City & County of S.F. v. Uscis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CITY AND COUNTY OF SAN No. 19-17213
FRANCISCO; COUNTY OF SANTA
CLARA, D.C. No.
Plaintiffs-Appellees, 4:19-cv-04717-
PJH
v.

UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, a federal
agency; U.S. DEPARTMENT OF
HOMELAND SECURITY, a federal
agency; CHAD F. WOLF, 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.
2 CITY & CTY. OF SAN FRANCISCO V. USCIS

STATE OF CALIFORNIA; DISTRICT OF No. 19-17214
COLUMBIA; STATE OF MAINE;
COMMONWEALTH OF D.C. No.
PENNSYLVANIA; STATE OF OREGON, 4:19-cv-04975-
Plaintiffs-Appellees, PJH

v.

U.S. DEPARTMENT OF HOMELAND
SECURITY, a federal agency; UNITED
STATES CITIZENSHIP AND
IMMIGRATION SERVICES, a federal
agency; CHAD F. WOLF, 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.

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief District Judge, Presiding
 CITY & CTY. OF SAN FRANCISCO V. USCIS 3

STATE OF WASHINGTON; No. 19-35914
COMMONWEALTH OF VIRGINIA;
STATE OF COLORADO; STATE OF D.C. No.
DELAWARE; STATE OF ILLINOIS; 4:19-cv-05210-
STATE OF MARYLAND; RMP
COMMONWEALTH OF
MASSACHUSETTS; DANA NESSEL,
Attorney General on behalf of the OPINION
People of Michigan; STATE OF
MINNESOTA; STATE OF NEVADA;
STATE OF NEW JERSEY; STATE OF
NEW MEXICO; STATE OF RHODE
ISLAND; STATE OF HAWAII,
Plaintiffs-Appellees,

v.

U.S. DEPARTMENT OF HOMELAND
SECURITY, a federal agency; CHAD
F. WOLF, 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.
4 CITY & CTY. OF SAN FRANCISCO V. USCIS

Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding

Argued and Submitted September 15, 2020
San Francisco, California

Filed December 2, 2020

Before: Mary M. Schroeder, William A. Fletcher, and
Lawrence VanDyke, Circuit Judges.

Opinion by Judge Schroeder;
Dissent by Judge VanDyke

SUMMARY*

Immigration

In cases in which two district courts issued preliminary
injunctions enjoining implementation of the Department of
Homeland Security’s redefinition of the term “public charge,”
which describes a ground of inadmissibility, the panel:
1) affirmed the preliminary injunction of the District Court
for the Northern District of California covering the territory
of the plaintiffs; and 2) affirmed in part and vacated in part
the preliminary injunction of the District Court for the
Eastern District of Washington, vacating the portion of the
injunction that made it applicable nationwide.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 CITY & CTY. OF SAN FRANCISCO V. USCIS 5

Under 8 U.S.C. § 1182(a)(4)(A), any alien who, in the
opinion of the Secretary of Homeland Security, at the time of
application for admission or adjustment of status, is likely at
any time to become a “public charge,” is inadmissible. No
statute has ever defined the term. In 1999, the Immigration
and Naturalization Service issued guidance (Guidance)
defining the term as one who “is or is likely to become
primarily dependent on the government for subsistence.” The
Guidance expressly excluded non-cash benefits intended to
supplement income.

In August 2019, the Department of Homeland Security
(DHS) issued a rule (the Rule) that defines “public charge” to
include those who are likely to participate, even for a limited
period of time, in non-cash federal government assistance
programs. The Rule defines the term “public charge” to
mean “an alien who receives one or more [specified] public
benefits . . . for more than 12 months in the aggregate within
any 36-month period.” Inadmissibility on Public Charge
Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019). The Rule
also directs officials to consider English proficiency in
making the public charge determination.

States and municipalities brought suits in California and
Washington, asserting claims under the Administrative
Procedure Act. The District Court for the Northern District
of California issued a preliminary injunction covering the
territory of the plaintiffs, and the District Court for the
Eastern District of Washington issued a nationwide
injunction. A divided motions panel of this court granted
DHS’s motion for a stay of those injunctions pending appeal.

The panel first concluded that the plaintiffs had
established Article III standing. The plaintiffs are states and
6 CITY & CTY. OF SAN FRANCISCO V. USCIS

municipalities that alleged that the Rule is causing them
continuing financial harm, as lawful immigrants eligible for
federal cash, food, and housing assistance withdraw from
these programs and instead turn to state and local programs.
The panel concluded that this constituted sufficient injury.
Addressing whether the injury is apparent or imminent, the
panel explained that: 1) the Rule itself predicts a 2.5 percent
decrease in enrollment in federal programs and a
corresponding reduction in Medicaid payments of over one
billion dollars per year; 2) the Rule acknowledges that
disenrollment will cause other indirect financial harm to state
and local entities; and 3) declarations in the record show that
such entities are already experiencing disenrollment.

Next, the panel concluded that the interest of the plaintiffs
in preserving immigrants’ access to supplemental benefits is
within the zone of interests protected by the “public charge”
statute. The panel rejected DHS’s suggestion that only the
federal government and individuals seeking to immigrate are
within the zone of interest. The panel also rejected DHS’s
suggestion that the purpose of the public charge statute is to
reduce immigrants’ use of public benefits. Addressing
DHS’s contention that the statute’s overall purpose is to
promote self-sufficiency, the panel concluded that providing
access to better health care, nutrition, and supplemental
housing benefits is consistent with precisely that purpose.

The panel next concluded that the plaintiffs had
demonstrated a high likelihood of success in showing that the
Rule is inconsistent with any reasonable interpretation of the
public charge statute and therefore contrary to law. The
plaintiffs pointed to repeated congressional reenactment of
the provision after it had been interpreted to mean long-term
dependence on government support, noting that the statute
 CITY & CTY. OF SAN FRANCISCO V. USCIS 7

had never been interpreted to encompass temporary resort to
supplemental non-cash benefits. The plaintiffs contended that
this repeated reenactment amounted to congressional
ratification of the historically consistent interpretation.

The panel concluded that the history of the provision
supported the plaintiffs’ position, noting that: 1) from the
Victorian Workhouse through the 1999 Guidance, the concept
of becoming a “public charge” has meant dependence on
public assistance for survival; 2) the term had never
encompassed persons likely to make short-term use of in-kind
benefits that are neither intended nor sufficient to provide
basic sustenance; and 3) the Rule introduces a lack of English
proficiency. The panel also noted that the opinions of the
Second Circuit and the Seventh Circuit, in affirming
preliminary injunctions of the Rule, agreed that the Rule’s
interpretation was outside any historically accepted or
sensible understanding of the term.

The panel next concluded that the Rule’s promulgation
was arbitrary and capricious, explaining that DHS: 1) failed
to adequately consider the financial effects of the Rule;
2) failed to address concerns about the Rule’s effect on public
safety, health, and nutrition, as well its effect on hospital
resources and vaccination rates in the general population; and
3) failed to explain its abrupt change in policy from the 1999
Guidance.

The panel also concluded that the remaining preliminary
injunction factors favored the plaintiffs. The panel explained
that the plaintiffs had established that they likely are bearing
and will continue to bear heavy financial costs because of
withdrawal of immigrants from federal assistance programs
and consequent dependence on state and local programs. The
8 CITY & CTY. OF SAN FRANCISCO V. USCIS

panel also observed that the public interest in preventing
contagion is particularly salient during the current global
pandemic, and noted the financial burdens on the plaintiffs
and the adverse effects on the health and welfare of the
immigrant as well as general population.

Finally, the panel concluded that a nationwide injunction
was not appropriate in this case 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.
Accordingly, the panel vacated that portion of the District
Court for the Eastern District of Washington’s injunction
making it applicable nationwide.

Dissenting, Judge VanDyke, wrote that for the reasons
ably articulated by this court in a December 2019 published
opinion in this case, by the Fourth Circuit in CASA de
Maryland, Inc. v. Trump, 971 F.3d 220 (4th Cir. 2020), and
by a dissenting Seventh Circuit judge in Cook County v. Wolf,
962 F.3d 208, 234–54 (7th Cir. 2020) (Barrett, J.,
dissenting)—and implied by the Supreme Court’s multiple
stays this year of injunctions virtually identical to those the
majority today affirms—he must respectfully dissent.
 CITY & CTY. OF SAN FRANCISCO V. USCIS 9

COUNSEL

Gerard Sinzdak (argued), Daniel Tenny, Joshua Dos Santos,
and Jack Starcher, Appellate Staff; David L. Anderson and
William D. Hyslop, United States Attorneys; Joseph H. Hunt,
Assistant Attorney General; Civil Division, United States
Department of Justice, Washington D.C.; for Defendants-
Appellants.

