a review by this court?" the judge asked.

Berman held to her contention there was not enough information to say for certain.

The judge also heard arguments in two related cases whose line of attack largely mirrored the states and city's case against DHS, including another suit against the agency led by an immigration advocacy group, Make the Road New York v. Cuccinelli.

The judge also heard a motion to dismiss in Make the Road New York v. Pompeo, which challenges the Department of State on the public charge rule as well as a presidential proclamation that bans immigrants from entry if they can't afford health insurance.

The states are represented by Elena Goldstein, Matthew Colangelo, Ming-Qi Chu and Amanda Meyer of the New York attorney general's office, Joshua Perry of the Connecticut attorney general's office and Benjamin Battles, Eleanor Spottswood and Julio Thompson of the Vermont attorney general's office. New York City is represented by Tonya Jenerette, Cynthia Weaver, Doris Bernhardt and Melanie Ash of the Corporation Counsel of the City of New York.

The advocacy organizations are represented by Andrew J. Ehrlich, Jonathan H. Hurwitz, Elana R. Beale, Robert J. O'Loughlin, Daniel S. Sinnreich and Amy K. Bowles of Paul Weiss Rifkind Wharton & Garrison LLP, Ghita Schwarz, Brittany Thomas and Baher Azmy of the Center for Constitutional Rights, and Susan E. Welber, Kathleen Kelleher, Susan Cameron and Hasan Shafiqullah of the Legal Aid Society.

The federal government is represented by Keri L. Berman, Eric J. Soskin, Kuntal V. Cholera, Joshua M. Kolsky and Jason Lynch 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. Cuccinelli et al., case number 1:19-cv-07993; and Make the Road New York et al. v. Pompeo et al., case number 1:19-cv-11633; all in the U.S. District Court for the Southern District of New York.

--Editing by Aaron Pelc.

Clarification: The story has been edited to clarify how the public charge rule potentially affects citizenship.

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