As published in the Immigration Daily on January 22, 2020
At this time, favorable court decisions staying implementation of the public charge regulation finalized in August 2019 with implementation date of October 15, 2019, have been whittled from three circuits to one and the Trump administration recently filed an emergency application with the Supreme Court on January 14, 2020, to the remaining injunctions of the US Southern District Court of New York. This may very well be the last prelude before the rule becomes law affecting an estimated 382,000 intending immigrants and intimidating countless others and their US dependents from applying for benefits to which they are rightfully entitled.
The public charge rule expands disallowed benefits to include food stamps (SNAP), section 8 housing vouchers, section 8 project-based rental assistance, public housing under section 9 of the US Housing Act of 1937, and Medicaid with certain exceptions. The public charge determination will be made on a judgment of the totality of circumstances rather than through just consideration of the ability of the immigrant to have support meeting the poverty guideline levels with such factors as age, health, family status, education and skills, assets, resources, and financial status along with whether the person is proficient in English or other languages in addition to English taken into consideration. I-864 affidavits of support in family-based cases will be scrutinized for the strength of the relationship including whether the sponsor lives with the alien, and whether the sponsor has submitted affidavits of support for other individuals. And heavily weighted positive factors are whether the alien’s household has income, assets, or resources, and support of at least 250% of the federal poverty guidelines for the household size, or the alien is legally employed with an annual income of at least 250% of the federal poverty guidelines, or he or she has private health insurance without the subsidies of the Affordable Care Act. (It should be noted that under the just published 2020 poverty guidelines, Federal Register, volume 85, number 12, pp. 3060-3061, 1/17/20, 250% of the poverty guidelines in the 48 contiguous states and DC for a family of three would be $54,375 and for four $65,500 qualifying the regulation as an attack on the poor).
Nationwide stays by district courts in the Fourth and Ninth circuits were overturned by recent Court of Appeals rulings in Casa de Maryland, Inc. v. Trump, No. 19-2222 (4th Cir. December 9, 2019) and City & County of San Francisco v. USCIS, 944 F.3d 773 (9th Cir. 2019), but the ones issued by the Southern District Court of New York were upheld by the Second Circuit on January 8, 2020, in State of New York, et al v. United States Department of Homeland Security, et al., No. 19-359, and Make the Road New York, et al., v. Ken Cuccinelli, et al., No. 19-3595.
Against this backdrop, the Administration moved the Supreme Court to dissolve the stays pending disposition of a petition for writ of certiorari arguing that it should be allowed to move forward with the rule since there is a reasonable probability that four justices would consider the issue sufficiently meritorious to grant certiorari, there is a fair prospect that a majority of the court will conclude that the decision below was erroneous, and a likelihood that irreparable harm would result from denial of the stay. The government especially pointed to the Ninth Circuit decision language that “DHS has shown a strong likelihood of success on the merits, that it will suffer irreparable harm, and that the balance of the equities and public interest favor a stay” (of the district court’s order). The government also heavily groused over the fact its policies could be held hostage on a nationwide basis by the ruling of a single district court although the Republican party had no such doubts when the shoe was on the other foot and a single district court judge in Brownsville, Texas, effectively bottled up the past administration’s program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) in 2015. (See Texas v. US, No. 1:14 CV-00254 (SD Tex. April 7, 2015)).
The government’s application at the Supreme Court is now with Justice Ruth Bader Ginsburg who will first review the application. She can rule on the request alone or as some think most likely, refer it to the full court. But even if Justice Ginsburg rules against the government, the regulation could still be implemented after the Second Circuit decides on the merits of the suits. That court set an expedited briefing schedule on the merits with the last brief due on February 14 and oral argument to be scheduled promptly thereafter.
A comment must be made on the Administration’s application argument that irreparable harm will ensue unless the preliminary injunctions are lifted since they force DHS to grant status to those not legally entitled to it and DHS has no practical means of revisiting public charge determinations once made. One wonders why this is irreparable harm given the almost weekly changes of established policy by this administration, essentially turning previously welcome individuals into pariahs without any changes in their circumstances. In other words, what is the real harm of allowing the status quo to continue pending a final decision on the merits as we are not contemplating the admission of criminals or security threats?