H. Luke Edwards (argued), Raphael N. Rajendra, Julia B.
Spiegel, and Hannah Kieschnick, Deputy County Counsels;
Laura Trice, Lead Deputy County Counsel; Greta S. Hansen,
Chief Assistant County Counsel; James R. Williams, County
Counsel; Office of the County Counsel, County of Santa
Clara, San Jose, California; Dennis J. Herrera, City Attorney;
Jesse C. Smith, Chief Assistant City Attorney; Ronald P.
Flynn, Chief Deputy City Attorney; Yvonne R. Mere, Chief,
Complex & Affirmative Litigation; Sara J. Eisenberg, Chief
of Strategic Advocacy; Matthew D. Goldberg, Deputy City
Attorney; City Attorney’s Office, San Francisco, California;
for Plaintiffs-Appellees City and County of San Francisco;
County of Santa Clara.

Xavier Becerra, Attorney General; Matthew Rodriguez, Chief
Assistant Attorney General; Michael L. Newman, Senior
Assistant Attorney General; Cherokee DM Melton,
Supervising Deputy Attorney General; Jennifer C. Bonilla,
Lisa Cisneros, Rebekah Fretz, Katherine Lehe, Marissa
Malouff, Julia Harumi Mass, Anita Garcia Velasco, Brenda
Ayon Verduzco, and Anna Rich, Deputy Attorneys General;
Office of the Attorney General, Oakland, California; Karl A.
Racine, Attorney General; Loren L. AliKhan, Solicitor
General; Office of the Attorney General, Washington, D.C.;
Aaron M. Frey, Attorney General; Susan P. Herman, Chief
10 CITY & CTY. OF SAN FRANCISCO V. USCIS

Deputy Attorney General; Office of the Attorney General,
Augusta, Maine; Ellen Rosenblum, Attorney General;
Benjamin Gutman, Solicitor General; Nicole DeFever and
Patricia Garcia Rincon, Attorneys; Oregon Department of
Justice, Salem, Oregon; Josh Shapiro, Attorney General;
Michael J. Fischer, Chief Deputy Attorney General; Aimee
D. Thomson, Deputy Attorney General; Office of the
Attorney General, Philadelphia, Pennsylvania; for Plaintiffs-
Appellees State of California, District of Columbia, State of
Maine, Commonwealth of Pennsylvania and State of Oregon.

Robert W. Ferguson, Attorney General; Noah G. Purcell,
Solicitor General; Tera M. Heintz, Deputy Solicitor General;
Jeffrey T. Sprung, Nathan K. Bays, and Joshua Weissman,
Assistant Attorneys General; Office of the Attorney General,
Seattle, Washington; Mark R. Herring, Attorney General;
Michelle S. Kallen, Deputy Solicitor General; Jessica Merry
Samuels, Assistant Solicitor General; Ryan Spreague Hardy,
Alice Anne Lloyd, and Mamoona H. Siddiqui, Assistant
Attorneys General; Office of the Attorney General,
Richmond, Virginia; Phil Weiser, Attorney General, Eric R.
Olson, Solicitor General; Office of the Attorney General,
Denver, Colorado; Kathleen Jennings, Attorney General;
Aaron R. Goldstein, State Solicitor, Monica A. Horton,
Deputy Attorney General; Department of Justice,
Wilmington, Delaware; Kwame Raoul, Attorney General;
Liza Roberson-Young, Public Interest Counsel; Office of the
Attorney General, Chicago, Illinois; Clare C. Connors,
Attorney General; Lili A. Young, Deputy Attorney General;
Department of the Attorney General, Honolulu, Hawaii;
Brian E. Frosh, Attorney General; Jeffrey P. Dunlap,
Assistant Attorney General; Office of the Attorney General,
Baltimore, Maryland; Maura Healey, Attorney General;
Abigail B. Taylor, Chief, Civil Rights Division; David Ureña,
 CITY & CTY. OF SAN FRANCISCO V. USCIS 11

Special Assistant Attorney General; Angela Brooks, Assistant
Attorney General; Office of the Attorney General, Boston,
Massachusetts; Dana Nessel, Attorney General; Fadwa A.
Hammoud, Solicitor General; Toni L. Harris, First Assistant
Attorney General; Michigan Department of Attorney General,
Lansing, Michigan; Keith Ellison, Attorney General; R.J.
Detrick, Assistant Attorney General; Attorney General’s
Office, St. Paul, Minnesota; Aaron D. Ford, Attorney
General; Heidi Parry Stern, Solicitor General; Office of the
Attorney General; Gurbir S. Grewal, Attorney General; Glenn
J. Moramarco, Assistant Attorney General; Office of the
Attorney General, Trenton, New Jersey; Hector Balderas,
Attorney General; Tania Maestas, Chief Deputy Attorney
General; Office of the Attorney General, Santa Fe, New
Mexico; Peter F. Neronha, Attorney General; Lauren E. Hill,
Special Assistant Attorney General; Office of the Attorney
General, Providence, Rhode Island; for Plaintiffs-Appellees
Washington, Virginia, Colorado, Delaware, Illinois,
Maryland, Massachusetts, Michigan, Minnesota, Nevada,
New Jersey, New Mexico, Rhode Island, and Hawaii.

Edward T. Waters, Phillip A. Escoriaza, and Amanda N.
Pervine, Feldesman Tucker Leifer Fidell LLP, for Amici
Curiae Public Health, Health Policy, Medicine, and Nursing
Deans, Chairs, and Scholars; American Public Health
Association; and American Academy of Nursing.

R. Adam Lauridsen, Chessie Thacher, Victor H. Yu, and
Nicholas R. Green, Keker Van Nest & Peters LLP, San
Francisco, California for Amici Curiae National Housing Law
Project, Food Research & Action Center, and Center for Law
& Social Policy, National Education Association, and Service
Employees International Union.
12 CITY & CTY. OF SAN FRANCISCO V. USCIS

Nicholas Espíritu, Linton Joaquin, Alvaro M. Huerta, Mayra
B. Joachin, and Max S. Wolson, National Immigration Law
Center, Los Angeles, California; Allon Kedem, Graham
White, Jayce Born, Hillary Anderson, Arnold & Porter Kaye
Scholer LLP, Washington, D.C., for Amici Curiae Immigrant
and Healthcare Service Organizations.

Barbara J. Parker, City Attorney; Maria Bee, Chief Assistant
City Attorney; Eric Bernstein, Senior Deputy City Attorney;
Malia McPherson, Deputy City Attorney; Caroline Wilson,
Fellow; Oakland, California; Michael N. Feuer, City
Attorney; Kathleen A. Kenealy, Chief Deputy City Attorney;
Danielle L. Goldstein, Deputy City Attorney, Los Angeles,
California; Vince Ryan, County Attorney; Robert Hazeltine-
Shedd, Assistant County Attorney; Harris County, Houston,
Texas; Margaret L. Carter and Daniel R. Suvor, O’Melveny
& Myers LLP, Los Angeles, California; Esteban A. Aguilar
Jr., City Attorney, Albuquerque, New Mexico; Anne L.
Morgan, City Attorney, Austin, Texas; Andre M. Davis, City
Solicitor, Baltimore, Maryland; Mark A. Flessner,
Corporation Counsel; Benna Ruth Solomon, Deputy
Corporation Counsel, Chicago, Illinois; Barbara J. Doseck,
Director of Law; John C. Muston, Chief Trial Counsel,
Dayton, Ohio; Crystal Barnes, Acting City Solicitor,
Holyoke, Massachusetts; Howard Phillip Schneiderman,
Senior Deputy Prosecuting Attorney, King County, Seattle,
Washington; Brian E. Washington, County Counsel, County
of Marin, San Rafael, California; Charles J. McKee, County
Counsel; William M. Litt, Anne K. Brereton, and Marina S.
Pantchenko, Deputy County Counsels; County of Monterey,
Salinas, California; Marc. P. Hansen, County Attorney,
Montgomery County, Rockville, Maryland; Marcel S. Pratt,
City Solicitor, Philadelphia, Pennsylvania; Susana Alcala
Wood, City Attorney, Sacramento, California; John C. Beiers,
 CITY & CTY. OF SAN FRANCISCO V. USCIS 13

County Counsel; David A. Silverman, Chief Deputy County
Counsel; Ilana Parmer Mandelbaum, Deputy County
Counsel; County of San Mateo, Redwood City, California;
Peter S. Holmes, City Attorney, Seattle, Washington; Michael
Tubbs, Mayor, Stockton, California; Michael Jenkins, City
Attorney, West Hollywood, California; for Amici Curiae 20
Counties, Cities, and Municipalities.

