Revived Welfare Rule Draws New Scrutiny in Pandemic

A line with hundreds of people snakes along the sidewalk outside a U.S. immigration office with numerous courtrooms in San Francisco, on Jan. 31, 2019. (AP Photo/Eric Risberg, File)

(CN) — The same judge who last year blocked the Trump administration from denying green cards to immigrants on welfare grappled Monday with whether to do so again, despite a Supreme Court stay.

“We are living the worst-case scenario,” U.S. District Judge George Daniels remarked Monday at an extraordinary hearing as U.S. deaths attributed to Covid-19, the disease caused by the novel coronavirus, approaches 90,000

Referring to speculation on what the so-called “public charge rule” has meant for immigrants grappling with the pandemic, Daniels added: “We don’t have to guess.”

Sworn declarations from physicians, attorneys and community organizations in California, Illinois, Connecticut and New York show that many immigrants have decided that receiving medical treatment is not worth the risk of deportation.

Their decisions not to seek treatment have broader health ramifications for the U.S. public at large.

“If people are not discouraged from seeking medical treatment for coronavirus, then it protects their health and it protects the health of the public,” Daniels said.

The Department of Justice claims that issuing a second injunction would effectively overrule the highest court in the land, but the Supreme Court itself appears to have given the Southern District of New York leave to reconsider the issue in light of the national emergency.

When Judge Daniels enjoined the Trump administration’s green card rule last year — a month before the first coronavirus cases were traced to Wuhan, China — he did not mince words in finding that the scheme was both illegal and a betrayal of the country’s founding ideals.

“It is repugnant to the American Dream of the opportunity for prosperity and success through hard work and upward mobility,” Daniels wrote on Oct. 11.

The Supreme Court lifted that injunction pending appeal on Jan. 27, when the United States had just five first confirmed cases of the novel virus.

Stretching more than 2.5 hours, today’s arguments centered less on the death and disease ravaging the country than the legal point of whether Judge Daniels can do what the Supreme Court refused.

Elena Goldstein, a trial lawyer for the New York Attorney General’s Office, argued that these are unprecedented times, with changing facts on the ground.

“While DHS recognizes this problem, they fail to take it at all seriously,” Goldstein told the judge, referring to the Department of Homeland Security.

Attorneys for the government claim that immigration officials have accounted for the national emergency by carving out exceptions for coronavirus-related care: “The public charge rule does not restrict access to testing, screening, or treatment of communicable diseases, including Covid-19,” the agency announced online.

But the agency left a gaping loophole in the conclusion of the same post, suggesting this rule is not binding upon the government.

“For example, if the alien is prevented from working or attending school, and must rely on public benefits for the duration of the Covid-19 outbreak and recovery phase, the alien can provide an explanation and relevant supporting documentation,” the alert states. “To the extent relevant and credible, USCIS will take all such evidence into consideration in the totality of the alien’s circumstances.”

Department of Justice attorney Keri Lane Berman called the New York attorney general’s requested injunction a “retread” of the one that the Supreme Court lifted. 

Whether the Justice Department’s argument will prevail likely will depend on the interpretation of a two-sentence order the Supreme Court issued in April, denying an application to block a public charge rule again in light of the pandemic.

“This order does not preclude a filing in the district court as counsel considers appropriate,” the Supreme Court wrote in an unsigned ruling

New York Attorney General Letitia James has interpreted this phrasing as giving her office — and Judge Daniels — a green light to try to block the rule again. 

Declining to issue an immediate ruling, Daniels said that he would study a transcript of today’s proceedings quickly before making a decision. Today’s conference, like most others across the United States during the pandemic, occurred remotely via telephone to enforce physical distancing.

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