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Federal Judges Have Stopped Trump’s Scheme to Block Millions of Legal Immigrants

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In August, acting U.S. Citizenship and Immigration Services (USCIS) head Ken Cuccinelli uttered his version of the Statue of Liberty poem “The New Colossus.” Instead of the words “Give me your tired, your poor, your huddled masses yearning to breathe free,” from the 1883 poem, Cuccinelli offered a twist: “Give me your tired and your poor who can stand on their own two feet and who will not become a public charge.”

It’s not quite as pithy, but it’s a transparent explanation of this administration’s intentions. Deeming immigrants who use public assistance a burden on the nation and the taxpayers—a “public charge”—the administration hopes that it can eliminate this burden by blocking these individuals from becoming citizens.

This combines with a more recent Trump proclamation, effective November 3, requiring that immigrants indicate their ability to obtain eligible health insurance within 30 days of arrival or show that they have sufficient resources to pay for foreseeable health costs. The net effect is to sharply cut legal immigration, blocking nearly 400,000 people from obtaining green cards. Both policies illustrate the administration’s efforts to target and block any immigrants, and particularly immigrants of color, from entering the country.

The DHS final rule, announced August 14, was set to take effect on Tuesday, before three federal judges announced injunctions to block the rule from taking effect. Overall, nearly a dozen lawsuits on the merits were filed across the country. The legal reaction to the White House’s announcement of the rule was unprecedented. But given this administration’s tendency to go to great lengths to bypass lower-court decisions it doesn’t like, this kind of widespread legal activism makes sense.

The term “public charge” originated long before public assistance and the modern welfare state, and the difference between then and now is at the crux of the legal argument against it.

In 1882, the first public charge rule was passed, excluding “any convict, lunatic, idiot or any person unable to take care of himself or herself without becoming a public charge.” And according to an NPR interview with immigration historian and professor Kunal Parker, that kind of language has persisted in U.S. immigration law. As other advocates and historians have pointed out, the term also has its roots in antebellum America, where it was considered when deciding to emancipate enslaved individuals, wrote Roll Call’s Tanvi Misra. But it was written long before there was anything like today’s modern welfare programs. The antiquated term reflects a different federal government, and a different society.

In 1996, the law changed, making immigrants ineligible for most public benefits for their first five years of U.S. residence. Then those benefits were reinstated in 2002, and expanded under Obamacare reforms.

[More from Marcia Brown]

Immigrant advocates argue that this history is illustrative of the racist and classist provenance of the public charge rule. In other words, its 19th-century origins are not so different from its current iteration. At least one lawsuit, filed in the Northern District of California, argues that the new rule is unlawful and unconstitutional because it violates the Equal Protection Clause of the Fifth Amendment. The case was filed by nonprofits serving immigrant communities and communities of color, and its proponents say that the public charge rule is motivated by racial animus.

But the legal arguments are not limited to this. The changing nature of public benefits means that defining public charge in the modern context is difficult. This is the gist of some of the legal arguments in the slew of ongoing cases, according to David Shahoulian, chief counsel for the House Subcommittee on Immigration and Citizenship. In a lawsuit from 13 states, the plaintiffs argue that the public charge rule, in its sweeping capacity, “effects a radical overhaul of federal immigration law transforming a system that promotes economic mobility among immigrants into one that advantages immigrants with wealth.”

The lawsuit points out that the original definition of public charge, which refers to a “pauper,” no longer applies. More than half of non-elderly adults who receive Medicaid are employed, and nearly 80 percent live in a home with at least one person working, the lawsuit states. Nearly 20 percent of the total U.S. population receives these benefits every month.

But more distinctly, the rule redefines public charge “in a manner that is contrary to congressional intent and agency interpretation that has prevailed for nearly 70 years, and contrary to two 1996 federal statutes.”

This is the gist of the legal argument outlined in public comments written by congressional members, explained David Shahoulian, indicating the members he works for, Congressman Jerry Nadler and Congresswoman Zoe Lofgren. “We, [meaning the members I work for] clearly think the rule is illegal,” Shahoulian said. “It is … far from the long-standing interpretation … meaning behind the words ‘public charge.’”

Speaking at a panel at the Migration Policy Institute’s annual immigration conference, Shahoulian said, “That is a bastardization of those words and we feel very strongly about that.” Shahoulian also said that they have drafted an amicus brief—friend of the court brief—that is ready for appellate review, when the time is right.

Last Monday, the American Immigration Lawyers Association threw its hat in the ring. AILA has sued the administration over the rule’s rollout, arguing that USCIS did not follow normal administrative procedure and that such haste is arbitrary and capricious. In the lawsuit, AILA wrote that USCIS has “arbitrarily, capriciously, unlawfully and unconstitutionally issued ‘public charge’ regulations.” According to AILA, there was no workable transition in place, and its overtures to USCIS for new editions of the forms the agency planned to stop accepting this month bore no fruit.

In short, AILA is suing because USCIS is refusing to accept immigration and asylum forms on or after the date the rule takes effect, despite not having issued the new forms—putting lawyers and their clients at a huge disadvantage. AILA requested in the lawsuit that the current editions of the forms continue to remain valid for use “not less than 60 days from the date the revised forms are issued or January 1, 2020, whichever is later.” AILA filed its case in the U.S. District Court for the District of Columbia.

Not following the Administrative Procedure Act in order to usher in hasty reforms is par for the course in the Trump administration. These norms, designed to smooth a transition or to allow for public input, can leave the door open for more lawsuits, as AILA’s example shows. Now that federal judges have blocked the rule from taking effect, it’s unclear if the administration will take its case to a higher court. There is precedent for that, and the administration knows it has a favorable ear among the justices. Of course, if Congress acts, that may all be kaput.

Whatever the legal outcome, the goal of announcing immigrant benefit restrictions has already been met. When the administration announced the public charge rule, there was an immediate chilling effect. Unsurprisingly, migrants became more fearful of using public assistance despite the fact that the new regulation would not apply to refugees or asylees, green card holders, U.S. citizens with an immigrant parent, and survivors of domestic violence. Sadly, the effort to scare and intimidate legal immigrants may have been a success, separate from the legal wrangling.

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