CITY AND COUNTY OF SAN FRANCISCO; COUNTY OF SANTA CLARA, Plaintiffs-Appellees, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; KEVIN K. MCALEENAN, in his official capacity as Acting Secretary of the United States Department of Homeland Security; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services, Defendants-Appellants. STATE OF CALIFORNIA; DISTRICT OF COLUMBIA; STATE OF MAINE; COMMONWEALTH OF PENNSYLVANIA; STATE OF OREGON, Plaintiffs-Appellees, v. U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; KEVIN K. MCALEENAN, in his official capacity as Acting Secretary of the United States Department of Homeland Security; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services, Defendants-Appellants. STATE OF WASHINGTON; COMMONWEALTH OF VIRGINIA; STATE OF COLORADO; STATE OF DELAWARE; STATE OF ILLINOIS; STATE OF MARYLAND; COMMONWEALTH OF MASSACHUSETTS; DANA NESSEL, Attorney General on behalf of the People of Michigan; STATE OF MINNESOTA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF RHODE ISLAND; STATE OF HAWAI‘I, Plaintiffs-Appellees, v. U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; KEVIN K. MCALEENAN, in his official capacity as Acting Secretary of the United States Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services, Defendants-Appellants.
No. 19-17213, 19-17214, 19-35914
United States Court of Appeals, Ninth Circuit
December 5, 2019
D.C. No. 4:19-cv-04717-PJH, 4:19-cv-04975-PJH, 4:19-cv-05210-RMP
BYBEE, Circuit Judge:
Since 1882, when the Congress enacted the first comprehensive immigration statute, U.S. law has prohibited the admission to the United States of “any person unable to take care of himself or herself without becoming a public charge.”
In 1999, the Immigration and Naturalization Service (INS), providing guidance to the public and INS field officers, defined “public charge” as an “alien . . . who is likely to become . . . primarily dependent on the government for subsistence” as demonstrated by either “institutionalization for long-term care at government expense” or “receipt of public cash assistance for income maintenance.” Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689 (May 26, 1999) (1999 Field Guidance) (internal quotation marks omitted). Although INS determined that the receipt of cash benefits received under a public program would be considered a factor in determining whether an alien was likely to become a public charge, it stated that non-cash benefits would not be taken into account for public-charge purposes.
Prior to the Final Rule taking effect in October 2019, various states, municipalities and organizations brought suits in California and Washington seeking a preliminary injunction against the implementation of the rule. In Nos. 19-17213 and 19-17214, California, Maine, Oregon, Pennsylvania, and the District of Columbia; the City and County of San Francisco and the County of Santa Clara; and various organizations brought suit in the Northern District of California against the United States under the Due Process Clause of the Fifth Amendment; the Administrative Procedure Act (APA),
DHS seeks a stay of both preliminary injunctions.1 Our authority to issue a stay of a preliminary injunction is circumscribed. Nevertheless, for the reasons explained below, we will grant the stay. DHS has shown a strong likelihood of success on the merits, that it will suffer irreparable harm, and that the balance of the equities and public interest favor a stay. See Nken v. Holder, 556 U.S. 418, 434 (2009).
I. BACKGROUND AND PROCEDURE
We begin with the governing statutory framework, the proposed change to this framework, and the proceedings below.
A. Statutory Framework
The INA requires all aliens who seek lawful admission to the United States, or those already present but seeking to become lawful permanent residents (LPRs), to prove that they are “not inadmissible.”
(4) PUBLIC CHARGE. —
(A) IN GENERAL.—Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.
(B) FACTORS TO BE TAKEN INTO ACCOUNT.—
(i) In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General2 shall at a minimum consider the alien‘s—
(I) age;
(II) health;
(III) family status;
(IV) assets, resources, and financial status; and
(V) education and skills.
(ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any
This provision is applied at different times by different government agencies. When an alien seeks a visa to travel to the United States, a Department of State (DOS) consular officer must make an admissibility determination. See
Though § 212 of the INA lays out the factors an immigration official must consider “at a minimum” when making a public-charge determination, the INA does not define the term “public charge,” or restrict how officials are to consider
B. The Proposed Rule
On October 10, 2018, DHS published a Notice of Proposed Rulemaking (NPRM) indicating its intent to abandon the 1999 Field Guidance and redefine the term “public charge.” See Inadmissibility on Public Charge Grounds, 83 Fed. Reg.
First, the proposed rule for the first time established a required length of time for which the alien would have to rely on public benefits before being labeled a public charge. Under the 1999 Field Guidance, a public charge was defined as an individual “primarily dependent” on government benefits, but the 1999 Field Guidance prescribed no specific time period for which this determination should be made. See 64 Fed. Reg. at 28,689, 28,692. Under the new rule, an alien would be considered a public charge if he or she “receives one or more [designated] public benefits . . . for more than 12 months in the aggregate within a 36-month period.” 83 Fed. Reg. at 51,157-58. Moreover, the proposed rule counts each
Second, the proposed rule expanded which benefits contributed to a public-charge determination. The proposed rule still included those cash-benefit programs that were listed in the 1999 Field Guidance, but now also includes various in-kind programs, such as:
(A) Supplemental Nutrition Assistance Program (SNAP, formerly called “Food Stamps“),
7 U.S.C. 2011 to 2036c ;(B) Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD under
24 CFR part 984 ;42 U.S.C. 1437f and1437u ;(C) Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under
24 CFR parts 5 ,402 ,880 through 884 and886 ; and. . .
(i) Medicaid,
42 U.S.C. 1396 et seq. , [with several exceptions, discussed below]. . .
(iv) Subsidized Housing under the Housing Act of 1937,
42 U.S.C. 1437 et seq.
Additionally, the proposed rule added other factors for immigration officers to consider when making a public-charge determination. The rule still required consideration of the alien‘s age, health, family status, financial status, education and skills, as well as any affidavits of support the alien presents. See 83 Fed Reg. 51,178 (to be codified at
During the sixty-day public comment period that followed the NPRM, DHS collected 266,077 comments, “the vast majority of which opposed the rule.” 84 Fed. Reg. at 41,297. On August 14, 2019, DHS published the Final Rule in the Federal Register.
