The Public Charge Rule: What’s The Deference?
Auhtor: NYC Immigraiton Lawyer Alena Shautsova
Many of you are aware of the public charge rule modification that was adopted by the Trump administration and that affected virtually every, or most applicants for adjustment of status in the United States. Once the administration changed hands, the Biden’s team promised to revise the rule, but it is inevitably takes time to do so.
Before the Biden administration makes its own rules, The Supreme Court has decided to have another look at the ‘public charge rule’. The court has been here before, ruling 5-4 for the continuance of ‘Trump's final rule’.
The public charge rule operates under a provision of the Immigration and Nationality Act (INA), primarily designed to deny migrants entry or adjustment of status if they are likely to be an economic burden. The provision from which the rule stems offers the Attorney General great deference.
Since October 2019, an immigrant that falls within the purview of the public charge rule is someone:
primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.
Any individual that isn’t a green card holder or a citizen is largely ineligible (depending on the state) for assistance - Medicaid, food stamps, Supplementary Security Income, etc. Millions of citizens and non-citizens rely on schemes like Medicaid to ensure their families can get care. Reliance on government-sponsored programmes often constitutes grounds for removal under the INA. If migrants have been in the US for less than five years and have engaged in Medicaid or relied on other benefits for a time they can be deported.
The supreme court has already reviewed the recent iteration of the public charge rule and found it to be more a question of policy than law.
As I said, The INA offers the DHS great deference in laying down rules, and refining the scope of what the US should consider a ‘public charge’. Justice Clarence Thomas wrote this in descent of the federal courts and what he saw in their meddling:
It is an increasingly common practice of trial courts ordering relief that transcends the cases before them…[During these proceedings] it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies.
It was the court’s view that the INA gives the DHS wide-ranging prerogative powers to lay down rules. For the justices, to recast the legal definitions as the DHS has set them - as is their legal right under the INA - would be a display of ‘juris-imprudence’. It would be making law, not interpreting it. I have to say, not too flummoxing an argument. Elegant, for once.
Federal courts across the country have stayed injunctions on the rule. The New York District Judge, George Daniels, ordered an injunction on October 11th, describing Trump’s rule as being a “policy of exclusion… repugnant to the American Dream.”
Now the Supreme Court has allowed the issue to percolate around the lower courts before revisiting the issue. It will hear arguments in favour of the rule’s illegitimacy once more. This time they will likely regard themselves with notions of discrimination and the chilling effect of the Trump policy for the immigrant communities affected.
It has been recognised throughout the lower courts that immigrant communities are disproportionately reliant on Medicaid and other government-sponsored benefits. This has led some to conclude that the rule was intended to discriminate against Latino migrants with the subsequent intention, and effect, of pushing down immigration. This, of course, is where the Justices of the Supreme Court were conscious not to tread, citing current prerogative powers under the INA as a roadblock to judgement against the rule. In other federal courts, the rule has been vacated after this great scope for deference under the INA has been called into question.
Now, it is accepted that non-citizens are being driven to opt-out of receiving certain benefits in mitigating against the risk of deportation and discrimination under the current climate in the US. The Supreme Court might decide to reconsider their prior ruling in light of the wider legislative climate of America today, as the lower courts have. More recent pieces of legislation tend not to, for example, inherently discriminate by disability. The INA does. The INA and certain provisions within it have necessary import. Everyone recognises that. But, perhaps they might be interpreted in the wider legal context.
It could be argued that the provisions under the Affordable Care Act and their inherently non-discriminatory nature might tend one toward the idea that Congress and the United States today is very different, in terms of its collective conscience, and this type of legislative background is one against which provisions within the INA might be cast. Many of the INA’s more discriminatory trills were graced to us in the first half of the Twentieth Century, before the expansion of the welfare state and our new understanding of what a ‘public charge’ might look like in that setting.
Of course, this could all be an irrelevance. One glance over the legality of the rule might receive the same outcome as before. It will soon be replaced by another rule, or non-rule, anyway.
If you need help with your Immigration issue, please call us to set up an appointment at 917-885-2261.
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