On November 2, 2019, Judge Michael Simon of the U.S. District Court for the District of Oregon issued a nation-wide temporary restraining order ("TRO"), preventing the Trump Administration from implementing its new policy of requiring aliens applying for visas to become lawful permanent residents to demonstrate that they will be covered by an approved health insurance plan within 30 days of entering the United States. The Trump Administration was set to implement the policy on November 3, 2019.
A group of plaintiffs filed a lawsuit challenging the policy on October 30, 2019. The followed up by filing a motion for a TRO on November 1, 2019. The Court held an emergency hearing on November 2, 2019. The parties presented oral arguments at the hearing, but did not have time to file written arguments.
The Government had argued that the plaintiffs made their own emergency, by delaying until a few days before the policy was to go in effect to file their complaint and motion. Judge Simon disagreed, noting that the Presidential Policy announcing the new policy was published on October 4, 2019, and that under the circumstances, filing a complaint twenty-six days after the issuance of the Proclamation was not an unreasonable delay.
Pursuant to the Presidential Proclamation, if an applicant for an immigrant visa could not show that he or she would be able to purchase an approved health insurance policy within 30 days of entering the United States, they would be deemed inadmissible as likely to become a public charge, and barred from entering the United States.
The Court first noted that Congress had addressed the public charge grounds of inadmissibility in the Immigration and Nationality Act ("INA"). Congress provided that a number of factors should be examined to determine whether a person is likely to become a public charge, which include the alien's age, health, family status, assets,
resources, and financial status, and education and skills. No one factor was to be determinative. The statute did not mention a person's health insurance status as one of those factors.
Moreover, the Proclamation listed a number of health insurance plans that would acceptable. The Court found that almost all of the listed types of insurance plans would be unavailable to most intending immigrants. In addition, the Proclamation excluded any health insurance plan purchased through a state's marketplace pursuant to the Affordable Care Act (also known as Obamacare) if the state subsidized the plan. Thus, the Court noted that the Proclamation excluded the one type of health insurance plan many intending immigrants would be able to afford. Furthermore, the Court noted that Congress had rejected a proposal to consider the receipt of non-cash benefits from the government in making the public charge consideration. The Presidential Proclamation, therefore, was inconsistent with the congressional intent as expressed through the INA.
Because this was an extraordinary measure being taken by the Court at such an early stage in the lawsuit, Judge Simon limited the TRO to 28 days, unless extended by the Court. The Court further scheduled another hearing on November 22, 2019.
By: William J. Kovatch, Jr.
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Showing posts with label APA. Show all posts
Showing posts with label APA. Show all posts
Tuesday, November 5, 2019
Monday, October 14, 2019
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 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.
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