Denny Chan, Justice in Aging, Los Angeles, California;
Regan Bailey and Natalie Kean, Justice in Aging,
Washington, D.C.; Russel L. Hirschhorn and Christopher
Spadaro, Proskauer Rose LLP, New York, New York; for
Amici Curiae Justice in Aging, American Society on Aging,
Caring Across Generations, Jewish Family Service of Los
Angeles, Jewish Federations of North America, National
Asian Pacific Center on Aging, National Council on Aging,
National Hispanic Council on Aging, Mazon, Phi, and Center
for Medicare Advocacy.

Alexandra Wald, Cohen & Gresser LLP, New York, New
York; Elizabeth B. Wydra, Brianne J. Gorod, and Dayna J.
Zolle, Constitutional Accountability Center, Washington,
D.C.; for Amici Curiae Legal Historians.

Simon Sandoval-Moshenberg and Kelly Salzmann, Legal Aid
Justice Center, Falls Church, Virginia; Ariel Nelson and Chi
Chi Wu, National Consumer Law Center, Boston,
Massachusetts; for Amici Curiae National Consumer Law
Center, Legal Aid Justice Center, Public Citizen Inc.,
Consumer Action, Equal Justice Society, Impact Fund,
Secure Justice, Media Alliance, Americans for Financial
Reform Education Fund, and New Economy Project.
14 CITY & CTY. OF SAN FRANCISCO V. USCIS

Richard L. Revesz, Jack Lienke, and Max Sarinsky, New
York, New York, as and for Amicus Curiae Institute for
Policy Integrity.

Debra Gardner, Monisha Cherayil, Sally Dworak-Fisher, and
Tyra Robinson, Baltimore, Maryland, as and for Amicus
Curiae Public Justice Center.

Paul J. Lawrence and Alanna E. Peterson, Pacifica Law
Group, Seattle, Washington, for Amici Curiae Nonprofit
Anti-Domestic Violence and Sexual Assault Organizations.

Diana Kasdan, Pilar Herrero, Amy Myrick, and Elyssa
Spitzer, New York, New York, as and for Amicus Curiae
Center for Reproductive Rights.

Robert M. Loeb, Thomas M. Bondy, Peter E. Davis, and
Emily Green, Orrick Herrington & Sutcliffe LLP,
Washington, D.C.; Douglas N. Letter, General Counsel; Todd
B. Tatelman, Principal Deputy General Counsel; Megan
Barbero, Josephine Morse, Adam A. Grogg, and William E.
Havemann, Deputy General Counsel; Office of General
Counsel, U.S. House of Representatives, Washington, D.C.,
for Amicus Curiae United States House of Representatives.

Harry Lee, Mary Woodson Poag, Johanna Dennehy, Steptoe
& Johnson LLP, Washington, D.C., for Amici Curiae
Immigration Law Professors.

Emily Tomoko Kuwahara, Crowell & Moring LLP, Los
Angeles, California; Austin J. Sutta, Crowell & Moring LLP,
San Francisco, California; for Amici Curiae Asian Americans
Advancing Justice, Asian American Legal Defense and
 CITY & CTY. OF SAN FRANCISCO V. USCIS 15

Education Fund, National Women’s Law Center, and
38 Other Amici Curiae.

Sadik Huseny, Brittany N. Lovejoy, Joseph C. Hansen, Tess
L. Curet, and Alexandra B. Plutshack, Latham & Watkins
LLP, San Francisco, California, for Amici Curiae Fiscal
Policy Institute, President’s Alliance on Higher Education
and Immigration, and 12 Other Amici Curiae.

Susan M. Krumplitsch, Elizabeth Stameshkin, and
Priyamvada Arora, Cooley LLP, Palo Alto, California, for
Amici Curiae American Academy of Pediatrics; American
Medical Association; American College of Physicians;
American College of Obstetricians and Gynecologists;
California Medical Association; American Academy of
Pediatrics, California; American Academy of Pediatrics,
Hawaii Chapter; Alaska Chapter of the American Academy
of Pediatrics; Arizona Chapter of the American Academy of
Pediatrics; and Nevada Chapter, American Academy of
Pediatrics.

Paul W. Hughes, Michael B. Kimberly, and Matthew A.
Waring, McDermott Will & Emery LLP, Washington, D.C.,
for Amici Curiae 105 Businesses and Organizations.
16 CITY & CTY. OF SAN FRANCISCO V. USCIS

OPINION

SCHROEDER, Circuit Judge:

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. The first
comprehensive federal immigration law barred entry to “any
convict, lunatic, idiot, or any person unable to take care of
himself or herself without becoming a public charge.”
Immigration Act of 1882, 22 Stat. 214, Chap. 376 § 2 (1882).
The 1999 Guidance (the Guidance) issued by the Immigration
and Naturalization Service (INS), the predecessor of the
current agency, defined a “public charge” as one who “is or
is likely to become primarily dependent on the government
for subsistence.” See Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds, 64 Fed. Reg.
28,689 (May 26, 1999).

In 2019, the Department of Homeland Security (DHS)
changed direction, however, and issued a rule (the Rule) that
defines the term to include those who are likely to participate,
even for a limited period of time, in non-cash federal
government assistance programs. The programs designated
by the Rule are not intended to provide for subsistence but
instead to supplement an individual’s ability to provide for
 CITY & CTY. OF SAN FRANCISCO V. USCIS 17

basic needs such as food, medical care, and housing.
8 C.F.R. § 212.21(b). Foreseeable participation for an
aggregate of twelve months in any of the federal programs
within a three-year span renders an immigrant inadmissible
as a public charge and ineligible for permanent resident
status. § 212.21(a). In other words, a single mother with
young children who DHS foresees as likely to participate in
three of those programs for four months could not get a green
card.

Litigation followed in multiple district courts against
DHS and U.S. Citizenship and Immigration Services (USCIS)
as states and municipalities recognized that the immediate
effect of the Rule would be to discourage immigrants from
participating in such assistance programs, even though
Congress has made them available to immigrants who have
been in the country for five years. According to the plaintiffs
in those cases, the Rule’s effect would be to increase
assistance demands on state and local governments, as their
resident immigrants’ overall health and welfare would be
adversely affected by non-participation in federal assistance
programs.

The challenges to the Rule in the district courts resulted
in a chorus of preliminary injunctions holding the Rule to be
contrary to law and arbitrary and capricious under the
Administrative Procedure Act (APA). 5 U.S.C. § 706(2)(A).
These included the two preliminary injunctions before us, one
issued by the District Court for the Northern District of
California (Northern District) covering the territory of the
plaintiffs, and the other by the District Court for the Eastern
District of Washington (Eastern District) purporting to apply
nationwide. Our court became the first federal appeals court
to weigh in when we granted DHS’s motion for a stay of
18 CITY & CTY. OF SAN FRANCISCO V. USCIS

those injunctions pending appeal. City and Cnty. of San
Francisco v. USCIS, 944 F.3d 773, 781 (9th Cir. 2019).
Preliminary injunctions were also issued by courts in the
Northern District of Illinois and the Southern District of New
York, and they were stayed by the United States Supreme
Court before appeals could be considered by the circuit courts
of appeals.

When the Seventh Circuit and the Second Circuit did
consider those preliminary injunction appeals, both courts
affirmed the injunctions. Although their reasoning differed
in some respects, both circuits concluded that the Rule’s
definition was both outside any historic or commonly
understood meaning of “public charge,” and arbitrary and
capricious, in concluding that short-term reliance on
supplemental benefits made immigrants dependent on public
assistance within the meaning of the statutory public charge
immigration bar. Cook Cnty., Ill. v. Wolf, 962 F.3d 208, 229,
232–33 (7th Cir. 2020); New York v. DHS, 969 F.3d 42,
80–81 (2nd Cir. 2020). The Second Circuit opinion was
unanimous, while a dissenting opinion in the Seventh Circuit
agreed with DHS that those who receive such supplemental
benefits could be considered public charges because, by
receiving some assistance, they are not completely self-
sufficient. Cook Cnty., 962 F.3d at 250–51 (Barrett, J.,
dissenting).

