US District Court Enjoins Trump Administration from Enforcing New Public Charge Definition

On Friday, Judge George B. Daniels of the U.S. District Court for the Southern District of New York issued a temporary injunction preventing the Trump Administration from enforcing, at a national level, the new definition of "likely to become a public charge" adopted by U.S. Citizenship and Immigration Services ("USCIS").  USCIS, the arm of the Department of Homeland Security that administers visa applications, published a regulation concerning the public charge grounds of inadmissibility on August 14, 2019 in the Federal Register, which was to become effective on October 15, 2019.  Through this regulation, USCIS redefined how it would weigh whether a potential immigrant would be likely to become a public charge.

The principle that an alien who is likely to become a public charge is not admissible to the United States as an immigrant has been a part of U.S. law since at least 1882.  Currently, public charge is defined as "primarily dependent on government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense."  Congress, through the Immigration and Nationality Act ("INA"), provides that the Government should consider "at a minimum" several factors to determine if an alien is likely to become a public charge:  (1) age, (2) health, (3) family status, (4) assets, resources, and financial status, and (5) education and skills.

In practice, the public charge grounds of inadmissibility is addressed in every immigrant visa petition a U.S. citizen files on behalf of an alien relative through an "affidavit of support."  The affidavit of support is a sworn statement showing the U.S. petitioner's income and, if necessary, assets, in order to demonstrate that the alien relative will not become dependent on U.S. means-tested social programs.  It is also a contract between the petitioner and the U.S. Government, that if the sponsored alien relative ever required means-tested assistance from the U.S. Government, that the petitioner will reimburse the Government for the expense of that assistance.

To be able to sponsor an alien relative, the petitioner needs to show that he or she earns a level of income that is greater than 125% of the official poverty level for the petitioner's family size plus the alien.  That means, if a petitioner is married and has two children, that petitioner must show that his or her income is greater than 125% of the official poverty level for a family of five.  If the petitioner cannot meet that requirement, then there must be a co-sponsor who can meet the 125% of poverty level requirement on his or her own.

In the vast majority of visa petitions, this has been a sufficient way to show that the alien who intends to immigrate to the United States is not likely to become a public charge.  However, there are some cases which would require more evidence.  If an alien had a serious health problem, for example, it would be prudent for a petitioner to be prepared to show that the alien's healthcare would be covered either by insurance or some other set of funds, and therefore not require governmental programs to treat.

Through the new regulation, USCIS would change the definition of "public charge," to permit the Government to consider the receipt of a number of public benefits which would otherwise be foreclosed by the current definition.  Specifically, the current definition concerns the receipt of "public cash assistance for income maintenance."  USCIS decried that definition excludes the consideration of the receipt of non-cash public benefits in determining whether an alien is likely to become a public charge.  These non-cash benefits include "the Supplemental Nutrition Assistance Program (SNAP), or food stamps; Medicaid; and housing vouchers and other housing subsidies."  Accordingly, USICS changing its interpretation of "public charge" to mean "an alien who receives one or more designated public benefits for than 12 months in the aggregate within any 36-month period."  "In the aggregate" meant that if an alien received two benefits within the same month, that would count as two months.

In the case of New York, et al. v. U.S. Department of Homeland Security, Judge Daniels analyzed the new definition through the framework of the Administrative Procedures Act and the case of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  Essentially, Congress has the ability to pass legislation over a broad topic, granting the Executive Branch discretion in how to enforce the law.  At times, Congress may leave a term vague, ambiguous or undefined, choosing instead to adopt a broad rule, allowing the Executive Branch to "fill in the blanks."  However, the Executive Branch does not possess unfettered discretion in defining vague, ambiguous or undefined terms in the legislation.  The Executive Branch cannot adopt an interpretation that is contrary to the language used by Congress, nor can it be contrary to congressional intent.  Once a definition is adopted, the Executive Branch may change the definition.  However, the Executive Branch must supply a reasonable explanation for that change in definition.

Judge Daniels noted that the current definition of public charge has existed for a long period of time, and that Congress has never expressed displeasure with that definition, despite changes to U.S. immigration law.  Indeed, Congress had specifically rejected attempts to change the definition of public charge to include the receipt of non-cash public benefits. Moreover, Judge Daniels found that USCIS failed to provide a reasoned explanation for the change in definition.  The new definition, said the Judge, would change the analysis from one of whether an alien was self-sufficient to a strict benefits issue. Specifically, the Judge found that the Government failed to offer a rational for the standards of 12 months and 36 months in the new definition.  Accordingly, the Judge issued a temporary injunction preventing the enforcement of the new rule nationally, pending the outcome of full litigation.

