Ninth Circuit Hears Arguments on Public Charge Immigration Rule

SAN FRANCISCO (CN) — A Trump administration rule preventing immigrants from qualifying for permanent residency if they are likely to become dependent on government benefits will do wholesale damage to public health, lawyers for the attorneys general of several states insisted Tuesday during arguments before a three-judge panel in the Ninth Circuit.

The “Inadmissibility on Public Charge Grounds” final rule essentially seeks to discourage non-citizens from using welfare but has had the attendant effect of driving many immigrants and current green card holders away from public assistance altogether, even if the rule doesn’t apply to them. 

The James R. Browning U.S. Courthouse in San Francisco, home of the Ninth Circuit Court of Appeals. (Ernest McGray/Associated Press)

It’s also had a circuitous and bewildering journey through the courts since it was enacted last year.

The Fourth Circuit upheld it in August after a challenge from an immigrants rights organization in Maryland. The Seventh Circuit barred its enforcement in Illinois. Chief U.S. District Judge Phyllis Hamilton, a Bill Clinton appointee, blocked it in California, Oregon, the District of Columbia, Maine and Pennsylvania, while another judge in Washington issued a sweeping universal injunction.

Last Friday, the Second Circuit issued an order allowing the Department of Homeland Security to impose the rule nationwide, overturning a federal judge in New York’s ruling that enjoined its enforcement for the duration of the Covid-19 pandemic. 

The Sept. 11 decision was actually the second time the panel had taken up U.S. District Judge George Daniels’ injunction. The panel had previously narrowed an initial injunction he issued in October 2019 to apply only to Vermont, New York, and Connecticut. 

But its most recent opinion on Sept. 11 reinstated the rule, partly because two of the circuit panelists believe the government is likely to succeed on the merits, and partly in deference to the U.S. Supreme Court, which temporarily halted all initial preliminary injunctions back in January.

At Tuesday’s hearing on the California and Washington injunctions, even the Ninth Circuit judges were confused about the rule’s current status. U.S. Circuit Judge Lawrence VanDyke, a Donlad Trump appointee, asked the government’s attorney Gerard Sinzdak to allay all doubt. 

“As of yesterday the rule is back in effect nationwide,” Sinzdak said, after a brief recounting of its history. 

Sinzdak argued that Congress never specifically said what the term “public charge” actually means, leaving it to the discretion of other governmental branches. 

The rule now defines public charge as a non-citizen who uses federal health care, food stamps, or housing assistance “for more than twelve months in the aggregate within any 36-month period.” The rule counts each benefit separately, so a person receiving health care and food assistance for six months has actually used 12 months of benefits.

“The executive branch has the discretion to define the term and to apply it,” Sinzdak said.

“There are limits to its discretion,” Senior U.S. Circuit Judge Mary Schroeder, a Jimmy Carter appointee, said. “The Seventh Circuit seemed to agree at least to some extent that there’s no fixed meaning but the definition that you have chosen is simply beyond the pale, what is your response to that?”

“We disagree of course,” Sinzdak replied. “The Seventh Circuit seemed to think that the government’s definition had no limit. As the agency made clear, the limit here is self-sufficiency and self-reliance and whether an individual can be deemed to rely on the government benefits. It depends on the nature of the benefits and the length of time.  They narrowed it down to three non-cash benefits, and it even excluded people who use them on a temporary or intermittent basis.”

Hannah Luke Edwards, counsel for a number of Bay Area cities and counties challenging the rule, said the rule seems to pose a draconian public charge definition. 

“We’re arguing when a person only receives 12 months of any of those benefits that’s insufficient to render a person primarily dependent on the government for support,” she said.

Sinzdak said it was important for the court to consider how the rule works in practice, Fundamentally, he said, it’s a framework to help an immigration judge determine whether someone will be self-sufficient or perpetually dependent on the government for subsistence.

“In the situation we’re in now with people lining up for food, there are millions of people who might be public changes under this concept,” Schroeder said.

Sinzdak dismissed this concern, saying the rule “only applies only to aliens, not U.S. citizens,” and noting the rule’s plethora of exceptions for state and local benefits, as well as certain types of federal health care for pregnant women and children.

“No one expects these determinations to be made with mathematical precision,” he said. “It’s really getting at, are these individuals, who because of their individual characteristics, likely to be using these benefits for prolonged periods, or just temporarily or not at all. The rule is trying to distinguish between people who are regular users.”

“The rule as it operates can cut somebody off far short of 12 months. I don’t think ‘long’ is the appropriate adjective,” U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, interjected.

Fletcher and Schroeder seemed concerned about the rule’s potential long term harm to public health.  

“The problem seems to be — what has been pointed out is — that this is going to backfire, that this is going to have an adverse effect on people and harm the public health and that wasn’t just taken into account. I don’t understand what the response to that is,” Schroeder said. 

Fletcher asked Sinzdak about the rule’s deterring effect on immigrants who might otherwise seek out and receive vaccinations, including one for Covid-19. Fletcher said the rule seemed to put a person forced to go on Medicaid for vaccination coverage “between a rock and a hard place.”

Sinzdak said that person would be able to explain themselves to an immigration judge. 

“If you could say look I needed this vaccine one time for Covid but I’m not going to be on Medicaid afterward that could be taken into account by an adjudicator,” he said. 

“What about malnourished children because of the absence of SNAP benefits?” Schroeder asked about the Supplemental Nutrition Assistance Program. 

Sinzdak said immigrants without green cards are not eligible for food stamps.

“Yes, there are people who are expected to disenroll because they’re confused about the rule, but if they still have their green card they aren’t going to be subject unless they leave the country for 180 days.”

States and immigrant groups have objected to the confusion the rule has already caused among legal residents entitled to benefits. 

Arguing for the State of California, Deputy Attorney General Anna Rich said DHS failed to calculate the rule’s cost to state and local governments and the public health at large.

“The record shows that the rule will have significant, predictable negative consequences on public health. Every major public health organization to comment on this rule in the public record offered evidence-based explanation on how the rule would significantly increase the outbreak of communicable diseases,” she said.

VanDyke said it seemed like the government had made sufficient exceptions. 

“It seems like you guys are poo-pooing the changes the agency made,” he said. “But they seem pretty significant.”

Rich said the rule’s exceptions become “a lot less powerful and convincing” when it negatively weighs receipt of federal health care benefits, which has the effect of driving even those entitled to federal benefits away from them. 

“Many of the people who are going to disenroll as a result of this rule are not actually subject to the public charge determination,” she said.

The panel took the arguments under submission. Should the Ninth Circuit affirm the injunctions, their ruling would apply only to the states covered under cases in Washington, California, Maine, Oregon, and Pennsylvania, as well as the District of Columbia, according to a source with the California Attorney General’s office.

The hearing neared the two-hour mark as the court ran into some technical difficulties midway into Sinzdak’s argument. At one point, Fletcher was technologically booted from the videoconference. As the court’s staff struggled to reconnect him, VanDyke and Schroeder said this was the first time they’ve encountered such technical difficulties since the court moved its arguments online six months ago. 

“This is just terrible,” Schroeder said. “It’s just a shame that this has happened.”

VanDyke joked, “When just Fletcher gets back I think you should say, ‘thank you counsel for your argument the case has been submitted.’”

When Fletcher rejoined the panel and asked what he’d missed, Van Dyke laughed and said, “We heard the whole argument and it was excellent.”

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