C. The Proceedings
1. The Northern District of California Case
The district court heard oral argument on October 2, 2019, and on October 11, granted the preliminary injunction. See City & Cty. of San Francisco, 2019 WL 5100718 at *1, 53. The court first held that both the Counties and the States had standing to sue because they showed imminent financial injury. Id. at *46-47. It held that they were in the statute‘s zone of interests because, in enacting the public-charge provision of the INA, “Congress intended to protect states and their political subdivisions’ coffers.” Id. at *41. On the merits, the district court found that the States satisfied the four-factor test for a preliminary injunction. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The court held that the States had a likelihood of success on the merits for at least some of their claims. It found the States were likely to successfully show that the proposed rule was contrary to law because it unreasonably defined the term “public charge,” and thus failed the second step of the Chevron analysis. City & Cty. of San Francisco, 2019
Further, the court found that the rule‘s implementation would irreparably harm the Counties and States by causing them to lose millions of dollars in federal reimbursements and face increased operational costs. Id. at *46-49. Focusing on the public‘s interest in the continued provision of medical services and the prevention of communicable diseases, the district court found both the balance of the equities and the public interest weighed in favor of granting an injunction. Id. at *50-51. However, because the court found that the States had failed to show why a nationwide injunction would be necessary, the court granted an injunction that applied only to those persons living in plaintiff states or counties. Id. at *53.
On October 25, 2019, DHS sought a stay of the preliminary injunction. DHS informed the court that it would seek appellate relief if the court did not act by November 14.
On August 14, 2019, Washington, Virginia, Colorado, Delaware, Hawai‘i, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, Rhode Island, and the state attorney general on behalf of Michigan sued USCIS, Cuccinelli, DHS, and McAleenan in the United States District Court for the Eastern District of Washington. They alleged claims similar to those presented in the California cases: (1) the proposed rule violated the APA because (a) it was not in accordance with immigration law or the Rehabilitation Act, (b) it exceeded DHS‘s statutory jurisdiction or authority, and (c) it was arbitrary, capricious, and an abuse of discretion, and (2) the proposed rule violated the Fifth Amendment‘s Due Process Clause because it denied equal protection based on race and unconstitutional animus.
The district court heard oral argument on October 3, 2019, and on October 11, granted the preliminary injunction. See Washington, 2019 WL 5100717, at *23. The court‘s conclusions largely mirrored those of the Northern District of California, though there were some differences. Citing the States’ anticipated economic, administrative, and public-health costs, the court held that the States had standing and that the matter was ripe. Id. at *11. Finding that the INA was enacted “to protect states from having to spend state money to provide for
On the merits, the court held that the States had shown a likelihood of success on the arbitrary-and-capriciousness claim and the Chevron claim, though the Washington court was less clear than the California court had been about at which step of the Chevron analysis the proposed rule would fail. Id. at *13-17. Unlike the California court, the Washington court also found that the States were likely to succeed in proving that DHS had violated the Rehabilitation Act, and that DHS acted beyond its congressionally delegated authority in defining self-sufficiency. Id. at *17-18. Noting that “the Plaintiff States provide a strong basis for finding that disenrollment from non-cash benefits programs is predictable, not speculative,” and that such disenrollment would financially harm the States, the court found that the States would suffer irreparable harm if the injunction were not issued. Id. at *20-21. On these same grounds, the court found that the balance of the equities and public interest both “tip[ped] in favor” of granting a preliminary injunction. Id. at *21. However, unlike the California court, the Washington court found a geographically limited injunction untenable, in part because a limited injunction might give immigrants an incentive to move from unprotected states to
On October 25, 2019, DHS sought a stay of the preliminary injunction. DHS informed the court that it would seek appellate relief if the court did not act by November 14.
* * *
By November 14, neither district court responded to the respective motions to stay. On November 15, 2019, DHS filed a motion in this court for an emergency stay of the injunction.
II. JURISDICTION
DHS contends that the plaintiffs do not have Article III standing to sue and that their claims do not fall within the zone of interests protected by the INA. We have an obligation to ensure that jurisdiction exists before proceeding to the merits. See Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 93-95 (1998).8 Additionally, although no party has raised the issue, we must address whether
A. Article III Standing
The district courts concluded that the States had standing based on their alleged loss of federal funds and increase in operational costs related to individuals disenrolling from the non-cash public benefits at issue. DHS challenges this
First, the injuries alleged are not entirely speculative—at least for standing purposes. DHS acknowledges that one result of the Final Rule will be to encourage aliens to disenroll from public benefits. It predicted a 2.5 percent disenrollment rate when proposing the rule.
Moreover, according to evidence supplied by the States, the predicted results have already started. As more individuals disenroll from Medicaid, the States will no longer receive reimbursements from the federal government for treating them.
Finally, DHS‘s reliance on Clapper v. Amnesty Int‘l USA, 568 U.S. 398 (2013), is unfounded. There, the Court found that various human rights, labor, legal, and media organizations did not have standing to challenge the constitutionality of a law authorizing governmental electronic surveillance of communications for foreign intelligence purposes. Id. at 414. The alleged injury was that the threat of surveillance would compel them to travel abroad to have in-person conversations with sources and witnesses, in addition to other costs related to protecting the confidentiality of sensitive communications. Id. at 406-07. The Court found that the injury was not “certainly impending” because it was highly speculative whether the government would imminently target communications between the plaintiffs and foreign individuals. Id. at 410-11. The assumption that their communications would be targeted was not enough to demonstrate injury in fact. Id. at 411-14. Here, the States are not making assumptions about their
Thus, based on the available evidence at this early stage of the proceedings, we conclude that the States have shown that they have suffered and will suffer direct injuries traceable to the Final Rule and thus have standing to challenge its validity.
