Week 17: SCOTUS allows public charge to go into effect
Immigration news, in context.
This is the seventeenth 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.
This week’s edition:
In The Big Picture, we discuss the Supreme Court’s lifting of the injunction against the expanded public charge rule.
In Under the Radar, we delve into whether CBP officers were told to profile Iranian, Palestinian, and Lebanese travelers and the expanded discretion Border Patrol agents have been given under Trump.
In Next Destination, we analyze the Trump administration’s expanded travel ban and speculate whether the administration will continue weighing in on local policies limiting law enforcement’s cooperation with ICE.
The Big Picture
The news: In a 5-4 decision, the Supreme Court has overturned a prior injunction and allowed the so-called public charge rule to go into effect around the country, with the exception of Illinois, where it remains halted by a local injunction.
What’s happening?
Public charge has been in the public consciousness for years now, as successive draft leaks made way to a formal draft and then an attempt at a final rule set to be implemented in mid-October of last year. The rollout was stopped in its tracks by multiple federal lawsuits, including three — in New York, Washington, and Maryland, involving a collective 17 states plus New York City and six nongovernmental organizations — that achieved national injunctions by district courts prior to the rule going into effect. Two other courts issued regional injunctions.
Appellate courts then stayed the Maryland and Washington injunctions, plus one of the regional ones, leaving the New York district judge’s order as the only thing stopping the government from putting public charge into effect nationally. (Apart from the state of Illinois, where the other regional order was in effect.) The New York injunction has now been overturned by the Supreme Court, allowing the government to implement the rule while litigation continues at the Circuit level and potentially on to the Supreme Court itself. The Supreme Court has not made any ruling on the merits of the public charge lawsuits, nor even heard any of those cases as of this time.
We dedicated an edition of this newsletter to the public charge rule following the first wave of those injunctions. For a full history, legal background, and granular analysis of this policy, we encourage you to read it. Here, we will largely focus on what’s been taking place since then, what certainties and uncertainties exist now, and how this might all pan out.
The concept of “public charge” has existed for over a century in American jurisprudence, and a version of it is currently codified in federal law. The statute states that an alien may be inadmissible to the United States if they are deemed to be an actual or likely public charge, meaning a drain on taxpayer resources, and it stipulates five factors that are to be considered in making this determination. It doesn’t lay out how exactly these factors should be weighted or any particular process for making decisions. This is instead laid out in federal regulation, which has historically considered only primary dependence on cash benefits to trigger a public charge determination.
The administration’s proposed rules would modify this process to heavily negatively weigh the use of non-cash benefits like SNAP nutritional assistance and housing aid vouchers against applicants for visas and U.S. residency, as well as factors including income level and education. These determinations would look at household benefits use as well as individual use, both in the past and potentially in the future. Current residents would only be vulnerable if they’d been green card holders less than five years and if the circumstances that were seen as causing the public charge decision preceded their permanent residency. Applicants for citizenship would be unaffected.
Despite the fact that the government has been given the green light to roll out the policy, it’s important to note that it’s not currently in effect. The original effective date for the Department of Homeland Security’s (DHS) final regulation — the one that affects the interior of the country and which was the subject of litigation — was October 15 of last year, but it was stopped before then. U.S. Citizenship and Immigration Services (USCIS) has indicated that it will now implement the final rule on February 24, and apply it only to applications postmarked or electronically submitted on or after that date. This means that prior benefits usage will not be counted.
In the meantime, the agency has yet to publish new finalized forms that are required as part of new residency applications. In particular, there are still no final versions of a newly modified Form I-485 (Application to Register Permanent Residence or Adjust Status) or the completely new Form I-944 (Declaration of Self-Sufficiency). This means that even if the final forms are published today, applicants and their attorneys will have less than a month to fully familiarize themselves before they become requirements. (Except, of course, in Illinois, though a salient outstanding question is whether USCIS will consider this injunction to apply to all cases filed in Illinois, or to all cases it adjudicates in its Illinois office.)
None of the legal wrangling so far has affected the State Department’s efforts to impose new public charge rules for applicants abroad, mainly because State has yet to even attempt to implement its own final rule. It technically went into effect on October 15, at the same time as the DHS rule was supposed to, but implementation was delayed until a new form for information collection was finalized; that measure had a 60-day notice and comment period that ended on December 23rd, and as of yet no final form has been issued. It’s unclear when exactly this will happen.
How did we get here?
We delved into the history of public charge in a previous edition, but here’s a recap:
The government first barred immigrants who were “likely to become a public charge” through the Immigration Act of 1882, the first comprehensive immigration bill in U.S. history. The 1882 bill, which passed a few months after the Chinese Exclusion Act, denied entry to “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.”