The district court in Maryland also enjoined enforcement
of the Rule and was reversed by a divided decision of the
Fourth Circuit. The majority looked in large measure to the
fact that the Supreme Court had stayed the injunctions in the
Seventh and Second Circuits. CASA de Maryland, Inc. v.
Trump, 971 F.3d 220, 230 (4th Cir. 2020). In dissent, Judge
King viewed the Rule as outside the longstanding meaning of
 CITY & CTY. OF SAN FRANCISCO V. USCIS 19

“public charge” and would have affirmed the injunction. He
also disagreed with the majority about the significance of the
Supreme Court’s stay, explaining that “[i]f the Court's
decision to grant a stay could be understood to effectively
hand victory to the government regarding the propriety of a
preliminary injunction, there would be little need for an
intermediate appellate court to even consider the merits of an
appeal in which the Court has granted a stay.” Id. at 281 n.16
(King, J., dissenting) (citing Cook Cnty., 962 F.3d at 234).

To understand the reason for this recent cascade of
litigation after a relatively quiescent statutory and regulatory
history, we review the historical background of the Rule.
Such a review reveals the extent to which the Rule departs
from past congressional and administrative policies.

A. Statutory and Administrative Background

This country has had a federal statutory provision barring
the admission of persons likely to become a “public charge”
since 1882. The Immigration Act of 1882 barred entry to,
among others, “any convict, lunatic, idiot, or any person
unable to take care of himself or herself without becoming a
public charge.” The Immigration and Nationality Act now
provides that “[a]ny alien who, . . . in the opinion of the
[Secretary of Homeland Security] at the time of application
for admission or adjustment of status, is likely at any time to
become a public charge is inadmissible.” 8 U.S.C.
§ 1182(a)(4)(A). No statute has ever defined the term. For
over a century, agencies have routinely applied these
provisions in determining admissibility and removal as well
as in issuing visas for entry.
20 CITY & CTY. OF SAN FRANCISCO V. USCIS

In 1996, however, Congress amended the statute to add
five factors for agencies to consider in determining whether
an individual is likely to be a public charge: the non-citizen’s
age; health; family status; assets, resources and financial
status; and education and skills. § 1182(a)(4)(B)(i).
Congress also included a provision requiring applicants to
produce an affidavit of support. See § 1182(a)(4)(C)–(D)
(requiring most family-sponsored immigrants to submit
affidavits of support); § 1183a (affidavit of support
requirements).

At nearly the same time, Congress enacted major reforms
of public benefit programs that, as relevant here, made only
non-citizens with five or more years of residency in the
United States eligible for public benefits such as
Supplemental Nutrition Assistance Program (SNAP) and
Medicaid. Personal Responsibility and Work Opportunity
Reconciliation Act (PRWORA), Pub. L. No. 104-193, 110
Stat. 2105, 2265 (1996). Previously, lawful immigrants had
generally been eligible for such benefits. Congress thus
simultaneously reduced the number of immigrants eligible for
this assistance and spelled out the factors to be considered in
a public charge determination. The fact that Congress
delineated the factors relevant to the public charge
determination at the same time it adjusted certain immigrants’
eligibility to receive specific supplemental assistance strongly
suggests that Congress did not intend for such assistance to be
considered as one of the public charge factors.

Judicial guidance in interpreting the phrase was
apparently not in need or demand: There are relatively few
such decisions. A leading early Supreme Court case resolved
the important question of whether the adverse economic
conditions in the location where the immigrant intends to live
 CITY & CTY. OF SAN FRANCISCO V. USCIS 21

can render an immigrant likely to become a “public charge.”
Gegiow v. Uhl, 239 U.S. 3 (1915). The Supreme Court’s
answer was no because the statute spoke to the permanent
characteristics personal to the immigrant rather than to local
labor market conditions. Id. at 10. We followed Gegiow in
Ex parte Sakaguchi, 277 F. 913 (9th Cir. 1922), where we
held that a person temporarily in need of family assistance
should not have been excluded as likely to become a public
charge. We so held because there was an absence of “any
evidence whatever of mental or physical disability or any fact
tending to show that the burden of supporting the appellant is
likely to be cast upon the public.” Id. at 916. Thus, our court
in Sakaguchi understood the standard for determining
whether someone is a public charge to be whether the
“burden of support” falls on the public.

Administrative decisions followed the Supreme Court’s
lead by looking to the inherent characteristics of the
individual rather than to external circumstances. The Board
of Immigration Appeals thus held that only an individual with
the inherent inability to be self-supporting is excludable as
“likely to become a public charge” within the meaning of the
statute. Matter of Harutunian, 14 I & N. Dec. 583, 589–90
(BIA 1974); Matter of Vindman, 16 I. & N. Dec. 131, 132
(B.I.A. 1977); see also New York, 969 F.3d at 69. There has
been corollary administrative recognition that even if an
individual has been on welfare, that fact does not in and of
itself establish the requisite likelihood of becoming a public
charge. An Attorney General decision collected authorities
indicating that it is the totality of circumstances that must be
considered in order to determine whether “the burden of
supporting the alien is likely to be cast on the public.” Matter
of Martinez-Lopez, 10 I & N. Dec. 409, 421–22 (BIA 1962;
A.G. 1964) (citing Sakaguchi, 277 F. at 916). Likely receipt
22 CITY & CTY. OF SAN FRANCISCO V. USCIS

of some public benefits does not automatically render an
immigrant a public charge because the public does not bear
the “burden of support.”

The 1996 amendments, which added factors to be
considered and created the current public charge statutory
provision, caused some confusion as to how big a change
they represented. The INS, the agency then in charge of
administering immigration, decided a regulatory definition
would be helpful. It adopted the 1999 Guidance, the first
regulatory guidance to interpret the rather ancient notion of
“public charge” in light of the myriad, modern forms of
public assistance. 64 Fed. Reg. 28,269.

The Guidance defined a “public charge” as a non-citizen
who depends on the government for survival, either by receipt
of income or confinement in a public institution. It described
persons “primarily dependent on the government for
subsistence, as demonstrated by either (i) the receipt of public
cash assistance for income maintenance or
(ii) institutionalization for long term care at government
expense.” Id. at 28,689. It thus embodied the traditional
notion of primary dependence on the government for either
income or institutional care.

The Guidance went on to identify the types of public
assistance that would typically qualify as evidence of primary
dependence: (1) Supplemental Security Income (SSI);
(2) Temporary Assistance for Needy Families (TANF); (3)
state and local cash assistance programs; and (4) programs
supporting people institutionalized for long-term care. Id. at
28,692. The Guidance expressly excluded non-cash benefits
intended to supplement income and not to provide primary
support. The explanation lay with the changing times that
 CITY & CTY. OF SAN FRANCISCO V. USCIS 23

were bringing benefits to more and more families to improve
their health and welfare. See id. (“[C]ertain federal, state, and
local benefits are increasingly being made available to
families with incomes far above the poverty level, reflecting
broad public policy decisions about improving general public
health and nutrition, promoting education, and assisting
working-poor families in the process of becoming self-
sufficient. Thus, participation in such non-cash programs is
not evidence of poverty or dependence.”).

The Guidance actually encouraged non-citizens to receive
supplemental benefits in order to improve their standard of
living and to promote the general health and welfare. The
Guidance drew a sharp distinction between the receipt of such
supplemental benefits and dependence on the government for
subsistence income that would render the individual a “public
charge.” Id. at 28,692–93.

The 2019 Public Charge Rule we review in this case
effectively reversed that policy by making receipt of
supplemental benefits the very definition of a public charge.
See Inadmissibility on Public Charge Grounds, 84 Fed. Reg.
41,292 (Aug. 14, 2019). The Rule defines the term “public
charge” to mean “an alien who receives one or more
[specified] public benefits . . . for more than 12 months in the
aggregate within any 36-month period (such that, for
instance, receipt of two benefits in one month counts as two
months).” Id. at 41,501. The public benefits specified by the
Rule include most Medicaid benefits, SNAP benefits, Section
8 housing vouchers and rental assistance, and other forms of
federal housing assistance. Id. Any receipt of such a benefit,
no matter how small, will factor into the public charge
determination. The Rule also directs officials to consider
24 CITY & CTY. OF SAN FRANCISCO V. USCIS

English proficiency in making the public charge
determination. Id. at 41,503–04.

