Can Biden Minimize the Cruelty of the Public Charge Rule?

Immigrants can put their residency status at risk by receiving government benefits. Could the president change this without altering the law? When President Joe Biden took office, he immediately began using executive actions to unravel the worst of the Trump administration’s bureaucratic rulings. One of Biden’s first targets was the “public charge” rule, a policy of denying permanent residency or citizenship to people who are likely to rely on the state to meet their basic needs. But over the years, its enforcement has been variable and often limited. Trump’s Department of Homeland Security shifted the rule from just considering cash benefits, which at the time only 3 percent of noncitizens used, to also looking at Medicaid, SNAP (food stamps), housing aid, and other programs. The formula for how accessing this help might affect a green card application was complicated, but the chilling effect was not. From the day the proposed changes were announced, immigrant families abandoned badly needed nutrition, health care, and other government programs. Within a month of taking office, President Biden had rolled back the Trump regulation, but 14 Republican state attorneys general soon launched a suit claiming that Biden was sidestepping the rules around making new federal regulations. The Supreme Court is currently deciding whether those states’ attorneys have standing. The Biden administration isn’t assuming victory—wise, given the makeup of the Supreme Court—but the White House can render it largely irrelevant by publishing its own regulation to supersede the Trump one. The wheels of federal bureaucracy move slowly, but last month the Department of Homeland Security released a “notice of proposed rulemaking” and call for comment by April 25 on a new policy regulating the adjudication of the public charge statute. If this is enacted, it will reshape the degree to which immigrants will be able—and, perhaps more importantly from a public health perspective, will feel able—to access public benefits. Some outside experts, however, remain concerned about the people who may continue to be excluded. In North America, the public charge doctrine first became codified in the 1882 Immigration Act, which banned anyone “unable to take care of himself or herself without becoming a public charge” from entering the country, a principle reaffirmed by subsequent immigration laws in the 20th century. The current statute, from the 1952 Immigration and Nationality Act, says that a prospective immigrant who, “in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” In 1996, as part of Clinton-era “welfare reform,” Congress and the president required more stringent enforcement of the public charge rule. The government would take into account age, disability, family size, education, and other related criteria, though the 1999 guidance barred immigration officials from considering food aid (SNAP) and health insurance programs like Medicaid and CHIP. In the bitter struggles over immigration reform during the Bush and Obama presidencies, public charge policies were not amended or included in potential rulemaking or immigration reform legislation, though health care advocates recognized them as a barrier to signing up immigrant families for new health care programs in Obama’s second term. Many people hoping for green cards were worried that any kind of affordable health care, even for their children who might well be US citizens, would hurt them in immigration proceedings. That fear of retribution for using public services intensified in 2018 under the new rule from the Trump administration. Maria Town, CEO of the American Association of People with Disabilities and a former official in the Obama administration, was the head of the Houston Mayor’s Office of People with Disabilities at the time. She witnessed how the Trump public charge rule instilled fear in immigrant communities. “We saw a huge reduction of families, especially mothers of young children, participating in public health clinics,” she told me. The data backs her up. In 2019, according to the Urban Institute, one in five immigrant families reported avoiding seeking public benefits out of fear of being deemed public charges and denied visas and green cards. Among poorer families or families of people with disabilities, the rates were even higher. Town said, “It means kids are going without food.” And although the Trump administration touted saving money as its rationale behind the new public charge rule, immigrant families avoiding care ultimately cost the government millions, if not billions, in added expenses by, for example, shifting costs from cost-effective preventative care to emergency medicine. Currently, the Biden administration’s actions have reset the clock to the 1999 ruling. But a lot has changed in the administration of public benefits since then, especially around Medicaid-related services, and the proposed rule tries to take these changes into account. First, as HHS Deputy Secretary Andrea Palm wrote in a letter supporting the change, more people above the poverty line receive these kinds of benefits now, a process that accelerated during the pandemic. But the nature of some benefits themselves have shifted. Over the last few decades, hundreds