The Department of Homeland Security (“DHS”) has proposed a new rule, which seeks to block anyone who is likely to become a public charge from immigrating to the United States. DHS justifies the new rule, in part, based on history–
The term “public charge” as applied to admission of aliens to the United States has a long history in U.S. immigration law, appearing at least as far back as the Immigration Act of 1882. In the late 19th and early 20th centuries public charge was the most common ground for refusing admission at U.S. ports of entry.
This seems an odd precedent to cite, since the same Congress, three months earlier, also passed the racist Chinese Exclusion Act of 1882, which blocked the immigration of most Chinese nationals to the United States. In addition, in the same breathe that Congress enacted the public charge requirement, it also blocked anyone who was a “convict, lunatic [or] idiot.” So I’m not sure that historic pedigree is the best justification for DHS’s new rule (on the other hand, if convicts, lunatics, and idiots were blocked from government service, I don’t think anyone would be left in the Trump Administration).
A second reason for the new rule, according to DHS Secretary and patron of Caucasian restaurants Kirstjen Nielson is to “promote immigrant self-sufficiency and protect finite resources by ensuring that they are not likely to become burdens on American taxpayers.” I suppose it supports self-sufficiency to force would-be immigrants to choose between feeding their children and remaining in the U.S., but perhaps there are more humane ways to encourage non-citizens to become self-reliant. Finally, the tax-payer argument is not too convincing either, given that most credible studies show that immigrants contribute more to the economy than they take (this, despite the Trump Administration’s effort to suppress such information).
Whether or not the new rule is justified, DHS seems set to forge ahead, and so here I want to discuss how the proposed rule would affect humanitarian immigrants to the United States. The short answer is that asylum seekers, asylees, and refugees are exempted by statute from the public charge requirement, and so they are not affected by the new rule. Also, since the rule would not apply to people with a Green Card seeking to naturalize, asylees and refugees who adjust status and become lawful permanent residents (Green Card holders) would not be affected by the rule. In sum, if you are an asylum seeker, asylee or refugee, or if you have obtained your Green Card based on one of those categories, the new rule does not affect you.
That’s the good news. The bad news is that the new rule will affect many other categories of immigrants and non-immigrants, including people who are inside the United States and who wish to extend or change their status, or who wish to adjust status and obtain their Green Cards. Some people–including people who received public benefits or who are, in the opinion of the U.S. government, likely to require such benefits, or people who have previously requested a fee waiver from USCIS–may be blocked outright from entering or remaining lawfully in the United States. Other people will be deterred by the new rule’s increased costs and wait times. Indeed, the proposed rule makes clear that implementing the public charge requirements will increase costs on aliens seeking to immigrate or visit the United States. These costs will be monetary, since it seems that processing fees will be going up. There will also be additional costs in the form of delay, since adjudicating public charge cases will take time. Whether humanitarian immigrants will be indirectly affected by these costs (in the form of higher overall fees and wait times), we will have to wait and see.
President Trump was elected to reduce immigration, and the new rule is another step in that direction. In this sense, the President is simply doing what he was elected to do. However, in another sense, it’s difficult to escape the fact that the new rule is racially tinged. Like the poll taxes and literacy tests before it, the proposed rule is facially neutral, but there is little doubt who will be most affected: Immigrants of color and their families.
Of course, we can expect the new rule to face legal challenges. However, unlike facially neutral laws to disenfranchise minority voters, immigrants have fewer legal protections, and so the likelihood of a successful court challenge is unclear.
In any event, the proposed rule has not yet gone into effect. DHS has released a draft of the rule (last Saturday) and will publish it in the federal register. Once that happens, we will enter a “comment period” when members of the public (including you) can make our views known. For now, information on how to submit comments can be found on page 2 of the proposed rule.
Barring a successful court challenge, I expect the proposed rule will be implemented largely as written. If so, many immigrants and their families, as well as our nation, will be harmed. The silver lining for asylum seekers, asylees, and refugees is that the rule will not affect them. These days, I suppose we have to take our good news where we find it.