A federal judge in New York blocked the Trump administration Wednesday night from continuing to enforce a rule that has created barriers to low-income immigrants seeking to enter the US.
The so-called “public charge” rule, published last August by the Department of Homeland Security, established a test to determine whether an immigrant applying to enter the US, extend their visa, or convert their temporary immigration status into a green card is likely to end up relying on public benefits in the future.
The rule gave immigration officials more leeway to turn away those who are “likely to be a public charge” based on an evaluation of 20 factors, ranging from the use of certain public benefits programs — including food stamps, Section 8 housing vouchers, and Medicaid — to English language proficiency. It’s represents one of President Donald Trump’s biggest blows to legal immigration so far.
In two separate decisions, US District Judge George Daniels prohibited both the Department of State and the Department of Homeland Security from applying the rule for as long as the US remains in a state of national emergency due to the coronavirus pandemic. Trump has not indicated that he intends to terminate the national emergency, which he announced in March, anytime soon, but he has been pushing American life to resume even as the coronavirus continues to spread and the death toll mounts.
Judge Daniels said that the public charge rule has had a documented chilling effect on immigrants seeking Covid-19 testing, which could undermine the US’s efforts to slow the spread of the virus. The agency had announced in March that seeking “testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available)” would not count against immigrants under the public charge rule, even if those services were obtained using public benefits, but that had only created more “chaos and confusion,” he said.
“As a direct result of the rule, immigrants are forced to make an impossible choice between jeopardizing public health and personal safety or their immigration status,” he wrote.
As a result of Wednesday’s ruling, US Citizenship and Immigration Services Instructed its officers to hold immigrants’ applications where the rule would have applied until it issues further guidance, according to an email obtained by Buzzfeed News’s Hamed Aleaziz. A USCIS spokesperson said Thursday that the agency was still reviewing the decision, but confirmed that it will “fully comply with the court’s order and will be providing additional guidance.”
The rule has affected immigrants applying for green cards nationwide and at consulates abroad, as well as those applying for temporary visas overseas such as tourists, business travelers, students, and skilled workers.
The administration hasn’t released detailed data on how many people have been affected by the rule so far since it went into effect in February. But Julia Gelatt, a senior policy analyst at the Migration Policy Institute, a nonpartisan think tank, told Vox that 69 percent of the roughly 5.5 million people who were granted green cards over the past five years would have had at least one negative factor under the rule — which officials could have used as justification to reject their applications for immigration benefits.
Trump has justified the rule as a means of ensuring that immigrants are “financially self-sufficient” and has argued it will “protect benefits for American citizens.”
“I am tired of seeing our taxpayer paying for people to come into the country and immediately go onto welfare and various other things,” Trump said when announcing the rule. “So I think we’re doing it right.”
The rule had a chilling effect even prior to the pandemic: Noncitizens were needlessly dropping their public benefits out of fear that they will face immigration consequences. It’s difficult to quantify just how many immigrants have unenrolled as a result of the rule, but one survey suggested that about one in seven had done so as of 2018.
Many immigrants aren’t eligible for public benefits unless they have green cards or certain humanitarian protections — and not all public benefits are available to noncitizens. Even if the rule is allowed to go into effect once more, the best advice for most immigrants is to keep using the programs to which they’re entitled because they won’t be penalized for doing so, Doug Rand, a former White House official who worked on immigration policy in the Obama administration, said.
But the confusion around the rule has helped accomplish what the Trump administration wanted: Immigrants have been driven away from public benefits. Even though the rule can no longer be enforced due to Wednesday’s ruling, it has, in that sense, already succeeded.
“Give me your tired and your poor who can stand on their own two feet”
The rule fits in with one of the broader ideas guiding Trump’s immigration policy: that immigrants take advantage of public assistance without offering the US anything in return. It enacts the philosophy that then-acting US Citizenship and Immigration Services Director Ken Cuccinelli once described, amending Emma Lazarus’s famous poem on the Statue of Liberty: “Give me your tired and your poor who can stand on their own two feet.”
It also makes getting into the US much harder for immigrants sponsored by family members, the phenomenon Trump has excoriated as “chain migration.”
The rule is only one of several policies the Trump administration has pursued to dramatically shift which immigrants are legally able to come to the United States. Under Trump, the legal immigration system increasingly rewards skills and wealth over family ties to the US, while shutting out a growing number of people from low-income backgrounds. (Though he has even imposed restrictions on skilled immigrants amid the pandemic.)
Heeding calls from 31 states to end refugee admissions from Syria, Trump has slashed the total number of refugees the US accepts annually to just 18,000 this year, the fewest in history and down from a cap of 110,000 just two years ago.
He’s placed restrictions on the citizens of many Muslim-majority and African countries. His travel ban prevents citizens of Iran, Libya, Somalia, Syria, Yemen, Venezuela, and North Korea from obtaining any kind of visa allowing them to enter the US. He also added restrictions on immigrants from six additional countries: Myanmar, Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania. Critics have called it an “African ban” since about four in five of those affected are from African nations — places Trump has reportedly previously derided as “shithole countries.”
And Trump has also sought to crack down on foreigners giving birth to children in the US, who automatically become American citizens, particularly if they can’t prove they can pay for their medical treatment.
With the public charge regulation, Trump is painting immigrants as abusing public benefits. But they are actually “less likely to consume welfare benefits and, when they do, they generally consume a lower dollar value of benefits than native-born Americans,” according to the Cato Institute, a libertarian think tank.
