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August 13, 2019
On Monday the Trump administration published its final rule revision defining “public charge” provisions of existing law. The public charge definition and new rules replace current administrative guidelines established in 1999 - guidelines initially issued to clarify that making use of public assistance did not automatically disqualify someone from legal permanent residency. The new rules do not disqualify automatically either, but are guaranteed to create enormous confusion about what constitutes a violation of public charge rules.
Specifically, the new rules define as public charge as an:
Immigrant who “is more likely than not“ to receive one of the restricted public benefits for an aggregate 12 months or longer during a 36-month period. The receipt of two separate benefits during a one-month period counts as two months, the measure states.
Anyone who meets this definition can be denied a visa or permanent residency (a green card). The list of restricted benefits is largely the same as the benefits restricted in the 1996 welfare reform law discussed below.
The new rules comprise 876 pages, which I have not yet read in its entirety! Below, I explain what is going on and place it in context of existing law - which is the only way to make sense of it at all.
Firstly, for over 120 years the executive branch has had the authority to deny entry into the United States to anyone suspected of likely becoming a “public charge,” or literally dependent on public assistance. The first casting of this provision in the Immigration and Naturalization Act of 1882 made clear that “public charge” referred to someone likely to require institutionalization or be in need of lifelong support. The 1882 law gave the Treasury Department the authority to deny entry to any, “convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” Over time, the public charge provision has been read more broadly and used as a means to block the migration of the very poor. However, ultimately what constituted a “public charge” has never been defined clearly, even as public charge has entered the law more formally as a basis to block entry or deny permanent residence.
Secondly, Clinton era rewriting of welfare, immigration and criminal justice laws, created more confusion. The welfare “reform” law of 1996 created a hierarchy of “qualified” and “non-qualified” immigrants and then defined which public assistance “qualified” immigrants could access. The short answer is almost none during their first five years in the U.S., but there are exceptions and certain classes of “qualified” immigrants, such as refugees, who do not have to wait the full five-year period for most assistance.
Though these welfare reform measures stood apart from any “public charge” rule, there was widespread fear that accessing public assistance could lead to someone being denied legal permanent residency because they had become a “public charge.” The National Immigrant Law Center explains:
In deciding whether an immigrant is likely to become a public charge, immigration or consular officials review the “totality of the circumstances,” including an immigrant’s health, age, income, education and skills, employment, family circumstances, and, most importantly, the affidavits of support.
The misapplication of this public charge ground of inadmissibility immediately after the welfare law passed contributed significantly to the chilling effect on immigrants’ access to services. The law on public charge did not change in 1996, and people’s use of programs such as Medicaid or SNAP had never weighed heavily in determining whether they were inadmissible under the public charge ground.
Confusion and fear about these rules, however, became widespread. Immigrants’ rights advocates, health care providers, and state and local governments organized to persuade federal agencies to clarify the limits of the rules. In 1999, the Immigration and Naturalization Service (INS, whose functions were later assumed by the Department of Homeland Security) issued helpful guidance and a proposed regulation on the public charge doctrine. The guidance clarifies that receipt of health care and other noncash benefits will not jeopardize the immigration status of recipients or their family members by putting them at risk of being considered a public charge. [emphasis added].
The highlighted section above is what has been changed - accessing benefits, or likely to access benefits, has become a basis for disqualification. However, the benefits disallowed are basically the same as the 1996 law for “qualified” immigrants.
In addition, “In 1996, Congress toughened the public-charge exclusion by significantly tightening the affidavit-of-support provisions to expressly make the affidavits legally enforceable in courts of law. The unmistakable intent was to make it more difficult for non-citizens of modest means to migrate to the United States.” As a result, sponsors of immigrants to the United States can be forced to pay the government back for any public assistance immigrants may use - if they are not qualified. The Trump administration recently announced that it would begin enforcing this provision more rigorously.
Finally, the Trump administration has already employed public charge concerns to deny visas - even before this new rule was published. According to a report from Politico:
[T]he State Department's rejection of immigrant visas based on public-charge criteria has increased twelvefold under Trump, with a particularly steep increase for Mexicans, from seven in fiscal year 2016 to 5,343 during the first 10 months of the current fiscal year.
Put another way, the percentage of public charge denials for Mexican applicants rose from less than 1 percent of the total in fiscal 2016 to 44 percent of the total in fiscal 2019 through the end of July.
Which is to say, even without the new rule, the administration can, and has, narrowly read existing law to disqualify people as a “public charge” risk.
So, what the Trump administration has done is to more narrowly interpret public charge exclusions - and in doing so place even more barriers before people seeking to become legal permanent residents or even just visit the United States. The “public charge” rule, however, must be read alongside a host of other executive actions the president has taken to reinterpret immigration law and issue new rules that restrict access to the United States. All of which have been done against the backdrop of earlier legislation that criminalized or sought to reduce immigrant access to services.
It is important to remember that Trump has not successfully passed a single piece of new legislation on immigration. He has simply reinterpreted existing rules or employed other executive powers (e.g. declaring a national emergency) to attack immigrants. Sadly, the executive has tremendous unilateral authority to write immigration rules, and the “court” system that adjudicates these rules is itself part of the executive itself. There are no checks unless new rules violate constitutional protections or clearly violate other provisions of federal law.
Catholic Action for Immigrant Children!
Newark, NJ, Wed. Sept. 4th, 10am-12pm
Images of immigrant children detained in cages, separated from family members, and living in unsanitary, unhealthy conditions have outraged the nation in recent weeks. The faith community has decried this treatment of children not only as a violation of human dignity and rights, but also as contrary to religious teachings and the sacred call to care for people who are most at risk, especially children.
Catholic organizations are organizing a nonviolent campaign to end the traumatizing abuse of immigrant children and their families by the U.S. government. Phase two is a national prayerful direct action in Newark, NJ between 10a-12p on Wednesday, September 4th. Anyone from around the country is invited to participate. The event will include prayer, ritual, and a call to action by Catholic leaders. Cardinal Joseph Tobin, Archbishop of Newark, has agreed to accompany us. Because of the urgency and depth of the injustice, there will also be an opportunity for those who discern to engage in nonviolent action of civil disobedience.
This event follows a powerful mobilization of Catholic faith leaders to launch the campaign in Washington DC, on July 18th and a series of weekly local actions throughout. With other coalition actions, this nonviolent action assisted in the release of over 2,500 children, emptying both Homestead, FL and Carizzo Springs, TX influx facilities. Everyone will gather on September 4th to renew and amplify our call for this administration to end the abuse, trauma, and detention of migrant children.
Please seriously consider coming to Newark on September 4th to participate in showing the administration that the Catholic faith demands we treat our neighbor as we would want to be treated. RSVP: Complete this form to share your interest in this event with organizers.
If you can’t attend this event but would like regular updates on the campaign, please fill out this form. The campaign webpage with the strategic campaign goal, theory of change, and sources of power impacting is here.