FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN …...Sep 25, 2019 · Goldb rg Kohn Ltd. Special Assistant State's Attorneys 55 E. Monroe St., Suite 3300 Chicago, IL 60603 Phone: (312)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

COOK COUNTY, ILLINOIS, an Illinois governmental entity; and ILLINOIS COALITION FOR IMMIGRANT AND REFUGEE RIGHTS, INC.,

Plaintiffs,

vs.

KEVIN K. McALEENAN, in his official capacity as Acting Secretary of U.S. Department of Homeland Security; U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; KENNETH T. CUCCINELLI II, in his official capacity as Acting Director of U.S. Citizenship and Immigration Services; and U.S. CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency,

Def end ants.

Case No. 19-cv-6334

PLAINTIFFS' EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION OR STAY PURSUANT TO 5 U.S.C. § 705

Plaintiffs Cook County, Illinois (the "County" or "Cook County"), by its undersigned

attorneys, and the Illinois Coalition For Immigrant and Refugee Rights, Inc. ("ICIRR"), by its

undersigned attorneys (collectively "Plaintiffs"), hereby respectfully move this Court for the

entry of a temporary restraining order and/or preliminary injunction pursuant to Federal Rule of

Civil Procedure 65, or a stay pursuant to Section 705 of the Administrative Procedure Act, 5

U.S.C. § 705, to be effective within the State of Illinois, to enjoin and/or stay Defendants Kevin

K. McAleenan, in his official capacity as Acting Secretary of U.S. Department of Homeland

Security; U.S. Department of Homeland Security, a federal agency; Kenneth T. Cuccinelli II, in

his official capacity as Acting Director of U.S. Citizenship and Immigration Services; and U.S.

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Case: 1:19-cv-06334 Document #: 24 Filed: 09/25/19 Page 1 of 13 PageID #:536

Citizenship and Immigration Services (collectively "Defendants") from implementing illegal

agency action reflected in the Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292

(Aug. 14, 2019) (the "Final Rule," to be codified at 8 C.F.R. pt. 103, 212, 213, 214, 245, 248).

In support of this Motion, Plaintiffs submit a Memorandum of Law, accompanying affidavits and

exhibits thereto, and state the following:

1. This case concerns the Trump administration's systematic efforts to abuse the

administrative rulemaking process to eviscerate well-settled history and law. Specifically,

Plaintiffs seek immediate injunctive relief or a stay to prevent the Department of Homeland

Security ("DHS") from implementing its recently adopted Final Rule, which seeks to redefine

which immigrants may be considered to be a "public charge" and excluded on that basis from the

United States.

2. The Final Rule, which is scheduled to go into effect on October 15, 2019, seeks to

rewrite long-standing federal law in an effort to redefine the accepted meaning of "public

charge," which has remained essentially unchanged for over 100 years in immigration statutes

and policy. Currently, the law defines "public charge" to include immigrants who are primarily

and permanently dependent on the government for long-term subsistence, as evidenced by the

receipt of cash assistance or long-term institutionalization at government expense.

3. If the Final Rule is implemented, it would redefine "public charge" to include

anyone who has used, or is judged likely to use, certain temporary, non-cash public benefits,

regardless of the amount and their de minimis use. Specifically, the Final Rule defines "public

charge" to include immigrants receiving any number of health, nutrition, and housing benefits,

even though such benefits have historically been excluded when considering whether an

immigrant is considered to be a public charge. Therefore, if allowed to go into effect, the Final

2


Rule will have a chilling effect upon immigrant communities in Cook County and the State of

Illinois, causing individuals to disenroll from public benefits such as Medicaid en masse - an

impact that will cause devastating, irreparable harm to Plaintiffs.

4. For the reasons set forth in Plaintiffs' Memorandum of Law, Plaintiffs have met

the requirements for a temporary restraining order and/or preliminary injunction or stay under

Section 705. First, Plaintiffs have a likelihood of success on the merits of their claims under the

Administrative Procedure Act (Complaint, Counts I-III) because more than 100 years of

agreement among all three branches of federal government, regarding both the legal and

statutory definition of "public charge," contradicts the Final Rule's redefinition of the term.

Further, the Final Rule is arbitrary and capricious due to: (a) the manner in which it would inflict

harm on vulnerable populations; and (b) the new factors it requires for consideration under a

public charge determination, which are either unrelated to, or in direct conflict with, its intended

purpose. Finally, implementation of the Final Rule would contravene a number of other statutes,

including the: (c) Rehabilitation Act; (d) Welfare Reform Act; and (e) Supplemental Nutrition

Assistance Program.

5. Second, Plaintiffs would suffer irreparable harm absent immediate injunctive

relief. As an initial matter, the Final Rule would inflict direct and tangible harm upon the

populations served by Plaintiffs, as individuals in Cook County and the State of Illinois suffer

adverse health and welfare outcomes. But further, Plaintiffs will suffer and are already suffering

substantial economic and financial harm because the Final Rule threatens their missions. For

example, the Final Rule's chilling effect, and the resulting Medicaid disenrollment, does direct

financial damage to Cook County, and in particular to the Cook County Health System, thus

frustrating its core mission of providing health services to Cook County residents. The Final

3


Rule similarly harms ICIRR's core missions of providing health and social services to

immigrants in Illinois. These harms lead to a deadly combination of drastic reductions m

revenues and massive increases in costs for both Plaintiffs.