The Rule was greeted with challenges in federal district
courts throughout the country. We deal with those in this
circuit.

B. The District Court Injunctions

On appeal are two district court decisions granting
preliminary injunctions barring enforcement of the Rule. The
Northern District considered the challenges of California, the
District of Columbia, Maine, Pennsylvania, and Oregon,
consolidated with the challenges brought by the City and
County of San Francisco, and the County of Santa Clara. The
Eastern District heard the challenges brought by Washington,
Virginia, Colorado, Delaware, Hawaii, Illinois, Maryland,
Massachusetts, Michigan, Minnesota, Nevada, New Jersey,
New Mexico, and Rhode Island. Both district courts agreed
that the plaintiffs had standing because they had shown that
they would likely suffer economic harm and other costs and
that their concerns were within the zone of interests of the
statute. Both held that the new definition of “public charge”
was likely not a permissible interpretation of the statute
because it would depart from the longstanding, settled
understanding that a person does not become a public charge
by receiving short-term aid, and must instead demonstrate an
inherent incapacity to provide subsistence. City and Cnty. of
San Francisco v. USCIS, 408 F. Supp. 3d 1057, 1101 (N.D.
Cal. 2019), Washington v. DHS, 408 F. Supp. 3d 1191, 1219
(E.D. Wash. 2019). Both found the Rule to be likely arbitrary
and capricious because the agency failed to consider the
burdens the Rule would impose on states and municipalities.
 CITY & CTY. OF SAN FRANCISCO V. USCIS 25

The Eastern District issued a nationwide injunction, and the
Northern District declined to do so.

Within a few weeks of the district court rulings, a divided
motions panel of this court, however, stayed both injunctions
pending this appeal. City and Cnty. of SF, 944 F.3d 773. The
panel majority wrote that DHS was likely to prevail because
the Rule would probably be viewed as a reasonable
interpretation of a statute that had no consistent historical
application and gave the agency “considerable discretion.”
Id. at 796, 799. Judge Owens dissented in part and would
have denied the stay. Id. at 809–10 (Owens, J., dissenting).

The stay was based on a prediction of what this panel
would hold in reviewing the merits of the preliminary
injunctions. The stay in this case was entered at a particularly
early point, less than two months after the district court
injunctions. Almost none of the extensive documentation
relevant to this appeal was before the motions panel. The
brief of the appellant DHS in the Northern District case had
been filed only the day before the panel entered its stay, and
the opening brief in the Eastern District case was not filed
until the day after. Still to come were not only the answering
and reply briefs in both appeals, but two dozen amicus briefs,
many of which we have found very helpful.

At least equally important, no other circuit court opinions
had yet considered the issues. By now we have heard from
three. One of those opinions even discussed and disagreed
with the reasoning of this court’s motions panel stay opinion,
pointing out that it “pinn[ed] the definition of ‘public charge’
on the form of public care provided” in concluding that there
was no consistent interpretation of the Rule. New York,
969 F.3d at 73 (emphasis in original). The court there said
26 CITY & CTY. OF SAN FRANCISCO V. USCIS

our motions panel thereby went “astray.” Id. This was
because the issue was not whether a “public charge” had
always received similar assistance. Id. The issue should have
been whether the “inquiry” under the statute had been
consistent. Id. The Second Circuit concluded the public
charge inquiry had always been whether the non-citizen “is
likely to depend on that [assistance] system.” Id.

We therefore turn to the appeal before us. We deal first
with DHS’s arguments that the plaintiffs may not maintain
the suit because they lack Article III standing or are outside
the zone of interests of the immigration statute in question.

C. Plaintiffs’ Capacity to Maintain the Action

Plaintiffs are states and municipalities that allege the Rule
is causing them to suffer continuing financial harm, as lawful
immigrants eligible for federal cash, food, and housing
assistance withdraw from these programs to avoid the impact
of the Rule. Plaintiffs allege harm because such immigrants
will instead turn to assistance programs administered by the
state and local entities.

DHS argues that such injuries are speculative and
represent only plausible future injury. There is no question
that to have Article III standing to bring this action, the
plaintiffs must allege that they have suffered, or will
imminently suffer, a “concrete and particularized” injury in
fact. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
There is also no question that an increased demand for aid
supplied by the state and local entities would be such an
injury. The only question is whether such demand is, as of
yet, apparent or imminent.
 CITY & CTY. OF SAN FRANCISCO V. USCIS 27

That is not a difficult question to answer. The Rule itself
predicts a 2.5 percent decrease in enrollment in public benefit
programs and a corresponding reduction in Medicaid
payments of over one billion dollars per year. Final Rule,
84 Fed. Reg. at 41,302, 41,463. The Rule itself further
acknowledges that disenrollment will cause other indirect
financial harm to state and local entities by increasing the
demand for uncompensated indigent care. Declarations in the
record show that such entities are already experiencing
disenrollment as a result of the Rule. See City and Cnty. of
SF, 408 F. Supp. 3d at 1122.

DHS nevertheless asserts that the Rule will result in a
long-term cost savings after states compensate for the loss of
federal funds by reforming their operations. But such long-
term reforms would not remedy the immediate financial
injury to the plaintiffs or the harms to the health and welfare
of those individuals affected. As the Second Circuit
explained, “this simplistic argument fails to account for the
fact that the States allege injuries that extend well beyond
reduced Medicaid revenue and federal funding to the States,
including an overall increase in healthcare costs that will be
borne by public hospitals and general economic harms.” New
York, 969 F.3d at 60. Thus, plaintiffs have established Article
III standing.

Those suing under the APA, must also establish that the
interest they assert is at least “arguably within the zone of
interests to be protected or regulated by the statute” in
question. Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak, 567 U.S. 209, 224 (2012) (quoting Ass’n
of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150,
153 (1970)). The Supreme Court has described the test as
“not meant to be especially demanding” and as “not
28 CITY & CTY. OF SAN FRANCISCO V. USCIS

requir[ing] any ‘indication of congressional purpose to
benefit the would-be plaintiff.’” Id. at 225 (quoting Clarke v.
Sec. Indus. Ass’n, 479 U.S. 388, 399–40 (1987)). A
plaintiff’s interest need only be “sufficiently congruent with
those of the intended beneficiaries that the litigants are not
‘more likely to frustrate than to further the statutory
objectives.’” First Nat. Bank & Tr. Co. v. Nat’l Credit Union
Admin., 988 F.2d 1272, 1275 (D.C. Cir. 1993) (quoting
Clarke, 479 U.S. at 397 n.12).

The statute in question is, of course, the immigration
statute that renders inadmissible an individual likely to
become a “public charge.” 8 U.S.C. § 1182(a)(4)(A). DHS
appears to contend that the only entities within the zone of
interests are the federal government itself and individuals
seeking to immigrate, because the provision deals with
immigration and only the federal government controls
immigration. If that were to define the zone of interests
regulated by the statute, the scope of permissible immigration
litigation against the government would be so narrow as to
practically insulate it from many challenges to immigration
policy and procedures, even those violating the Constitution
or federal laws.

DHS suggests that the purpose of the public charge
exclusion is to reduce immigrants’ use of public benefits, and
that the plaintiffs’ suit therefore contradicts this purpose by
seeking to make more federal benefits available. But this
assumes that Congress’s statutory purpose was the same as
DHS’s purpose here, which is the very dispute before us. As
the Second Circuit pointed out, “DHS assumes the merits of
its own argument when it identifies the purpose of the public
charge ground as ensuring that non-citizens do not use public
benefits . . . . Understood in context, [the public charge bar’s]
 CITY & CTY. OF SAN FRANCISCO V. USCIS 29

purpose is to exclude where appropriate and to not exclude
where exclusion would be inappropriate.”) New York,
969 F.3d at 62–63.

Moreover, DHS maintains that the statute’s overall
purpose is to promote self-sufficiency. Providing access to
better health care, nutrition and supplemental housing
benefits is consistent with precisely that purpose. See Cook
Cnty., 962 F.3d at 220 (access to affordable basic health care
may promote self-sufficiency); Hilary Hoynes, Diane
Whitmore Schanzenbach & Douglas Almond, Long-Run
Impacts of Childhood Access to the Safety Net, 106 Am.
Econ. Rev. 903, 921 (2016) (access to food stamps in
childhood significantly increases economic self-sufficiency
among women). For these reasons, the interests of the
plaintiffs in preserving immigrants’ access to supplemental
benefits is within the zone of interests protected by the
statute.

