Week 5: Public charge rule blocked by the courts

Immigration news, in context.

The Big Picture

One day, three injunctions

The News: Three separate federal judges issued injunctions last Friday stopping the government from implementing an overhaul of the legal immigration system through new public charge rules, which would have gone into effect October 15.

What’s happening?

In October of last year, after a series of leaks, the Trump administration published a proposed rule to expand the definition of people that could be considered a potential drain on government resources for immigration purposes, and could thus be denied visas or even permanent residency (though not citizenship). After a sixty-day comment period, the administration spent most of this year preparing a finalized rule, which was published in August. It was slightly less restrictive than the draft rule, but still represented a dramatic re-interpretation of the meaning of public charge.

Last Friday, October 11, federal district judges in the Southern District of New York, the Northern District of California, and the Eastern District of Washington almost simultaneously issued orders halting the Trump administration from implementing new rules on the federal government’s interpretation of the public charge statute. The New York and Washington injunctions are national in scope, while California’s is limited to the states and counties involved in that lawsuit. (In practice, this is irrelevant unless somehow the former two are overturned and the latter stands, which is highly unlikely.) The lawsuits were brought collectively by 21 states, three cities or counties, the District of Columbia, and nine legal and health organizations served as the plaintiffs in these lawsuits.

Unlike other attempted administration immigration restrictions that rely on more general areas of law, Congress specifically codified a modern public charge consideration, in section 212 of the Immigration and Nationality Act of 1952, otherwise known as the McCarran–Walter Act (title 8, section 1182 of the U.S. Code). While some grounds of inadmissibility in the law have since been removed (e.g. “aliens who have had one or more attacks of insanity”), a slightly modified public charge evaluation remains. Subsection (a)(4)(B) — added as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 — compels the federal government to “at a minimum” explicitly consider five factors in deciding whether to deem an individual ineligible for a visa or admission: age; health; family status; assets, resources, and financial status; and education and skills.

This part of the law governs inadmissibility, meaning who may or may not be allowed to receive an immigration benefit. A separate area of law governs public charge designation for the purposes of deportability, i.e. the removal of someone who is deemed a public charge subsequent to their ‘arrival’ (or adjustment of status). This rule only affects inadmissibility, and does not change the interpretation for deportability purposes.

The language of public charge is, by design, rather vague. Congress wanted to give the executive some flexibility on how to interpret these restrictions. However, over the decades (the first mention of public charge in federal law dates back to the late 19th century; more on that below) a relatively standard definition was reached: whether someone was or could become “primarily dependent” on the government, either due to financial or health circumstances. Basically, help from the government is fine. Total dependency, or its potential, is not.

As Judge Phyllis Hamilton of the Northern District of California wrote in her order, “courts and the executive branch have been considering its meaning as used in the statute for over one hundred and twenty years. As interpretations from those two branches accreted toward a consistent understanding, Congress repeatedly enacted statutes adopting the identical phrase.”

A big part of the legal argument against the rule is that it takes this longstanding precedent and tosses it without much explanation. The new rules lay out a so-called 12/36 test, meaning that an aggregate 12 months of public benefits usage — including non-cash benefits like SNAP food assistance that had never been considered before — over a period of 36 months triggers a public charge determination. Benefits used in tandem each count separately, meaning that simultaneous usage of SNAP and Medicaid for a month, for example, would count as two months’ worth of benefits (the standard is not applied to applicants for humanitarian status, like trafficking victims and asylum-seekers.)

Crucially, the law reads that public charge inadmissibility is appropriate if the United States Citizenship and Immigration Services (domestically) or a consular officer (abroad) determines an applicant will “at any time” become a public charge, meaning that reasons for denial can be speculative. A USCIS official could therefore use an applicant’s current income and education, credit score, assets, and other factors to determine that they will at some point use public benefits, and make a public charge determination on that basis. Given the unexplained multiplication of the rule’s potential targets, the plaintiffs are arguing it’s really being motivated by anti-immigrant animus.

More relevant to the necessity of an injunction blocking the measure as litigation goes forward, the states, counties, and organizations suing argue that they will suffer irreparable harm from the rule’s enactment. 

There are concerns that people will disenroll from benefits programs, causing jurisdictions and nonprofits to lose massive amounts in federal funding tied to said programs. Disenrollment from federal, medical, food and housing assistance could in turn lead to public harm, as well as increased costs from providing these services, plus legal assistance, on a local level. The claims aren’t speculative. Areas with high-immigrant populations have already seen some of these effects, and the plaintiffs submitted evidence to that effect. In fact, at this point, some of the impact of this chilling effect may be unavoidable, whether or not the rule ultimately ever goes into effect.

