7th Circ. Revives ‘Public Charge’ Rule, Again, For 2 Weeks
Law360 (November 4, 2020, 8:50 PM EST) — The Seventh Circuit on Tuesday gave the Trump administration emergency reprieve from an Illinois federal judge’s ruling striking down its wealth test for immigrants, allowing the administration to resume implementing the contested immigration rule for at least two more weeks.
The federal appeals court granted the administration’s request for an administrative stay of U.S. District Judge Gary Feinerman’s Monday ruling vacating the so-called public charge rule, which has made it harder for low-income immigrants to qualify for green cards since it took effect in February.
The order allows U.S. Citizenship and Immigration Services, which had stopped applying the immigration rule to green card applications for a one-day window in between Judge Feinerman’s ruling and the Seventh Circuit’s stay order, to now reinstate the policy until at least Nov. 17, when the next brief is due before the appeals court.
“USCIS will immediately apply the rule to all applications and petitions postmarked or submitted electronically on or after Feb. 24, 2020, including pending applications and petitions,” a USCIS spokesperson said in a statement to Law360.
According to the agency, no petitions approved during that one-day window will be re-adjudicated under the stricter, reinstated criteria.
The Trump administration had sought emergency relief from the circuit court immediately after Judge Feinerman’s ruling, which struck the rule down entirely after finding it was “both substantively and procedurally defective.”
In its request, the administration warned that Judge Feinerman’s ruling “threatens chaos in the administration of public charge inadmissibility determinations.”
“At the time of the court’s order, the rule was in effect, as it had been for most of the previous eight months,” the government said. “Setting the rule aside now, before the Supreme Court has weighed in, threatens to sow confusion about the current and future effects of the rule and deprives aliens and the government of clarity regarding which scheme should apply.”
The government also claimed that the lower court ruling is out of step with the U.S. Supreme Court‘s decision to pause earlier court rulings blocking the policy and allow USCIS to apply the public charge rule while cases progressed through the courts.
A spokesperson for the Cook County state’s attorney, which had challenged the public charge rule, said in a statement to Law360 on Wednesday that state attorney Kimberly M. Foxx “doesn’t waver in fighting for what’s right for immigrant communities across America.”
“Ms. Foxx fully expected Trump’s team to appeal the court’s earlier ruling on the suit she and her team brought forward which confirmed what she knows is true — Trump’s public charge definition is unlawful. State’s Attorney Foxx is fully ready to defend this victory as it moves through appeal,” the spokesperson said.
Fred Tsao, senior policy counsel at the Illinois Coalition for Immigrant and Refugee Rights, an immigrant advocacy group that had challenged the rule alongside Cook County, added in a statement Wednesday that the organization “will continue to fight this rule, and we are confident that we will ultimately block it from inflicting further harm on immigrant families and communities.”
The appeals court’s stay is the latest development in more than a year of back-and-forth litigation.
Five federal judges have found that the public charge rule is likely illegal, with one judge in New York going so far as to call it “repugnant to the American Dream.”
In a split ruling that sparked a dissent from President Donald Trump’s newest Supreme Court justice Amy Coney Barrett, the Seventh Circuit upheld a preliminary ruling barring the policy in June.
However, the Trump administration has nonetheless been permitted to carry out the policy, after the Supreme Court gave the Trump administration the green light to implement the immigration rule across the country while those legal challenges to the policy continued.
USCIS has enforced the rule in all 50 states since February, allowing the agency to evaluate a green card applicant’s past usage of public assistance programs, including food stamps and housing subsidies, as well as other factors, such as age and health, to determine whether the immigrant will likely become a “public charge” in the future.
However, in the midst of the coronavirus pandemic, that same New York federal judge issued a second injunction blocking the policy nationwide in July, forcing USCIS to halt the rule. That court ruling, though, was initially narrowed, and ultimately overturned by the Second Circuit, allowing the public charge rule to take effect yet again.
The federal government is represented by Gerard Sinzdak, Daniel Tenny, Joshua Dos Santos and Jack Starcher of the U.S. Department of Justice‘s Civil Division.
Counsel for Illinois Coalition for Immigrant and Refugee Rights and Cook County have not yet appeared before the Seventh Circuit.
At the lower court, Cook County was represented by A. Colin Wexler, David E. Morrison, Steven A. Levy, Juan Carlos Arguello and Takayuki Ono of Goldberg Kohn Ltd., and Jessica M. Scheller and Lauren E. Miller of the Cook County State’s Attorney’s Office.
The ICIRR was represented at the lower court by David A. Gordon, Robert S. Velevis, Tacy Fletcher Flint and Yvette Ostolaza of Sidley Austin LLP; Andrea M. Kovach, Gavin M. Kearney, Katherine E. Walz and Militza Marie Pagan Lopez of the Sargent Shriver National Center on Poverty Law; and Caroline Chapman and Nanshelmun Ruth Dashan of the Legal Council for Health Justice.
–Editing by Abbie Sarfo.
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