We therefore conclude that the district courts correctly
determined that the plaintiffs are entitled to maintain this
action. All of the circuits to consider the validity of this Rule
have reached a similar conclusion. See Cook Cnty., 962 F.3d
at 219–20, CASA de Maryland, 971 F.3d at 240–241, New
York, 969 F.3d at 62–63. We now turn to the question
whether they were entitled to the preliminary injunctions
entered by the district courts.

D. Contrary to Law

Both district courts concluded that the plaintiffs are likely
to prevail in their contention that the Rule violates the
statute’s public charge provision, and that such a conclusion
supports the entry of preliminary injunctions. See Winter v.
30 CITY & CTY. OF SAN FRANCISCO V. USCIS

Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). On
appeal, DHS contends, as it has throughout the litigation, that
the Rule is a permissible interpretation of the statute. The
plaintiffs maintain that the Rule violates the statute because
the Rule is not a reasonable interpretation of the meaning of
“public charge.”

History is a strong pillar supporting the plaintiffs’ case.
Plaintiffs point to repeated congressional reenactment of the
provision after it had been interpreted to mean long-term
dependence on government support, and had never been
interpreted to encompass temporary resort to supplemental
non-cash benefits. Plaintiffs contend that this repeated
reenactment amounts to congressional ratification of the
historically consistent interpretation. DHS disagrees, arguing
that the repeated reenactments reflect congressional intent to
have a flexible standard subject to various executive branch
interpretations.

Our review of the history of the provision in our law
suggests the plaintiffs have the better part of this dispute.
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. 8 C.F.R.
§ 212.22(b)(5)(ii)(D). Indeed, in Gegiow, 239 U.S. 3, the
Supreme Court found that the individuals in that case were
 CITY & CTY. OF SAN FRANCISCO V. USCIS 31

not likely to become public charges even though they spoke
only Russian.

In New York, 969 F.3d 42, the Second Circuit essentially
agreed with plaintiffs’ historical analysis. The court
recognized and explained the line of settled judicial and
administrative interpretations of a public charge as one who
is primarily dependent on the government for subsistence. Id.
at 65–70. The court traced that history in far more detail than
we have outlined and was “convinced” that there was a well-
settled meaning of “public charge” even before congressional
passage of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) in 1996, and that was a person
“unable to support herself, either through work, savings, or
family ties.” Id. at 71. Receipt of cash benefits may be
considered in deciding whether a person is dependent on the
government but has never been determinative. The Second
Circuit persuasively summarized:

The Plaintiffs do not argue, and we do not
hold, that the receipt of various kinds of
public benefits is irrelevant to the
determination of whether a non-citizen is
likely to become a public charge. But
defining public charge to mean the receipt,
even for a limited period, of any of a wide
range of public benefits – particularly . . . ones
that are designed to supplement an
individual's or family's efforts to support
themselves, rather than to deal with their
likely permanent inability to do so – is
inconsistent with the traditional understanding
32 CITY & CTY. OF SAN FRANCISCO V. USCIS

of what it means to be a “public charge,”
which was well-established by 1996.

Id. at 78 (emphasis removed).

A few months earlier, the Seventh Circuit had come to a
similar conclusion that the Rule violates the statutory
meaning of public charge. Cook Cnty., 962 F.3d 208. The
Seventh Circuit differed somewhat in its analysis. After a
historical survey of court decisions and secondary sources, it
determined that the phrase “public charge” was susceptible to
various interpretations. Id. at 226. It concluded, however,
that DHS’s interpretation, quantifying the definition to mean
receipt of twelve months’ worth of benefits within three
years, represented an understanding of its authority to define
the phrase that “has no natural limitation.” Id. at 228–29. If
DHS’s interpretation were to be accepted, then there is
nothing in the statutory text that would prevent a zero-
tolerance rule, where foreseeable receipt of a single benefit on
one occasion would bar entry or adjustment of status. The
majority forcefully rejected such an interpretation, stating:

We see no warrant in the Act for this
sweeping view. Even assuming that the term
“public charge” is ambiguous and thus might
encompass more than institutionalization or
primary, long-term dependence on cash
benefits, it does violence to the English
language and the statutory context to say that
it covers a person who receives only de
minimis benefits for a de minimis period of
 CITY & CTY. OF SAN FRANCISCO V. USCIS 33

time. There is a floor inherent in the words
“public charge,” backed up by the weight of
history.

Id. at 229.

Although the opinions of the Second Circuit in New York
and the Seventh Circuit in Cook County reflect some
disagreement over whether there was any historically
established meaning of the phrase “public charge,” they
agreed that the Rule’s interpretation of the statute was outside
any historically accepted or sensible understanding of the
term. In commenting on the difference between its historical
review in New York and that of the Seventh Circuit in Cook
County, the Second Circuit noted that the Seventh Circuit had
not included the significant administrative rulings that
preceded the 1996 statute. New York, 969 F.3d at 74.

The New York opinion was unanimous, but the Cook
County opinion was not. The lengthy dissenting opinion in
Cook County focused on other statutory provisions aimed at
preventing entry of persons who could become dependent on
the government. The most significant of these provisions is
the requirement that family-sponsored immigrants, and
employment-sponsored immigrants whose employment is
tied to a family member, must furnish an affidavit from the
sponsor. 8 U.S.C. §§ 1182(a)(4)(C)–(D). In the affidavit, the
sponsor must agree to support the immigrant at annual
income of at least 125 percent of the poverty level and pay
back the relevant governmental entity in the event the
immigrant receives “any means-tested public benefit.”
8 U.S.C. § 1183a(a)(1)(b).
34 CITY & CTY. OF SAN FRANCISCO V. USCIS

The dissent focused on the fact that the affidavit provision
forces sponsors to bear responsibility for “any means-tested
public benefit” that an immigrant may receive. It concluded
that the affidavit provision reflects Congress’s view that
“public charge” may encompass receipt of supplemental
benefits as well as primary dependence. See Cook Cnty.,
962 F.3d at 246 (Barrett, J., dissenting).

In its focus on the provisions in a related but different
section of the statute, the dissent did not address the
significance of the history of the public charge provision
itself, nor did it address the majority’s objection to the
duration of the receipt of benefits as a standard having no
limiting principle. The dissent concluded only that the choice
of an aggregate of twelve months is “not unreasonable.” Id.
at 253. Moreover, the dissent’s interpretation of the affidavit
requirement’s application here seems to suggest that it would
approve a public charge rule excluding individuals who
received “any means-tested benefit,” no matter how small, as
in line with congressional intent.

In this appeal, DHS also relies upon the affidavit of
support provisions to contend that the Rule is consistent with
the statutory public charge bar. The public charge bar and
affidavit of support provisions were parts of two separate
acts. The two have no historic or functional relationship to
each other. The public charge bar dates back to the 19th
century, embodying an age-old concept of excluding those
who may become primarily dependent on the government.
Congress enacted the affidavit of support provision, however,
in 1996 as part of more recent specific immigration reforms
including the financial responsibilities of families and
employers sponsoring individual immigrants. See PRWORA,
Pub. L. No. 423, 110 Stat. 2271 (1996); IIRIRA, Pub. L. No.
 CITY & CTY. OF SAN FRANCISCO V. USCIS 35

104-208, 110 Stat. 3009 (1996). The section of the affidavit
provision that refers to public benefits serves as a post-
admission remedy to help local and federal governments
recoup funds. § 1183a(b). The changes to the affidavit
provisions were aimed at problems with the unenforceability
of such affidavits prior to 1996. Michael J. Sheridan, The
New Affidavit of Support and Other 1996 Amendments to
Immigration and Welfare Provisions Designed to Prevent
Aliens from Becoming Public Charges, 31 Creighton L. Rev.
741, 743-44, 752-53 (1998) (article by INS Associate General
Counsel).

