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Due to precautions related to COVID-19, we have expanded our options for remote consultations. Please contact our office to discuss whether a phone consultation, video conference or in-person meeting is appropriate for your situation.

Ninth Circuit Panel Ends Nationwide Injunction against “Uninsured Ban”

| Jan 18, 2021 | Consular Process, Executive Orders |

A three-judge panel for the U.S. Court of Appeals for the Ninth Circuit recently reversed an injunction against President Trump’s Proclamation No. 9945, which effectively bans uninsured immigrants from entering the United States.  The rule had been enjoined nationwide since November 2019.

Under Proclamation No. 9945, new immigrant visa applicants must demonstrate that they will acquire qualifying healthcare coverage within 30 days of entry or, to the consular officer’s satisfaction, that they have the ability to pay for reasonably foreseeable healthcare expenses.  If an applicant does not carry approved health insurance, or prove financial resources to pay for medical costs without insurance, that individual would not be allowed to enter the United States.  Qualifying health plans would include employer-sponsored insurance, an unsubsidized marketplace plan, catastrophic coverage, Medicare, or family member’s insurance.  The requirement would not apply to certain groups, including those with a valid visa before the effective date, those entering on a nonimmigrant visa, or children of U.S. citizens entering as such.  It also has no bearing on asylum, refugee status, withholding of removal, or CAT protection.

The U.S. District Court for the District of Oregon enjoined the health insurance mandate in November 2019, one month after it was issued.  The government sought a stay of the injunction, which the Ninth Circuit denied in May 2020 after refusing to lift the injunction on an emergency basis in December 2019.

In its 2–1 opinion, the Ninth Circuit found that the District Court had abused its discretion by committing an error of law.  Relying on Trump v. Hawaii, in which the Supreme Court vacated an injunction against another proclamation known popularly as the travel ban or “Muslim ban,” the Ninth Circuit concluded that the President was within his authority under the Immigration and Nationality Act (INA) in issuing the proclamation.  This reading of the INA and of the decision in Trump v. Hawaii allowed the Ninth Circuit to determine an injunction was inappropriate because the likelihood plaintiffs would succeed on the merits was greatly diminished against this body of law.

The Ninth Circuit was further unpersuaded by conflicts between the proclamation and other Acts of Congress, such as the Affordable Care Act, nor did it follow the District Court’s argument that Congress had to provide guidance where the President focused on domestic policy concerns (such as the imposition of health care costs on U.S. taxpayers) in justifying the proclamation.

Although the injunction is now overruled, the health insurance requirement will not take effect automatically due to a procedural requirement in the proclamation itself that would require the Secretary of State to determine it is still necessary.  More litigation is also possible, including a rehearing before an en banc Ninth Circuit, and the incoming administration could choose to abandon the policy.

As immigration policy continues to change, Francis Law Center will provide key updates on its blog and YouTube Channel, and can help with all immigration matters.

This information is intended to educate and should not be taken as legal advice.

Written by Francis Law Center Staff Eric Liberatore

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