Trump Administration Unveils New Threat to Immigrants Lawfully in the United States

The Trump administration is poised to enact sweeping changes to American immigration policy by drastically restricting who is eligible for green cards and eventual citizenship.

Under longstanding law, the “General Classes of Aliens Ineligible to Receive Visas and Ineligible for Admission” have included “[a]ny alien who, in the opinion of the consular office . . . is likely at any time to become a public charge . . .” If the government thinks that an individual—based on their income, age, health, education level, etc.—is likely to become dependent on government services, they have been authorized to deny that person’s application to enter or remain in the United States.

This “public charge” regulation has for decades been read quite narrowly. In 1999, the Clinton administration published guidance stipulating that it should be understood to include only those who received “cash-based assistance amounting to more than fifty per cent of a person’s income.” Only 3.7% of noncitizens in the U.S. received cash benefits at all in 2013, so this regulation had a relatively small impact on the immigrant community.

But on September 21, 2018, Secretary of Homeland Security Kirstjen Nielsen signed a notice of proposed rulemaking redefining what constitutes a “public charge” and what “types of public benefits . . . are considered in public charge inadmissibility determinations.” This rule would withdraw the Clinton-era guidance and, in its place, “DHS would consider the following public benefits”:

  • “Any Federal, State, local or tribal cash assistance for income maintenance, including: Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and Federal State or local cash benefit programs for income maintenance”
  • Supplemental Nutrition Assistance Program (SNAP)
  • “Public housing defined as Section 8 Housing Choice Voucher Program . . . Section 8 Project-Based Rental Assistance”
  • “Benefits paid for by Medicaid”
  • “Premium and Cost Sharing Subsidies for Medicare Part D”
  • “Subsidized Housing under the Housing Acts of 1937”

When news of this proposed change leaked earlier in 2018, the response was swift. POLITICO reported that, “[a]gencies in at least 18 states say they’ve seen drops of up to 20 percent in enrollment” in WIC, a federal nutrition program aimed at pregnant women and children. These drops have been attributed “largely to fears about the immigration policy.” Immigrants are already foregoing benefits to which they are legally entitled, despite the fact that the government has said that the new rule, if implemented, will not be applied retroactively. What policy experts describe as the “chilling effect” of this restriction is extreme, with advocates fearing that legal immigrants will “refuse social services like health care” out of fear that it could “negatively impact their hope of bringing their kids, or other relatives, across the border to join them.”

A hallmark of the Trump era has been a marked increase in American engagement with basic civics — a strange silver lining to the daily degradation of our democracy. However, this activism has largely focused on Congress, as seen in the fight to save the Affordable Care Act, the efforts to oppose the Tax Cuts and Jobs Acts, and the recent protests in response to the nomination of Brett Kavanaugh.

A limited understanding of how policies are actually implemented has left federal agencies largely immune from this public pressure. As the Brookings Institution puts it, “Americans rarely exercise their right to comment on Federal policies, and when they do, they often do not engage with the process effectively.” And yet, agency decisions have a significant impact on the lives of most Americans: a study found that, in 2007 alone, while “Congress enacted 138 public laws . . . federal agencies finalized 2,926 rules, including 61 major regulations.”

The time has therefore come for Civics 2.0, a crash course in basic administrative law. While Congress passes laws, it is largely up to the federal agencies to determine what these laws mean and how they should be implemented. Frequently, this interpretive process takes the form of informal, or “notice-and-comment” rulemaking: the agency proposes a new rule, the public has sixty days to comment on the rule, and the agency then responds to the comments and issues a “final rule” that goes into effect 60 days later.

We are now 13 days into the public comment period for DHS’s new rule interpreting what constitutes a “public charge.” Comments will be accepted until December 10th, after which there will be no way to voice input before this proposed rule becomes the law. Guidelines for submitting comments can be found here.

Throughout the 2016 campaign, Donald Trump repeatedly claimed that, “our immigration system is worse than anybody ever realized.” It was clear from the beginning that his election would pave the way for a harsh crackdown on undocumented immigration and on the admission of refugees and asylum seekers. Since he assumed office, the scope and severity of this crackdown has continued to grow.

Now, as has long been feared, attention has turned squarely toward those immigrants who are already in this country with their paperwork in place. This effort to punish legal immigrants for attempting to provide for themselves and their families is an unprecedented attack on members of our community; the fact that it is coming through an agency rule, rather than Congressional legislation, makes it no less of a threat, and no less deserving of swift public outcry.

Written by

Molly is a second year student at Harvard Law School. She is originally from Saint Paul, Minnesota, and is a graduate of the University of Wisconsin. Her focus is on the intersection of racial justice, education, and the law. Find her on Twitter @molly_coleman.

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