Immigration public charge rule has chilling effect, engenders lawsuits


by Cynthia Price
Legal News

Despite the fact that it is not effective until Oct. 15, the recently-expanded Department of Homeland Security Public Charge Rule is already causing non-citizens to withdraw from, or decline to enroll in, assistance programs for which they are eligible.

In fact, this is proving to be true even for citizens and legal permanent residents, if they fear that their use of such assistance might, in the future, hinder the status of family members who are non-citizens.

It is not as if U.S. immigration law has not historically leaned toward requiring that immigrants be self-sufficient. Section 212(a)(4) of the Immigration and Nationality Act of 1952 states: “Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible...” And similar wording dates from the first immigration laws passed in the United States.

The upcoming changes to the Public Charge Rule – first proposed in October 2018, drawing over 260,000 comments, nearly all of which were negative – include a redefinition of “public charge” and an expansion of immigration officers’ discretion in denying applications for a “green card” (the permit allowing a foreign national to live and work permanently in the U.S.). There are also additions to the factors evaluators may take into consideration to determine whether a person is likely to become dependent on the government in the future, including whether they are proficient in English, have a large family size,  have lower educational attainment, and have poor credit scores.

Establishing factors that “weigh” heavily for or against admission, the rule includes having less than 125% of poverty level in income as negative, and more than 250% of poverty level as positive. “This monster of a regulation... would virtually [shut] the pathway for a permanent, secure future to anyone who isn’t white or wealthy,” commented Marielena Hincapié, executive director of the National Immigration Law Center and co-chair of the national coalition group Protecting Immigrant Families (PIF).

Probably the most pressing aspect of the change, according to advocates, is that additions have been made to the list of benefits programs that contribute to the determination. Previously, they included only direct cash assistance programs such as Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF), or their state/local equivalents, or long-term institutional care. Now, it also includes Medicaid (with certain exceptions), the Supplemental Nutrition Assistance Program or SNAP (what some people still call “food stamps”), Federal Public Housing Section 8 housing and rental income assistance, and the Medicare Part D Low Income Subsidy used to assist with prescriptions. (It should be noted that the threshold is receiving public benefits for more than 12 months in any 36-month period, but that the receipt of two of the benefits in one month is calculated as two months.)

Though the Department of Homeland Security has asked for comments on whether CHIP?(Children’s Health Insurance Program) should be included, at this time it is not.
The pending rule supercedes the 1999 Interim Field Guidance.

There are still many categories of immigrant that are exempt from public charge inadmissibility. These include, according to the Customs and Immigration Services website, “refugees, asylees, Afghans and Iraqis with special immigrant visas, certain  nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, special immigrant juveniles, or to those who [Department of Homeland Security] has granted a waiver of public charge inadmissibility.”

However, advocates feel that the sum total impact of the rule, due in some cases to misunderstanding it, is that immigrants will err on the side of caution and will either fail to enroll, or will disenroll, from needed public benefit programs.

“The new rule is also likely to scare millions of immigrants and their family members, including millions of U.S.-citizen children, away from accessing public benefit programs... Fear and misinformation are the most dangerous weapons in this rule for immigrant families,” said Tania Morris Diaz, staff attorney at Michigan Immigrant Rights Center (MIRC), in a recent press conference. Later in that press conference, Madiha Tariq, MPH, the deputy director of ACCESS?(an Arab American nonprofit in Michigan) said that they are already seeing this chilling effect.

Catherine Villanueva, a staff attorney in MIRC’s Grand Rapids office,  focuses on immigrants subject to admission by virtue of being domestic violence victims under the Violence Against Women Act. “I’m representing people who have been victims of really egregious crimes,  and of course  this rule doesn’t apply to them. But I get calls almost every day from people asking, ‘Should I cancel benefits for my children?’ That’s really disheartening to hear,” she said.

Advocates say they will focus on getting the word out about what the rule actually entails and to whom it applies. “The incredible complexity of the rules is part of why the chilling effect happens and why people have already been withdrawing citizen children,” commented Olivia Golden from the Center on Law and Social Policy and Hincapié’s co-chair at PIF. The full rule is 837 pages long.

“We will fight fear with facts,” pledged Morris of MIRC.

In addition, a broad number of entities hope to prevent the rule from taking effect through lawsuits.

These include Michigan Attorney General Dana Nessel, who joined with 13 other attorneys general, led by Washington state’s Rob Ferguson and  Virginia’s Mark Herring.

“Michigan is home to tens of thousands of legal immigrants who have every legal right to receive certain benefits to provide food, health care and shelter for their families,” said Nessel. “We cannot and must not allow this morally bankrupt administration to undermine the very fiber of a country that was built on providing a helping hand to those who came to our shores from other nations – and which sacred values are enshrined on our Statue of Liberty. We are better than this,” said AG Nessel, whose grandparents were “penniless” immigrants from Europe.

That particular lawsuit alleges that expanding the definition of public charge was in violation of federal immigration statutes, the Welfare Reform Act and the Administrative Procedure Act.

Another group of five AGs, led by California’s Xavier Becerra, claims that the rule violates the Fifth Amendment equal protection clause, is arbitrary and capricious, interferes with states’ rights to protect their residents, and “exceeds the Administration’s authority under federal immigration law by circumventing congressional intent.”

The San Francisco City Attorney Dennis Herrera and the  counsel for Santa Clara County also filed suit, on similar grounds. “This illegal rule is yet another attempt to vilify immigrants. It makes it easier to unfairly target hard-working, lawful immigrants while sowing fear and confusion in our communities,” Herrera said.

 Finally, Hincapié’s organization, the National Immigration Law Center (NILC), joined with a number of other advocacy and service groups to file against the Trump Administration.

The main points of that lawsuit, La Clinica de la Raza, et al. v. Trump, et al., are that traditionally and in statute public charge “has never been understood to reach immigrants who... may at some point in their lives receive supplemental health care, nutrition, or housing assistance to improve their lives and those of their families,” and that it “fundamentally distorts” the totality-of-the-circumstances test of the statute. This, again, is contrary to Fifth Amendment equal protections.

The suit also claims that it violates the Administrative Procedures Act by being arbitrary and capricious, and  that, moreover, acting Director of the Citizenship and Immigration Services Ken Cuccinelli’s appointment is illegal. The suit alleges that, under the Federal Vacancies Reform Act, Cuccinelli was not serving in a position that made him eligible to be named acting director.

NILC’s Hincapié, a multi-award-winning attorney who has served on the American Bar Association’s Commission on Immigration, said as the suit was announced, “As the only national organization dedicated exclusively to ensuring that today’s immigrants who earn low incomes have similar opportunities  to what previous generations of immigrants and refugees have had, we have had over two dozen people on our team preparing to fight back... At this very moment, we’re in the process of filing our lawsuit, which we believe is the first community-driven lawsuit challenging this regulation.”