Make the Road New York v. Pompeo

Background

The plaintiffs challenged three sets of government actions affecting people seeking immigrant visas and lawful permanent-resident status:

- The Department of State’s January 2018 revisions to its Foreign Affairs Manual, which instructed consular officers to treat past or current receipt of public assistance, including noncash benefits, negatively in public-charge determinations and reduced the weight given to an affidavit of support. - The Department of State’s October 2019 public-charge rule, which defined a public charge as a person receiving one or more public benefits for more than 12 months in the aggregate within a 36-month period and included benefits such as nutrition assistance, Medicaid, public housing, and housing assistance. - The President’s October 2019 Proclamation, which sought to suspend entry of immigrants who could not show that they would have approved health insurance within 30 days of arrival or could pay reasonably foreseeable medical expenses, along with agency actions implementing that Proclamation.

The plaintiffs included nonprofit organizations serving immigrants and five individuals or their family members pursuing lawful permanent residence. They alleged that the challenged measures would make visa approval more difficult, cause family separation, require costly insurance, and divert the organizations’ resources.

Motions and jurisdiction

The plaintiffs moved for a preliminary injunction under Federal Rule of Civil Procedure 65 and the Administrative Procedure Act. A preliminary injunction is temporary court relief issued before final judgment. The defendants moved to dismiss for lack of subject-matter jurisdiction, including lack of standing and ripeness, and for failure to state a legally sufficient claim.

The court rejected the defendants’ standing and ripeness arguments. It held that the individual plaintiffs had shown a sufficiently concrete and imminent risk that their visa applications or those of their family members would be denied or delayed under the challenged framework. It also held that the organizations had shown injuries from diverting resources and changing their services. The court further held that the plaintiffs could assert claims concerning the Proclamation against the Department of Health and Human Services and its Secretary because the complaint alleged that those defendants had implementation responsibilities.

The court dismissed President Trump as a defendant. It reasoned that doing so would not prevent judicial review because the plaintiffs could seek relief against lower executive officials and agencies, and that injunctions against the President raised separation-of-powers concerns. The opinion also states that broad, unspecified challenges to all agency actions under the Administrative Procedure Act could not proceed and that the plaintiffs had not adequately alleged final agency action by the Department of Health and Human Services or Secretary Azar under that statute.

Merits of the preliminary-injunction motion

The court concluded that the plaintiffs were likely to succeed on several claims. It found that the 2018 Foreign Affairs Manual revisions and the Department of State rule likely exceeded the limits of the Immigration and Nationality Act’s public-charge provision. In the court’s view, the statute required consideration of specified factors in a totality-of-the-circumstances assessment and did not authorize the challenged approach of treating receipt of benefits or a 12-month benefits threshold as the new public-charge framework.

The court also found that the 2018 revisions, the Department of State rule, and the emergency health-insurance notice were likely arbitrary and capricious. That term describes agency action that lacks a satisfactory, reasoned explanation or relies on factors the law does not permit the agency to consider. The court found that the Department of State had not adequately explained its departure from the prior public-charge framework or supplied workable standards for important terms in the health-insurance requirements.

The court further concluded that the challenged measures likely violated the Administrative Procedure Act’s notice-and-comment requirements. It treated the 2018 revisions and the emergency notice as substantive rules because they changed legal obligations or imposed new duties, rather than merely interpreting existing law. It found that the Department of State could not use the statute’s narrow “good cause” exception to avoid public participation, particularly because the claimed urgency resulted from the government’s delay. The court also held that the plaintiffs plausibly alleged that the challenged actions were motivated in part by discriminatory intent and that the Proclamation likely exceeded presidential authority by replacing the statutory public-charge assessment with a health-insurance or medical-cost requirement.

Injunction and disposition

The court found the remaining preliminary-injunction factors satisfied. It determined that the plaintiffs faced likely irreparable harms, including family separation, insurance costs, and organizational resource diversion. It also found that the balance of hardships and public interest favored relief and that nationwide relief was appropriate because the immigration measures applied to visa decisions around the world and geographically limited relief would create inconsistent rules.

The defendants’ motion to dismiss was GRANTED to the extent that President Trump was dismissed as a party to the action. The plaintiffs’ motion for a preliminary injunction was GRANTED. The defendants were enjoined from enforcing, applying, implementing, or treating as effective the 2018 Foreign Affairs Manual revisions, the Department of State rule, and the Proclamation until further order of the district court, the Court of Appeals, or the Supreme Court.