Jacob Tingen: Another episode in our program. I don’t normally do two in a day, but we had some interesting news, and I know that it’s very important for a lot of people who are listening to, or watching for, immigration news related to the public charge rule that was promulgated and that we talked about in our first episode. Well, guess what? That rule has been struck down and subject to a nationwide injunction and we’ll be talking about it after the intro.
Announcer: You’re listening to Nation of Immigrants-
President Obama: America is a nation of immigrants.
Announcer: … a podcast about US immigration law with your host Jacob Tingen.
Jacob Tingen: Okay, so today we’re going to be talking about public charge. And as I mentioned, this is a rule that we’ve already discussed in a prior episode of Nation of Immigrants, and it’s this new rule that came out where they were essentially applying a new standard to public charge grounds of inadmissibility. So just as a refresher, or if you’re visiting for the first time, a ground of inadmissibility is a reason that the United States uses to exclude people from the country. So we have a list of 10 in INA 212a, and it lists reasons we keep people out of the country, criminal history, history of terrorism, but also things like diseases or not having vaccines, prior immigration violations, but among those public charge, which is in effect saying you are too poor to come to the US, and that’s the case.
Jacob Tingen: But what’s interesting is there was this proposed rule that had come out that was redefining public charge as “… any non-citizen who receives one or more public benefits for more than 12 months in the aggregate, within any 36 month period.” So that was going to be the new standard for determining whether or not an immigrant could receive a green card, if they’d received any kind of public benefit. So, and if they’d done that for a period of 12 months in the aggregate, within any three year period.
Jacob Tingen: The idea, of course, was to exclude more immigrants. As we talked about that Last Week Tonight with John Oliver episode where he talked about legal immigration and how Trump, the Trump administration, implies that they’re okay with legal immigration, but at every turn they’d been trying to block legal immigration. That’s what this public charge rule does. It makes it harder, even harder for people to come in through our legal immigration system. So it’s not a compelling argument when when the administration says, “Oh, I’m in favor of legal immigration,” and then turns around and does everything they can to prevent people from immigrating here, even through our current systems.
Jacob Tingen: So I wanted to look through this injunction that came out that struck down this new rule and this new definition of public charge. So this is an opinion that was issued by George B. Daniels, United States district judge of the Southern District of New York. There were a number of cases that had come out against this policy throughout the nation. And in part as a result of that and frankly because immigration is a federally preempted issue, the injunction was issued nationwide. Now I read through the opinion here and I have kind of highlighted some things that I wanted to bring out.
Jacob Tingen: So the first is what the new rule is, which is what we just explained. But additionally I just kind of wanted to look at what the judge had to say and some of the reasoning here. So one of the reasons that the rule wasn’t allowed to go into effect according to this judge is that the definition of public charge was drastically changed under this new rule. And so, how can we possibly argue that this is congressional intent? Right? So the rule was simply a regulation. Agencies frequently interpret regulations or promulgate new regulations to put into effect statutes. Public charge has been around for more than a hundred years and so it has an accepted definition under the law. And so that was one of the things that was argued. So apparently plaintiffs in this case argued that there was a well established meaning for this term that had existed for over 130 years. And that even within the definition of public charge, as it was understood when it first went into effect, that it included immigrants that, okay…
Jacob Tingen: Yeah. So the inadmissibility of public charges excluded as public charges immigrants who received temporary assistance. So, in theory, that that is people who receive 12 months ago, within a 36 month period. Those people wouldn’t be considered public charges under public charge as it was originally understood by the people who came up with this rule. The only idea behind public charge was that they didn’t want to allow people in who would never be able to support themselves, but they expected to give temporary assistance to immigrants, which is interesting. And why isn’t that the debate? Shouldn’t the debate be why aren’t we helping immigrants more as they get settled into our communities?
Jacob Tingen: One of the other parts that I really liked about in this opinion is after he looks at the plaintiff’s arguments and the defendant’s arguments as to this new definition of public charge, this is what the judge had to say. “One thing is abundantly clear. Public charge has never been understood to mean receipt of 12 months of benefits within a 36 month period.” It says, “Defendants admit this is a new definition, and in oral argument, they did not dispute that this definition has never been referenced in US history. There’s zero precedent supporting this new definition,” which is kind of an ouch moment in the middle of oral argument. I’m sure if you look up the oral argument for this case, if it’s available publicly, it probably is, you might find some awkward moments. So ultimately he ruled that defendants lack the authority to redefine public charge as they have.