B. Mootness
Finally, we raise on our own the question of whether we can consider DHS‘s request for a stay of the district court‘s preliminary injunctions. See Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004) (“[W]e have an independent duty to consider sua sponte whether a case is moot.“). The stay would, presumably, allow the Final Rule to go into effect pending further proceedings in the district court and this court. The question of mootness arises because, contemporaneous with the district courts’ orders here, district courts in Maryland and New York also issued nationwide injunctions. Casa de Md., Inc. v. Trump, 2019 WL 5190689 (D. Md. Oct. 14, 2019); New York v. U.S. Dep‘t of Homeland Sec., 2019 WL 5100372
We recently addressed this precise question in California v. U.S. Department of Health & Human Services, 941 F.3d 410, 423 (9th Cir. 2019), and we concluded that even if an injunction from another court “has a fully nationwide scope, we nevertheless retain jurisdiction under the exception to mootness for cases capable of repetition, yet evading review.” Similarly, we conclude that DHS‘s petition is not moot, and we proceed to the merits of its petition.
III. STANDARD OF REVIEW
DHS requests that we stay the district courts’ preliminary injunctions pending resolution of the consideration of the merits of DHS‘s appeals. We have authority to do so under the
Two standards affect our determination, the standard applicable to district courts for preliminary injunctions, and the standard applicable to appellate courts for stays pending appeal. The district court must apply a four-factor standard:
A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.
Alternatively, “‘serious questions going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
Generally, the purpose of a preliminary injunction is to “preserve the status quo and the rights of the parties until a final judgment issues in the cause.” U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); Sierra On-Line, Inc. v. PhoenixSoftware, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984)). An injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. It “should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (citation omitted).
The standard we apply to DHS‘s request for a stay is similar, although the burden of proof is reversed. “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion,” and our analysis is guided by four factors:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injury the other parties interested in the proceeding; and (4) where the public interest lies.
Nken, 556 U.S. at 433-34 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “The first two factors . . . are the most critical,” and the “mere possibility” of success or irreparable injury is insufficient to satisfy them. Id. at 434 (internal quotation marks omitted). At this stage of the proceedings, it is now DHS‘s burden to make “a strong showing that [it] is likely to” prevail against the States’ claims. Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken, 556U.S. at 426). We consider the final two factors “[o]nce an applicant satisfies the first two.” Nken, 556 U.S. at 435.
“A stay is an ‘intrusion into the ordinary process of administration and judicial review,’ and accordingly ‘is not a matter of right, even if irreparable injury might otherwise result to the appellant.‘” Id. at 427 (citations omitted). “It is instead ‘an exercise of judicial discretion,’ and ‘the propriety of its issue is dependent upon the circumstances of the particular case.‘” Id. at 433 (alteration omitted) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672-73 (1926)).
There is significant overlap in these standards. The first prong in both tests—likelihood of success on the merits—is the same. And the Supreme Court has made clear that satisfaction of this factor is the irreducible minimum requirement to granting any equitable and extraordinary relief. Trump v. Hawai‘i, 138 S. Ct. at 2423. The analysis ends if the moving party fails to show a likelihood of success on the merits of its claims. Id.
IV. LIKELIHOOD OF SUCCESS ON THE MERITS
Any “person suffering legal wrong . . . or adversely affected or aggrieved” by an agency‘s final action may seek judicial review.
DHS argues that it is likely to succeed on the merits of its appeal because, contrary to the conclusions of the district courts, the Final Rule is neither contrary to law nor arbitrary and capricious. We agree. The Final Rule‘s definition of “public charge” is consistent with the relevant statutes, and DHS‘s action was not arbitrary or capricious.
A. Contrary to Law
The States argue that the Final Rule is invalid under the APA because the Final Rule‘s definition of “public charge” is contrary to (1) the INA and (2) the Rehabilitation Act. We disagree and find that DHS is likely to succeed in its argument that the Final Rule is not contrary to law.11
When confronted with an argument that an agency‘s interpretation of a statute that it administers is wrong, we employ the familiar Chevron two-step test. First, we ask “whether Congress has directly spoken to the precise question at issue.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). If it has, “that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43. But if Congress has not spoken directly to the issue at hand, we proceed to the second step and ask “whether the agency‘s answer is based on a permissible construction of the statute.” Id. at 843.
We must keep in mind why Chevron is an important rule of construction:
Chevron is rooted in a background presumption of congressional intent: namely, that Congress, when it left ambiguity in a statute administered by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows. Chevron thus provides a stable background rule against which Congress can legislate: Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency. Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.
Arlington v. FCC, 569 U.S. 290, 296 (2013) (quotation marks and citations omitted).
a. Chevron Step 1
At Chevron‘s first step, we determine whether Congress has directly spoken to the issue at hand by “employing traditional tools of statutory construction.” Chevron, 467 U.S. at 843 n.9. That means we start with the text. Afewerki v. Anaya Law Grp., 868 F.3d 771, 778 (9th Cir. 2017). We will then examine the history of interpretation to see if there has been a judicial construction of the term “public charge” that “follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Nat‘l Cable & Telecomms. Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). Finally, we will consider other factors raised by the district courts and the States.
(1) Text. Under § 212 of the INA, an alien is inadmissible if, “in the opinion of” the immigration official, the alien “is likely at any time to become a public charge.” In making that determination, the immigration official must consider “at a minimum” the alien‘s age, health, family status, financial resources, education, and skills.