How did we get here?

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.”

As Katherine Benton-Cohen wrote in her book, Inventing the Immigration Problem, the rule “was the product of a long history of agitation to protect ‘free labor’ from unfree forms of foreign labor — stereotypically the Chinese, but also workers ensnared in debt peonage, indentured labor, and prostitution.” But concerns about immigrant labor generally had more to do with xenophobia than with a desire to protect vulnerable foreign workers.

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.

This is why administration officials — including acting USCIS director Ken Cuccinnelli, who famously remixed the Statue of Liberty poem in August, saying the U.S. still welcomes “all immigrants who can stand on their own two feet, self-sufficient, pull themselves up by their bootstraps” — claim the rule isn’t new. But that’s not entirely accurate.

Migration trends have changed a lot since 1882. For one, most immigrants now arrive in the U.S. from Latin America, Africa, and Asia instead of Eastern and Southern Europe. The initial iteration of the public charge rule was also much more limited in scope: it banned people from entering the U.S. after they had already arrived at a port of entry. An 1891 amendment to the act allowed the government to remove anyone who became a public charge “within one year after his arrival in the United States from causes existing prior to his landing therein.”

The types of aid low-income people rely on have also changed a lot since the late 20th century. The rule was initially meant to bar people who would be considered a drain on services like almshouses and shelters; there was no Medicaid or SNAP back then. 

In 1999, the rule was amended through an INS guidance identifying cash assistance benefits as indicators that someone could become a public charge, but non-cash benefits were still left out of the equation.

Like the health insurance rule we discussed in last week’s issue of BORDER/LINES, the rule change reflects an attempt to reduce legal immigration, a key — and underrated — goal of immigration restriction groups like FAIR, the Center for Immigration Studies, and NumbersUSA.

What’s next?

The administration has been stopped from implementing its new rules for now, but litigation will continue and if past courthouse efforts are any indication, it will try to have the injunctions overturned. It’s more likely than not that at least one of the Circuit Courts who would hear such an appeal — the Ninth and the Second — would let the injunction stand. They were issued in the first place because the judges involved thought it was likely that the plaintiffs would succeed on the merits. 

In the meantime, there are reports of panic among immigrants around the country who are, unsurprisingly, confused about how the complex legal jockeying affects them.

It’s important to note here that the particular rule at issue and the injunctions issued against its enactment concern domestic public charge evaluations and do not impact the State Department’s evaluation process outside the United States. 

State has its own rules and guidelines, and in fact had already changed its foreign affairs manual to include a much stricter interpretation of public charge than DHS back in January of 2018, leading to a spike in visa denials for applicants abroad. On October 10, State published new rules in the Federal Register, ostensibly to bring its policies fully in line with Homeland Security’s, and with the same effective date of October 15.

Then, State apparently decided on October 14 that it wouldn’t implement the rule until it finalized a new form, at some indeterminate point. So its provisions have similarly not gone into full effect, but aren’t subject to the injunctions, and could be hypothetically be acted on at any time. Among the big open questions now is whether State will move forward on this or wait for some of the legal cases against DHS to progress.

Under the Radar

Suicide in ICE custody

A Cuban asylum-seeker died by suicide at an ICE detention facility in Louisiana this week. The man, 43-year-oldRoylan Hernandez-Diaz, had been detained at the Richwood Correctional Center in Louisiana since May. According to an internal detainee death notification obtained by BuzzFeed News, Hernandez passed his credible fear interview — the first step in the asylum process — in August and had repeatedly asked to be released into the U.S. for the duration of his case. After a judge denied his most recent request on October 8, he decided to go on a hunger strike, for which he was reportedly placed in solitary confinement as punishment. 

Hernandez’s apparent suicide is the second in-custody ICE death of the fiscal year, which began on October 1. His time in ICE detention is also illustrative of the Trump administration’s desire to end the practice of releasing asylum-seekers into the country while they await their hearings, which the president and his allies often derisively refer to as “catch and release.” Per BuzzFeed’s report, ICE was detaining nearly 9,000 migrants who had passed their credible fear interviews in August.

ICE detention is supposed to be preventative — that is, the agency is supposed to detain people who pose a flight risk or a danger — not punitive. But migrants say they’ve been mistreated in ICE detention, and others have gone on hunger strikes to protest the conditions there. Detainees at a facility in New Mexico have also attempted suicide and are considering cutting their wrists in an act of mass protest, according to the group Freedom for Immigrants.