6. Finally, the balance of equities and public interest weigh strongly in favor of an

immediate injunction or stay. As described in Plaintiffs' Memorandum of Law, the Cook County

population will be irreparably damaged by the Final Rule. The Final Rule will cause substantial

harm to the public health, increases in food and housing insecurity, and wide-scale economic

harm to Cook County and the entire Cook County economy. In contrast, there will be no harm to

Defendants should an injunction or stay be entered, as Plaintiffs are only asking that the

definition of public charge remain in place, as it has been for more than 100 years. In other

words, maintaining the status quo does nothing at all to harm the public interest. Thus, the

balance of the equities and harm to the public interest strongly favors entering an injunction or

staying implementation of the Final Rule.

7. On September 25th, Plaintiffs' counsel and Defendants' counsel discussed an

expedited briefing and hearing schedule that would allow the Court to rule on this Motion before

the Final Rule's effective date of October 15, 2019. The parties discussed proposed dates with a

hearing date prior to October 15, but have not reached an agreed briefing and hearing schedule as

of the time of this filing.

8. The Court's clerk has informed Plaintiffs' counsel that they may notice this

Motion for presentment to the Court on Friday, September 27, 2019 at 10:15 a.m. If the parties

cannot reach an agreement on an expedited briefing and hearing schedule prior to the September

27 hearing, then the parties will inform the Court of their proposed schedules at that time for the

Court's consideration.

4


WHEREFORE, Plaintiffs respectfully request that the Court enter an order setting an

expedited briefing schedule and hearing date on this Motion, and enter an order substantially in

the form of Exhibit A hereto granting either injunctive relief or a stay barring implementation of

the Final Rule within the State of Illinois until further order of this Court.

Dated: September 25, 2019

KIMBERLY M. FOXX Cook County Illinois State's Attorney

Respectfully submitted,

COOK COUNTY, ILLINOIS

By Isl Jessica M Scheller Jessica M. Scheller, Assistant State's Attorney Chief; Advice, Business & Complex Litigation Division Lauren Miller, Special Assistant State's Attorney Civil Actions Bureau 500 W. Richard J. Daley Center Place, Suite 500 Chicago, IL 60602 Phone: (312) 603-6934 Phone: (312) 603-4320 Jessica.Sche 1 [email protected] Lauren.Mil ler@cookco Lmty i I .gov

Isl David E. Morrison David E. Mo1Tison Steven A. Levy A. Colin Wexler Takayuki Ono Juan C. Arguello Goldb rg Kohn Ltd. Special Assistant State's Attorneys 55 E . Monroe St., Suite 3300 Chicago, IL 60603 Phone: (312) 201-4000 Fax: (312) 332-2196 [email protected] [email protected] colin.wexl,[email protected] taka ki.ono Ci ·oldber kohn .coro · uan.ar uello oldber l'ohn.com

Counsel for Cook County, Illinois

5


ILLINOIS COALITION FOR IMMIGRANT AND REFUGEE RIGHTS, INC.

By Isl Tacy F. Flint David A. Gordon Tacy F. Flint Sidley Austin LLP One South Dearborn Street Chicago, IL 60603 (312) 853-7000 (Telephone) (312) 853-7036 (Facsimile) [email protected] [email protected]

Yvette Ostolaza (pro hac vice pending) Texas Bar No. 00784703 Robert S. Velevis (pro hac vice pending) Texas Bar No. 24047032 SIDLEY AUSTIN LLP 2021 McKinney Ave, Suite 2000 Dallas, Texas 75201 (214) 981-3300 (Telephone) (214) 981-3400 (Facsimile) Yvette. osto laza@si dley. com rvel [email protected]

Caroline Chapman Meghan P. Carter Shelmun Dashan LEGAL COUNCIL FOR HEAL TH JUSTICE 17 N. State, Suite 900 Chicago, IL 60602 Phone: (312) 605-1958 Fax: 312-427-8419 [email protected] [email protected] [email protected]

Katherine E. Walz Gavin M. Kearney Andrea Kovach Militza M. Pagan (pro hac vice pending) SHRIVER CENTER ON POVERTY LAW

6


67 E. Madison, Suite 2000 Chicago, IL 60603 Phone: (312) 368-2679 Fax: (312) 263-3846 [email protected] [email protected] andreakovach@pov rtylaw.org [email protected]

Counsel for Illinois Coalition For Immigrant and Refugee Rights, Inc.

