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Rebekah Durham, Associate Member, University of Cincinnati Law Review
2020 has been a traumatic year for America’s immigration system. Travel in and out of the country ground to a halt and every U.S. embassy and consulate around the world shut down in response to the coronavirus. President Trump issued an executive order in April that suspended the issuance of visas to numerous categories of skilled workers seeking employment in the United States. In the courts, the litigation surrounding the Deferred Action for Childhood Arrivals program, which protects certain individuals from deportation who were brought to the U.S. illegally as children, kept us on the edge of our seats. The future of the entire immigration system continues to hang in the balance as the U.S. Citizenship and Immigration Service (“USCIS”) narrowly avoided furloughing almost three-fourths of its workforce on August 25 and continues to predict drastic layoffs if revenue does not improve. In the midst of all the chaos, a fierce battle is being fought over a change in U.S. immigration law that was begun back in October 2019: the Public Charge Rule. This rule bars foreign nationals from entering the U.S. who are likely to become dependent on government welfare, and it has been a part of American immigration law for almost 150 years. However, a recent rule change by the Trump administration has expanded the definition of who qualifies as a public charge to include recipients of more common government benefits.
II. Background of the Public Charge Rule
The U.S. immigration system has always viewed dependence on government support as grounds for inadmissibility into the country. In 1882, the Immigration Act contained a provision that excluded “any person unable to take care of him or herself without becoming a public charge.” The Immigration and Nationality Act of 1952 (“INA”), which today is the principal statute governing legal immigration in the US, contains a similar provision stating that any visa applicant considered likely to become a public charge at any time is inadmissible, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 amended the statute to list a series of factors that consular officers should consider when making public charge decisions. However, none of these acts ever defined the meaning of the term “public charge,” and the absence of such a definition is the reason for the current lawsuits.
Although “public charge” has been listed as grounds for exclusion since 1882, the definition of the term has always been left up to the executive branch. In 1999, the Immigration and Naturalization Service (“INS”) published a proposed rule that, for the first time, defined public charge as an alien who is “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” This definition did not include recipients of non-cash benefits such as food stamps or housing vouchers, and specifically instructed that these were not to be considered as grounds for exclusion. The 1999 proposed rule was never finalized, but as the only definition available, it became the standard that was used in subsequent agency guidelines.
III. Litigation Round 1: A Wealth Test for Immigrants
Enter the Trump administration, campaigning on a platform of “America first” and seeking to limit immigration privileges to only those foreign nationals who would contribute the most to America’s economy and social system. In August 2019, the Department of Homeland Security (“DHS”) published a final rule (“Public Charge Rule”) that gave a tangible and significantly more restrictive definition to the nebulous term “public charge.” The new rule, which went into effect in October 2019, expanded the list of public benefits that could render a foreign national ineligible for a visa and provided that receipt of public benefits for twelve months in any thirty-six-month period would render an applicant ineligible to renew his or her visa. This second part is especially significant, since most foreign nationals pursuing permanent residence in the U.S. must go through a long series of petitions, applications, and short-term visas on the road to acquiring a green card. Denial at any stage can jeopardize the entire immigration process, which often means a loss of an investment of many years and tens of thousands of dollars.
The 2019 Public Charge Rule was met almost instantly with a flood of lawsuits by States and organizations who felt that expanding the definition took what had previously been a barrier against immigrants who would be dependent on the government and made it into a “wealth test.” Viewing this as an impermissible interpretation of the meaning of “public charge,” several district courts issued preliminary injunctions against enforcement of the rule, both local and national in scope. Some of these injunctions were stopped at the appellate court level but eventually two cases reached the U.S. Supreme Court from Illinois and New York in early 2020. The Court in both cases granted stay of the injunctions, permitting the DHS to enforce the new rule as long as the cases remain pending in the court system. Accordingly, DHS began to enforce the rule on February 24, 2020.
IV. Litigation – Round 2: COVID Edition
As courts began operations again in the wake of coronavirus-related delays, litigation resumed on the Public Charge Rule. One of the first rulings came from the Southern District of New York, in the same case where the Supreme Court had stayed preliminary injunction in January. Judge George B. Daniels issued another injunction against enforcement of the Public Charge Rule, this time based on the coronavirus pandemic and limited in time for the duration of the public health emergency. The injunction went into effect on July 29 and continues currently to prevent enforcement of the new rule by the DHS.
Two more preliminary injunctions were decided in early August in the Second and Fourth Circuit Courts of Appeal. In order for a preliminary injunction to be upheld, the court must determine that the plaintiffs have a strong likelihood of success on the merits of their case. Since each inquiry as to the plaintiff’s likelihood of success on the merits is an individual one, the August decisions were not bound by the Supreme Court stay of injunction that was issued without comment back in January. The Second and Fourth Circuits came to opposite decisions on an essentially identical issue. The Fourth Circuit chose to respect the Supreme Court’s prior decision in the almost identical cases from January, while the Second Circuit concluded that the DHS had interpreted public charge inconsistently with Congressional intent as laid out in the INA and that the new rule was “arbitrary and capricious.” The Second Circuit did limit the scope of the injunction to the three plaintiff states of New York, Connecticut, and Vermont, rather than issuing a nationwide injunction as many district courts had done previously.
