Metropolitan News-Enterprise


Thursday, December 3, 2020


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Becerra Takes Credit for Ninth Circuit Immigration Ruling

Press Release Says California’s A.G. Obtained Ruling That Affirms Preliminary Injunctions Barring Enforcement of DHS Guideline Curtailing Entry Into U.S.; 16 States, D.C., San Francisco Were Separately Represented


By a MetNews Staff Writer


California Attorney General Xavier Becerra took bows yesterday over a Ninth U.S. Circuit Court of Appeals decision in which the majority of a three-judge panel upheld two preliminary injunctions barring implementation of a new federal guideline which redefines a “public charge” for purpose of a statute barring admission to the U.S. of persons who would be apt to become dependent on the government for their sustenance.

A press release proclaims:

“Attorney General Becerra Secures Appellate Court Victory in Lawsuit Challenging Trump Administration Public Charge Rule.”

California was one of several governmental entities, including 16 other states, suing, each separately represented.

1882 Statute

A ban on the admission to the U.S. of a “public charge”—now contained in 8 U.S.C. §1182(a)(4)(A)—has existed by statute since 1882, but without a statutory definition of the term. It was defined in a 1999 Immigration and Naturalization Service guideline as applying to a person who “is or is likely to become primarily dependent on the government for subsistence.”

However, in 2019, “public charge” was redefined by the Department of Homeland Security (“DHS”) to include a person who was apt to become even temporarily dependent on a non-cash federal government assistance program, which would include receipt of food stamps, pursuant to the federal Supplemental Nutrition Assistance Program.

States and municipalities brought actions in various federal districts to block the guideline from taking effect. Standing was granted by the courts based on the plaintiffs’ expressed concern that aliens in the U.S. on green cards would bypass receipt of federal assistance to avoid being categorized as public charges—which would render them ineligible for permanent resident status—and would draw instead on state and local resources.

One of the injunctions examined by the Ninth Circuit was issued by District Court Chief Judge Phyllis J. Hamilton of the Northern District of California and the other by District Court Judge Rosanna Malouf Peterson of the Eastern District of Washington.

Schroeder’s Opinion

Senior Circuit Judge Mary M. Schroeder wrote yesterday’s opinion affirming those orders (though narrowing the scope of the one from the District Court in Washington).

Schroeder noted that there has been a “a chorus of preliminary injunctions” against enforcement of the guideline, with the Second and Seventh circuits affirming, and the Fourth Circuit reversing.

Joining in her opinion was Judge William A. Fletcher; Judge Lawrence VanDyke dissented.

Declaring that the preliminary injunctions must stand, Schroeder said:

“[W]e conclude the plaintiffs have demonstrated a high likelihood of success in showing that the Rule is inconsistent with any reasonable interpretation of the statutory public charge bar and therefore is contrary to law.”

She observed at the outset of her discussion:

“The phrase ‘public charge’ enjoys a rich history in Anglo-American lore and literature, one more colorful than our American law on the subject. There have been relatively few published court decisions construing the phrase, even though our immigration statutes have barred admission to immigrants who are likely to become a ‘public charge’ for more than a century. Until recently, the judicial and administrative guidance has reflected the traditional concept—rooted in the English Poor Laws and immortalized by Dickens in the workhouse of Oliver Twist—of incapacity and reliance on public support for subsistence.”

An 1882 act, she noted, prohibited entry of “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.”

Unreasonable Definition

Agreeing with the plaintiffs that the DHS guideline unreasonably defines the statutory phrase “public charge,” the judge said:

“From the Victorian Workhouse through the 1999 Guidance, the concept of becoming a ‘public charge’ has meant dependence on public assistance for survival. Up until the promulgation of this Rule, the concept has never encompassed persons likely to make short-term use of in-kind benefits that are neither intended nor sufficient to provide basic sustenance. The Rule also, for the first time, introduces a lack of English proficiency as figuring into the equation, despite the common American experience of children learning English in the public schools and teaching their elders in our urban immigrant communities.”

She went on to say:

“In sum, DHS adopted the Rule, reversing prior, longstanding public policy, without adequately taking into account its potential adverse effects on the public fisc and the public welfare. We must conclude that the Rule’s promulgation was arbitrary and capricious as well as contrary to law….”

Injunction’s Scope Narrowed

Schroeder’s opinion affirms both District Court decisions under review, except to the extent Peterson’s preliminary injunction is national in scope. She explained:

“Whatever the merits of nationwide injunctions in other contexts, we conclude a nationwide injunction is not appropriate in this case. This is because the impact of the Rule would fall upon all districts at the same time, and the same issues regarding its validity have been and are being litigated in multiple federal district and circuit courts.”

Schroeder is an appointee of President Jimmy Carter and Fletcher was placed on the Ninth Circuit by President Bill Clinton.

Van Dyke, an appointee of President Donald Trump, said in a one-sentence dissent:

“For the reasons ably articulated by our court in a December 2019 published opinion, by the Fourth Circuit in an August 2020 opinion, and by a dissenting Seventh Circuit judge in a June 2020 opinion (particularly notable for its erudition)—and implied by the Supreme Court’s multiple stays this year of injunctions virtually identical to those the majority today affirms—I must respectfully dissent.”

In its 2019 opinion, the Ninth Circuit stayed the effect of the two orders for issuance of preliminary injunctions which it yesterday affirmed.

Becerra’s Statement

Becerra’s press release declares:

“SACRAMENTO—California Attorney General Xavier Becerra today secured an order from the Ninth Circuit Court of Appeals affirming a prior preliminary injunction in a multistate lawsuit challenging the Trump Administration’s public charge rule. The rule targets working immigrants and their families by turning the use of critical health, nutrition, and housing programs that supplement their modest incomes into barriers to lawful admission to the United States. The appellate court’s order applies to the multistate coalition and states involved in related Ninth Circuit cases.

“ ‘We applaud today’s decision blocking the Trump Administration from enforcing its immoral public charge rule while we make our case in court,’ said Attorney General Becerra. ‘As we continue to face an unprecedented economic and public health crisis, forcing hardworking families to choose between basic necessities and maintaining their immigration status is inhumane. Attacking the healthcare of even one community is an attack on us all. Today’s victory is critical, but the fight is not over. We won’t let the Trump Administration’s assault on our immigrant communities go unchecked.’ ”

Other Attorneys

The press release says, at the end:

“Attorney General Becerra is joined in the case by the attorneys general of the Maine, Oregon, Pennsylvania, and the District of Columbia.”

While California was the plaintiff in one action which led to Hamilton’s order, it was paired with another action before her—brought by the City and County of San Francisco—seeking the same relief. The states of Washington, Virginia, Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Mexico, Rhode Island and Hawaii were plaintiffs in the action heard by Peterson.

The list of attorneys in the case—-including government lawyers and lawyers for amicus curiae—takes up five printed pages.

Representing the plaintiffs at oral argument was Santa Clara Deputy County Counsel H. Luke Edwards.

The case is City and County of San Francisco v. United States Citizenship and Immigration Services, 19-17213.


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