In practice, the 1882 law and the subsequent amendments led to the exclusion of thousands of poor immigrants and justified federal agents’ anti-Semitism and xenophobia.
A lot has changed since the 1880s, including the countries immigrants hail from and the types of public assistance available to poor and working-class people. The public charge rule initially applied to people who the government assumed would use services like almshouses and homeless shelters. As of 1999, it’s applied to people who use cash benefits — the Trump administration didn’t invent public charge, but it is attempting to expand the scope of the types of benefits, like Medicaid and SNAP, that make someone a “public charge.”
As mentioned above, several federal injunctions initially blocked the expanded public charge rule from going into effect. The federal courts have become the battleground for several other Trump immigration policies. There are lawsuits pending for everything from the Remain in Mexico policy to metering, and federal courts have been instrumental in temporarily halting — or at the very least amending — policies like the travel and asylum bans.
But the Trump administration has been quick to appeal injunctions that pose a threat to the president’s immigration policies, and it’s becoming clear that the Supreme Court will largely side with the administration on these matters.
In a concurring opinion, Justices Neil Gorsuch and Clarence Thomas lambasted federal judges’ use of nationwide injunctions against the administration. “[I]n light of all that’s come before, it would be delusional to think that one stay today suffices to remedy the problem,” they wrote. “The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.”
Federal judges have increasingly issued nationwide injunctions instead of more limited ones that only apply in their jurisdictions, a move immigrant’s rights activists have applauded. But the recent SCOTUS ruling suggests that strategy may no longer pay off.
What’s next?
USCIS already made significant corrections to the public charge rule after ProPublica and others pointed out that it contained serious errors. It’s possible that more tweaks could be made, though at this point the rule has already gone through the required public comment period and extensive review, and is unlikely to see any major substantive changes.
We still have to see exactly what guidance USCIS will issue to its adjudicative personnel. Even within the context of the rule’s specific provisions, there’s significant room for discretion, especially when it comes to deciding on the potential of future benefits use. How stringently individual officers apply this specific standard could make a huge difference as to whether this new rule will truly become, as some have derisively referred to it, a full “wealth test” for potential visitors and immigrants.
It’s also possible that more local injunctions could be issued against its implementation; given that the Supreme Court’s main issue with the New York order seemed to be its national applicability, targeted injunctions such Illinois’ might be allowed to stand as litigation moves forward. The ongoing confusion over the rollout and continued unavailability of the final forms could make a compelling argument for stopping a February 24 implementation.
Since the State Department timed its own final rule to be effective on the same date as DHS’, it seems reasonable to assume that it may attempt to have its own forms out and rule implemented by February 24 as well. This would constitute a less radical shift than the one happening stateside, as State had already put in place rules tightening public charge requirements as far back as January 2018.
From a more practical and immediate standpoint, it’s likely that de-enrollments in public benefits will skyrocket. We’ve been seeing this phenomenon for the entire time that there have even been leaks of a public charge rule, long before it was even a formal proposal, and it will only get much worse now that it’s been allowed to go into effect. If past is prologue, the de-enrollments will be somewhat indiscriminate, including many people who are not subject to public charge’s provisions but will be too fearful to continue their benefits use.
It will be up to local officials to try to head off mass de-enrollments with public awareness campaigns and to be prepared to step in to supplant some of the federal government benefits that their constituents will cease using. Unfortunately, as DHS itself admitted in its responses to public comments, this will probably have a negative impact on public health and nutrition.
Under the Radar
A new ProPublica feature shows how much discretion Border Patrol agents have under Trump
The Trump administration’s “zero-tolerance” family separation policy — in which migrant parents were prosecuted for illegal entry at the border, while their children were taken from them and sent to shelters for unaccompanied migrant youth — officially ended in the summer of 2018. But families are still being separated at the border, albeit not categorically.
A new feature by ProPublica’s Dara Lind shows how one family was separated at the border and how its members were forced to endure unexpected hurdles. Lind tracked down a Honduran family of four that was split in half by border agents. After presenting themselves at the border, the father and son were enrolled in the Migrant Protection Protocols and told to wait out their asylum case in Mexico; meanwhile, the mother and daughter were allowed into the U.S. Their asylum cases were initially processed separately.
It’s unclear how often separations like these happen, but the piece illustrates the broad discretion given to individual Border Patrol agents, whose powers have expanded dramatically in recent years. The agency decides which migrants are forced to wait in Mexico; which migrants are deported to Guatemala, allegedly to apply for asylum there; and whether migrants can be subject to a speedy deportation process.