DHS also points to the provision that permits entry of
battered women without regard to receipt of “any benefits.”
See 8 U.S.C. § 1182(s). DHS argues that this reflects
Congress’s belief that the receipt of any public benefits would
be a consideration in admission for most other public charge
determinations. Had Congress intended to make non-cash
benefits a factor for admission or permanent residence, it
would have done so directly and not through this ancillary
provision. See Whitman v. Am. Trucking Ass’ns, 531 U.S.
457, 468 (2001) (Congress does not “hide elephants in
mouseholes”). It is more likely that Congress created this
provision in order to provide sweeping protections for
battered migrant women, as it did throughout Section 1182.
See § 1182(a)(6)(ii), (a)(9)(B)(iii)(IV).

For these reasons we 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.
36 CITY & CTY. OF SAN FRANCISCO V. USCIS

E. Arbitrary and Capricious

Both district courts also ruled that the plaintiffs were
likely to succeed in their contention that the Rule is arbitrary
and capricious. The APA standard in this regard is inherently
deferential. The task of the courts is to ensure that the
agency’s action relied on appropriate considerations,
considered all important aspects of the issue, and provided an
adequate explanation for its decision. The Supreme Court
summed it up in its leading decision, Motor Vehicle Mfrs.
Ass'n, Inc. v. State Farm Mut. Auto. Ins. Co. (“State Farm”),
463 U.S. 29 (1983). The Court explained the general rule:

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 it could not be ascribed to a
difference in view or the product of agency
expertise.

Id. at 43.

The plaintiffs argue that DHS failed the test in three
principal respects: It failed to take into account the costs the
Rule would impose on state and local governments; it did not
consider the adverse effects on health, including both the
health of immigrants who might withdraw from programs and
the overall health of the community; and it did not adequately
explain why it was changing the policy that was thoroughly
explained in the 1999 Guidance.
 CITY & CTY. OF SAN FRANCISCO V. USCIS 37

1. Disenrollment and Financial Costs

We first turn to DHS’s consideration of the financial
impact of the proposed Rule. During the comment period,
there was repeated emphasis on the financial burdens that
would befall state and local governments because immigrants
fearing application of the Rule would disenroll from the
supplemental programs, even if the Rule did not apply to
them. DHS’s response was a generality coupled with an
expression of uncertainty. It said that, despite these effects,
the Rule’s “overriding consideration” of self-sufficiency
formed “a sufficient basis to move forward.” 84 Fed. Reg. at
41,312. DHS added that there was no way of knowing with
any degree of exactitude how many individuals would
disenroll or how much of a burden it would place on the state
and local governments. Id. at 41,312–13.

DHS provided no analysis of the effect of the Rule on
governmental entities like the plaintiffs in these cases. As the
Northern District found, DHS had not “grapple[d] with
estimates and credible data explained in the comments.” City
and Cnty. of SF, 408 F. Supp. 3d at 1106.

Our law requires more from an agency. A bald
declaration of an agency’s policy preferences does not
discharge its duty to engage in “reasoned decisionmaking”
and “explain the evidence which is available.” State Farm,
463 U.S. at 52. The record before DHS was replete with
detailed information about, and projections of, disenrollment
and associated financial costs to state and local governments.
See, e.g., Ninez Ponce, Laurel Lucia, & Tia Shimada, How
Proposed Changes to the ‘Public Charge’ Rule Will Affect
Health, Hunger and the Economy in California, 32 (Nov.
2018), https://healthpolicy.ucla.edu/newsroom/Documents/
38 CITY & CTY. OF SAN FRANCISCO V. USCIS

2018/public-charge-seminar-slides-nov2018.pdf (estimating
over 300,000 disenrollments from Medicaid in California
alone); Fiscal Policy Institute, Only Wealthy Immigrants
Need Apply: The Chilling Effects of “Public Charge,”
5 (Nov. 2019), http://fiscalpolicy.org/wp-content/uploads/2
019/11/FINAL-FPI-Public-Charge-2019-MasterCopy.pdf
(estimating over $500 million combined in lost state tax
revenue). DHS was required to “reasonably reflect upon” and
“grapple with” such evidence. Fred Meyers Stores, Inc. v.
NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017). But DHS made
no attempt to quantify the financial costs of the Rule or
critique the projections offered.

Similarly, DHS’s repeated statements that the Rule’s
disenrollment impacts are “difficult to predict” do not satisfy
its duty to “examine the relevant data” before it. State Farm,
463 U.S. at 43. The Supreme Court held in State Farm that
an agency may not, without analysis, cite even “‘substantial
uncertainty’ . . . as a justification for its actions.” Id. at 52;
see also Ctr. for Biological Diversity v. NHTSA, 538 F.3d
1172, 1200 (9th Cir. 2008) (rejecting as arbitrary and
capricious agency’s characterization of greenhouse gas
reductions as “too uncertain to support their explicit valuation
and inclusion” in analysis). DHS’s analysis thus fell short of
the standard established by the Supreme Court and
recognized by our circuit. DHS did not adequately deal with
the financial effects of the Rule.

2. Health Consequences

Although DHS wrote the Rule was intended to make
immigrants healthier and stronger, commenters stressed the
Rule’s likely adverse health consequences for immigrants and
the public as a whole, including infectious disease outbreaks
 CITY & CTY. OF SAN FRANCISCO V. USCIS 39

and hospital closures. While acknowledging these comments,
DHS concluded, without support, that the Rule “will
ultimately strengthen public safety, health, and nutrition.”
84 Fed. Reg. at 41,314. The Northern District aptly found
that DHS impermissibly “simply declined to engage with
certain, identified public-health consequences of the Rule.”
City and Cnty. of SF, 408 F. Supp. 3d at 1111–12.

Commenters provided substantial evidence that the Rule
would in fact harm public safety, health, and nutrition. DHS
itself repeatedly acknowledged that hospitals might face
financial harms as a result of the Rule, but DHS repeatedly
declined to quantify, assess, or otherwise deal with the
problem in any meaningful way. See, e.g., 84 Fed. Reg. at
41,313–14, 41,384, 41,475, 41,476. This is inadequate and
suggests that DHS’s position was intractable. As the D.C.
Circuit has observed, making some mention of evidence but
then coming to a contrary, “unsupported and conclusory”
decision “add[s] nothing to the agency’s defense of its thesis
except perhaps the implication that it was committed to its
position regardless of any facts to the contrary.” Chem. Mfrs.
Ass’n. v. EPA, 28 F.3d 1259, 1266 (D.C. Cir. 1994). DHS
responded by excluding certain programs for children and
pregnant women from the ambit of the Rule, but never
addressed the larger concerns about the Rule’s effect on
health as well as on hospital resources.

There were other serious health concerns. For example,
comments demonstrated that the Rule would endanger public
health by decreasing vaccination rates in the general
population. DHS insisted that vaccines would “still be
available” to Medicaid-disenrolled individuals because “local
health centers and state health departments” would pick up
the slack, id. at 41,385, despite objections voiced by such
40 CITY & CTY. OF SAN FRANCISCO V. USCIS

local health centers and state health departments themselves
showing that the Rule will put the populations they
serve—citizens and non-citizens alike—in danger. See, e.g.,
Mass. Dep’t of Pub. Health, Comments on Inadmissibility on
Public Charge Grounds (Dec. 2018), https://www.regulations.
gov/document?D=USCIS-2010-0012-45697; Hilltown Cmty.
Health Ctr., Comments on Inadmissibility on Public Charge
Grounds (Dec. 2018), https://www.regulations.gov/docume
nt?D=USCIS-2010-0012-45675. A decision that “runs
counter to the evidence” or “is so implausible that it could not
be ascribed to a difference in view or the product of agency
expertise” is arbitrary and capricious. State Farm, 463 U.S.
at 43. The promulgation of this Rule is such a decision. DHS
claims no expertise in public health, unlike the scores of
expert commenters who weighed in against the Rule.

3. Reversal of Position

Above all, DHS failed to explain its abrupt change in
policy from the 1999 Guidance. An agency reversing a prior
policy “must show that there are good reasons for the new
policy” and provide “a reasoned explanation . . . for
disregarding facts and circumstances that underlay or were
engendered by the prior policy.” FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515–16 (2009). The district
courts below found that DHS had failed to satisfy this
standard. City and Cnty. of SF, 408 F. Supp. 3d at 1111–12;
Washington v. DHS, 408 F. Supp. 3d at 1220.

