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Where Do We Stand Today After 3 Courts Put A Temporary Halt On The Public Charge Rule?
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</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/391872-article-where-do-we-stand-today-after-3-courts-put-a-temporary-halt-on-the-public-charge-rule-by-alan-lee-esq#bio”>
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Alan Lee, Esq.
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The Administration’s public charge rule for immigrants due to be
implemented on October 15, 2019, ran into roadblocks thrown up by US
district courts in New York, California, and Washington State. The
preliminary injunctions in both New York and Washington were nationwide in
scope while the one in California was more localized.
Judge Rosanna Malouf Peterson of the Eastern District Court of Washington
stayed the implementation of the public charge rule “in its entirety”
pending entry of a final judgment; that “the effective date of the final
rule is postponed pending conclusion of these review proceedings”; and that
DHS was preliminarily enjoined from implementing or enforcing the rule.¹
Judge Phyllis J. Hamilton of the Northern District Court of California
enjoined among others Donald J. Trump, as President of the United States,
from applying the rule to any person in San Francisco, Santa Clara,
California, Oregon, the District of Columbia, Maine, or Pennsylvania or to
anyone part of a household including such a person.² Judge George B.
Daniels of the Southern District Court of New York in a pair of rulings
issued a nationwide injunction, as well as a stay postponing the effective
date of the rule pending a final ruling on the merits or further order of
the court in one,³ and more specifically in the second restraining and
enjoining DHS and USCIS from “implementing, considering in connection with
any application, or requiring the use of any new or updated forms whose
submission would be required under the Rule, including the new form I-944,
titled’ Declaration of Self-Sufficiency’, and the updated form I 485,
titled ‘Application to Register Permanent Residence of Adjust Status’”;
that the effective date of the public charge rule is stayed and postponed;
that if the court’s order is later terminated and the rule goes into
effect, the rule’s stated effective date of October 15, 2019 “shall be
replaced with a date after this Order is terminated.”4
So insofar as adjustment of status in the US is concerned, it would appear
that applicants can continue filing with the old forms until such date that
the courts’ preliminary injunction rulings are overturned on appeal, or the
government wins on the merits on the case as a whole before the same court
or on appeal thereafter.
Yet none of these rulings enjoin the Secretary of State who published an
interim final rule on October 11, 2019, implementing rules on public charge
to go into effect on October 15, 2019, based entirely on the public charge
rule. The question is whether consular officers will be permitted to
implement the interim final rule even though the summary clearly states its
purpose as being in sync with DHS:
This rulemaking is also intended to align the Department’s standards with
those of the Department of Homeland Security, to avoid situations where a
consular officer will evaluate an alien’s circumstances and conclude that
the alien is not likely at any time to become a public charge, only for the
Department of Homeland Security to evaluate the same alien when he seeks
admission to the United States on the visa issued by the Department of
State and finds the alien inadmissible on public charge grounds under the
same facts. 5
Although not directly enjoined by any of the three courts, a turkey (as we
are getting close to Thanksgiving and as the public charge rule is one)
with its head chopped off cannot still operate its wings to fly, and so the
State Department should not believe that it has authority to put its own
rule into effect at this time.
The rulings by the three courts also did nothing to suspend the October 4,
2019, “Presidential Proclamation on the Suspension of Entry of Immigrants
Who Will Financially Burden the United States Healthcare System”, slated to
go into effect on November 3, 2019. That Proclamation affects consular
processing and not adjustment of status, but would require of immigrant
visa applicants (with limited exceptions) that they show that they will be
covered by approved health insurance (not one with coverage under the
Medicaid program) within 30 days of entry into the US, or they have
sufficient financial resources to pay for reasonably foreseeable medical
costs. Based on a study by the Migration Policy Institute, a nonpartisan,
independent think tank dedicated to analysis of US and global migration, up
to 65% of legal immigration could be barred from entering the US. It is
believed that legal challenges will be filed to enjoin the Proclamation
before the date of implementation.
It is unfortunately even more clear with the relentless attacks of Mr.
Trump and his cohorts on immigrants focused on who has money that, with his
wealth tests for entry which includes knowing the English language, he is
looking mainly for white Europeans to come while rejecting most of the rest
of the world.
State of Washington at al v. United States Department of Homeland
Security et al.
, No. 4:19-CV-5310-RMP (EDWA. 10/11/19)
City and County of San Francisco, et al v. US Citizenship and
Immigration Services, et al.
, Cases Nos. 19-CV-04717-PJH, 19-CV-04975-PJH, 19-CV-04980-PJH (NDCA
State of New York, at al v. United States Department of Homeland
Security, et al.
, No. 19 Civ. 7777 (GBD) (SDNY 10/11/19).
4. <em>Make the Road New York, et al., v. Ken Cuccinelli, et al.</em>, No.
19 Civ. 7993 (GBD) (SDNY 10/11/19)
5. “Visas: Ineligibility Based on Public Charge Grounds”, Federal Register,
Volume 84, No. 198, October 11, 2019.
‡ This article © 2019 Alan Lee, Esq.
About The Author<br/>
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<b>Alan Lee, Esq.</b> is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2019), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell’s Ask-a-Lawyer program. His article, “The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis” was Interpreter Releases’ cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS’ policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.
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