The MPP and the so-called “asylum cooperative agreements” with Guatemala (as well as Honduras and El Salvador) didn’t exist under previous administrations. These policies are part of the Trump administration’s multi-pronged effort to effectively end asylum at the U.S.’s southwestern border, and as the piece shows, they’ve all resulted in an increased role for the Border Patrol, an agency long criticized by immigrant advocates for its treatment of migrants.
CBP officers may have been told to profile Iranians, Palestinians, and Lebanese travelers
A community newspaper in Blaine, Washington — where dozens of Iranian-Americans returning to the U.S. after traveling to Canada for a concert were held in CBP custody for hours a few weeks ago — claims to have obtained a CBP directive telling officers to racially profile Iranian, Palestinian, and Lebanese nationals.
The document, published by The Northern Light this week, was reportedly leaked by an anonymous source via an immigration lawyer. According to the Post, it’s unauthenticated, was issued shortly after the assassination of Iranian general Qassem Soleimani, and is headlined “UPDATED PROCEDURES.” It says that the Seattle field office’s tactical analytical unit should vet “[a]ll persons (males and females) born after 1961 and born before 2001 with links (place of birth, travel, citizenship) or any nexus” to Iran, Palestine, or Lebanon, and implies that practicing Shiite Islam means one is in the Iranian special forces.
“Even if they are not of SHIA faith, anyone can state they are Baha’i, please question further to determine this is the case,” it reads. “What NTC [CBP’s the National Targeting Center] is looking for is membership in a specialized unit — QUDS forces; however, this group is so elite and well trained to evade. Anyone can state they are from a different faith to mask their intentions. TAU recommends scrutiny on military questions. We have not yet had anyone admit being in IRGC or Quds forces yet.”
In a statement to the Washington Post, CBP said it doesn’t comment on leaked documents. A few weeks ago, CBP denied that there was a national directive ordering officers to question or detain Iranian travelers. The agency claimed that officers had been given general instructions to adapt to the “evolving threat environment” posed by the U.S.’s assassination of Soleimani, and we speculated that the situation in Blaine was the result of a group of overzealous CBP officers taking those directions too seriously.
But if the document is accurate — which hasn’t been confirmed — then CBP officers were instructed to pull people aside for so-called “secondary inspections” based on their nationality. These inspections are essentially a form of short-term, unofficial detention in which travelers at ports of entry are held for additional questioning and, in some cases, denied entry into the U.S.
Next Destination
Expanded travel ban expected today
The Trump administration is expected to announce additions to its much-litigated travel ban today. According to Politico, leaked draft documents and internal sources point to the possibility of Sudan being barred from access to the U.S. diversity visa lottery, plus more general immigration restrictions on six additional countries — Belarus, Myanmar (also known as Burma), Eritrea, Kyrgyzstan, Nigeria and Tanzania, though the final additions will only be known with the final announcement.
The restrictions aren’t expected to be total bars on citizens of the targeted countries, but include broad limitations on, for example, tourist and student visas. This week marked the third anniversary of the original travel ban, the first two versions of which were struck down by the courts before the third and current version was allowed to stand. In its current form, it imposes various restrictions on the entry of nationals from Iran, Libya, Syria, Yemen, Somalia, North Korea, and Venezuela.
DOJ signals support of lawsuit over New Jersey rules limiting cooperation with immigration authorities
New Jersey’s Immigrant Trust Directive, which has been in place since March 2019, puts limits on the types of voluntary assistance law enforcement agencies can offer to ICE and other federal immigration agencies. New Jersey Attorney General Gurbir Grewal framed the directive as a public safety issue: If immigrants don’t trust law enforcement, or if they worry that calling the police will inadvertently put them in contact with ICE, they’ll be less likely to report crimes against them or others.
This has been one of the slightly ironic unintended consequences of the Trump administration’s punitive immigration policies. Under previous administrations, limiting local police’s cooperation with ICE was a pet issue of immigrants’ rights activists that was easily dismissed; under Trump, several states and cities have either ended formal agreements with ICE or have passed laws barring police officers and sheriff’s deputies from cooperating with the agency.
According to the New York Times, most of New Jersey’s law enforcement agencies support the directive — but not everyone is happy about it. Two New Jersey counties filed separate lawsuits against the state’s Attorney General last year, claiming that the directive hurts public safety. The suits have since been consolidated. Department of Justice declared its support of the suit, arguing that the directive is unconstitutional, last week. Despite headlines claiming otherwise, the DOJ hasn’t signed on as a party in either suit, but this move suggests that the Trump administration will continue wading into municipal disputes over immigration policy.