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.

No, Undocumented Aliens are not About to Bankrupt the Federal Government Looking for Hand-Outs

Over the weekend, I saw a Facebook friend link to a video which he believed was the definitive proof that those "illegals" are just coming to the United States to live off the backs of taxpayers.  The video is a Fox News "Special Report" by Steve Harrigan sometime in the Spring of 2013.  Although the video is three years old, it is still making its rounds. A quick Google search revealed that it has been used by conservative causes to demand that politicians do something about these "illegals" living off the public dole. 

As I watched the video with a critical eye, I noted that it was short on facts, accurate information and real analysis, and long on misdirection and scare tactics.

The video focused on a woman.  I hesitate to mention her by name, since she has been made the pariah of the opponents of immigration reform.  Still, I cannot find one article on the Internet that defends her.  And for that reason alone, let me tell you about the story of Marita Nelson.

According to Harrigan, Nelson crossed the Rio Grande to enter this country over twenty years ago.  She has been receiving public assistance for over twenty years. She has seven mouths to feed, and the $240 per month she receives from SNAP (or as he calls it, food stamps) does not last through three weeks.  Harrigan claims that Nelson, who is fifty years olds, receives funds for public housing, government help with medication and $700 per month in Social Security.  There is some talk about her receiving some child support, but no details are given.

Harrigan then expresses complete surprise that there are privately funded organizations out there that actually help people find public assistance programs for which they qualify.  And Nelson has the temerity to urge people who need help to go look for it before it is too late.

Horrors!

Well, let's analyze this piece by piece, with reference to the actual law.  A thoughtful analysis shows why any fears are just unsubstantiated.  We'll start with Nelson's immigration status.  The assumption is that since Nelson crossed the Rio Grande over twenty years ago, she must be illegal!  Some conservative bloggers go so far as to say that she's criminal.

I hate to break it to you, but crossing the border without a visa is not necessarily a crime.  It is illegal, yes.  But, as the Immigration Courts and U.S. Immigration and Customs Enforcement love to point out, immigration law is civil, not criminal (even though people in removal proceedings are put in "detention" which looks an awful lot like jail).  So we cannot conclude that Nelson is a criminal.

More importantly, we cannot even conclude that she is necessarily an illegal alien.  We do not know where she is from.  We do not know why she came to the United States.  We do not know if she is married.  People who crossed the border illegally could still qualify for asylum or temporary protected status, two legal programs under U.S. immigration law.  If she were in removal proceedings, having been in the United States over ten years, she could qualify for cancellation of removal, which would make her a legal permanent resident.  Perhaps she married a U.S. citizen and was grandfathered under an older law that would allow her to become a legal permanent resident.  Without more facts, we just don't know what her immigration status is.

But let's assume that she is undocumented, for the sake of argument.  Does her story give definitive proof that those pesky "illegals" will just pour across our border to step up to the public trough?

The first key to understanding this story is the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.  This act of Congress prohibited undocumented aliens from applying for federal benefits.  The act was passed on August 22, 1996.  This means that it applied only to people receiving public benefits after that date.  If Nelson has been receiving public benefits for over twenty years, then she would have been receiving benefits as of 1993, or before the passage of the act.  She would therefore have been grandfathered in, and thus not prohibited from receiving benefits.  The real point here is that her case does not mean that people who cross the border today or tomorrow or who crossed the border ten years ago can receive federal benefits such as SNAP, public housing or health insurance.

But let's go further.  We'll start with Social Security.  Social Security administers three programs: (1) retirement benefits; (2) insurance for becoming disabled after working; and (3) supplemental income for those who are disabled.  To receive retirement benefits, you have to be at least sixty-five.  At age fifty, Nelson is too young.  To receive disability insurance, you must have worked for 40 quarters paying into the Social Security system.  If Nelson were undocumented, it seems unlikely that she would have been working legally and the would not qualify for that program.  As for the supplemental income, well let's not forget that Nelson has seven mouths to feed.  Some of those mouths are likely her children.  She could very well have children born in the United States and thus U.S. citizens.  If a U.S. citizen child is disabled, then the child may be eligible for supplemental income.  But note that the benefits would belong to the U.S. citizen child, and Nelson might only be serving as the representative payee, who receives the benefits on the child's behalf and is legally obligated to use the benefits for the child.

The problem is that from the report itself, we just don't know.  Nothing is mentioned about her children, other than the fact that Nelson receives child support.

U.S. citizen children could possibly explain other benefits.  The SNAP benefits could belong to the children.  The public housing could belong to the children.  If she did have a U.S. citizen child who was disabled, then that child might qualify for Medicaid, thus explaining the assistance with medication.  But we do not know any of the relevant facts from the report.  Instead, Harrigan purposefully leads the viewer to think that the benefits are for Nelson herself.

The point is that a critical eye, armed with knowledge of the law, demonstrates that Harriman's so-called "Special Report" is nothing but fear mongering meant to stir up xenophobia, racism and hatred of those darned "illegals."  In reality, there is no danger that those who crossed the border recently, or who will cross the border in the future, are about to bankrupt the U.S. treasury looking for government hand-outs.

By:  William J. Kovatch, Jr.
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