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Case Name Make the Road New York v. Pompeo IM-NY-0070
Docket / Court 1:19-cv-11633 ( S.D.N.Y. )
State/Territory New York
Case Type(s) Immigration and/or the Border
Special Collection Civil Rights Challenges to Trump Immigration Enforcement Orders
Civil Rights Challenges to Trump Refugee/Visa Order
Attorney Organization Center for Constitutional Rights (CCR)
Legal Services/Legal Aid
National Immigration Law Center
Case Summary
This case is one of several brought nationwide by States, counties, and nonprofit organizations challenging the Trump administration's revised, final public charge rule, which expands the types of programs that the federal government will consider in public charge determinations to now also include ... read more >
This case is one of several brought nationwide by States, counties, and nonprofit organizations challenging the Trump administration's revised, final public charge rule, which expands the types of programs that the federal government will consider in public charge determinations to now also include previously excluded health, nutrition, and housing programs. In the fall of 2019, district court judges from across the country granted preliminary injunctions enjoining the government from implementing the public charge rule. But after multiple Circuit Courts and the Supreme Court issued stays of these injunctions, the public charge rule was implemented by the government on February 24, 2020. The District Court in this case issued a judgment enjoining the public charge rule for the Department of State on July 29, 2020. On February 2, 2021, President Biden issued an Executive Order calling for government agencies to review actions related to the implementation of the public charge rule.

Make the Road New York Sues Over the Public Charge Rule
On December 19, 2019, individuals facing deportation, their United States citizen relatives, and nonprofit organizations that assist noncitizens filed this lawsuit in the U.S. District Court for the Southern District of New York. Plaintiffs sued the State Department (DOS); the Department of Health and Human Services (HHS); and President Trump, claiming violations of the APA, an ultra vires proclamation by the President, and violations of Fifth Amendment Equal Protection. They alleged that Trump Administration’s changes to the asylum system, various deferred-action programs, and to the family-based immigration system had the purpose and effect of excluding lawful status immigrants "from predominately nonwhite countries." They also alleged that the new rules would essentially create a wealth test for entry into the United States. Plaintiffs alleged that these discriminatory impacts were deliberate and purposeful, and would cause substantial harm in destroying their families, penalizing the use of benefits, and diverting resources from them. Plaintiffs sought declaratory and injunctive relief. The case was assigned to Judge George Daniels.

Background on the Public Charge Rule: Changes to the Foreign Affairs Manual, Presidential Proclamation, and Department of Homeland Security’s Interim Rule
Beginning in January 2018, the DOS published revisions to the Foreign Affairs Manual (FAM) that changed how consular officers should interpret the public charge rule, which defines personal circumstances that affect the ability of individuals and their families to successfully enter the U.S. The change increased the types of programs that the federal government would consider in public charge determinations to now also include previously excluded health, nutrition, and housing programs. The Immigration and Nationality Act (INA) provides that if a consular officer finds that a person seeking a visa is likely to become a public charge, that person is “inadmissible.” Thus, an immigrant who uses non-cash benefits such as food stamps or Medicaid may be found more likely to be a public charge and inadmissible for purposes of a visa. The plaintiffs asserted that the effect of this Rule would be to force immigrant families to choose between using these benefits or risk failing to gain entry to the U.S.

On October 4, 2019, President Trump issued a proclamation (the Proclamation) relating to the public charge rule, ordering DOS and HHS to deny visas to those who cannot prove they will be able to get health insurance. A week later on October 11, 2019, when the Department of Homeland Security's similar public charge rule (DHS Rule) was beginning to be enjoined by courts around the country, DOS formalized the changes to the FAM by implementing the Interim Final Rule. This rule mirrored the DHS Rule, explicitly expanding the definition of "public charge" for the purposes of granting visas.

The Proclamation was enjoined nationwide on November 26, 2019 in Doe v. Oregon. 2019 WL 6324560. This case followed soon after, seeking to enjoin and vacate the 2018 FAM revisions, the Interim Final Rule, and the Proclamation.

On January 14, 2020, this case was accepted as related to Make the Road New York v. Cuccinelli (S.D.N.Y. 2019).

The Plaintiffs Seek a Preliminary Injunction and Defendants Move to Dismiss
On January 21, 2020, plaintiffs moved for preliminary injunction, asserting that they were likely to prevail on their claim and if the policies were allowed to continue plaintiffs would suffer irreparable harm in the form of indefinite family separation, health risks, and loss of resources for the entities that support noncitizens.

