Public Charge Policy Scrutinized by Seventh Circuit

CHICAGO (CN) – The Seventh Circuit heard oral arguments Wednesday over the Trump administration’s policy that makes it harder for immigrants to receive green cards if they rely on public benefits like food stamps.

Joining California and New York, Cook County, Illinois, sued the Department of Homeland Security and U.S. Citizenship and Immigration Services last September over the so-called “public charge” rule determining which immigrants are considered a risk for government dependence.

Hundreds of people overflow onto the sidewalk in a line snaking around the block outside a U.S. immigration office in San Francisco in January 2019.  (AP Photo/Eric Risberg, File)

The rule changes who can be considered a public charge under the Immigration and Nationality Act, including immigrants who use food stamps, housing vouchers or Medicaid for over 12 months during a three-year period.

The government could deny visas and green cards to those it deems likely to become a public charge at any time based on their use of these public benefits and a wide variety of other criteria such as English proficiency and family size.

Cook County and the Illinois Coalition for Immigrant and Refugee Rights, or ICIRR, were granted a preliminary injunction stopping the government from enforcing the new rule by U.S. District Judge Gary Feinerman on Oct. 14, just one day before it was set to take effect.

The Barack Obama appointee said in his 33-page order that the plaintiffs were likely to succeed and that his opinion “rests not one bit on policy…[but] on a dry and arguably bloodless examination of the authorities that precedent requires courts to examine.”

Feinerman denied the government a stay pending its appeal of his decision, but the U.S. Supreme Court ruled 5-4 last Friday to stay the injunction.

Cook County and ICIRR’s complaint argues that immigrants will choose to forgo important services for fear of deportation, putting strain on county services such as emergency medical care.

“If allowed to go into effect, this final rule will undermine our national identity, contravene the law, and discriminate against racial minorities and people with disabilities,” the complaint adds.

The rule is not only discriminatory, but also exceeds the government’s statutory authority and is arbitrary and capricious, the plaintiffs say.

While the Trump administration defendants claim Cook County and ICIRR lack the standing to sue, their brief to the Seventh Circuit focused on the executive branch’s right to interpret the definition of a public charge.

“Numerous statutory provisions demonstrate that Congress intended to require aliens to rely on their own resources, rather than taxpayer supported benefits, to meet their basic needs,” the brief states.

The plaintiffs’ brief, on the other hand, claims “the final rule improperly redefines the term ‘public charge’ to include immigrants who receive only modest and temporary benefits, preventing these immigrants from obtaining legal permanent residence,” adding that the term was only ever meant to mean those permanently relying on assistance.

Oral arguments Wednesday in the Chicago-based appeals court focused on what that definition should be. The three-judge panel of Chief U.S. Circuit Judge Diane Wood and U.S. Circuit Judges Ilana Rovner and Amy Coney Barrett seemed to lean towards siding with the plaintiffs, suggesting that using public assistance for a short time should not be a deciding factor for immigration.

“What bothers me is I think you’ve tried to rewrite the statue,” Wood, a Bill Clinton appointee, told Justice Department attorney Gerard Sinzdak.

Sinzdak had his work cut out for him, with all three judges questioning the reasonableness of the rule. The policy equates using one of the stipulated benefits as one month for the purposes of its limit, meaning using three benefits in one month would tack on three months to a person’s total benefit use.

Rovner, a George H.W. Bush appointee, said by that logic, a person using supplemental benefits for only four months could be deemed a public charge.

Sinzdak countered that receiving food, shelter and medical care “looks a lot like someone who is relying primarily on the government.”

“Only the three most important things that a person needs!” Wood shot back.

“They should be advised to use private resources,” Sinzdak replied.

Wood also said she was concerned with the other criteria the government said it would use to determine if an immigrant would ever become a public charge in the future.

While Sinzdak said there was evidence that a lack of English proficiency is associated with higher unemployment, Wood said factors like language and family size seemed to be “plucked out of thin air.”

“Zero plus zero equals zero,” she said of the alleged evidence, adding that having a large family has been shown to do “quite the contrary,” adding a safety net for those who may need it. The judge also said becoming bilingual could lead to better employment opportunities.

Tacy Flint of Sidley & Austin, an attorney for ICIRR, argued that “as the world exists, with the benefits that exist right now, I don’t think someone could be a public charge for using those benefits.”

Although the panel thought the term needed more interpretation, the courts “reject a definition of public charge status if someone is using transient benefits,” Flint said. “There is not a single case where a court interpreted a public charge as someone receiving short-term benefits.”

Stepping in to add to the public charge debate for the U.S. House of Representatives, which intervened in the case, attorney William Havemann said the logic being used by the Department of Homeland Security meant that an immigrant who was eligible for food stamps could be turned down for residency for using those very food stamps.

Havemann said that the rule was even more illogical given that “we do know that more than half of the U.S.-born population in their lifetime receives one of the benefits that DHS says makes you a public charge.”

Special Assistant State’s Attorney David Morrison drew focus onto how the rule would affect Cook County, saying it had the largest public safety net in the region.

“Cook County does not turn away people at the doors. It does not turn away people at the borders,” he said, pointing out that the county’s home rule stipulates that “it must provide [medical] care regardless of ability to pay.”

At issue in the county is the chilling effect the rule will have on those using Medicaid and other benefits, according to Morrison.

“There are people eligible for benefits who won’t take the benefits because of fear of the rule,” he added, a consequence he says the government itself predicted.

This means more people being treated for free at county hospitals instead of being able to “pay” with Medicaid coverage, among other strains enforcing the rule would put on local jurisdictions.

It is unclear when the Seventh Circuit will issue its ruling in the case. The third judge on the panel, Barrett, was appointed by President Donald Trump.

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