7


CERTIFICATE OF SERVICE

The undersigned, an attorney, certifies that on September 25, 2019, he caused the attached PLAINTIFFS' EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION OR STAY PURSUANT TO 5 U.S.C. § 705 to be served via the Court's ECF/electronic mailing system and by email upon:

The United States Attorney's Office [email protected]

and

Tom Walsh, Esq. The United States Attorney's Office Northern District of Illinois, Eastern Division 219 S. Dearborn St., 5th Floor Chicago, IL 60604 tho111as.waJsh2@usd j.gov

ls/Steven A. Levy

10980196v4 9/25/2019 4:57 PM


Exhibit A


IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

COOK COUNTY, ILLINOIS, an Illinois governmental entity; and ILLINOIS COALITION FOR IMMIGRANT AND REFUGEE RIGHTS, INC.,

Plaintiffs,

vs.

KEVIN K. McALEENAN, in his official capacity as Acting Secretary of U.S. Department of Homeland Security; U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; KENNETH T. CUCCINELLI II, in his official capacity as Acting Director of U.S. Citizenship and Immigration Services; and U.S. CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency,

Defendants.

Case No. l 9-cv-06334

[PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

OR STAY PURSUANT TO 5 U.S.C. § 705

This matter came before the Court on Plaintiffs' Motion For Temporary Restraining

Order And/Or Preliminary Injunction Or Stay Pursuant To 5 U.S.C. § 705. The Court has

considered all of the following:

1. Plaintiffs' Motion For Temporary Restraining Order And/Or Preliminary

Injunction Or Stay Pursuant To 5 U.S.C. § 705 (ECF No. _ __,) and supporting Memorandum

of Law (ECF No. _J;

2. Defendants' Response to Plaintiffs' Motion For Temporary Restraining Order

And/Or Preliminary Injunction Or Stay Pursuant To 5 U.S.C. § 705 (ECF No.__);

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3. Reply Memorandum of Law in Support of Plaintiffs' Motion For Temporary

Restraining Order And/Or Preliminary Injunction Or Stay Pursuant To 5 U.S.C. § 705 (ECF No.

4. Oral Argument on Plaintiffs' Motion For Temporary Restraining Order And/Or

Preliminary Injunction Or Stay Pursuant To 5 U.S.C. § 705; and

5. The entire record in the above-captioned matter.

Being fully apprised of the matter, now, THE COURT FINDS AS FOLLOWS:

6. The Court finds that Plaintiffs have established standing to pursue, and a

likelihood of success on the merits of, their claims that the Inadmissibility on Public Charge

Grounds, 84 Fed. Reg. 41,292 (August 14, 2019), promulgated by the Department of Homeland

Security (the "Final Rule"), violates the Administrative Procedure Act because it is contrary to

Congressional intent; is arbitrary and capricious; and contravenes federal law.

7. The Court finds that implementation of the Final Rule will cause irreparable harm

to Plaintiffs, including but not limited to economic and financial harm, and harm to the public

health, as a result of the disenrollment from food and medical benefits that will be caused by the

Final Rule.

8. The Court finds that the balance of equities favors the issuance of an injunction or

stay applicable within the State of Illinois, that issuing an injunction or stay would serve the

public interest, as such an injunction or stay would promote the health, safety and economic

well-being of citizens, and that no harm would be caused to Defendants by maintaining the

existing regulatory regime regarding the definition of a "public charge."

Accordingly, THE COURT ORDERS AS FOLLOWS:

2


I. It is ORDERED, ADJUDGED, AND DECREED that Plaintiffs' Motion For

Temporary Restraining Order And/Or Preliminary Injunction Or Stay Pursuant To 5 U.S.C.

§ 705 is hereby GRANTED.

2. Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Defendants and their

officers, agents, servants, employees, and attorneys, and any person in active concert or

participation with them, are hereby ENJOINED from implementing or enforcing the Final Rule

within the State of Illinois in any manner or in any respect, and shall preserve the status quo

pursuant to the regulations promulgated under 8 C.F.R. Parts 103, 212-14, 245, and 248, m

effect as of the date of this order, until further order of the Court.

3. [AND/OR] Pursuant to 5 U.S.C § 705, the Court hereby STAYS the

implementation of the Final Rule in its entirety within the State of Illinois. The effective date of

the Final Rule is POSTPONED within the State of Illinois pending conclusion of these review

proceedings.

4. Plaintiffs shall not be required to post a bond.

It is SO ORDERED.

ISSUED this __ day of ____ _, 2019.

3


CERTIFICATE OF SERVICE

The undersigned, an attorney, certifies that on September 25, 2019, he caused the attached PLAINTIFFS' EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION OR STAY PURSUANT TO 5 U.S.C. § 705 to be served via the Court's ECF/electronic mailing system and by email upon:

The United States Attorney's Office USATLN.E [email protected]

and

Tom Walsh, Esq. The United States Attorney's Office Northern District of Illinois, Eastern Division 219 S. Dearborn St., 5th Floor Chicago, IL 60604 themas. [email protected]

ls/Steven A. Levy

10980196v2 9/25/2019 12:12 AM 8888.001


Documents

FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN …...Sep 25, 2019 · Goldb rg Kohn Ltd. Special Assistant State's Attorneys 55 E. Monroe St., Suite 3300 Chicago, IL 60603 Phone: (312)