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Watch Out For The Public Charge Rule!
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</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/392716-article-watch-out-for-the-public-charge-rule-by-alan-lee-esq#bio”>
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Alan Lee, Esq.
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At this time, favorable court decisions staying implementation of the
public charge regulation finalized in August 2019 with implementation date
of October 15, 2019, have been whittled from three circuits to one and the
Trump administration recently filed an emergency application with the
Supreme Court on January 14, 2020, to the remaining injunctions of the US
Southern District Court of New York. This may very well be the last prelude
before the rule becomes law affecting an estimated 382,000 intending
immigrants and intimidating countless others and their US dependents from
applying for benefits to which they are rightfully entitled.
The public charge rule expands disallowed benefits to include food stamps
(SNAP), section 8 housing vouchers, section 8 project-based rental
assistance, public housing under section 9 of the US Housing Act of 1937,
and Medicaid with certain exceptions. The public charge determination will
be made on a judgment of the totality of circumstances rather than through
just consideration of the ability of the immigrant to have support meeting
the poverty guideline levels with such factors as age, health, family
status, education and skills, assets, resources, and financial status along
with whether the person is proficient in English or other languages in
addition to English taken into consideration. I-864 affidavits of support
in family-based cases will be scrutinized for the strength of the
relationship including whether the sponsor lives with the alien, and
whether the sponsor has submitted affidavits of support for other
individuals. And heavily weighted positive factors are whether the alien’s
household has income, assets, or resources, and support of at least 250% of
the federal poverty guidelines for the household size, or the alien is
legally employed with an annual income of at least 250% of the federal
poverty guidelines, or he or she has private health insurance without the
subsidies of the Affordable Care Act. (It should be noted that under the
just published 2020 poverty guidelines, <em>Federal Register</em>, volume
85, number 12, pp. 3060-3061, 1/17/20, 250% of the poverty guidelines in
the 48 contiguous states and DC for a family of three would be $54,375 and
for four $65,500 qualifying the regulation as an attack on the poor).
Nationwide stays by district courts in the Fourth and Ninth circuits were
overturned by recent Court of Appeals rulings in <em>Casa de Maryland, Inc. v. Trump,</em> No. 19-2222 (4<sup>th</sup> Cir.
December 9, 2019) and <em>City & County of San Francisco v. USCIS</em>,
944 F.3d 773 (9<sup>th</sup> Cir. 2019), but the ones issued by the
Southern District Court of New York were upheld by the Second Circuit on
January 8, 2020, in
State of New York, et al v. United States Department of Homeland
Security, et al.
, No. 19-359, and <em>Make the Road New York, et al., v. Ken Cuccinelli, et al.</em>, No.
Against this backdrop, the Administration moved the Supreme Court to
dissolve the stays pending disposition of a petition for writ of certiorari
arguing that it should be allowed to move forward with the rule since there
is a reasonable probability that four justices would consider the issue
sufficiently meritorious to grant certiorari, there is a fair prospect that
a majority of the court will conclude that the decision below was
erroneous, and a likelihood that irreparable harm would result from denial
of the stay. The government especially pointed to the Ninth Circuit
decision language that “DHS has shown a strong likelihood of success on the
merits, that it will suffer irreparable harm, and that the balance of the
equities and public interest favor a stay” (of the district court’s order).
The government also heavily groused over the fact its policies could be
held hostage on a nationwide basis by the ruling of a single district court
although the Republican party had no such doubts when the shoe was on the
other foot and a single district court judge in Brownsville, Texas,
effectively bottled up the past administration’s program, Deferred Action
for Parents of Americans and Lawful Permanent Residents (DAPA) in 2015.
(See <em>Texas v. US</em>, No. 1:14 CV-00254 (SD Tex. April 7, 2015)).
The government’s application at the Supreme Court is now with Justice Ruth
Bader Ginsburg who will first review the application. She can rule on the
request alone or as some think most likely, refer it to the full court. But
even if Justice Ginsburg rules against the government, the regulation could
still be implemented after the Second Circuit decides on the merits of the
suits. That court set an expedited briefing schedule on the merits with the
last brief due on February 14 and oral argument to be scheduled promptly
A comment must be made on the Administration’s application argument that
irreparable harm will ensue unless the preliminary injunctions are lifted
since they force DHS to grant status to those not legally entitled to it
and DHS has no practical means of revisiting public charge determinations
once made. One wonders why this is irreparable harm given the almost weekly
changes of established policy by this administration, essentially turning
previously welcome individuals into pariahs without any changes in their
circumstances. In other words, what is the real harm of allowing the status
quo to continue pending a final decision on the merits as we are not
contemplating the admission of criminals or security threats?
About The Author<br/>
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<img title=”Alan Lee, Esq.” itemprop=”image” src=”http://www.ilw.com/articles/2014,1103-Lee.jpg” alt=”Alan Lee, Esq.” target=”blank” align=”left” width=”100″ hspace=”10″/>
<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.
<p>‡ This article © 2020 Alan Lee, Esq.</p>
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