Feds finalize new public charge rule formally ending Trump-era change—09-12-22
Immigration news, in context
This is the 137th edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
If you find what we do useful, you can help us keep it going and keep improving by becoming a backer.
This week’s edition:
In The Big Picture, we discuss a new regulation to codify a pre-Trump version of the public charge rule.
In Under the Radar, we look at a report finding that tens of thousands of migrants are on unofficial lists for asylum seekers hoping to enter the U.S. at the southern border.
The Big Picture
The news: One of the first editions of BORDER/LINES was dedicated to breaking down the so-called public charge rule, a guidance implementing a law designed to block people deemed to be dependent on public assistance from obtaining residency. The Trump administration radically rewrote the longstanding public charge rule in 2019. After a formidable legal roller coaster and the Biden administration’s decision to stop implementing the new rule altogether, it has now formally reverted the standard to its previous form.
What’s happening?
Public charge is one of the oldest continuous legal immigration precepts, dating back to the late 19th century. Very basically, the notion behind it is that immigrants to the United States should be self-sufficient, at least to the degree that they would not be dependent on government assistance. Though it went through a couple iterations, none specifically defined what it meant for someone to be a public charge, so the government clarified it via regulation in 1999.
We’ll get more into the details of this rule below, but the thrust is that it would apply to people who used cash assistance and who seemed like they might be primarily reliant on such assistance, without which they wouldn’t be able to live. Non-cash benefits like SNAP food assistance were not considered to be part of the public charge calculus. The ‘99 regulation remained in place until the Trump administration, when the rule became a target in Stephen Miller’s broader dragnet of regulatory and policy areas that could be weaponized against immigrants.
The Trump administration published a draft rule in September 2018 and, despite an onslaught of public comments objecting to the rule’s impact and objectives, including pointing out that it fundamentally ran against over a century of precedent, it published substantively unchanged final rules in August 2019. One involved the U.S. Citizenship and Immigration Services and applied to applicants undergoing adjustment of status processes in the U.S., and the other was directed at the State Department and set out rules for applicants attempting to enter the U.S. for permanent residency from abroad, but both laid out the same standards.
Under the new scheme, non-cash benefits suddenly factored into the public charge calculus, and any collective 12 months of usage over a 36-month period would trigger a public charge determination. Benefits would also be stacked, meaning that a person who used SNAP and Section 8 for one month would be deemed to have used two months of benefits. Most bewilderingly, the determination would be made not only retroactively but supposedly consider risk of future dependence, incorporating factors like an applicants’ education level and income.
This wasn’t totally out of left field; the statute establishing public charge—Section 212(a)(4) of the Immigration and Nationality Act, also cited as 8 USC § 1182(a)(4)—makes it such that any person who “at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” Functionally, though, there are obvious reasons why it’s very iffy to try to reach some concrete answer about whether a person may or may not become a public charge in the future; it would ultimately be a purely subjective and unappealable determination by a single bureaucrat.
In order to actually make these decisions, the administration mandated onerous new forms that required piles of additional evidence. It certainly seemed like the objective was mainly to discourage people from making the attempt in the first place, and trip them up with bureaucracy and subjective decision-making if they tried anyway. Several states and immigration advocacy and legal organizations sued, leading to an incredibly messy litigation process, even more-so than the other Trump-era immigration policies.
As we examined at the time, this led to bizarre situations like the rule being allowed to go into effect everywhere except Illinois specifically, or eventually being enjoined only in the states of New York, Vermont, and Connecticut. Obviously, this made it extraordinarily difficult for attorneys to even communicate to their clients what the standards were at any given time, or to prepare applications. In July 2020, a federal judge blocked the rule completely as it related to the State Department and applicants abroad. The domestic rule limped along until the new Biden administration announced in March 2021 that it would no longer defend it in court. Shortly thereafter, the Seventh Circuit dismissed an appeal of a ruling against the policy, effectively blocking it.
Now, after a notice-and-comment period, the administration has published a new final rule, set to go into effect on December 23, that will essentially formally reestablish the 1999 standards as the controlling guidance. What that means is that only an applicant’s usage of cash benefits like TANF or special circumstances like long-term medical institutionalization will be considered to trigger a public charge determination. The law still requires that the government take into consideration a person’s health, resources, and educational attainment, among other things, but officials won’t attempt to prognosticate on whether someone might become a public charge unless there are clear prior indicators like TANF usage.
How we got here
The public charge rule dates back to the late nineteenth century, when nearly all immigration policies were designed to reduce immigration of “undesirable” newcomers from both China and Southern and Eastern Europe. The Immigration Act of 1882 first introduced the concept of “public charge” into immigration law, denying entry to anyone who immigration officials determined would not be able to provide for themselves. In theory, the law was supposed to limit new immigrants’ use of the scant public services available at the time, such as almshouses and privately run shelters; in practice, it was used to exclude poor immigrants, particularly those who were Jewish, Italian, or Eastern European.
A subsequent immigration bill passed in 1907 expanded the category of inadmissibles, denying entry to “idiots, imbeciles, feebleminded persons, epileptics, insane persons … paupers; persons likely to become a public charge [emphasis ours]; professional beggars; persons afflicted with tuberculosis or with a loathsome or dangerous contagious disease,” and anyone else immigration officials deemed to be “mentally or physically defective.”