We have four quick observations. First, the determination is entrusted to the “opinion” of the consular or immigration officer.12 That is the language of discretion, and the officials are given broad leeway. Depending on the context in which the “opinion” is given, the decision may be nonreviewable. Under the rule of consular nonreviewability, only the most egregious abuses of discretion may be reviewed. See Kerry v. Din, 135 S. Ct. 2128, 2140-41 (2015) (Kennedy, J., concurring); see also Cardenas v. United States, 826 F.3d 1164, 1171-72 (9th Cir. 2016) (holding that Justice Kennedy‘s concurring opinion in Din is the controlling opinion and summarizing the consular nonreviewability rule). Indeed, we have previously held that the phrase “in the opinion of the Attorney General” in a now-repealed immigration statute conferred “unreviewable” discretion to the Executive Branch. See Kalaw v. I.N.S., 133 F.3d 1147, 1151-52 (9th Cir. 1997), superseded by statute on other grounds. And to the extent the federal courts may review such
Second, the critical term “public charge” is not a term of art. It is not self-defining. That does not mean that officials may pour any meaning into the term, but it does mean that there is room for discretion as to what, precisely, being a “public charge” encompasses. In a word, the phrase is “ambiguous” under Chevron; it is capable of a range of meanings. So long as the agency has defined the term within that range of meanings, we have no grounds for second-guessing the agency, “even if the agency‘s reading differs from what [we] believe[] is the best statutory interpretation.” Brand X, 545 U.S. at 980 (citing Chevron, 467 U.S. at 843-44 & n.11). It also means that an agency “must consider varying interpretations and the wisdom of its policy on a continuing basis,” including “in response to changed factual circumstances, or a change in administrations.” Id. at 981 (quotations marks and citations omitted).
Fourth, Congress granted DHS the power to adopt regulations to enforce the provisions of the INA. When Congress created DHS, Congress vested the Secretary of Homeland Security “with the administration and enforcement of . . . all [] laws relating to the immigration and naturalization of aliens” and authorized the Secretary to “establish such regulations . . . as he deems necessary.”
(2) Historic Understanding. Although the foregoing would ordinarily be sufficient to end our inquiry, the current provision, which was most recently rewritten in 1996 in IIRIRA, is merely the most recent iteration of federal immigration law to deem an alien inadmissible if he or she is likely to become a “public charge.” There is a long history of judicial and administrative interpretations of this phrase in the immigration context that predates the enactment of the INA. Because “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change,” Lorillard v. Pons, 434 U.S. 575, 580 (1978), we must examine this history to determine if “public charge” has a well-defined and congressionally understood meaning that limits DHS‘s discretion.
The history of the term “public charge” confirms that its definition has changed over time to adapt to the way in which federal, state, and local governments have cared for our most vulnerable populations. “Public charge” first appeared in this country‘s immigration law in 1882. That statute excluded a would-be immigrant from the United States if the person was a “convict, lunatic,
Congress did not define “public charge” in the 1882 act. We thus ascribe to that phrase its commonly understood meaning at the time, as evidenced by contemporary sources. See Freeman v. Quicken Loans, Inc., 566 U.S. 624, 633-34 & nn.6-8 (2012) (citing contemporary dictionary definitions to interpret statutory phrases). An 1828 dictionary defined “charge” as “[t]hat which is enjoined, committed, entrusted or delivered to another, implying care, custody, oversight, or duty to be performed by the person entrusted,” or a “person or thing committed to anothers [sic] custody, care or management.” Charge, WEBSTER‘S DICTIONARY (1828 Online Edition), http://webstersdictionary1828.com/Dictionary/charge; see also Stewart Rapaljb & Robert L. Lawrence, DICTIONARY OF AMERICAN AND ENGLISH LAW, WITH DEFINITIONS OF THE TECHNICAL TERMS OF THE CANON AND CIVIL LAWS 196 (Frederick D. Linn & Co. 1888) (defining “charge” as “an obligation or liability. Thus we speak . . . of a pauper being chargeable to the parish or town“). That is a broad, common-sense definition, which was reflected in Nineteenth-Century judicial opinions using the phrase. See, e.g., In re Day, 27 F. 678, 681 (C.C.S.D.N.Y. 1886) (defining a “public charge” as a person who “can neither take care of themselves, nor are under the charge or protection of any other
The 1882 act did not consider an alien a “public charge” if the alien received merely some form of public assistance. The act itself established an “immigrant fund” that was designed to provide “for the care of immigrants arriving in the United States.” Act of Mar. 26, 1910 ch. 376, § 1, 22 Stat. 214. Congress thus accepted that providing some assistance to recent immigrants would not make those immigrants public charges. But Congress did not draw that line with any precision. Instead, we read “public charge” in the 1882 act to refer generally to those who were unwilling or unable to care for themselves. In context that often meant that they were housed in a government or charitable institution, such as an almshouse, asylum, or penitentiary.
