Week 44: Public charge injunction narrowed to just three states, adding to confusion

Immigration news, in context.

This is the forty-fourth 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.

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This week’s edition:

  • In The Big Picture, we explain what’s happening with the ongoing public charge litigation.

  • In Under the Radar, we dig into DHS’s policy of “expelling” migrant children after testing them for coronavirus.

  • In Next Destination, we discuss whether the administration can use COVID-19 as a pretext for turning away U.S. citizens and permanent residents at ports of entry, and the implications of the racist “birther” conspiracy theory regarding Kamala Harris’s citizenship. 

The Big Picture

The news: The public charge saga continues. The Second Circuit Court of Appeals stayed a district court’s nationwide injunction against the policy, except in the Circuit’s jurisdiction of New York, Vermont, and Connecticut, allowing it to go into effect (again) everywhere else in the country.

What’s happening?

You could be forgiven for a good amount of whiplash and confusion about the legal state of play around public charge; even legal practitioners in this area are having trouble keeping up. The rule would dramatically lower the standard for presuming that applicants for visas and residency (though NOT citizenship) could become public charges, and thus be denied status. It has already caused a chilling effect, with many immigrants disenrolling their children from public benefits. Before we get into our deeper analysis, here’s a recap of the events since the Supreme Court allowed the rule to go into effect pending further litigation, in January (for a recap on the events before that, read our edition on that decision):

The SCOTUS action lifted a prior nationwide injunction against the implementation of public charge, and did not at all rule on the merits of the policy or its compliance with federal administrative law. The only injunction left standing was one that applied in the state of Illinois, which was then struck down before the February 24 rollout of the rule. Starting on that date, public charge became part of the application process domestically and internationally, with the State Department having issued its own equivalent rule for nonimmigrant petitioners abroad.

Since that decision was not the final word, on April 13, the plaintiffs in New York, et al. v. Department of Homeland Security—the case which had the last standing national injunction—filed a motion with the Supreme Court, asking it to lift its stay and let the injunction go into effect again given the threat of the COVID-19 pandemic, listing instances where the specter of public charge hindered pandemic response efforts. For example, it pointed to a Connecticut physician seeing patients with COVID-19 symptoms who refused to get tested out of fear that it could have an adverse impact on immigration applications.

In a one-paragraph response on April 24, the court declined to modify or lift the stay, but specified that this “does not preclude a filing in the District Court as counsel considers appropriate.” So the plaintiffs went to district court, in the Southern District of New York, and filed a new request for an injunction related to the public health emergency. On July 29, Judge George Daniels granted that motion and enjoined the rule nationally, shooting down the administration’s claims that this was effectively overruling the Circuit and Supreme courts by pointing out that circumstances had changed dramatically since its first injunction. This stopped the public charge rule from being applied.

This prior injunction, while stayed by SCOTUS, was still being reviewed by the Second Circuit, which on August 4 issued a lengthy order essentially agreeing that the plaintiffs would probably succeed on the merits and could certainly prove that the rule was causing immediate harm, but expressing reservations on the crucial question of scope.

Scope has been a delicate issue throughout the Trump administration’s many legal battles on immigration. Its often sudden, sweeping policy shifts have led to a whole lot of relatively unusual nationwide injunctions issued by district judges. These judges typically maintain that the potential harms suffered by individuals in one area are obviously also suffered by individuals elsewhere, and immigration writ large is not an area where it makes much sense to have one policy in one state and a separate policy in another. Nonetheless, some higher courts, including Supreme Court justices, have expressed frustration with the use of national injunctions—which give a single district judge the power to stop a federal policy rollout—and have struck them down on these grounds.

The Second Circuit panel took the latter tack here and narrowed the injunction to only New York, Vermont, and Connecticut. This didn’t change anything, because this was the already-stayed injunction and there had been another nationwide injunction in July. However, yesterday, August 12, the court did the same to the new injunction, meaning that the public charge rule is cleared to go into effect again in every state except those three.

How we got here

The concept of denying status to immigrants who are “likely to become a public charge” dates back to the late nineteenth century. In 1882, Congress passed the first comprehensive immigration bill in U.S. history, which among other things, denied entry to “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.” That law was largely rooted in xenophobia and anti-Semitism, and led to the de facto exclusion of many poor immigrants from Eastern Europe, many of whom were Jewish.

