Bloomberg Law
Dec. 2, 2020, 7:05 PMUpdated: Dec. 3, 2020, 7:44 PM

DHS Public Charge Rule for Immigrants Halted (2)

Mary Anne Pazanowski
Mary Anne Pazanowski
Legal Reporter
Lydia Wheeler
Lydia Wheeler

The Department of Homeland Security lost its bid to stop preliminary injunctions against a new public charge rule limiting the number of immigrants who can be admitted to the U.S. based on doubts they can be self-sufficient, with a ruling by the Ninth Circuit Wednesday.

The rule likely isn’t a reasonable interpretation of federal immigration law, the court said.

A divided U.S. Court of Appeals for the Ninth Circuit upheld preliminary injunctions against the rule issued by district courts in California and Washington, though it narrowed the Washington-based court’s nationwide injunction to cover only the territory within the court’s jurisdiction.

In a statement, San Francisco City Attorney Dennis Herrera said the court’s decision puts the brakes on a cruel and illegal rule that’s not only unlawful but for bad the economy, public health, and the country.

“Hard-working immigrants and their families seeking a better life should not be denied a path to the American dream because of their economic status,” he said. “The poem on the Statue of Liberty does not include a wealth test. The Trump administration’s attempt to create one was a betrayal of the American dream.”

California Attorney General Xavier Becerra, meanwhile, called the court’s ruling a “critical victory” but said the fight isn’t over.

“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,” he said in a statement. “Attacking the healthcare of even one community is an attack on us all.”

Under U.S. immigration law, a person who is likely to become a public charge may not be admitted to the country. For many years, a “public charge” was defined as a person who “is or is likely to become primarily dependent on the government for subsistence.”

But in 2019, DHS changed the rule to include people who are likely to participate in federal benefit programs for only a limited time. It also directed immigration officials to consider English proficiency when determining admissibility.

“U.S. Citizenship and Immigration Services is currently reviewing the court order issued by the U.S. Court of Appeals for the Ninth Circuit, and the agency has no other comment to provide at this time,” services spokesman Dan Hetlage, said in a statement.

State and local governments throughout the country sued DHS to halt its enforcement of the rule.

The local governments demonstrated that they are likely to succeed in proving that the rule is contrary to the public charge law, the Ninth Circuit said. Historically, the law has been interpreted to bar immigrants likely to need long-term dependence on government support, not those who resort to federal assistance on a temporary basis, it said.

The Second and Seventh circuits, which have affirmed preliminary injunctions blocking the rule, also said DHS’s latest rule is “outside any historically accepted or sensible understanding of the term,” it noted.

DHS likely acted arbitrarily and capriciously in adopting the rule, the Ninth Circuit said. The agency didn’t adequately consider the rule’s financial effect, didn’t address concerns about its effects on public safety, health, and nutrition, and didn’t explain its “abrupt” policy change, the court said.

Judge Mary M. Schroeder wrote the opinion. Judge William A. Fletcher joined.

Judge Lawrence VanDyke dissented for the reasons given in the opinion of the U.S. Court of Appeals for the Fourth Circuit, which said the rule likely was a permissible interpretation of the law.

Some legal scholars expect the Biden administration will rescind the rule once in office, which would make the case moot.

“They would be reverting back to what the rule had been for a really long time,” said Leah Litman, an assistant professor of law at the University of Michigan Law School.

“Given all the decisions finding this rule invalid, I think they are going to be on even stronger grounds to say ‘We’re getting rid of this rule that has X, Y, and Z legal defects and all of the consequences. Particularly in the midst of a pandemic, it might create a barrier for individuals to seek public health insurance.’”

The Santa Clara County Counsel’s Office is hoping the incoming Biden administration will prioritize work to rescind the rule.

Issues like public charge may fly a little bit more below the radar but “are so critically important, especially during the pandemic,” an attorney in the office said.

However, next steps in the case “depend in part on what the Justice Department decides to do—whether or not they seek a stay or appeal the decision before the Supreme Court,” the attorney said. “If so, we’re obviously prepared to vigorously oppose it.”

The U.S. Department of Justice argued for the U.S. County of Santa Clara attorneys and the California and Washington attorney generals’ offices argued on behalf of the local and state governments.

The case is City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., 9th Cir., No. 19-17213, 12/2/20.

(Updates Dec. 2 story with reaction from Santa Clara County Counsel’s Office in last four paragraphs; a previous version corrected attorneys in last paragraph.)

To contact the reporters on this story: Mary Anne Pazanowski in Washington at; Lydia Wheeler in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Patrick L. Gregory at