In 2016, the average per capita value of public benefits consumed by immigrants was $3,718, as compared to $6,081 among native-born Americans. Noncitizens were slightly more likely to get cash assistance, SNAP benefits and Medicaid, but far less likely to use Medicare and Social Security.
“The rhetoric around the use of public benefits programs is largely smoke and mirrors,” Erin Quinn, a senior staff attorney at the Immigrant Legal Resource Center, told Vox. “It’s feeding a rhetoric that immigrants are draining our public services when in fact these immigrants don’t even have access to those services and also galvanizing fear in immigrant communities.”
The “public charge” rule, explained
The US has been able to reject prospective immigrants who are likely to become a “public charge” — dependent on the government for support — since 1882, but since World War II, few immigrants were turned away using that criteria. In 1999, the Clinton administration issued guidance that said only cash benefits, which very few immigrants use, would be considered in making the determination.
The Trump administration is defining “public charge” much more broadly, giving immigration officials at US Citizenship and Immigration Services and US Customs and Border Protection a laundry list of factors to consider. And the new rule allows individual immigration officials to implement this complicated, 217-page regulation as they see fit.
The rule gives individual, low-level officials much more vetting power than they have had previously, and injects a lot of uncertainty into the green card process, impacting who is allowed to enter and remain in the US as a lawful permanent resident.
Lower court rulings had argued that the public charge rule conflicts with how federal immigration law has been interpreted for two decades and appears to ignore the tens of thousands of public comments that opposed it.
For about four months, federal judges prevented the rule from being implemented while lawsuits challenging it made their way through the courts. Opponents of the rule, including the state of New York and immigrant advocacy groups, had argued that the rule flouts the narrow definition of what it means to be a “public charge” under federal immigration law.
“Defendants do not articulate why they are changing the public charge definition, why this new definition is needed now, or why the definition set forth in the Rule—which has absolutely no support in the history of U.S. immigration law—is reasonable,” Judge Daniels wrote in his previous decision in October.
But rather than waiting for those courts to issue final rulings, Trump asked the Supreme Court in January to intervene — a once-rare occurrence that has become standard practice under this administration — and to allow the rule to go into effect. The US Supreme Court’s conservative majority gave it the green light later that month without explaining their reasoning.
The final version of the regulation is much less stringent than earlier versions that were leaked to the public (including one to Vox). Those drafts would have allowed immigration officials to consider immigrants’ use of a long list of federal public benefits programs, including CHIP and Head Start, the federal early childhood education program. It also would have looked at any programs used by an immigrant’s household — meaning that immigrants could be penalized if they sought benefits for their children instead of themselves.
Early reports raised the alarm about how the rule targeted immigrants on public benefits. The Trump administration got hundreds of thousands of comments about it. And immigrants started dropping out of those programs, worried that their chances of getting a green card or citizenship would be affected.
An Urban Institute study found that, based on a survey of about 2,000 adults in immigrant families, 13.7 percent of them said that they or one of their relatives chose not to use non-cash benefits programs in 2018 as a result of reports about the rule. A report by the Kaiser Family Foundation projected that the rule could have lead up to 4.7 million people to withdraw from Medicaid and the Children’s Health Insurance Program (CHIP) alone.
The Los Angeles Times reported that some immigrants with children enrolled in special education programs withdrew them from school and that refugees and asylum seekers dropped out of food assistance programs.
Quinn said that her organization has found that immigrants are also avoiding applying for asylum and citizenship, even though the final version of the rule does not affect either process.
“The rule has falsely created an impression that undocumented immigrants and temporary residents are gobbling up public benefits, which they’re not because they’re generally not eligible,” Rand said. “And it has scared those who are eligible, who are primarily permanent residents with green cards, legal immigrants, into unenrolling from programs they are perfectly eligible to take advantage of under the law.”
Damage from the rule has already been done
Some federal programs are eligible to all immigrants regardless of status, including the National School Lunch Program; the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC); and Head Start. Some immigrants can also become eligible for Social Security benefits and Medicare in old age.
But “means-tested welfare programs” — federal public benefits for those in poverty including Medicaid, CHIP, the Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance for Needy Families, and Supplemental Security Income (SSI) — are primarily reserved for naturalized and US-born citizens, green card holders, refugees, and asylees.
Unauthorized immigrants and most people with temporary immigration status, such as employment-based visas, are ineligible, and green card holders have to wait for five years before becoming eligible (although some states give them access earlier). Notably, former Vice President Joe Biden, the presumptive Democratic nominee for president, has proposed eliminating the five-year waiting period for green card holders.
All of this means that relatively few immigrants would end up being penalized, under the final version of the rule, for using public assistance. But the rule has already been effective in dissuading many immigrants from continuing to access the public benefits they need.
Early reporting about the potentially drastic effects of the rule, and advocacy groups’ decision to condemn it, all helped spread the word. Most immigrants face no consequences for keeping their benefits, Rand said. But advocates and attorneys were reluctant to make any such blanket statements for fear of being responsible for giving bad advice.
“Unfortunately, I think a lot of the damage has already been done through the rhetoric and the media cycles around the various proposals,” Quinn said.
DHS’s cost-benefit analysis of the rule is premised on the fact that many people will unnecessarily unenroll from public benefits or refrain from enrolling from such programs in the future, Rand said. The economic gains the department cited in its analysis are almost entirely attributable to the anticipated reduction in “transfer payments,” or government payments to public benefits recipients.
“In other words, the ‘chilling effect’ isn’t a second-order consequence of the rule; according to DHS, it’s practically the only thing that makes the rule economically beneficial,” Rand said.
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