The term “public charge” endured through subsequent amendments to the 1882 act. In 1910, Congress enacted a statute that deemed “paupers; persons likely to become a public charge; professional beggars;” and similar people inadmissible. ch. 128, § 2, 36 Stat. 263 (1910). Relying on the placement of “public charge”
By the mid-Twentieth Century, the United States had largely abandoned the poorhouse in favor of direct payments through social welfare legislation. At the federal level, the government had created Social Security and Aid to Families With Dependent Children (AFDC). At the state level, governments supplemented family income through programs such as unemployment insurance and worker‘s compensation. Similar changes were being made in other programs such as mental health care, where we moved from institutionalizing the mentally ill to a program of treatment with the end of releasing them. As Chief Justice Burger observed:
Historically, and for a considerable period of time, subsidized custodial care in private foster homes or boarding houses was the
O’Connor v. Donaldson, 422 U.S. 563, 582 (1975) (Burger, C.J., concurring). “[T]he idea that States may not confine the mentally ill except for the purpose of providing them with treatment [was] of very recent origin.” Id. (footnote omitted). The way in which we regarded the poor and the mentally infirm not only brought changes in the way we treated them, but major changes in their legal rights as well. See, e.g., McNeil v. Director, Patuxent Inst., 407 U.S. 245, 248–50 (1972) (requiring a hearing before a person who has completed his criminal sentence can be committed to indefinite confinement in a mental institution); cf. Goldberg v. Kelly, 397 U.S. 254, 260–61 (1970) (holding that a recipient of public assistance payments is constitutionally entitled to an evidentiary hearing before those payments are terminated).
The movement towards social welfare was soon reflected in the definition of “public charge.” In Matter of B-, 3 I. & N. Dec. 323 (BIA 1948), the recently created BIA articulated a new definition of “public charge.” Permanent institutionalization would not be the sole measure of whether an alien was a public charge. The BIA said it would also consider whether an alien received temporary
Four years later, Congress substantially revised the immigration laws in the
In 1974, the BIA altered course again. The BIA limited Matter of B-‘s three-part test to determining whether a person had become a public charge after having been admitted to the United States. See Matter of Harutunian, 14 I. & N. Dec. 583, 585 (BIA 1974). After noting that the phrase “public charge” had been interpreted differently by various courts, the BIA held:
[A]ny alien who is incapable of earning a livelihood, who does not have sufficient funds in the United States for his support, and has no person in the United States willing and able to assure that he will not need public support is excludable as likely to become a public charge whether or not the public support which will be available to him is reimbursable to the state.
Id. at 589–90. The BIA thus pegged the public-charge determination to whether the alien was likely to “need public support,” irrespective of whether the alien was
That definition of “public charge” was subsequently amended by the INS. In 1987, the INS issued a final rule that deemed an applicant for adjustment of status to be a “public charge” if the applicant had “received public cash assistance.”
In 1996, through
Responding to the 1996 act, INS published the 1999 Field Guidance to “establish clear standards governing a determination that an alien is inadmissible or ineligible to adjust status . . . on public charge grounds.”
(3) Other Factors. Both district courts found it significant that Congress twice considered, but failed to enact, a definition of “public charge” that is similar to the definition adopted in the Final Rule. City & Cty. of San Francisco, 2019 WL 5100718 at *27; Washington, 2019 WL 5100717, at *17. During the debates over IIRIRA in 1996, Congress considered whether to enact the following definition of “public charge“: “the term ‘public charge’ includes any alien who receives [certain means-tested] benefits . . . for an aggregate period of at least 12 months or 36 months” in some cases. 142 Cong. Rec. 24,313, at 24,425 (1996). Senator Leahy argued that this was “too quick to label people as public charges for utilizing the same public assistance that many Americans need to get on their feet,” and that the phrase “means tested” was “unnecessarily uncertain.” S. Rep. No. 104-249, at
The district courts viewed these failed legislative efforts as evidence that Congress specifically rejected the interpretation of “public charge” DHS articulated in the Final Rule, and that the Final Rule is thus an impermissible reading of the INA. City & Cty. of San Francisco, 2019 WL 5100718, at *27; Washington, 2019 WL 5100717, at *17. We disagree. If this legislative history is probative of anything, it is probative only of the fact that Congress chose not to
* * *
In short, Congress has not spoken directly to the interpretation of “public charge” in the INA. Nor did it unambiguously foreclose the interpretation articulated in the Final Rule. Instead, the phrase “public charge” is ambiguous under Chevron. DHS has the authority to interpret it and “must consider varying interpretations and the wisdom of its policy on a continuing basis.” Chevron, 467 U.S. at 863–64. Indeed, “the fact that the agency has adopted different definitions in different contexts adds force to the argument that the definition itself is flexible, particularly since Congress has never indicated any disapproval of a flexible
b. Chevron Step 2
At Chevron‘s second step, we ask whether the agency‘s interpretation is “reasonable—or ‘rational and consistent with the statute.’” Diaz-Quirazco v. Barr, 931 F.3d 830, 840 (9th Cir. 2019) (quoting Sullivan v. Everhart, 494 U.S. 83, 89 (1990)). If it is, we must defer to it, “even if the agency‘s reading differs from what the court believes is the best statutory interpretation.” Perez-Guzman v. Lynch, 835 F.3d 1066, 1073–74 (9th Cir. 2016) (quoting Brand X, 545 U.S. at 980).
The Final Rule easily satisfies this test. As we have explained, the INA grants DHS considerable discretion to determine if an alien is likely to become a public charge. To be sure, under the Final Rule, in-kind benefits (other than institutionalization) will for the first time be relevant to the public-charge determination. We see no statutory basis from which a court could conclude that the addition of certain categories of in-kind benefits makes DHS‘s interpretation
Our conclusion is reinforced by the
We conclude that DHS‘s interpretation of “public charge” is a permissible construction of the INA.
2. The Rehabilitation Act
The States argue, and the Eastern District of Washington found, that the Final Rule is inconsistent with the Rehabilitation Act. Washington, 2019 WL 5100717, at *18. The Northern District of California rejected that argument. City & Cty. of San Francisco, 2019 WL 5100718, at *29–30. The Rehabilitation Act provides: “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity . . . conducted by any Executive agency.”
This argument need not detain us long. First, under the INA, immigration officers are obligated to consider an immigrant‘s “health” when making the public-charge determination.