of thousands of disabled people have fought their way out of nursing homes and into receiving home and community-based services (HCBS). Disability policy expert Alison Barkoff writes in a blog post at the Administration of Community Living, a division of Health and Human Services, that the new rule would make it explicit that “Medicaid HCBS, as well as acute care benefits will not be considered in application of the public charge rule” (emphasis in original). In other words, federal dollars paid to support a disabled person living in a community, rather than in a nursing home, may not be considered in assessing whether someone might become a public charge. Funding for HCBS is limited, however, so even though the Supreme Court ruled more than two decades ago that community-based options are required where appropriate, the reality is that lots of people still get stuck in institutions and languish on waiting lists. (A recent effort at HCBS expansion failed, along with the rest of the Build Back Better bill). So people are still frequently and unlawfully stuck in institutions. Under the new proposal, such illegal institutionalization may not be counted against an individual. Finally, in perhaps the biggest conceptual shift, immigration officers will not be allowed to consider the mere presence of a disability, per se, as a reason to invoke the public charge statute in denial of an application. But the new proposal specifically lists direct cash support such as Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF) as negatives in assessing whether an immigrant is likely to become a public charge. The administration is trying to mitigate the impact of those negatives. Barkoff stresses that “DHS also will not assume that just because someone received institutional care or cash benefits like SSI or TANF in the past or is receiving them now, they are likely to become dependent on the government in the future. Any determination will be based on the ‘totality of the circumstances,’ rather than on one particular factor.” This language on totality is new and important, because the country is full of disabled people who used to be wholly supported by the state and now are living with increasing degrees of independence. One of them is Mia Ives-Rublee, director of the Disability Justice Initiative at the Center for American Progress. She said that as a child, adopted into the US, “I was on Medicaid, and I was on SSI. However, after rehab and getting my education, I am no longer on SSI. I am no longer on Medicaid, and I am a producing member of society.” The question is whether that “totality of the circumstances” caveat will be enough to thaw the chilling effect that keeps people from seeking the supports they need and to which they are entitled. Town worries that the new regulation still lists a person’s receiving TANF and SSI or experiencing long-term institutionalization as reasons to deem them a potential public charge. “It flies in the face of a lot of the advocacy the disability community has done to create pathways to economic self-sufficiency,” she said, and will continue to push people away from seeking the supports that they need. “People have to go through so many hurdles to get onto SSI and TANF already. If they have worked that hard to get access to the things that they need, we should be proud to have them as a citizen.” The problem is that the law is the law. The public charge statute is written into the 1951 Immigration and Nationality Act. The Biden administration can reasonably argue that its hands are tied, that it must consider some benefits as potential evidence for a public charge ruling, and advocates recognize the reality. Julia Bascom, executive director at the Autistic Self Advocacy Network, told me in an e-mail that disability rights groups prioritized fixing the Trump public charge rule in their conversations with Democratic candidates during the campaign, and that although the proposed improvements are laudable, “public charge [as] a concept is a relic of the eugenics movement and reflects the racism and ableism deeply embedded in our immigration system. It should be eliminated. We’re asking the Biden administration to do everything they legally can towards that end, and we’re asking Congress to finish the job.” But this Congress is unlikely to get rid of the public charge. None of the immigration reform bills considered between 1999 and 2019 addressed the public charge, although the New Deal for New Americans Act introduced by Grace Meng (D-N.Y.) in the House in February of 2021 does eliminate the public charge as grounds for deportation. The bill is unlikely to advance and is not a full repeal, but it is the kind of legislation needed to shift the process away from determining which benefits do and don’t count to whether we need a public charge statute at all. In the meantime, the Biden administration is limited to acting within the current system. Unless the law itself is changed, a future Trump or Trump-like president will have little trouble issuing a new proposal and once again using the fear of being designated a public charge to frighten poor and disabled immigrants away from seeking the public help they and their families need. Visit us for more information at: http://www.beverlyhillsimmigrationlaw.com/index.html