On February 13, defendants moved to dismiss, asserting that plaintiffs lacked subject matter jurisdiction and failed to state a claim.

Plaintiffs additionally sought a temporary restraining order to prevent the defendants from enacting their policies until there was a hearing on the preliminary injunction motion. The temporary restraining order was intended to protect the plaintiffs from the harms outlined in the complaint until the preliminary injunction motion could be adjudicated. The court rejected the emergency motion on February 21.

The DOS rule went into effect on February 24, 2020.

District Court Grants Preliminary Injunction, Denies Motion to Dismiss
On July 29, 2020, Judge Daniels issued an order granting a preliminary nationwide injunction against the new rule. 475 F.Supp.3d 232. He held that (1) plaintiffs were likely to suffer irreparable harm absent the injunction by being denied visas, which would result in indefinite family separation; (2) an injunction would be "heavily" in the public interest; and (3) a nationwide injunction was appropriate because these problems were not geographically isolated.

The court also granted defendants' motion to dismiss in part, allowing President Trump to be removed as a party from the case. However, Judge Daniels denied every other part of the motion, finding that (1) plaintiffs’ APA claim was within the zone of interest of the INA; (2) plaintiffs; challenge to the 2018 FAM changes were not moot; (3) the APA authorizes judicial review of the DOS's actions; (4) defendants had likely violated the APA; (5) plaintiffs had adequately stated an equal protection claim; and (6) the Proclamation was likely contrary to the INA and ultra vires.

On September 22, 2020, defendants filed an interlocutory appeal of the preliminary injunction to the Second Circuit, docket no. 20-3214. They also moved in the District Court to stay the July order pending appeal. The defendants asked Judge Daniels to rule on their motion by October 16, but he declined to do so. The defendants also asked to the Second Circuit to stay the preliminary injunction pending appeal.

Changes with the Biden Administration
On February 2, 2021, President Biden issued an Executive Order calling for government agencies to review actions related to the implementation of the public charge rule. On February 10, the Second Circuit entered an order holding the proceedings on the interlocutory appeal in abeyance.

On February 20, defendants moved to stay proceedings for 90 days while the new administration reevaluated the rule. The court granted the motion on February 22.

As of February 27, 2021, the FAM revisions, Interim Final Rule, and the Proclamation are enjoined nationwide. The Second Circuit has yet to rule on defendants' appeal of the injunction and the stay of the order pending appeal. Proceedings in both the Second Circuit and District Court are currently on hold while the new administration reevaluates its approach to the public charge rule.

Cedar Hobbs - 03/04/2020
Jack Kanarek - 02/27/2021


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Issues and Causes of Action
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Issues
Benefit Source
Medicaid
Medicare
Constitutional Clause
Due Process
Equal Protection
Content of Injunction
Preliminary relief granted
Defendant-type
Jurisdiction-wide
Discrimination-basis
Immigration status
National origin discrimination
Race discrimination
General
Disparate Treatment
Government Services (specify)
Immigration/Border
Admission - criteria
Deportation - criteria
Status/Classification
U.S. citizenship - acquiring
Undocumented immigrants - rights and duties
Visas - criteria
National Origin/Ethnicity
Arab/Afgani/Middle Eastern
Hispanic
Other
Plaintiff Type
Private Plaintiff
Race
Race, unspecified
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Defendant(s) Department of Health and Human Services
Department of State
United States
Plaintiff Description Individuals facing deportation, their United States citizen relatives, and nonprofit organizations that assist noncitizens.
Indexed Lawyer Organizations Center for Constitutional Rights (CCR)
Legal Services/Legal Aid
National Immigration Law Center
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Source of Relief None yet
Filed 12/19/2019
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Presidential Executive Order on Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities
White House
Date: Oct. 24, 2017
By: United States
[ Detail ] [ External Link ]

  Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats
www.whitehouse.gov
Date: Sep. 24, 2017
By: President Donald Trump (Office of the President)
[ Detail ] [ External Link ]

  Implementing Executive Order 13780 Following Supreme Court Ruling -- Guidance to Visa-Adjudicating Posts
Reuters
Date: Jun. 28, 2017
By: U.S. Department of State
[ Detail ] [ PDF ] [ External Link ]

  Presidential Memorandum for the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence
The White House
Date: Jun. 14, 2017
By: Donald Trump (White House)
[ Detail ] [ External Link ]

  Implementation of Executive Order 13768, "Enhancing Public Safety in the Interior of the United States
The Washington Post
Date: May 22, 2017
By: Jefferson Sessions (U.S. Department of Justice)
[ Detail ] [ External Link ]

  Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States
Date: Mar. 6, 2017
By: President Donald Trump (President of the United States)
[ Detail ] [ External Link ]

  Re: Implementing the President's Border Security and Immigration Enforcement Improvements Policies (Final, 2/20/2017)
dhs.gov
Date: Feb. 20, 2017
By: DHS Secretary John Kelly (United States Department of Homeland Security)
[ Detail ] [ PDF ] [ External Link ]

  Re: Enforcement of the Immigration Laws to Serve the National Interest (Final, 2/20/2017)
dhs.gov
Date: Feb. 20, 2017
By: DHS Secretary John Kelly (United States Department of Homeland Security)
[ Detail ] [ PDF ] [ External Link ]

  Memorandum to the Acting Secretary of State, the Acting Attorney General, and the Secretary of Homeland Security
The White House
Date: Feb. 1, 2017
By: Donald F. McGahn II, Counsel to the President (The White House)
[ Detail ] [ PDF ] [ External Link ]

  Statement by Acting Attorney General Sally Yates
https://www.nytimes.com/
Date: 1/30/2017
By: Acting Attorney General Sally Yates (Department of Justice)
[ Detail ] [ PDF ] [ External Link ]

  Statement By Secretary John Kelly on the Entry of Lawful Permanent Residents into the United States
https://www.dhs.gov/
Date: 1/29/2017
By: DHS Secretary John Kelly (Department of Homeland Security)
Citation: https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states
[ Detail ] [ PDF ] [ External Link ]

  OLC Memo Re: Proposed Executive Order Entitled "Protecting the Nation from Foreign Terrorist Entry into the United States"
Date: Jan. 27, 2017
By: Curtis Gannon (U.S. Department of Justice, Office of Legal Counsel)
[ Detail ] [ PDF ] [ External Link ]

  Executive Order 13767: Border Security and Immigration Enforcement Improvements
Federal Register
Date: Jan. 27, 2017
By: President Donald Trump (Office of the President)
Citation: 82 Fed. Reg. Presidential Documents 8793 (Jan. 27, 2017)
[ Detail ] [ PDF ]

  Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States
Federal Register
Date: Jan. 27, 2017
By: President Donald Trump (Office of the President)
[ Detail ] [ PDF ] [ External Link ]

  Executive Order 13768: Enhancing Public Safety in the Interior of the United States
Federal Register
Date: Jan. 25, 2017
By: President Donald Trump (Office of the President)
[ Detail ] [ PDF ] [ External Link ]

Court Docket(s)
S.D.N.Y.
02/22/2021
1:19-cv-11633
IM-NY-0070-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
S.D.N.Y.
12/19/2019
Complaint [ECF# 1]
IM-NY-0070-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
S.D.N.Y.
07/29/2020
Memorandum Decision and Order [ECF# 88] (475 F.Supp.3d 232)
IM-NY-0070-0002.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Daniels, George B. (S.D.N.Y.) show/hide docs
IM-NY-0070-0002 | IM-NY-0070-9000
Plaintiff's Lawyers Azmy, Baher (New York) show/hide docs
IM-NY-0070-0001
Broder, Tanya (California) show/hide docs
IM-NY-0070-9000
Cameron, Susan Joan (New York) show/hide docs
IM-NY-0070-0001 | IM-NY-0070-9000
Cuevas Ingram, Joanna Elise (New York) show/hide docs
IM-NY-0070-0001 | IM-NY-0070-9000
Ehrlich, Andrew J. (New York) show/hide docs
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Espiritu, Nicholas David (California) show/hide docs
IM-NY-0070-9000
Filburn, Christopher Lee (New York) show/hide docs
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Goldiner, Judith (New York) show/hide docs
IM-NY-0070-0001
Holder, Adriene L. (New York) show/hide docs
IM-NY-0070-0001
Hurwitz, Jonathan H (New York) show/hide docs
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Sabel, Janet E. (New York) show/hide docs
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Schwarz, Ghita (New York) show/hide docs
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Shafiqullah, Hasan (New York) show/hide docs
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Thomas, Brittany (New York) show/hide docs
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Welber, Susan (New York) show/hide docs
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Wolson, Max (District of Columbia) show/hide docs
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Defendant's Lawyers Luh, James C. (District of Columbia) show/hide docs
IM-NY-0070-9000
Other Lawyers Vale, Judith Naomi (New York) show/hide docs
IM-NY-0070-9000

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