Objections to Trump’s new immigration rule wildly exaggerated

On Aug. 14, 2019, President Donald Trump promulgated federal regulations which provide additional guidance for determining whether an alien applying for admission to the United States or adjustment of status is inadmissible because he is likely to become a public charge.

The announcement produced a firestorm of bizarre, emotionally charged warnings about what Trump is trying to do.

The people making these claims must not be aware of the fact that Congress made the likelihood of becoming a public charge an exclusion ground more than a century ago — Trump had nothing to do with it.

The furor

Rep. Norma Torres (D-Calif.) claims that Trump is targeting people of color and punishing them for needing assistance to make ends meet.

According to Charles Wheeler, Director of the Catholic Legal Immigration Network Inc., “The Trump administration is trying to bypass Congress and implement its own merit based-immigration system. It’s really a backdoor way of prohibiting low-income people from immigrating.”

Marielena Hincapié, Executive Director of the National Immigration Law Center (NILC), says that the new rule “is a cruel new step toward weaponizing programs that are intended to help people by making them, instead, a means of separating families and sending immigrants and communities of color one message: You are not welcome here.”

And House Speaker Nancy Pelosi (D-Calif.) tweeted, “This hateful, bigoted rule is a direct assault on our nation’s proud heritage as a beacon of hope and opportunity for all and a clear attempt to demonize and terrorize the newcomers who make America more American.”

The truth: ‘public charge’ exclusion is nothing new

The ground for exclusion was established in 1882 by America’s first general immigration law, An Act to Regulate Immigration. It excluded any immigrant seeking admission to the United States who was found to be “unable to take care of himself or herself without becoming a public charge.”

From the beginning, immigrants were expected to be able to take care of themselves without public assistance.

Congress reaffirmed this policy in 1952 with section 212(a)(15) of the McCarren-Walter Act, which required the exclusion of “Aliens who … in the opinion of the Attorney General at the time of application for admission, are likely at any time to become public charge.”

Congress has continued to promote this policy. For instance, in a 1996 national policy statement Congress explained that — 

(1) Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.

(2) It continues to be the immigration policy of the United States that —

(A) aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations, and

(B) The availability of public benefits not constitute an incentive for immigration to the United States.

The current public charge exclusion provision is set forth in section 212(a)(4)(A) of the Immigration and Nationality Act (INA), which provides that, “Any alien who … 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.” This does not apply to asylees, refugees, and other designated vulnerable populations.

The acting USCIS director, Ken Cuccinelli, said at a recent White House briefing that, “Through the public charge rule, President Trump’s administration is reinforcing the ideals of self-sufficiency and personal responsibility, ensuring that immigrants are able to support themselves and become successful here in America.”

The new rule

Trump’s rule amends existing DHS public charge regulations to include an alien’s reliance on or receipt of the most common forms of modern public assistance: non-cash benefits such as the Supplemental Nutrition Assistance Program (SNAP), or food stamps; Medicaid; and housing vouchers and other housing subsidies that previously were not considered in making a public charge determination.

It redefines the term “public charge” to mean “an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).”

It also provides a list of negative and positive factors that should be considered, including some that are heavily weighted. The presence of a single positive or negative factor, however, is never dispositive. The determination must be based on the totality of the circumstances presented in an applicant’s case.

Most of the aliens subject to the exclusion ground are coming here to join American family members. Their families can help them to avoid being excluded as likely to become a public charge by signing an Affidavit of Support, which would make them legally responsible for financially supporting the sponsored immigrants.

Legal challenges to these regulations may prevail with an argument that some of the changes are substantive and therefore go beyond Trump’s authority to “implement” the statutory provisions, but I don’t think that would satisfy the people who are complaining about the public charge exclusion ground.

They want to eliminate it, not ensure that it is implemented properly. If they succeed, it would clear the way for the admission of immigrants who are not going to be able to support themselves.

That would contradict more than 100 years of United States immigration policy and could hurt American tax payers by making it necessary for them to pay more in taxes to provide the public assistance these immigrants would need.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him on Twitter @NolanR1