* * *
In sum, DHS is likely to succeed in its argument that the Final Rule should not be set aside as contrary to law. We will not minimize the practical impact of the Final Rule, but we will observe that it is a short leap in logic for DHS to go from considering in-cash public assistance to considering both in-cash and in-kind public assistance. DHS has shown that there is a strong likelihood that its decision
B. Arbitrary and Capricious
Arbitrary and capricious review under the APA addresses the reasonableness of the agency‘s decision. The classic statement of our scope of review is Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Automotive Insurance Co., 463 U.S. 29 (1983):
[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. In reviewing that explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that could not be ascribed to a difference in view of the product of agency expertise.
Id. at 43 (quotation marks and citations omitted); see Org. Vill. of Kake v. Dep’t of Agric., 795 F.3d 956, 966–67 (9th Cir. 2015). An agency‘s failure to respond to any particular comment or point put forward by a rule‘s opponents is not a ground for finding per se arbitrary-and-capricious action. See Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1150–52 (9th Cir. 2002)
The fact that DHS has changed policy does not substantially alter the burden in the challengers’ favor. DHS must, of course, “show that there are good reasons for the new policy,” but, it
need not demonstrate to a court‘s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
The district courts raised two objections to DHS‘s consideration that the district courts found made the Final Rule arbitrary and capricious: (1) DHS‘s failure to properly weigh the costs to state and local governments and healthcare providers, such as hospitals, resulting from disenrollment from public benefits programs; and (2) DHS‘s inadequate consideration of the Final Rule‘s impact on public health. City & Cty. of San Francisco, 2019 WL 5100718, at *31–35; Washington, 2019 WL 5100717, at *19. We will consider each in turn.
The Northern District of California‘s principal concern was the higher costs that state and local governments will face as a result of “disenrollment [from] public benefits.” City & Cty. of San Francisco, 2019 WL 5100718, at *31. Specifically, the district court concluded that “DHS appears to have wholly failed to engage with [comments on the costs of the change]. DHS failed to grapple with the [Final] Rule‘s predictable effects on local governments, and instead concluded that the harms—whatever they may be—are an acceptable price to pay.” Id. at *32. The court further faulted DHS for “refus[ing] to consider the costs associated with predicted, likely disenrollment of those not subject to the public charge determination.” Id.
We begin with the observation that DHS addressed at length the costs and benefits associated with the Final Rule. See
DHS‘s analysis began by stating, “This rule will impose new costs on this population applying to adjust status . . . that are subject to the public charge ground of inadmissibility.”
Elsewhere, DHS responded to comments claiming that the Final Rule would cause aliens to disenroll from or forego enrollment in public benefit programs and that this “would be detrimental to the financial stability and economy of communities, States, local organizations, hospitals, safety net providers, foundations, and healthcare centers.”
The second category of aliens are those who are unlawfully in the United States. These are “generally barred from receiving federal public benefits other than emergency assistance.” Id. (footnote omitted). Nevertheless, DHS announced that it will not consider “for purposes of a public charge inadmissibility determination whether applicants for admission or adjustment of status are receiving food assistance through other programs, such as exclusively state-funded programs, food banks, and emergency services, nor will DHS discourage individuals from seeking such assistance.” Id.
Third are those aliens and U.S. citizens who are not subject to the Final Rule, but erroneously think they are and disenroll from public benefits out of an abundance of caution. Id. Disenrollment by this category of persons should not be influenced by the Final Rule because their receipt of public benefits will “not be counted against or made attributable to immigrant family members who are subject to this rule.” Id. DHS understood “the potential effects of confusion” over the scope of the Final Rule that might lead to over-disenrollment. DHS stated that it
The Northern District of California pointed out that DHS‘s response “fails to discuss costs being borne by the states, hospitals, or others, other than to say DHS will issue guidance in an effort to mitigate confusion.” City & Cty. of San Francisco, 2019 WL 5100718, at *34. The court further criticized DHS for “flatly refus[ing] to consider the costs associated with predicted, likely disenrollment of those not subject to the public charge determination.” Id. at *35.
We think several points must be considered here. First, the costs that the states, localities, and various entities (such as healthcare providers) may suffer are indirect. Nothing in the Final Rule imposes costs on those governments or entities; the Final Rule does not regulate states, localities, and private entities. Disenrollment will be the consequence of either (1) the free choice of aliens who wish to avoid any negative repercussions for their immigration status that would result from accepting public benefits, or (2) the mistaken disenrollment of aliens or U.S. citizens who can receive public benefits without any consequences for their residency status. DHS addressed both groups. DHS said it did not have data to calculate the size of the first group (and, presumably, the value of the benefits from which they will disenroll), and it had no way to estimate the second. 84 Fed. Reg.
Second, DHS did acknowledge the indirect costs the Final Rule might impose
downstream . . . on state and local economics, large and small businesses, and individuals. For example, the rule might result in reduced revenues for healthcare providers participating in Medicaid, companies that manufacture medical supplies or pharmaceuticals, grocery retailers participating in SNAP, agricultural producers who grow foods that are eligible for purchase using SNAP benefits, or landlords participating in federally funded housing programs.
Id. It did not attempt to quantify those costs, but it recognized the overall effect of the Final Rule, and that is sufficient. See Irvine Med. Ctr. v. Thompson, 275 F.3d 823, 835 (9th Cir. 2002) (“[T]he Secretary acknowledged that some Medicare beneficiaries would possibly have to shoulder an additional financial burden as a result of the repeal of the carry-forward provision. This acknowledgment did not render the Secretary‘s rulemaking statement or reliance upon it arbitrary, however.” (internal citation omitted)) .