Critics of the new public charge definition has argued that the enforcement of the rule would lead to a drastic reduction in legal immigration.  Specifically, the new rule would mostly impact visa petitions based on family relationships.  Trump has often called for the reduction of so-called "chain migration," where an immigrant brings family members to join him or her in the United States.  The term "chain migration" is, of course, pejorative.  Moreover, Trump's criticism fails to acknowledge the limited categories of family members for whom a person may file a visa petition.  In addition, with strict annual limits on family visas, which are enforced by country, relatives from some countries, such as Mexico, China, India and the Philippines, face a wait of years before a visa becomes available.  Siblings of U.S. citizens from the Philippines, for example, currently must wait about twenty-one years for a via to become available.  Married sons and daughters of U.S. citizens of Mexican decent must wait twenty-five years.

Although supporters of Trump have argued that they oppose illegal immigration, not legal immigration, the actions of the Trump Administration have aimed to reduce the number of legal immigrants.  A cynic may argue that the Republican Party relies heavily on white males for its support, who are declining as a proportion of the U.S. population.  The GOP has chosen not to widen its appeal beyond white males.  Instead the GOP has chosen to cling to its power through non-democratic means such as gerrymandering, and attempting to limit the growth of non-white citizens in the United States.  A reduction in immigration levels, specifically where based on family relationships, can be seen as one way Republicans aim to limit the growth of non-white citizens.

By: William J. Kovatch, Jr.

The President Cannot Act Inconsistently with the Asylum Law as Written and Passed by Congress

US District Court Judge Jon S. Tiger issued a nationwide injunction preventing the Trump Administration from implementing a Presidential Proclamation wherein the President attempted to bar aliens who enter the United States through Mexico at a point other than an official port of entry from applying for asylum. “Whatever the scope of the President's authority,” the Judge expressed, “he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden." Specifically, through the Proclamation, Trump directly contradicted the plain language of section 208(a)(1) of the Immigration and Nationality Act, which states, “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 235(b).” (Emphasis added).

In response, the Departments of Justice and Homeland Security issued a joint statement, arguing that the Supreme Court had ruled over the summer that the President had the authority to suspend entries of a class of aliens when the President finds that to be in the national interest. Moreover, asylum is a discretionary form of relief, and not an entitlement even if all of the legal requirements are met. 

The Departments of Justice and Homeland Security are being misleading.  It is true that the Supreme Court upheld President Trump’s travel ban finding that the President has broad discretion outside of the borders of the United States to suspend a class of aliens from entering the United States if the President finds it is in the national interest. This was done in the context of an Executive Order wherein the President found that certain countries did not provide sufficient information about their nationals to permit the United States to vet those individuals properly before allowing admission. Nationals from such countries were thus temporarily banned from entering the United States.  That is, the President took action that applied outside the United States, or at a port of entry before an individual became subject to US jurisdiction, to prevent that individual from physically and legally stepping foot on US soil. 

The situation is different with respect to those who enter the United States by crossing the border surreptitiously between official ports of entry. While theoretically, under the Supreme Court’s precedent, the President could suspend the legal entry of Hondurans or other Central Americans, that only prevents an individual from being admitted through of a port of entry after being inspected by a Customs and Border Patrol agent. For a person who is actually on US soil, whether that happened legally or illegally, the protections of the US Constitution and US law apply. At that point, the President’s power is far more restrained.  He cannot then act in direct contravention of a law passed by Congress. Put simply, outside the territory of the United States the President has broad discretion on immigration matters, but inside the United States he does not. 

With respect to the grant of asylum itself, it is true that section 208(b)(1)(A) does state that the Attorney General or Secretary of Homeland Security “may grant asylum” to an individual meeting the legal requirements. The use of the word “may” does make the grant of asylum discretionary. But what exactly does discretionary mean?  For one, the decision cannot be arbitrary and capricious. There has to be reason behind the decision. Discretion involves evaluating all of the facts and circumstances of a case, and fashioning a reasonable outcome. 

Thus, it is possible for an applicant to be denied asylum for breaking the law. But the fact that a person may have broken the law must be weighed against the level and severity of danger from which the applicant was attempting to escape. 

Discretion does not mean applying a blanket rule to all situations. Applying a rule that no one who enters the United States illegally, without weighing all of the circumstances in that person’s case, is an abuse of discretion. It leaves no choice to the decision-maker to craft a reasonable outcome. 

Moreover, the law provides a list of factors that disqualify a person from receiving asylum. These factors range from a conviction of a particularly serious offense to the individual being a danger to the security of the United States. In addition, the Attorney General may impose further restrictions by regulation. But, those limitations must be consistent with the law. Thus, an argument exists that a regulation cannot impose a limitation that is inconsistent with the statute as written, such as prohibiting a person who has entered the country illegally from applying for asylum. 

The President has been consistently attempting to broaden his authority over immigration matters. This stems from his frustration over members of his own party, who have controlled both houses of Congress since the beginning of his term, to pass immigration reform satisfactory to the President. With the Democrats ready to assume power in the House of Representatives, gridlock over immigration is likely to increase. This will only create more incentive for the President to attempt to grab more power through purely executive action. The courts will therefore remain a key institution to limit the President and uphold the doctrine of Separation of Powers. 

By: William J. Kovatch, Jr.