Second Circuit stays DHS public charge injunction, agency expected to resume implementation

On Friday, the U.S. Court of Appeals for the Second Circuit granted the government’s request to pause a preliminary injunction that blocked the Department of Homeland Security (DHS) from enforcing its public charge rule. The ruling clears the way for the agency to resume implementation of the public charge rule while the lawsuits work their way through the courts.

Key Points:

• On July 29, U.S. District Court Judge George B. Daniels issued a nationwide injunction, blocking DHS from enforcing the public charge rule during the COVID-19 national emergency. DHS announced that it would halt application of the new public charge regulation, and apply the old rules, in compliance with the injunction.
• The Second Circuit later narrowed the injunction’s scope to Connecticut, New York, and Vermont, clearing the way for DHS to implement it in the rest of the country. At that time, the government did not issue updated guidance in response to the narrowed injunction, but asked the Second Circuit to pause the injunction, arguing that the District Court lacked jurisdiction. In its ruling on Friday, the Second Circuit agreed.
• DHS is expected to issue updated guidance in response to this ruling in the coming days.

Additional Information: The ruling does not affect the injunction on the State Department’s version of the public charge rule. The State Department announced in August that it would not require applicants to submit forms required by its new public charge regulations so long as the injunction remains in place.

BAL Analysis: DHS has not yet responded to the ruling, but is expected to announce that it will resume nationwide enforcement of the new public charge rule. This lawsuit and multiple other lawsuits challenging the regulation continue to progress through the courts. BAL is closely following the litigation and will provide information on significant developments as it becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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