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PETITIONERS V No. In the Supreme Court of the United States UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, ET AL., PETITIONERS v. CITY AND COUNTY OF SAN FRANCISCO, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI JEFFREY B. WALL Acting Solicitor General Counsel of Record JOHN V. COGHLAN Deputy Assistant Attorney General HASHIM M. MOOPPAN Counselor to the Solicitor General SOPAN JOSHI Senior Counsel to the Assistant Attorney General BENJAMIN W. SNYDER Assistant to the Solicitor General DANIEL TENNY GERARD SINZDAK JOSHUA DOS SANTOS JACK STARCHER Attorneys Department of Justice Washington, D.C. 20530-0001 [email protected] (202) 514-2217 QUESTIONS PRESENTED Under the Immigration and Nationality Act, 8 U.S.C. 1101 et seq., an alien is “inadmissible” if, “in the opinion of the [Secretary of Homeland Security] at the time of application for admission or adjustment of status, [the alien] is likely at any time to become a public charge.” 8 U.S.C. 1182(a)(4)(A). Following notice-and-comment rulemaking, the United States Department of Home- land Security (DHS) promulgated a final rule interpret- ing the statutory term “public charge” and establishing a framework by which DHS personnel are to assess whether an alien is likely to become a public charge. The questions presented are: 1. Whether entities that are not subject to the public-charge ground of inadmissibility contained in 8 U.S.C. 1182(a)(4)(A), and which seek to expand bene- fits usage by aliens who are potentially subject to that provision, are proper parties to challenge the final rule. 2. Whether the final rule is likely contrary to law or arbitrary and capricious. (I) PARTIES TO THE PROCEEDING Petitioners (defendants-appellants below) are the United States Citizenship and Immigration Services, the United States Department of Homeland Security; Peter T. Gaynor, in his official capacity as Acting Sec- retary of Homeland Security; and Kenneth T. Cucci- nelli, Senior Official Performing the Duties of the Di- rector, United States Citizenship and Immigration Ser- vices.* Respondents (plaintiffs-appellees below) are the City and County of San Francisco; the County of Santa Clara; the State of California; the State of Colorado; the State of Delaware; the State of Hawaii; the State of Il- linois; the State of Maine; the State of Maryland; the Commonwealth of Massachusetts; the State of Minne- sota; the State of Nevada; the State of New Jersey; the State of New Mexico; the State of Oregon; the Common- wealth of Pennsylvania; the State of Rhode Island; the Commonwealth of Virginia; the State of Washington; Dana Nessel, Attorney General on behalf of the People of Michigan; and the District of Columbia. * The complaints named Kevin K. McAleenan, then the Acting Secretary of Homeland Security, as a defendant in his official capac- ity. Peter T. Gaynor has since assumed the role of Acting Secretary, and has thus been automatically substituted as a party in place of former Acting Secretary McAleenan. See Fed. R. App. P. 43(c)(2); Fed. R. Civ. P. 25(d). Similarly, the complaints named Kenneth T. Cuccinelli II, in his role as Acting Director of the United States Cit- izenship and Immigration Services. Mr. Cuccinelli is now serving as Senior Official Performing the Duties of the Director. (II) RELATED PROCEEDINGS United States District Court (E.D. Wash.): State of Washington v. United States Department of Homeland Security, No. 19-cv-5210 (Oct. 11, 2019) United States District Court (N.D. Cal.): City & County of San Francisco v. U.S. Citizenship & Immigration Services, No. 19-cv-4717 (Oct. 11, 2019) State of California v. U.S. Department of Home- land Security, No. 19-cv-4975 (Oct. 11, 2019) United States Court of Appeals (9th Cir.): City & County of San Francisco v. United States Citizenship & Immigration Services, No. 19- 17213 (Dec. 2, 2020) (affirming preliminary in- junction in relevant part) (III) TABLE OF CONTENTS Page Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 1 Statutory and regulatory provisions involved ........................... 2 Statement ...................................................................................... 2 A. The public-charge inadmissibility rule .......................... 3 B. Procedural history ........................................................... 6 Discussion .................................................................................... 12 Conclusion ................................................................................... 13 Appendix A — Court of appeals opinion (Dec. 2, 2020) ........ 