Second Circuit Narrows Pandemic Public Charge Injunction

As Justice Gorsuch has asked: 'What in this gamesmanship and chaos can we be proud of?'

By Andrew R. Arthur on August 14, 2020

On July 29, Judge George B. Daniels of the U.S. District Court for the Southern District of New York issued a nationwide injunction of the public-charge rule (which I explained in a post on Wednesday). He tried this before, only to have his first injunction stayed by the Supreme Court. Taking a new tack, the new injunction was limited to "any period during which there is a declared national health emergency in response to the COVID-19 outbreak". The Second Circuit on Wednesday, August 12, narrowed that injunction, staying it only outside the states of Connecticut, New York, and Vermont, in which it has jurisdiction. Expect a response from the Supreme Court — and not a gentle one.

Before I get to the last point, let me briefly discuss Judge Daniels' order, and my problems with it. The Supreme Court's last order was issued on January 27. On March 13, the White House issued a proclamation that declared a national emergency in response to the Wuhan coronavirus pandemic.

The public-charge rule was issued by DHS on August 14, 2019, and as I explained in my earlier post, was subsequently enjoined by any number of courts — injunctions that were either denied by circuit courts or ultimately by the Supreme Court.

USCIS took note of this proclamation and the pandemic in implementing this rule. Specifically, it issued a public charge alert that (in Judge Daniel's words — USCIS apparently took it down in response to his order) "excludes 'testing, treatment, [and] preventative care ... related to COVID-19'" from the public charge rule "'even if such treatment is provided or paid for by one or more public benefits, as defined in the [R]ule (e.g., federally funded Medicaid).'"

Judge Daniels concluded that this alert, nonetheless, was unlikely to remedy the harms alleged by the plaintiffs there — specifically, that aliens would nonetheless not access testing and treatment.

Specifically, he found that the government failed to establish how an alien could show that he or she applied for Medicaid simply to receive such care. Plus, he contended, what about all of the other benefits aliens would apply for to mitigate the effects of the economic downturn resulting from the pandemic? Finally, he complained, the alert did not cover chronic conditions (COPD, Type 2 diabetes, and serious heart conditions) that would place patients at increased risk if they did contract the coronavirus.

Now, keep in mind that the USCIS alert told aliens that they could seek Medicaid for coronavirus treatment. It also made clear that in places where an employer shuts down to prevent spread of the coronavirus, an adjustment applicant could submit a statement explaining how such shutdowns had affected them in responding to the restrictions under the public charge rule.

Judge Daniels' decision reflects (and is hindered by) his lack of familiarity with how the immigration laws work, or how USCIS actually does its job. In fact, that lack of understanding (coupled with his apparent lack of confidence in the aptitude of aliens who are applying for adjustment) undermines much of the logic in his decision.

Rather than cubicles of automatons stamping forms in a rote fashion, adjudicators consider (or should consider) all of the factors in any alien's case in issuing a decision, regardless of what benefit or relief the alien is requesting.

With respect to USCIS's assurances that applicants could submit a statement detailing how the pandemic had affected their financial circumstances, Judge Daniels' complains: "What an adequate statement should say is unknown." Respectfully, how many times have you had to fill out an application for work or any government form that told you to include a statement to explain a specific answer (i.e., "Have you ever been arrested? If 'yes', please provide a written explanation."). Somehow, we all soldier our way through it, though, and get it done.

Applicants for immigration benefits and relief are no different. The current application for adjustment of status (Form I-485) asks dozens of questions, and contains a final section (Section 14) to provide an explanation for certain responses therein. What is an "adequate statement" in response to those questions? That too, is "unknown" (at least in the abstract), but somehow hundreds of thousands of aliens figure it out annually, and USCIS adjudicators and immigration judges give them green cards.

In fact, the asylum application (Form I-589) requires an alien to provide 12 different statements in response to various questions. To paraphrase Judge Daniels, "what an adequate response should say is unknown" (and I have seen thousands of them), so by his logic, the form is invalid.

That is because he fails to understand that USCIS adjudicators are just that: adjudicators, not file clerks or optical mark recognition scanners. They review applications, interview the applicants, and, if necessary, ask the applicants for additional information before adjudicating the application.

Although (again, according to Judge Daniel's order) USCIS explained that it would take applicants' statements "into consideration to the extent 'relevant and credible'", he complains: "Such a hollow promise provides little comfort. Simply relying on the compassion or sympathy of immigration officials is not rational, either in rulemaking or in informally attempting to amend those rules."