DHS does not believe that it is sound policy to ignore the longstanding self-sufficiency goals set forth by Congress or to admit or grant adjustment of status applications of aliens who are likely to receive public benefits designated in this rule to meet their basic living needs in . . . hope that doing so might alleviate food and housing insecurity, improve public health, decrease costs to states and localities, or better guarantee health care provider reimbursements. DHS does not believe that Congress intended for DHS to administer [§ 212] in a manner that fails to account for aliens’ receipt of food, medical, and housing benefits so as to help aliens become self-sufficient.
84 Fed. Reg. at 41,314. Even had DHS been able to calculate the indirect costs that states, localities, and healthcare providers might bear as a result of the Final Rule, it is not clear what DHS was supposed to balance. Rather, it was sufficient—and not arbitrary and capricious—for DHS to consider whether, in the long term, the overall benefits of its policy change will outweigh the costs of retaining the current policy.
2. Public-Health Concerns
The Northern District of California also found that DHS did not sufficiently respond to certain public-health concerns. City & Cty. of San Francisco, 2019 WL 5100718, at *35–37. Specifically, the court worried that by disenrolling from public-health benefits like Medicaid, people may forgo vaccinations, which could
DHS not only addressed these concerns directly, it changed its Final Rule in response to the comments. 84 Fed. Reg. at 41,297. With respect to vaccines, DHS stated that it “does not intend to restrict the access of vaccines for children or adults or intend to discourage individuals form obtaining the necessary vaccines to prevent vaccine-preventable diseases.” Id. at 41,384. The Final Rule “does not consider receipt of Medicaid by a child under age 21, or during a person‘s pregnancy, to constitute receipt of public benefits.” DHS said that would address “a substantial portion, though not all, of the vaccinations issue.” Id. Accordingly, DHS “believes that vaccines would still be available for children and adults even if they disenroll from Medicaid.” Id. at 41,385.
Both the Northern District of California and the Eastern District of Washington expressed concern that the Final Rule was a departure from the 1999 Field Guidance, which raised the vaccine issue, and that the 1999 Field Guidance had “engendered reliance.” City & Cty. of San Francisco, 2019 WL 5100718, at *37; see also Washington, 2019 WL 5100717, at *19. The question is not whether
V. OTHER FACTORS
We have concluded that DHS is likely to succeed on the merits. Were we reviewing the preliminary injunctions on direct review, this would be sufficient to reverse the district courts’ orders. See Trump v. Hawai‘i, 138 S. Ct. at 2423. But
A. Irreparable Harm
We first consider whether DHS has shown that it “will be irreparably injured absent a stay.” Nken, 556 U.S. at 434 (quoting Hilton, 481 U.S. at 776). The claimed irreparable injury must be likely to occur; “simply showing some ‘possibility of irreparable injury‘” is insufficient. Id. (citation omitted). DHS has carried its burden on this factor.
DHS contends that as long as the Final Rule is enjoined,
DHS will grant lawful-permanent-resident status to aliens whom the Secretary would otherwise deem likely to become public charges in the exercise of his discretion. DHS currently has no practical means of revisiting public-charge determinations once made, so the injunctions will inevitably result in the grant of LPR status to aliens who, under the Secretary‘s interpretation of the statute, are likely to become public charges.
The States do not deny that LPR status might be irrevocably granted to some aliens, but they claim that DHS has “exaggerate[d] the effect of the injunction” because the public-charge exclusion has “never played a significant role in immigration. In contrast, in just 8 of the 14 Plaintiff States [in the Washington
Several points emerge from the parties’ claims. First, the States appear to concede that decisions to grant adjustment of status to aliens who could otherwise not be eligible are not reversible. Second, although the States argue that “public charge” exculsions have not been an important component of our immigration scheme in the past, the whole point of DHS‘s Final Rule is that “public charge” inadmissibility has been underenforced.
Moreover, to the extent the States are contesting the magnitude of the harm to DHS, the claim is irrelevant here. We have said that this “analysis focuses on irreparability, ‘irrespective of the magnitude of the injury.‘” California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018) (quoting Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999)). But even if we look at the magnitude, the States’ own evidence is double-edged. The States claim that they will suffer harm because millions of persons will disenroll to avoid potential immigration consequences. This seems to prove DHS‘s point. If millions of “lawfully present residents” are
Finally, we think the tenability of DHS‘s past practice is of no import here. Congress has granted DHS the authority to enact and alter immigration regulations and DHS has done that, and it has done so in a way that comports with its legal authority. Thus, as of October 15, 2019, DHS had an obligation to deny admission to those likely to become public charge, as defined by the Final Rule. This is true regardless of DHS‘s prior policy. As a consequence, the preliminary injunctions will force DHS to grant status to those not legally entitled to it. DHS has satisfied its burden to show irreparable harm to the government absent a stay of the injunctions.
B. Balance of Hardships and Public Interest
Since DHS has satisfied the first two factors, we proceed to the final two: balance of equities and the public interest. Nken, 556 U.S. at 435. “Because the government is a party, we consider [these two factors] together.” California v. Azar, 911 F.3d at 581.
