Legal challenges aim to derail rule that could limit path to citizenship for poor immigrants

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WASHINGTON – A fresh wave of legal challenges aims to derail one of the latest Trump administration attempts to redefine who is eligible to become a U.S. citizen.

A federal judge in Oakland, California, on Wednesday (Oct. 2, 2019) began hearing the first of eight lawsuits challenging the administration’s “Inadmissibility on Public Charge Grounds” rule, which establishes new criteria for who can be considered to be dependent on the U.S. government for benefits, a change that could render many immigrants ineligible for green cards and thus a path to U.S. citizenship.

The lawsuit, filed in federal district court in the Northern District of California on behalf of the city and county of San Francisco and others, argues that the change is illegal and asks U.S. District Judge Phyllis Hamilton to put the policy on hold while legal challenges are resolved. The policy is set to go into effect on Oct. 15.

The new rule – which critics say makes the definition of “public charge” so vague and all-encompassing that it will effectively favor only rich, white immigrants – drew swift rebuke from dozens of state and local governments, attorneys general, public health organizations and immigrant advocacy groups after U.S. Citizenship and Immigration Services formally announced the policy in September.

“We know that disproportionately it will impact people coming from nonwhite nations,” said Max Wolson, a staff attorney for the National Immigration Law Center and one of the attorneys on the first case. “The other insidious portion of this is that we know it will chill people. The rule is so complicated and so confused that it will result in millions of people not accessing benefits to which they’re entitled.”

A USCIS representative said the agency generally does not comment on pending litigation. In its response to the case under consideration in Oakland, the government said that its new criteria are consistent with the plain meaning of “public charge” and that the plaintiffs have failed to demonstrate that severe harm would result from the public-charge rule.

Hamilton asked the plaintiffs to provide further documentation of the harm they expect to result from the policy and expressed concern with the increasingly common use of seeking preliminary injunctions to halt the implementation of nationwide policies, Wolson said. Attorneys have routinely requested the help of federal judges to temporarily halt the implementation of Trump administration policies while they are litigated in court, a process that can take months or years.

Hamilton asked the legal challengers and USCIS to consider the possibility of a preliminary injunction that would not be applicable nationwide. She is expected to decide next week on whether to block the rule from taking effect.

A federal judge in Olympia, Washington, on Thursday (Oct. 2, 2019) is set to hold a separate hearing on that question, in response to another lawsuit filed by a coalition of 13 states. Federal judges in New York, Maryland and Illinois also are scheduled to hear cases contesting the public-charge rule.

The policy, which pertains to people who immigrate legally, is part of a policy-level effort to limit who is allowed to come to the United States and who can stay. The Trump administration has sought those limits by expanding bureaucratic hurdles to obtaining visas, tightening the conditions for asylum, cutting refugee admissions, banning the nationals of certain majority-Muslim countries, expanding immigration enforcement raids and deportations, and forcing asylum seekers who come across the U.S.-Mexico border to wait in Mexico until their court hearings.

Under the new public-charge rule, immigrants who are in the United States legally and use public benefits such as Medicaid, food stamps or housing assistance – or have at one time used public benefits, or are deemed likely to someday use public benefits – could be considered “public charges,” rendering them ineligible for green cards.

The new criteria provide “positive” and “negative” factors for immigration officials to weigh as they decide on green-card applications. Negative factors include whether a person is unemployed, dropped out of high school or is not fluent in English.

Critics say the rule is likely to reduce legal immigration by slashing eligibility for family-based visas, the leading type of legal immigration to the United States, particularly from low-income countries in Africa and Latin America. They say it could also lead to more deportations as huge numbers of immigrants see their applications denied.

For as long as the term has existed in U.S. law, critics say, “public charge” has been defined as someone who relies on government assistance for more than half their cash income.

The lawsuits argue that the new “public charge” definition deviates substantially from more than 100 years of legal interpretation. They say it will cause significant harm to the health and well-being of immigrant families, as well as to the institutions that service them, by leading many to abstain from seeking public benefits that they or their children may need.

The lawsuits also contend that acting USCIS director Ken Cuccinelli – who presided over the implementation of the new policy – does not have the legal authority to hold his position. They also argue that the administration failed to follow the required decision-making procedures, in announcing the policy with little consideration of the more than 200,000 public comments it received as feedback. And they allege that the administration is in violation of the Constitution for imposing a policy with the intent to discriminate.

The government argues in court papers that Cuccinelli’s appointment to his position has no bearing on the rule’s validity.

Another case, on behalf of two college students who came to the United States as children, charges that the administration violated the due-process clause of the Fifth Amendment, because the policy is so broad and does not give immigrants “fair notice” of what actions would make them public charges in the eyes of the government.

CASA de Maryland, one of the parties in the case, said the immigrants it serves “have stopped accepting or have refused to apply for public benefits for themselves and their family members, including their children, because of fear that receiving any benefits will harm their ability to stay in the United States.”