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Second Lawsuit Filed Against 'Public Charge' Rule

August 15, 2019 (6 min read)

Washington State Office of the Attorney General, Aug. 14, 2019

"Attorney General Bob Ferguson today co-led a coalition of 13 states in filing a lawsuit against the U.S. Department of Homeland Security over changes to the “public charge” rule that target immigrants and their families. The 169-page complaint, filed in U.S. District Court for the Eastern District of Washington, asserts that the Trump Administration’s new rule unlawfully expands the definition of “public charge,” in violation of federal immigration statutes, the Welfare Reform Act and the Administrative Procedure Act.

Under the changes, if an immigrant who is legally in the country uses benefits to which he or she is entitled ― such as food assistance to feed their U.S. citizen children or housing assistance ― even for a short time, the federal government may revoke their legal status, or even deport them.

Even if an individual does not use these benefits, the new rule expands the government’s ability to deny a visa or permanent residency to any immigrant it predicts will use a broad range of short-term benefits at any point in the future, without clear standards for making that determination.

Federal law allows many lawful immigrants to apply for public benefits if they have been in the country for at least five years. The new rule creates a “bait-and-switch” ― if immigrants use the public assistance to which they are legally entitled, they would jeopardize their chances of later renewing their visa or becoming permanent residents.

“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 health care, 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. I intend to stop it.”

“Washington will always be a state that stands with immigrants and no action by the Trump administration, either through deeds or words, can change that,” Gov. Jay Inslee said. “This latest attack on hard-working immigrant families, including those who already have visas or family members who are U.S.-born, does not hold up our nation's ideals and harms communities throughout our state. I fully support this action by the Attorney General to stand against the devastating impacts of this xenophobic policy.”

“In New York Harbor, the Statue of Liberty stands tall and holds a torch that lights the way,” Seattle Mayor Jenny A. Durkan said. “And I'll remind Mr. Cuccinelli that 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. I am grateful to Attorney General Ferguson for fighting the president’s anti-immigrant and anti-family agenda, and to Seattle City Attorney Pete Holmes for ensuring our City protects the constitutional freedoms of our communities.”

Under long-standing law and policies, a public charge is an individual whose survival depends upon a specific public benefit ― cash assistance ― or who is institutionalized for long-term care at government expense. This does not include temporary assistance, such as food or housing assistance or health care. Immigration officers can deny new visas, visa renewals and lawful permanent residency under the public charge rule only if the applicant meets this concrete definition. If an individual already present in the United States becomes a public charge, they can be deported.

Under the new rule, a public charge now will include lawfully present individuals or families who will use a broad range of federal assistance for housing, food or health care at any time in the future, for as short as four months.

Many of the types of assistance that will now be included in making public charge determinations are programs that beneficiaries tend to use for short periods. For example, according to the U.S. Census Bureau, more than 60 percent of individuals receiving food assistance through the Supplemental Nutrition Assistance Program (SNAP) use benefits for three years or less. Nearly one-third of individuals receiving food assistance use the benefit for less than one year.

The new definition expands immigration officials’ ability to deny visas and permanent residency to any individual who they predict may use these types of assistance in the future. If permanent residents who have used government assistance leave the country for 180 days, they may also be labeled a public charge when they apply to return, potentially losing their status.

The new rule does not apply to undocumented immigrants, because they cannot access federal benefits without a lawful status. Certain state benefits remain available to undocumented residents. 

In the lawsuit, the attorneys general write that the Trump Administration's rule "effects a radical overhaul of federal immigration law from a system that promotes economic mobility among immigrants to one that advantages immigrants with wealth."

The rule will harm Washingtonians

The Department of Homeland Security (DHS) concedes in the rule that it would deter legally present visa holders from using important assistance programs.

Many visa holders and applicants for permanent residency will refrain from seeking assistance for themselves or their families because it could make them ineligible to renew their legal immigration status or become a permanent resident, exposing them to deportation.

Washington state is home to approximately 455,000 children who are U.S. citizens and have at least one immigrant parent. These families will likely refrain from applying for services they need out of fear it would be used against the immigrant parent.

For example, if a U.S. citizen applies for food or housing assistance for their family after losing their job and lists their immigrant spouse as a beneficiary, they jeopardize their spouse’s chances of getting a visa or permanent residency in the future. Immigration officials could even choose to deport their spouse.

As a result of the rule, families who need help obtaining adequate food, health care or shelter will forego up to an estimated $55 million annually in food or cash assistance. More Washington families and children will experience hunger and food insecurity. More families will suffer homelessness, resulting in poorer health and educational outcomes for children.

Washington estimates that more than 140,000 lawfully present Washingtonians, including many U.S. citizen children, will lose health insurance as a direct result of the rule. Many of these people will go to the emergency room for routine medical care, requiring Washington to cover the vastly more expensive medical costs.

Women will lose routine reproductive care services, resulting in more unintended pregnancies, more high-risk deliveries and increased costs for newborns whose health is compromised by the lack of adequate pre-natal care.

The rule is unlawful

Ferguson asserts that the rule violates the Immigration and Nationality Act by redefining “public charge” in a way unconnected to its original meaning and Congress’ intent.

Ferguson asserts that the “bait-and-switch” that the rule creates for immigrants who use benefits for which they are legally entitled contradicts Congress’ intent and violates the Welfare Reform Act.

The Attorney General also asserts that DHS violated the Administrative Procedure Act in numerous ways, including by reversing a decades-old, consistent policy without reasoned analysis and offering an explanation for the rule that runs counter to the evidence before the agency.

Assistant Attorneys General Rene Tomisser, Jeff Sprung, Zachary Jones, Joshua Weissman, Nathan Bays and Paul Crisalli are handling the case for Washington state.

Ferguson, along with Gov. Jay Inslee and Seattle Mayor Jenny Durkan, sent a letter criticizing the rule in December 2018. Ferguson also joined 18 other attorneys general raising concerns in a separate letter. These two letters were part of more than 250,000 comments that DHS received in response to proposing the rule, the vast majority of which opposed it.

In addition to Washington and Virginia, other states involved in the lawsuit are: Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico and Rhode Island.

Lawsuits against the Trump Administration

Ferguson has filed 46 lawsuits against the Trump Administration and has not lost a case. Ferguson has 21 legal victories against the Trump Administration. Thirteen of those cases are finished and cannot be appealed. The Trump Administration has or may appeal the other eight, which include lawsuits involving Dreamers and 3D-printed guns. No court to rule on the merits of the Attorney General’s arguments in a lawsuit against the Trump Administration has ruled against the office."