Border Patrol water rescues skyrocket in FY19

Water rescues in Border Patrol’s Del Rio sector, which includes part of the Rio Grande, shot up by more than 1000% between fiscal 2018 and fiscal 2019, according to federal data obtained by CNN. The sector’s chief told CNN that the increase is due to a rise in overall apprehensions and the fact that smugglers are taking migrants to more dangerous areas of the river and leaving them there. 

But immigration advocates say that the rise in water rescues — and drowning deaths — is due to two Trump administration policies that have forced migrants to stay in Mexico: metering and the Migrant Protection Policy. The metering policy effectively limits how many asylum-seekers are allowed to petition for asylum at ports of entry each day. Migrants have responded to the policy by creating waiting lists to keep track of whose turn it is to cross. The policy has forced thousands of people to wait months before they can even make an asylum claim. 

And instead of being released into the U.S. — or put in detention — migrants are increasingly being enrolled in the MPP, meaning they’re required to wait out their cases in Mexico and are often bused to areas far away from where they need to be for their future court dates. But as we’ve written before, both metering and the MPP put migrants in danger, making them easy targets for gangs and drug cartels. The result? Migrants who get fed up with waiting try to cross the border between ports of entry, often by trying to make it across the Rio Grande.

Next Destination

DHS Secretary Cuccinelli? Morgan? Homan?

Acting Homeland Security Secretary Kevin McAleenan, the fourth head of the agency during Trump’s tenure, is on his way out. The president had said he would name a new acting director this week, but has yet to do so. Despite McAleenan’s effectiveness at implementing most of the administration’s immigration wish list — the asylum ban, the Migrant Protection Protocols, third-country agreements — his reluctance to toe the line tonally and take flashy but impractical measures like coordinated national ICE raids put him at odds with Trump and hawkish adviser Stephen Miller, just as it had for prior agency heads.

After several such misfires, it’s increasingly likely that Trump will finally go for an acting DHS head that won’t shy away from the superheated language and brawler’s instinct that has defined his own approach to immigration policy, especially as the impeachment walls close in around him and the election approaches. The frontrunner for this role appears to be Acting USCIS Director Ken Cuccinelli, an immigration hardliner and natural-born politician whose love for cameras and the controversy dates back to his days as attorney general of Virginia. Cuccinelli has practically been auditioning for the role for months anyway, spending much of his time parroting White House objectives and focusing on the operations of ICE and CBP, neither of which are under his purview.

Other candidates include Acting CBP Commissioner Mark Morgan, who previously served as acting director of ICE and who’s similarly been a mainstay on the cable TV circuit defending the administration’s priorities; and Thomas Homan, the former acting director of ICE, though he had previously turned down an offer to coordinate immigration policy from within the White House. The president would probably be content to let any of these candidates serve in an acting capacity to avoid a bruising confirmation fight.

SCOTUS case to watch: Kansas v. Garcia

The Supreme Court heard arguments in Kansas v. Garcia this week. The issue at hand is whether states are overstepping their bounds by prosecuting immigrants who use false Social Security numbers or other identifying documents for work authorization. 

The 1986 Immigration Reform and Control Act laid out a process for work authorization and established the I-9 form: the document you fill out on your first day at a new job that employers use to verify whether you can legally work in the U.S. IRCA also prevented states from using those forms, or the information collected by them, to prosecute people for federal identity theft. But in 2012, Kansas law enforcement officers charged several immigrants with identity theft based on these forms.

The argument isn’t whether it’s okay to use fraudulent Social Security numbers — that’s illegal — but whether IRCA forbids states from prosecuting immigrants for doing so. Per SCOTUS Blog, Kansas’ attorney general essentially argued that IRCA preempts states from using the I-9 form itself, but not from using tax forms. 

This is all pretty arcane, but it could have far-reaching effects. If the Supreme Court rules in favor of Kansas, it could lead to several other states deciding to de facto conduct immigration enforcement. Like the disparity between so-called “sanctuary cities” and jurisdictions that encourage law enforcement to cooperate with ICE, this unequal enforcement will lead to unequal conditions for immigrants across the country. 

Moreover, the Southern Poverty Law Center and more than two dozen other worker and immigrant rights groups filed an amicus brief in August arguing that allowing states to prosecute immigrants for identity theft could provide “employers with a means to exploit workers,” since employers could threaten to prosecute workers who complain about employment conditions.