The rule mattered little after 1924, the year Congress passed a national origins-based immigration law that all but ended migration from Southern and Eastern Europe. That 1924 law remained in place until 1965, when the restrictive per-country quota system, which had also virtually banned Asian and African migration to the U.S., was replaced with a new immigration scheme that prioritized family reunification and employment-based migration. An earlier bill, the 1952 Immigration and Nationality Act, had once again codified public charge and also stipulated that immigrants who received public benefits within their first five years in the United States were deportable. The 1965 bill had similar text, but there was little administrative guidance on what that would mean in practice.
That changed in the 1990s. The 1996 Illegal Immigration Reform and Immigration Responsibility Act denied permanent residency to people who, “at the time of application for admission or adjustment of status, is likely to become a public charge,” the law’s contemporary language. The 1996 statute required immigration officers to take a non-citizen’s age, family status, health, assets, resources, financial status, job history, and education when making a public charge determination. IIRIRA also established a new requirement, the affidavit of support, which requires prospective immigrants to have a sponsor who can maintain them at 125 percent of the federal poverty level.
In 1999, the Immigration and Naturalization Service—the federal agency that handled immigration matters until the creation of DHS in 2003—issued guidance on the public charge rule. The 1999 guidance defined public charge as someone“who has become (for deportation purposes) or who is likely to become (for admission/adjustment purposes) ‘primarily dependent on the government for subsistence, as demonstrated by either (i) the maintenance or (ii) institutionalization for long-term care at government expense.” Specifically, the use of cash benefits such as Supplemental Security Income and Temporary Assistance for Needy Families would disqualify immigrants from permanent residency; other benefits, like Medicaid, WIC, and use of the Supplemental Nutrition Assistance Program, were not disqualifying.
This guidance remained in place until 2018, when the Trump administration published a proposed rule that would expand the definition of public charge, both for the purposes of inadmissibility and deport ability. On the inadmissibility front, consular officers abroad would be tasked with determining if applicants would “at any time” become a public charge. On the deportability front, the rule was expanded to include non-cash benefits—which, as we noted above, were excluded from earlier guidances. Federal judges in New York and Washington state issued national injunctions on the regulation in October 2019, as did a judge in California, though that one was limited to the municipalities that had sued the government in California’s Northern District. The government appealed all the way up to the Supreme Court, which in January 2020 allowed the rule to go into effect. Until that point, the public charge rule had not yet been enacted—but immigrants had already begun disenrolling themselves and, in many cases, their U.S. citizen children from public benefits, overcorrecting in a way that Miller no doubt had intended.
The expanded public charge rule went into effect in February 2020. A few weeks later, at the outset of the pandemic, the attorneys general of 17 states asked the administration to delay the rule’s implementation. A federal judge in New York’s Southern District issued an injunction due to the pandemic, but the injunction was overturned the following day and the expanded rule remained in place until the Biden administration repealed it in March 2021, returning to the 1999 guidance.
What’s next?
The new rule won’t really change much practically, as the Trump-era rule had been blocked anyway. An effort by several states to revive it failed earlier this year when the Supreme Court threw out their lawsuit. Yet as long as the rule remained nominally in place, litigation around it could continue, but this new rule formalizes the government’s interpretation of the public charge statute. Really, it’s a return to prior practice.
This of course does not mean that public charge is going away. Would-be immigrants might well still be blocked by a public charge determination, but the bar for that determination is being definitively set much higher than Miller’s machinations, and this all at least leads to some certainty among applicants and practitioners about what the rules are going to be going forward. Still, given that public charge is a statutorily mandated process that leaves the details of implementation largely to the executive, there’s no reason it couldn’t be modified again by a future president.
The whole public charge saga is also a good reminder of the Miller approach of simply piling as many restrictions on as possible, understanding that some would be struck down but others would stick. Public charge considerations for all immigrant arrivals from abroad were basically rendered moot when the Trump administration issued its ostensibly COVID-related travel bans in 2020, blocking all immigration into the country as a whole.
Under the Radar
More than 50,000 migrants on waitlist to enter the U.S.
Tens of thousands of migrants have placed their names on unofficial waitlists at the U.S.-Mexico border so they can eventually enter the United States, a recent report from researchers at the University of Texas at Austin’s Strauss Center found. The waitlists are informal and vary from city to city; in some cases, they’re maintained by humanitarian or migrant advocacy groups at the border. The lists first emerged in 2018, when the Trump administration began “metering” migrants at the border by limiting the number of people allowed to ask for asylum at ports of entry each day.
As the report notes, the lists transformed from metering lists to Title 42 exemption waitlists after the Trump administration began the supposed public health policy at the onset of the pandemic. Unlike previous asylum waitlists, which were based on the date migrants first arrived at the border, Title 42 exemption waitlists are a bit more haphazard and, in some cases, exclusionary. Since 2021, the Biden administration has allowed for select exemptions to Title 42 on a case-by-case basis. The exemption process has created a bottleneck effect: there are more people at the border who hope to claim exemptions to Title 42 based on hardship in Mexico than there are people being allowed to do so.