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Featured Issue: Healthcare Insurance Proclamation

AILA Doc. No. 19103100 | Dated May 17, 2021

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On May 14, 2021, President Biden revoked Presidential Proclamation 9945 of October 4, 2019, which suspended the entry of immigrants unless they could demonstrate they would be covered by approved health insurance within 30 days of entry or would be able to pay for "reasonably foreseeable medical costs." Read AILA’s press statement on the revocation:


Background

On October 4, 2019, President Trump issued a proclamation suspending the entry of immigrants who “will financially burden the U.S. healthcare system,” effective at 12:01 am (ET) on November 3, 2019.

Per the proclamation, outside of very limited exceptions, individuals applying for an immigrant visa, including a diversity visa, on or after November 3, 2019, must demonstrate to the consular officer at the time of interview that they will be covered by approved health insurance within 30 days of their entry into the United States or have the financial resources to pay for reasonably foreseeable medical costs. According to DOS, inability to meet this requirement will result in the denial of the visa application.

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Advocacy Resources

  • Health Insurance Coverage and Medical Expenditures of Immigrants and Native-Born Citizens in the United States
    • Approximately 44% of recent immigrants and 63% of established immigrants were fully insured over the 12-month period analyzed. Immigrants' per-person unadjusted medical expenditures were approximately one half to two thirds as high as expenditures for the US born, even when immigrants were fully insured. Recent immigrants were responsible for only about 1% of public medical expenditures even though they constituted 5% of the population. After controlling for other factors, I found that immigrants' medical costs averaged about 14% to 20% less than those who were US born.

Media Reports

Doe, et. al, v. Trump, et al., Litigation Timeline

July 16, 2021

The court granted in part the plaintiffs’ motion to vacate its December 31, 2020, reversal of the district court’s injunction of the Healthcare Proclamation (PP 9945), and remanded to the district court with instructions to vacate as moot the November 26, 2019, order granting a preliminary injunction. The court also denied as moot the petition for rehearing en banc. (Doe #1, et al. v. Biden, et al., 7/16/21)

December 31, 2020

On December 31, 2020, the Ninth Circuit reversed the district court injunction of the Healthcare Proclamation (PP 9945) in the Doe, et al., v. Trump, et al., litigation, finding that the proclamation was within the president’s executive authority. Even with this decision, the injunction will remain in place until the mandate issues (approximately 45 days from December 31, 2020).

May 4, 2020

The Ninth Circuit issued an order denying the government’s motion for a stay pending appeal of the district court’s preliminary injunction enjoining Presidential Proclamation No. 9945, Suspension of Entry of Immigrants Who Will Financially Burden the United States Health Care System.

The decision notes:

“We acknowledge that “[b]y its plain language, § 1182(f) grants the President broad discretion to suspend the entry of aliens into the United States.” Hawaii, 138 S. Ct. at 2408. Nonetheless, the substantive scope of this power is not limitless. The “sole prerequisite set forth in § 1182(f) is that the President ‘find[ ]’ that the entry of the covered aliens ‘would be detrimental to the interests of the United States.’” … By contrast, the Proclamation here deals with a purely domestic economic problem: uncompensated healthcare costs in the United States. See 84 Fed. Reg. at 53,991. We reject the government’s argument that the Proclamation implicates the President’s foreign affairs powers simply because Proclamation affects immigrants.”

“In sum, the government has not established the requisite irreparable harm necessary to justify a stay pending appeal. Its rights may be vindicated upon completion of this litigation. The alleged monetary harms to third parties upon which the government relies do not constitute irreparable harm. While that sole factor is dispositive, we also conclude that the government did not meet its high burden to satisfy the other Nken factors. It has not demonstrated likelihood of success. Staying the injunction would injure both the plaintiff class and third parties, and the public interest weighs against entering a stay. The preliminary injunction preserves the status quo during the pendency of this appeal. The district court did not abuse its discretion in determining the scope of the preliminary injunction.”

April 29, 2020

On April 29, 2020, District Court Judge Michael H. Simon issued an order denying the TRO motion seeking to protect F2A age-out class members subject to the April 2020 Presidential Proclamation. The Judge’s decision rests on the motion’s form, not its substance. Specifically, the judge states that “Plaintiffs’ All Writs Act challenge to the April 22nd Proclamation should be brought as a separate challenge specific to that proclamation, seeking a preliminary injunction or TRO under Rule 65, if appropriate.”

This order does not change the injunction issued against the Healthcare Insurance Proclamation.

April 27, 2020

DOS submitted a declaration in response to the emergency temporary order against the Presidential Proclamation banning immigration in Doe v. Trump. The declaration explains visa processing in lieu of the immigration ban.