I take serious umbrage to this statement. It is not an adjudicator's place to premise any determination solely on "compassion or sympathy", but that is okay because that is not what USCIS was proposing. Rather, the agency expected its employees to consider the totality of the alien's circumstances in accordance with its own rules — temporary or otherwise. Adjudicators do that every day.

For example, section 245(a) of the Immigration and Nationality Act (INA) — which governs applications for adjustment of status — explains that immigration judges and USCIS adjudicators may adjust the status of an alien who meets certain requirements "in [their] discretion and under such regulations as" DOJ and DHS prescribe.

Some degree of "compassion" and "sympathy" for a given alien's circumstances may weigh into an adjudicator's exercise of "discretion", but the terms are not equivalent. Want proof? Consider the first two terms' antonyms: "indifference" in both cases. It is okay for an adjudicator to be indifferent in exercising discretion to a non-relevant fact — but that is not, and cannot be, the sum total of the discretion analysis.

Judge Daniel's flippancy elides the distinction — again, because he is ruling on a process he likely has little understanding of. And that flippancy is dismissive of what adjudicators actually do — likely for the same reasons. Congress could remove the human element from the adjustment process, but likely would not do so because it would remove the individual facts of the applicant's own case from consideration. Considering the applicant's specific facts in light of the current pandemic in applying the public-charge rule was exactly what USCIS was proposing.

In any event, as noted, the Second Circuit limited the reach of that injunction to the three states over which it has jurisdiction. That limitation likely will not save the injunction, but rather fan the flames at the Supreme Court against such sweeping injunctions.

The district court judge in the Northern District of Illinois did something similar in Cook County v. McAleenan, when he limited his injunction of the public charge rule to the state of Illinois. The Seventh Circuit affirmed that injunction, and the Supreme Court summarily enjoined it, over a vociferous dissent by Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan.

She stated in dissent:

Today's decision follows a now-familiar pattern. The Government seeks emergency relief from this Court, asking it to grant a stay where two lower courts have not. The Government insists — even though review in a court of appeals is imminent — that it will suffer irreparable harm if this Court does not grant a stay. And the Court yields.

Yeah, I noticed the same thing, but apparently Justice Sotomayor doesn't see that the problem is not in the Supreme Court, but the inferior ones. This was a point that Justice Gorsuch made (in no uncertain terms) in his concurrence (with Justice Thomas) in DHS v. New York, staying the original injunction by Judge Daniels.

After going through the various injunctions and stays (or denials of stays) of the public charge rule, Justice Gorsuch stated:

As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions. Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence.

This is not normal.

He continued, noting that there are more than 1,000 federal judges (both active and in senior status) in the nation's 94 districts, answerable to 12 different circuit courts, and therefore "there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide."

And, as he explained, "the stakes are asymmetric", because:

If a single successful challenge is enough to stay the challenged rule across the country, the government's hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal. A single loss and the policy goes on ice — possibly for good, or just as possibly for some indeterminate period of time until another court jumps in to grant a stay. And all that can repeat, ad infinitum, until either one side gives up or this Court grants certiorari.

Justice Gorsuch finishes this analysis with an extremely pointed question: "What in this gamesmanship and chaos can we be proud of?"

As I noted in my earlier post, the Fourth Circuit responded to many of these points in its dismissal of the District of Maryland's stay, and provided a roadmap forward for the Supreme Court to follow in responding to what Justice Gorsuch describes as "injunctions of 'nationwide,' 'universal,' or 'cosmic' scope".

The justice's words indicate his patience is wearing thin — and he is likely not alone. If an inferior-court judge believes that injunctive relief is in order, fine — grant it to the alien parties in the case (or petitioners for them) and only those parties in the case, and get to the merits.

In focusing on the applicants and petitioners themselves, I exclude the state government claims — for good reason. The States of New York, Connecticut, and Vermont were found by Judge Daniels in his earlier order to have standing. But his analysis on this point — in one paragraph devoid of citation to precedent that responds to DOJ's arguments to the contrary only in the most dismissive of ways — is (in my opinion, at least) extremely thin and legally questionable. And it smacks of the limited "opportunity for the adversarial testing of evidence" about which Justice Gorsuch complains.

If, under the scenario I propose, the federal government is ultimately a loser on the merits, the rule goes away. But it does not "go on ice" for everybody else in the interim.

Keep in mind, the public-charge rule was not some slapdash tweet from the president — it was promulgated after two months of notice prompting hundreds of thousands of comments, as I explained before. But, as the foregoing reveals (and Justice Gorsuch made more than clear), one unelected former lawyer on the bench can tie the whole thing up, indefinitely, and as this case shows, serially.

No, "this is not normal." And it is likely not going to last.