1a Appendix B — Court of appeals order (Dec. 5, 2019) ......... 35a Appendix C — District court preliminary injunction (Oct. 11, 2019)........................................... 102a Appendix D — District court order granting plaintiff States’ motion for Section 705 stay and preliminary injunction (Oct. 11, 2019) ... 232a Appendix E — Statutory provisions ................................... 289a TABLE OF AUTHORITIES Cases: CASA de Maryland, Inc. v. Trump, 971 F.3d 220 (4th Cir. 2020), reh’g en banc granted, 981 F.3d 311 (4th Cir. 2020) .................................................................. 2, 12 Cook County v. Wolf, 962 F.3d 208 (7th Cir. 2020), petition for cert. pending, No. 20-450 (f iled Oct. 7, 2020) ........................................................... 3, 12 Department of Homeland Security v. New York, 140 S. Ct. 599 (2020) ............................................................. 2 New York v. United States Department of Home- land Security, 969 F.3d 42 (2d Cir. 2020), petition for cert. pending, No. 20-449 (f iled Oct. 7, 2020) ............... 3 Wolf v. Cook County, 140 S. Ct. 681 (2020) ........................... 2 (V) VI Constitution and statutes: Page U.S. Const. Art. III ................................................................. 8 Immigrant Fund Act, Act of Aug. 3, 1882, ch. 376, §§ 1-2, 22 Stat. 214 ................................................................ 4 Immigration and Nationality Act, ch. 477, 66 Stat. 163 (8 U.S.C. 1101 et seq.) ...................................... 2 § 212(a)(15), 66 Stat. 183 ................................................... 4 8 U.S.C. 1103 ...................................................................... 3 8 U.S.C. 1182(a)(4)(A) ..................................... 2, 3, 9, 289a 8 U.S.C. 1182(a)(4)(B) ............................................. 3, 289a 8 U.S.C. 1182(a)(4)(B)(i)(II) ................................. 9, 289a 8 U.S.C. 1182(a)(4)(C)-(D) .................................. 11, 290a 8 U.S.C. 1227(a)(5) ................................................... 3, 294a 8 U.S.C. 1601 ......................................................... 9, 294a Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (29 U.S.C. 701 et seq.) ................................... 6 29 U.S.C. 794(a) ................................................... 10, 300a 5 U.S.C. 706(2)(A) ................................................................ 6 6 U.S.C. 211(c)(8) ..................................................................... 3 6 U.S.C. 557 .............................................................................. 3 Miscellaneous: 64 Fed. Reg. 28,676 (May 26, 1999) ................................... 4, 5 64 Fed. Reg. 28,689 (May 26, 1999) ................................... 4, 5 83 Fed. Reg. 51,114 (Oct. 10, 2018) ........................................ 5 84 Fed. Reg. 41,292 (Aug. 14, 2019) ............................... 4, 5, 6 S. Rep. No. 1515, 81st Cong., 2d Sess. (1950) ....................... 4 In the Supreme Court of the United States No. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, ET AL., PETITIONERS v. CITY AND COUNTY OF SAN FRANCISCO, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI The Acting Solicitor General, on behalf of the United States Citizenship and Immigration Services, et al., re- spectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a- 34a) is reported at 981 F.3d 742. An earlier order of the court of appeals staying the preliminary injunctions at issue here pending appeal (App., infra, 35a-101a) is re- ported at 944 F.3d 773. The orders of the district courts (App., infra, 102a-231a, 232a-288a) are reported at 408 F. Supp. 3d 1057 and 408 F. Supp. 3d 1191. JURISDICTION The judgment of the court of appeals was entered on December 2, 2020. The jurisdiction of this court is in- voked under 28 U.S.C. 1254(1). (1) 2 STATUTORY AND REGULATORY PROVISIONS INVOLVED Pertinent statutory and regulatory provisions are reproduced in the appendix to this petition. App., infra, 289a-302a. STATEMENT The United States Department of Homeland Secu- rity (DHS) issued a rule interpreting the provision of the Immigration and Nationality Act (INA), ch. 477, 66 Stat. 163 (8 U.S.C. 1101 et seq.), that makes an alien in- admissible if, “in the opinion of ” the Secretary of Home- land Security, the alien is “likely at any time to become a public charge.” 8 U.S.C. 1182(a)(4)(A). The district courts here entered preliminary injunctions barring im- plementation of the DHS rule, one nationwide
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