The declaration states: “The Department’s inclusion in “mission critical or emergency services” of those cases involving an applicant likely to age out of their visa classification by turning 21 has not changed. Post may continue to schedule interviews, as resources allow, for mission critical and emergency cases where a post determines the applicant may qualify for an exception under the Presidential Proclamation.”

April 25, 2020

AILA, the Justice Action Center, the Innovation Law Lab, and the Latino Network, requested a temporary restraining order to halt implementation of the April 22, 2020, Presidential Proclamation. The restraining order would protect certain underage visa applicants.

April 7, 2020

The U.S. District Court for the District of Oregon granted the plaintiffs’ motion for class certification, with a modest modification of the requested definition of the class of United States citizen petitioners. (Doe, et al., v. Trump, et al., 4/7/20)

Two classes:

  1. U.S. Petitioner Subclass:
    Individuals in the United States who currently have or will have an approved or pending petition to the United States government to sponsor a noncitizen family member for an immigrant visa; and whose sponsored family member is subject to the Proclamation and unable to demonstrate to a consular officer’s satisfaction that he or she “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs”; and
  2. Visa Applicant Subclass:
    Individuals who are foreign nationals who (i) have applied for or will soon apply to the United States government for an immigrant visa; (ii) are otherwise eligible to be granted the visa; but (iii) are subject to the Proclamation and unable to demonstrate to the satisfaction of a consular officer that they “will be covered by approved health insurance” within 30 days after entry or will be able "to pay for reasonably foreseeable medical costs."

December 20, 2019

The 9th Circuit issued an order denying the government's request for an emergency temporary stay of the district court’s order preliminarily enjoining Presidential Proclamation No. 9945, “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System.” The court scheduled oral argument on the government's motion for a stay pending appeal for January 9, 2020.

November 26, 2019

U.S. District Judge Michael H. Simon granted the plaintiffs' motion for a preliminary injunction, thus enjoining the government from taking any action to implement or enforce Presidential Proclamation No. 9945, “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System” until the court resolves the case on the merits or orders otherwise.

Read AILA, Justice Action Center, Latino Network, and Innovation Law Lab's press release: Civil Rights Coalition Successfully Enjoins Presidential Health Insurance Proclamation

November 22, 2019

AILA, the Justice Action Center, and the Innovation Law Lab, with the pro bono assistance of Sidley Austin LLP, are in court to present arguments on a motion for a preliminary injunction, which would halt the ban for a more extended period of time, and a motion for class certification. If both are granted, the administration's healthcare ban will be prevented from taking effect. The judge may not rule today, but a decision will be issued before the temporary restraining order expires on November 30, 2019.

For more information, check out:

November 8, 2019

AILA, the Justice Action Center, and the Innovation Law Lab, with Sidley Austin LLP providing pro bono assistance filed a motion for class certification. They request that the following class be certified:

  • Individuals in the United States who currently have an approved or pending petition to the United States government to sponsor a noncitizen family member for an immigrant visa, or who will soon file such a petition; and whose sponsored family member is subject to the Proclamation and unable to demonstrate to a consular officer’s satisfaction that he or she “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs” (“U.S. Petitioner Subclass”); and
  • Individuals who are foreign nationals who (i) have applied for or will soon apply to the United States government for an immigrant visa; (ii) are otherwise eligible to be granted the visa; but (iii) are subject to the Proclamation and unable to demonstrate to the satisfaction of a consular officer that they “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable medical costs” (“Visa Applicant Subclass”).

They also filed a motion for a preliminary injunction, requesting that the court enter a preliminary injunction preventing the government from implementing or enforcing Proclamation No. 9945, “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System.”

November 2, 2019

Litigators from AILA, the Justice Action Center, and the Innovation Law Lab, with Sidley Austin LLP providing pro bono assistance, successfully halted implementation of the administration’s attempt to ban immigrants based on their ability to obtain health insurance upon arrival to the United States.

To learn more, read AILA’s press release: Civil Rights Coalition Halts Implementation of Presidential Proclamation Requiring Health Insurance

November 1, 2019

AILA, the Justice Action Center, and the Innovation Law Lab, with Sidley Austin LLP providing pro bono assistance, requested a temporary restraining order to halt implementation of the administration’s healthcare insurance ban for immigrants before it is implemented on November 3, 2019.

October 30, 2019

Complaint filed by AILA, the Justice Action Center, and the Innovation Law Lab, with Sidley Austin LLP providing pro bono assistance, to halt implementation of the administration’s healthcare ban for immigrants of October 4, 2019. (Doe, et. al. v. Trump, et. al., 10/30/19)

To learn more, read AILA’s press release: Civil Rights Coalition Files Lawsuit to Halt Implementation of Presidential Proclamation’s Healthcare Ban

Cite as AILA Doc. No. 19103100.