V. Conclusion: Where Do We Stand Now?
As long as the injunction issued by the Southern District of New York on July 29 remains in effect, the DHS is prohibited from enforcing the new Public Charge Rule as long as the public health emergency caused by the Covid-19 pandemic remains in place. This means that visa applications and renewals cannot be denied based on the applicant’s receipt of non-cash benefits such as Medicaid or housing benefits. For many foreign nationals currently in the U.S. on temporary visas, this postponement of enforcement is a critical lifeline as they try to maintain lawful status in an immigration system thrown into chaos by the myriad of new travel and employment rules created in response to the pandemic.
Once the public health emergency is over, however, the DHS can likely resume enforcement of the Public Charge Rule. With disagreement among the Circuit and Appellate Courts, the only way this issue will ultimately be decided is if one of the challenges makes it to the Supreme Court on the merits, rather than on the preliminary injunction. If one of the cases does make it to the Supreme Court, the government will almost certainly prevail. As the Fourth Circuit explained in its opinion, the DHS followed all the correct procedures in both designing and promulgating the final Public Charge Rule. The new definition is neither arbitrary nor absurdly restrictive, but rather the inevitable result of the delegation of authority by Congress to the Executive branch in the interpretation and enforcement of current immigration statutes.
The Public Charge Rule has played out as a fascinating study of separation of powers, as the vague definition of “public charge” given by Congress resulted in a perhaps overreaching interpretation of that term by the executive branch, followed by the judicial branch attempting to act as an executive watchdog through a series of nationwide injunctions from various Federal District Courts. Congress could have given a more specific definition of “public charge” in any of the multiple acts passed to reform various parts of immigration law since the INA in 1952. By choosing to delegate that privilege to the executive branch, Congress ran the risk of ending up with a definition it did not like very much. And until the Supreme Court rules otherwise or a change of administration in the executive leads to a new rule, we might very well be stuck with it.
 Suspension of Routine Visa Services, U.S. Department of State – Bureau of Consular Affairs (March 20, 2020), https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html.
 Proclamation No. 10014, 85 Fed. Reg. 23,441 (April 22, 2020).
 Department of Homeland Security v. Regents of Univ. of Cal., No. 18-587 (U.S. June 18, 2020).
 USCIS Averts Furlough of Nearly 70% of Workforce,U.S. Citizenship and Immigration Services (August 25, 2020), https://www.uscis.gov/news/news-releases/uscis-averts-furlough-of-nearly-70-of-workforce
 Public Charge Provisions of Immigration Law: A Brief Historical Background, U.S. Citizenship and Immigration Services (August 14, 2019), https://www.uscis.gov/history-and-genealogy/our-history/public-charge-provisions-of-immigration-law-a-brief-historical-background
 Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. at 28,689 (Mar. 26, 1999).
 CASA de Md., Inc. v. Trump, 2020 U.S. App. LEXIS 24672, at *12 (4th Cir. Aug. 5, 2020).
 Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. at 28,689.
 Public Charge Provisions of Immigration Law: A Brief Historical Background, U.S. Citizenship and Immigration Services (August 14, 2019), https://www.uscis.gov/history-and-genealogy/our-history/public-charge-provisions-of-immigration-law-a-brief-historical-background.
 Inadmissibility on Public Charge Grounds, 84 Fed. Reg. at 41,292 (Aug. 14, 2019) (to be codified at 8 C.F.R. pts 103, 212, 213, 214, 245 and 248).
 Id. at 41,295.
 CASA de Md., Inc. v. Trump, 2020 U.S. App. LEXIS 24672, at *16 (4th Cir. Aug. 5, 2020).
 Id. at *17.
 New York v. United States Dep’t of Homeland Sec., 19 Civ. 7777, 19 Civ. 7993 (S.D.N.Y. July 29, 2020).
 Public Charge, U.S. Citizenship and Immigration Services (August 21, 2020), https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge.
 New York v. United States Dep’t of Homeland Sec., 2020 U.S. App. LEXIS 24492 (2d Cir. Aug. 4, 2020). CASA de Md., Inc. v. Trump, 2020 U.S. App. LEXIS 24672, at *15 (4th Cir. Aug. 5, 2020).
 Id. at *28.
 Id. at *6.
 New York v. United States Dep’t of Homeland Sec., 2020 U.S. App. LEXIS 24492, at *35 (2d Cir. Aug. 4, 2020).
 Id. at *96.
 Alexandra Holland, DHS Blocked From Enforcing New Public Charge Rule During COVID-19 Pandemic, The National Law Review (August 14, 2020), https://www.natlawreview.com/article/dhs-blocked-enforcing-new-public-charge-rule-during-covid-19-pandemic.
 CASA de Md., Inc. v. Trump, 2020 U.S. App. LEXIS 24672, at *15 (4th Cir. Aug. 5, 2020).