To balance the equities, we consider the hardships each party is likely to suffer if the other prevails. N. Cheyenne Tribe v. Norton, 503 F.3d 836, 843–44 (9th Cir. 2007) (citing Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987). We have discussed above the irreparable, non-monetary harm to the government. On the other hand, the States contend that they face financial, public-health, and administrative harms if the Final Rule takes effect and otherwise eligible individuals disenroll from public benefits. These effects are indirect effects of the Final Rule and they are largely short-term, since they will only result during the pendency of the proceedings in the district courts and any appeals to this court and the Supreme Court.19 Those proceedings are likely to be conducted on an expedited basis, limiting further any potential harm to be considered by this court. DHS does not dispute that the States will incur some financial harm if the Final Rule is not stayed. It cannot, because DHS repeatedly addressed the potential costs to the States in its Final Rule. See, e.g., 84 Fed. Reb. at 41,300, 41,312–14, 41,385–85, 41,469–70, 41,474. And while ordinarily, we do not consider purely economic harm irreparable, we have concluded that “such harm is irreparable” when “the states will not be able to recover monetary damages.” California v. Azar, 911 F.3d at 581. Yet the States’ financial concerns will be mitigated to some extent. As DHS explained in the Final Rule, disenrollment from
Balancing these harms is particularly difficult in this case. First, the harms are not comparable. DHS‘s harm is not monetary, but programmatic. The policy behind Congress‘s decision not to admit those who are likely to become a public charge may have a fiscal component, but it is not the reason for DHS‘s Final Rule, nor has DHS argued financial harm as a reason for seeking a stay. By contrast, the States’ proffered harms are largely financial. Second, both parties’ proffered harms are, to a degree, speculative. We cannot say for certain how many residents of the plaintiff states and counties will disenroll from public benefits programs, nor how much any over-disenrollment will cost the States. Nor can we say for certain how many aliens might be found admissible during the pendency of the preliminary injunction, and would have been found inadmissible under the Final Rule. Given the largely predictive nature of both parties’ alleged harms, we cannot state with any confidence which is greater.
For the same reasons, the public interest in this case is likewise difficult to calculate with precision. DHS contends it is in the public‘s interest not to grant
We recently observed that “balancing the equities is not an exact science.” Azar, 911 F.3d at 582. Indeed, Justice Frankfurter once remarked that the balancing of the equities was merely “lawyers’ jargon for choosing between conflicting public interests.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring). Whether the stay is granted or denied, one party‘s costs will be incurred and the other avoided. In the end, the “critical” factors are that DHS has mustered a strong showing of likelihood of success on the merits and some irreparable harm. Nken, 556 U.S. at 434. Those factors weigh in favor of granting a stay, despite the potential harms to the States. And for that reason, the stay is in the public interest.
VII. CONCLUSION
The motion for a stay of the preliminary injunction in Nos. 19-17213 and 19-17214 is GRANTED. The petition for stay of the preliminary injunction in No. 19-35914 is GRANTED. The cases may proceed consistent with this opinion.
City and County of San Francisco, et al v. USCIS, et al
No. 19-17213+
U.S. COURT OF APPEALS
DEC 5 2019
BYBEE, Circuit Judge, concurring, perplexed and perturbed:
I join the majority opinion in full. I write separately to emphasize two points—points that I feel must be made, but are better said in a separate opinion.
We as a nation are engaged in titanic struggles over the future of immigration in the United States. These are difficult conversations. As a court, the Ninth Circuit in particular has felt the effects of the recent surge in immigration. As we observed last year with respect to the asylum problem:
We have experienced a staggering increase in asylum applications. Ten years ago we received about 5,000 applications for asylum. In fiscal year 2018 we received about 97,000—nearly a twenty-fold increase. Our obligation to process these applications in a timely manner, consistent with our statutes and regulations, is overburdened. The current backlog of asylum cases exceeds 200,000—about 26% of the immigration courts’ total backlog of nearly 800,000 removal cases. In the meantime, while applications are processed, thousands of applicants who had been detained by immigration authorities have been released into the United States.
E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 754 (9th Cir. 2018) (citations omitted). Because of our proximity to Mexico, Central America, and East Asia, the brunt of these cases will find their way into our court. And we are well aware that we are only seeing the matters that find their way into federal court, and that the burdens of the increase in immigration are borne not only by our judges, but by the men and women in the executive branch charged with enforcing the immigration laws.
My first point is that even as we are embroiled in these controversies, no one should mistake our judgments for our policy preferences. Whether “the iron fist [or an extended velvet glove] would be the preferable policy. . . . our thoughts on the efficacy of the one approach versus the other are beside the point, since our
Oh, I am not so naive as to think that a simple declaration of judicial neutrality will quell inquiry into judges’ backgrounds, prior writings, and opinions. The battles over judicial nominations provide ample proof that our generation of lawyers bear a diverse set of assumptions about the nature of law, proper modes of constitutional interpretation, and the role of the judiciary. These are fair debates and they are likely to continue for some time. We can only hope that over time our differences can be resolved by reason and persuasion rather than by politics by other means. But I don‘t know of any judge—at least not this judge—who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes. “[I]n our private opinions, [we] need not concur in Congress’ policies to hold its enactments constitutional. Judicially we must tolerate what personally we
My second point is less politic. In this case, we are called upon to review the merits of DHS‘s Final Rule through the lens of the judicial review provisions of the Administrative Procedure Act,
In the immigration context, whatever dialogue we have been having with the administration over its policies, we are a poor conversant. We are limited in what we can say and in our ability—even if anyone thought we were qualified to do
By constitutional design, the branch that is qualified to establish immigration policy and check any excesses in the implementation of that policy is Congress. See
City and County of San Francisco, et al v. USCIS, et al
No. 19-17213+
U.S. COURT OF APPEALS
DEC 5 2019
OWENS, Circuit Judge, concurring in part and dissenting in part:
While I concur with the majority‘s jurisdiction analysis, I otherwise respectfully dissent. In light of the: (1) government‘s heavy burden due to the standard of review, (2) opaqueness of the legal questions before us, (3) lack of irreparable harm to the government at this early stage, (4) likelihood of substantial injury to the plaintiffs, and (5) equities involved, I would deny the government‘s motions to stay and let these cases proceed in the ordinary course. See Nken v. Holder, 556 U.S. 418, 427, 433-34 (2009) (holding that a “stay is an ‘intrusion into the ordinary processes of administration and judicial review,‘” and “[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of [judicial] discretion” (citation omitted)).