In 1999, an Immigration and Naturalization Service (the precursor to ICE, CBP, and USCIS) guidance amended public charge, identifying cash assistance benefits as indicators that an immigrant could become a public charge. The Trump administration has attempted to expand it to apply to use of non-cash benefits like Medicaid and SNAP, both past and potential. Eliminating immigrant families’ use of public services has long been a goal of immigration restrictionists who claim non-citizens come to the United States to abuse the social welfare system. The rule has been tied up in litigation since we started this newsletter, but it’s already had a chilling effect.

A January study from researchers at the Urban Institute found that one-third of low-income immigrant families with children avoided using public benefits because of the potential immigration ramifications, even though the rule doesn’t penalize families for obtaining benefits for their U.S. citizen children. In February, The Guardian reported that some immigrants are even afraid to use food banks. 

Given that undocumented immigrants didn’t qualify for any kind of federal economic relief due to the coronavirus and the disproportionate impact the virus has had on immigrants, it’s likely that many families are now turning down aid of any kind even if they need it. The combination of the pandemic-fueled economic crisis and the public charge rule pose a dual threat to immigrant families worried about how receiving any type of assistance—from food stamps to, as we mentioned above, coronavirus tests—could potentially jeopardize their ability to stay in the country.

In his July injunction, Judge Daniels wrote that the rule “fails to measure up to the gravity of this global pandemic that continues to threaten the lives and economic well-being of America’s residents.”

What’s next?

After the latest injunction, USCIS updated its public charge page to reflect that as “long as the July 29, 2020, SDNY injunction is in effect, USCIS will apply the 1999 public charge guidance that was in place before the Public Charge Rule was implemented.” In practice, this meant that a number of onerous new evidentiary requirements—largely stemming from the entirely new I-944 form that was created as part of the implementation of the rule, the added workload of which incidentally may have contributed to some of USCIS’ supposed current budget difficulties—were not in effect, and applicants would not be rejected based on these expanded public charge provisions.

After the injunction was narrowed yesterday, USCIS has yet to update this page or issue public guidance, and it’s unclear whether internal guidance has at this point been issued to its own personnel (13,400 of whom, or 70 percent of the agency’s workforce, are set to be furloughed by end of month, by the way). It’s likely, however, that as of today any applications sent without the additional documentation will be rejected if not coming from the states in which the injunction is active.

This entire situation has made life very difficult for applicants and their attorneys, who can never be entirely sure which public charge world they’re going to be living in next week, or in their state. So far, the new rule has gone from published to enjoined nationally to enjoined in just one state to implemented nationally to enjoined nationally again to enjoined in three states, all in the span of a few months.

Given the breadth of the evidence necessary to file an application under the new rule, many practitioners will probably want to gather evidence anyway, even if the rule is enjoined in their state at the time, just in case. The rule makes each application much more difficult and time-consuming not only for the lawyers but for the USCIS adjudicators, who themselves have at times not seemed to understand the legal landscape. There have been some reports that residency applications have been turned away for not having form I-944, even while the rule was enjoined nationally.

This also bodes poorly for the agency’s continued functioning. A furlough of 70 percent of the workforce was always going to enormously hamper its processing capacity, but having to adapt to ever-changing partial and national injunctions, as well as continuing to sift through the sheer volume of additional paperwork the rule requires, will almost certainly ensure that adjudications will practically grind to a standstill.

There’s also the fact of the continuing pandemic. In March, USCIS had announced that public charge determinations would not consider testing or treatment of COVID-19, but everything else will probably be in effect. Even with a nationwide injunction, many immigrants declined COVID-19-related care out of public charge fears, and that’s only going to get worse now. There are also plenty of health concerns tangentially related to the pandemic—for example, treatment of conditions like diabetes—that probably wouldn’t fall under USCIS’ rubric.

Beyond that, many people are obviously facing a dire economic outlook, but taking advantage of public programs like unemployment benefits or subsidized housing will again make it much likelier that they could be denied status. As written, the rule also permits adjudicators not only to take into account prior benefits use, but potential future use. So, applicants who are struggling economically as a result of the pandemic-related recession are at risk of denial based on the fact that they may in the future use public benefits.

