Inadmissible aliens, some seeking asylum, are processed by CBP officers at the San Ysidro Port of Entry on Nov. 23, 2018. (Mani Albrecht/CBP)

States’ Lawsuit vs. DHS Asserts New ‘Public Charge’ Immigration Rule Is Unlawful

Several states have banded together in a lawsuit challenging the new Department of Homeland Security rule that weighs the admissibility of an immigrant based on whether he or she uses public assistance with needs such as food, healthcare or housing.

U.S. Citizenship and Immigration Services announced Monday what it called clarification of “whether an alien is inadmissible to the United States based on his or her likelihood of becoming a public charge at any time in the future, as set forth in the Immigration and Nationality Act.”

The definition of “public charge” was expanded to encompass “any cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most forms of Medicaid, and certain housing programs.” A “public charge” is defined in the rule as someone who, within a three-year period, receives at least one of the designated public benefits for more than 12 months. The asylum program is exempt from the rule.

“This is not a change in focus. This rule goes all the way back to executive orders from early in 2017. It’s been a long, arduous effort. If you take a look at the fully printed item, it’ll make ‘War and Peace’ seem relatively short,” USCIS Acting Director Ken Cuccinelli told reporters Monday. “It is very thorough in the first attempt to put into operational effect all of the different factors that Congress itself has said we’re supposed to consider when deciding admissibility or inadmissibility.”

Cuccinelli estimated the rule would cover “almost 400,000 people a year whose applications to become legal permanent residents will include a meaningful analysis of whether they’re likely to become a public charge or not.”

Asked whether the rule discriminates against lower-income immigrants, he said that “we certainly expect people of any income to be able to stand on their own two feet.”

“And so, if people are not able to be self-sufficient, then this negative factor is going to bear very heavily against them in a decision about whether they’ll be able to become a legal permanent resident,” Cuccinelli continued. “And a poor person can be prepared to be self-sufficient — many have been, through the history of this country. So let’s not look at that as the be-all and end-all. It’s not the deciding factor, which is why we continue to use the totality of circumstances test.”

Washington state Attorney General Bob Ferguson — along with his counterparts in Virginia, Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico and Rhode Island — filed a lawsuit against DHS asserting that the expansion of the definition of “public charge” violates the Welfare Reform Act and the Administrative Procedure Act.

“The Department fails to provide data, evidence, or reasoned analysis to explain why it believes an immigrant’s past receipt of public assistance for as little as a few months is at all predictive of whether she will become a public charge in the future,” states the court filing.

The 169-page complaint accuses DHS of downplaying the number of immigrants who would be adversely affected by the rule as well as its impact on immigrants of color or people with disabilities as “the Department entirely disregarded those concerns, instead elevating private health insurance coverage to a heavily weighted positive factor in the Final Rule…. the Department did not explain how such disenrollment from health coverage [such as Medicaid] could possibly advance its purported goal to promote immigrants’ self-sufficiency and economic independence.”

Washington state argues that, since federal law allows many legal immigrants to apply for benefits after living in the country for five years, the rule creates a “bait-and-switch” for immigrants needing assistance for which they qualify but fearing not being able to renew their visas or attain permanent residency if they use the benefit. The state is home to about 455,000 U.S. citizen children with at least one immigrant parent

“The Trump administration’s message is clear: if you’re wealthy, you’re welcome; if you’re poor, you’re not,” said Ferguson. “It forces families into an impossible choice — to sacrifice their dream of becoming Americans in order to provide healthcare, food or a roof over their children’s heads, or let their families go without in order to remain in the country.”

“This rule is un-American, anti-immigrant and unlawful,” he added. “I intend to stop it.”

Ferguson has 21 victories against the administration in the 46 lawsuits he’s filed in which there’s been legal action.

Asked about the Emma Lazarus poem etched on the Statue of Liberty, Cuccinelli told NPR on Tuesday that “give me your tired and your poor who can stand on their own two feet and who will not become a public charge” was part of the American ethos. He later told CNN, “Of course that poem was referring back to people coming from Europe where they had class-based societies, where people were considered wretched if they weren’t in the right class, and it was written one year after the first federal public charge rule was written.”

Seattle Mayor Jenny Durkan responded to Cuccinelli in a statement: “It proclaims: ‘Give me your tired, your poor, your huddled masses yearning to breathe free.’ This rule contradicts the fundamental values on which the promise of America is built.”

A reporter at the White House later asked President Trump if he thought the words on the Statue of Liberty should be changed. “Well, I don’t think it’s fair to have the American taxpayer — you know, it’s about ‘America First.’ I don’t think it’s fair to have the American taxpayer paying for people to come into the United States,” Trump replied.

“So what we’ve done is institute what took place many, many years ago — at our founding, virtually. But we are just reinstituting it. And I think it’s long overdue,” the president added. “I am tired of seeing our taxpayer paying for people to come into the country and immediately go onto welfare and various other things. So I think we’re doing it right.”

Bridget Johnson is the Managing Editor for Homeland Security Today. A veteran journalist whose news articles and analyses have run in dozens of news outlets across the globe, Bridget first came to Washington to be online editor and a foreign policy writer at The Hill. Previously she was an editorial board member at the Rocky Mountain News and syndicated nation/world news columnist at the Los Angeles Daily News. Bridget is a senior fellow specializing in terrorism analysis at the Haym Salomon Center. She is a Senior Risk Analyst for Gate 15, a private investigator and a security consultant. She is an NPR on-air contributor and has contributed to USA Today, The Wall Street Journal, New York Observer, National Review Online, Politico, New York Daily News, The Jerusalem Post, The Hill, Washington Times, RealClearWorld and more, and has myriad television and radio credits including Al-Jazeera and SiriusXM.

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