The 1999 Guidance had been issued after the 1996
statutory amendments setting out the general factors to be
taken into account in making a public charge determination.
The Guidance considered all of the different types of public
assistance governments offered, including programs
 CITY & CTY. OF SAN FRANCISCO V. USCIS 41

providing subsistence income and those providing
supplemental benefits. The Guidance expressly provided that
receipt of supplemental assistance for food, healthcare and
housing were not to be considered in assessing an
immigrant’s likelihood of becoming a public charge. As
discussed above, this provision was consistent with over a
century of judicial and administrative decisions interpreting
the public charge bar. The Rule, however, provides that the
prospect of receiving those same supplemental benefits, for
even a few months, renders an individual inadmissible. This
is directly contrary to the 1999 Guidance.

Yet DHS promulgated the Rule without any explanation
of why the facts found, and the analysis provided, in the prior
Guidance were now unsatisfactory. This is a practice the
Supreme Court has rejected: an agency about-face with no
“reasoned explanation . . . for disregarding” the findings
underlying the prior policy. Fox, 556 U.S. at 516. Here is an
illustration of the about-face. The 1999 Guidance had found
that deterring acceptance of “important health and nutrition
benefits” had yielded “an adverse impact . . . on public health
and the general welfare.” 64 Fed. Reg. at 28,692. In contrast,
DHS now says that the new Rule “will ultimately strengthen
public safety, health, and nutrition.” 84 Fed. Reg. at 41,314.
DHS provides no basis for this conclusion or for its departure
from the empirical assessments underlying the prior policy.

In light of this policy change, coupled with the “serious
reliance interests” engendered by over two decades of
reliance on the Guidance, DHS was required to provide a
“more detailed justification” for the Rule. Fox, 556 U.S.
at 515. DHS provides no justification, other than the repeated
conclusory mantra that the new policy will encourage self-
sufficiency. DHS in effect says that by creating a
42 CITY & CTY. OF SAN FRANCISCO V. USCIS

disincentive for immigrants to use available assistance, the
Rule will “ensur[e] that [admitted immigrants] be self-
sufficient and not reliant on public resources.” 84 Fed. Reg.
at 41,319. DHS does not substantiate, and the record does not
support, this empirical prediction. See, e.g., Hilary Hoynes,
Diane Whitmore Schanzenbach & Douglas Almond, Long-
Run Impacts of Childhood Access to the Safety Net, 106 Am.
Econ. Rev. 903, 930 (finding that having access to food
stamps during childhood leads to “significant improvement
in adult health” and “increases in economic self-sufficiency,”
including decreased welfare participation). Plaintiffs urge
that their experience is contrary to DHS’s conclusion. Also
to the contrary is the experience related in multiple amicus
briefs. See, e.g., Brief for the Institute for Policy Integrity as
Amicus Curiae Supporting Petitioners at 9 (citing evidence
that reductions in SNAP participation increase homelessness);
Brief for National Housing Law Project et al. as Amici Curiae
Supporting Petitioners at 13 (citing evidence that Medicaid
made it easier for recipients to work and find work).

4. Arbitrary and Capricious

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 within the meaning of the APA. 5 U.S.C. § 706(2)(A).
 CITY & CTY. OF SAN FRANCISCO V. USCIS 43

F. Remaining Injunction Factors

1. Irreparable Harm

Plaintiffs have shown a likelihood of success on the
merits of their claim that the Rule violates the standards of
the APA in that it is both contrary to law and arbitrary and
capricious. To support entry of an injunction, Plaintiffs must
also show a likely threat of irreparable injury in the absence
of an injunction. Winter, 555 U.S. at 22. Plaintiffs have
established that they likely are bearing and will continue to
bear heavy financial costs because of withdrawal of
immigrants from federal assistance programs and consequent
dependence on state and local programs.

There is no dispute that such economic harm is sufficient
to constitute irreparable harm because of the unavailability of
monetary damages. See California v. Azar, 911 F.3d 558,
581 (9th Cir. 2018); 5 U.S.C. § 702 (providing for relief
“other than monetary damages”). DHS counters that such
harm in this case is speculative, amounting to no more than
the possibility of future injury. See Park Vill. Apartment
Tenants Ass’n v. Mortimer Howard Tr., 636 F.3d 1150, 1160
(9th Cir. 2011).

We have, however, already seen that in this case such
harm is more than speculative. Plaintiffs have presented
evidence that they are already experiencing harm and DHS
itself has projected significant disenrollment from federal
programs, likely leading to enrollments in state and local
ones. The district courts both made factual findings as to
harm that DHS does not refute with citations to the record.
44 CITY & CTY. OF SAN FRANCISCO V. USCIS

2. Balance of Equities and Public Interest

There was no error in finding that the balance of equities
and public interest support an injunction. The Northern
District pointed to the need for “continuing the provision of
medical services through Medicaid to those who would
predictably disenroll absent an injunction” in light of the
explanations given by “parties and numerous amici . . . [of
the] adverse health consequences not only to those who
disenroll, but to the entire populations of the plaintiff states,
for example, in the form of decreased vaccination rates.” City
and Cnty. of SF, 408 F. Supp. 3d at 1127. The public interest
in preventing contagion is particularly salient during the
current global pandemic.

Although DHS nevertheless argues that it is harmed by
not being able to implement its new definition of public
charge, if it is ultimately successful in defending the merits of
the Rule, the harm will amount to no more than a temporary
extension of the law previously in effect for decades. Given
the financial burdens that plaintiffs have persuasively
demonstrated will befall them as a result of disenrollment
from federal programs, coupled with adverse effects on the
health and welfare of the immigrant as well as general
population, we cannot say the district courts abused their
discretion in finding that the balance of equities and public
interest weigh in favor the injunction.

G. Propriety of a Nationwide Injunction

The Northern District issued a preliminary injunction
limited to the territory of the plaintiff state and local entities
before it. The Eastern District issued a nationwide injunction,
explaining that a more limited injunction would not prevent
 CITY & CTY. OF SAN FRANCISCO V. USCIS 45

all the harms alleged. The court was concerned about
protecting immigrants from harm if they moved outside of the
plaintiff jurisdictions, about the economic impact on plaintiff
states if immigrants moved to them to evade the
consequences of the Rule, and about lawful immigrants being
subject to the Rule at points of entry after travel abroad.
Washington, 408 F. Supp. 3d at 1223.

The appropriateness of nationwide injunctions in any case
has come under serious question. See, e.g., DHS v. New York,
140 S Ct. 599, 599–601 (2020) (Gorsuch, J., concurring);
Trump v. Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas,
J., concurring). In explaining the limited scope of its
injunction, the Second Circuit questioned the propriety of one
court imposing its will on all:

It is not clear to us that, where contrary views
could be or have been taken by courts of
parallel or superior authority entitled to
determine the law within their own
geographical jurisdictions, the court that
imposes the most sweeping injunction should
control the nationwide legal landscape.

New York, 969 F.3d at 88.

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.
46 CITY & CTY. OF SAN FRANCISCO V. USCIS

Accordingly, we vacate that portion of the Eastern
District’s injunction making it applicable nationwide, but
otherwise affirm it.

H. Rehabilitation Act

The plaintiffs also contend that the Rule violates the
Rehabilitation Act, which bans discrimination on the basis of
disabilities. 29 U.S.C. § 794(a). The Seventh Circuit looked
favorably on this contention, and the Second Circuit
expressly did not address it. Cook Cnty., 962 F.3d at 228,
New York, 969 F.3d at 64 n.20. Because we have held that
the Rule violates the APA as contrary to law and arbitrary
and capricious, we similarly do not address the Rehabilitation
Act.

I. Conclusion

The order of the District Court for the Northern District
of California is AFFIRMED. The order of the District Court
for the Eastern District of Washington is AFFIRMED in
part and VACATED in part. Costs are awarded to the
plaintiffs.

VANDYKE, Circuit Judge, dissenting:

For the reasons ably articulated by our court in a
December 2019 published opinion,1 by the Fourth Circuit in

1
City & County of San Francisco v. USCIS, 944 F.3d 773 (9th Cir.
2019).
 CITY & CTY. OF SAN FRANCISCO V. USCIS 47

an August 2020 opinion,2 and by a dissenting Seventh Circuit
judge in a June 2020 opinion (particularly notable for its
erudition)3—and implied by the Supreme Court’s multiple
stays this year of injunctions virtually identical to those the
majority today affirms4—I must respectfully dissent.

2
CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (4th Cir. 2020).
3
Cook County v. Wolf, 962 F.3d 208, 234–54 (7th Cir. 2020) (Barrett,
J., dissenting).
4
Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020); Wolf
v. Cook County, 140 S. Ct. 681 (2020).