The legal cases against the policy itself are continuing. Remember, at this point no one has definitively ruled on the merits. All of this has been injunctions issued, modified, and overturned. Several district courts are still considering the issue, and if any one of them ultimately rules that the policy implementation was unlawful, it’s back offline, and this time in a format that isn’t as easy to reverse as an injunction. There also could, of course, be more injunctions.

Under the Radar

ICE is “expelling” migrant children after testing them for COVID

Since March, the policy at the border has been to quickly “expel” virtually all unauthorized migrants, allegedly to prevent the “introduction or spread” of a communicable disease—the coronavirus—in the United States. The justification for this policy, which relies on an obscure statute that allows the Centers for Disease Control and Prevention to deny entry to foreign nationals if their presence in the U.S. could threaten public health, has always been a little thin. The United States has more coronavirus cases than any county with a high rate of migrants, and it’s more likely that ICE would deport an immigrant with coronavirus than it would be for an asylum seeker to “introduce” the virus to the country. 

This week, the Texas Tribune’s Lomi Kriel and ProPublica’s Dara Lind reported that ICE is testing migrant children before “expelling” them as part of its informal agreements with 10 Latin American and Caribbean countries requiring ICE to ensure children aren’t carrying the virus back to their home countries. Put simply, by ensuring that migrant children don’t have coronavirus, the administration is blowing up its own justification for the CDC order—and then it’s expelling them anyway.

Next Destination

Trump administration considers turning away U.S. citizens at the border

The Washington Post reports that some White House officials have drafted a proposal that would deny entry to U.S. citizens and green card holders at all ports of entry—encompassing airports and both the northern and southern border—allegedly to slow the spread of the virus. Anyone suspected of being infected with the coronavirus would be turned away regardless of their citizenship, even though U.S. citizens cannot legally be indefinitely denied entry into the United States.

A draft of the regulation obtained by the New York Times shows that the administration is relying on the same statute it’s using to turn away migrants at the southern border: 42 U.S.C. § 264, which authorizes the Centers for Disease Control and Prevention to suspend the admission of people who it deems might spread infectious disease. The current CDC order, issued in March, has led to the “expulsion” of thousands of migrants, including unaccompanied children. Whether the CDC can restrict the entry of U.S. citizens remains legally murky, however, and the draft obtained by the Times doesn’t specify how long a citizen or permanent resident turned away would have to stay out of the country. 

Regardless of the legal justifications—which are apparently still being worked out, as the Washington Post reports that the White House is “saddled with doubts about the legal and logistical challenges” of enacting it—there’s virtually no proof that forbidding citizens and permanent residents from returning to the country would do anything to prevent the virus from spreading further, especially given the White House’s resistance to measures proven to slow the spread. If the rule is implemented, it’s likely that it would cause chaos and crowds at airports and other ports of entry, much like the March regulation barring entry to European travelers, which many incorrectly interpreted as also applying to Americans returning from abroad.

Here we go again: Harris’ birth citizenship is questioned

We’re not going to dignify this with a long, detailed response, but since this has come up in the past week, here’s a primer. Certain supposed legal scholars are claiming that there is an open question about whether Sen. Kamala Harris is eligible for the vice presidency given the fact that her parents were not U.S. citizens or residents at the time of her birth. In a nutshell, this is a spurious argument, and there is absolutely not a good-faith discussion about this. The argument centers around the constitutional requirement that both the president and vice president must be “natural-born” U.S. citizens, and the Fourteenth Amendment’s specification that citizenship is conferred on “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof.”

The people pushing the argument that Harris is ineligible are hanging onto the phrase “jurisdiction thereof,” and imbuing it with all sorts of fanciful notions about state-subject relations and national allegiance that boil down to the claim that nonresidents and noncitizens are not subject to this jurisdiction by virtue of having loyalty to another country. This is not only a facially absurd notion, but a legally nonsensical one. This would only really apply to people for whom this foreign allegiance provided some sort of opt-out from U.S. jurisdiction on U.S. soil, and indeed the Supreme Court has already specified that the children of diplomats and others with some claim to diplomatic immunity are exceptions to birthright citizenship.

In the 1898 ruling in Wong Kim Ark v. United States, the Supreme Court wrote that the constitution “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens.” In the 1983 Plyler v. Doe decision, the court further clarified that “no plausible distinction… can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful,” demolishing the potential for any hair-splitting on the subject of the parents’ legal status, provided they weren’t diplomatic personnel or similar. Case closed.