Jacob Tingen: Another of the reasons that this rule was denied is because they didn’t show that it was reasonable. So apparently the APA, the Administrative Procedure Act, requires an agency to engage in reasoned decision making. And so the judge essentially says in this opinion that the reasoning wasn’t even, I mean here he says there was no logic to the framework provided for this new public charge rule and what it would mean. And he goes through some examples where, at oral argument, he asked them to explain, he asked the government attorneys to explain to the judge like, “Hey, how’s this going to work? Give me a case. Explain this to me so that I can say if this makes sense or not.” It has to be reasonable, but that they couldn’t do that. That says defendants failed each and every time.
Jacob Tingen: And then I wanted to bring this one out because it does concern me. I am not one, I think I said this in a prior episode, I’m not one to just accuse people who have differing views on immigration of being racist or white nationalists, or those kinds of things. I know immigrant advocates who do, there’s even a former immigration judge at immigration court side, Paul Schmidt, and he’s a great immigrant advocate. He doesn’t pull any punches. He will absolutely call out what he sees as racism and bigotry, as he frequently does on his blog. I’m a little slower to make those kinds of accusations, but here in this opinion, it points out something about this rule that I felt was a little disappointing and it’s, there’s no other way to look at this than some form of racism or nationalism.
Jacob Tingen: So, and understand that I do believe that people who come here should, for their own benefit, learn English, it’s going to be a boon to them. But in the public charge rule, defendant, it says this, defendants also failed to demonstrate rational relationships between many of the additional factors enumerated in the new rule and a finding of benefits use. One illustrative example is the addition of English language proficiency as a factor. So the rules said that they had to learn English and if they didn’t that that was a point against them. Not learn it, know it, I guess, when their immigrants first arriving at the country, I mean, how many of us know another language without visiting another country first to learn that language? Said, “Defendants do not dispute that there’s never been an English language requirement, but they argue that it’s entirely reasonable, because an applicant’s education and skills can be considered,” and therefore English language skills have a correlation to not being a public charge.
Jacob Tingen: Well the judge did not like that argument at all. Instead the judge said, “It is simply offensive to contend that English proficiency is a valid predictor of self-sufficiency,” and I would agree with that. I know many people who are working on English, who wished they spoke it better. I know many immigrants who don’t care about learning English or speaking it better, and yet many, many, many of them are self-sufficient. So yeah, I’m going to agree. It is simply offensive to contend that English proficiency is a valid predictor of self sufficiency. That’s just a fact. It’s offensive, should not have been included in the rule. I understand the reasoning, but it’s just not very good reasoning.
Jacob Tingen: And then ultimately he ends with this. The judge says, well actually it doesn’t end with that. The opinion goes on, but this section ends with this, “It is repugnant to the American dream of the opportunity for prosperity and success through hard work and upward mobility. Immigrants have always come to this country seeking a better life for themselves and their posterity. With or without help, most succeed.” I love that. Immigrants have always come to this country seeking a better life for themselves in their posterity, and then with or without help, most succeed. And that is the American story. I mean it’s, most of us are immigrants or are children or grandchildren of immigrants. And that recognition just kind of brings in to line the simple fact that hey, this is a nation of immigrants.
Jacob Tingen: And it’s very possible and very likely that your parents or your grandparents or great-grandparents or someone in your family tree received help from somebody who came here first. And we need to acknowledge that help. There’s nothing wrong with acknowledging that help. And there’s nothing wrong with turning around after we’re up on our feet and extending the hand to help others. I really like how he pointed out in the history of public charge, it didn’t exclude people who needed temporary assistance. They let in immigrants who needed assistance. And the only idea, the only real point behind the public charge rule was they wanted to keep people out who would always require public assistance, whereas that’s not the case, with or without help, most immigrants succeed. And I really liked that the judge pointed that out.
Jacob Tingen: So ultimately he ruled that a nationwide injunction would be appropriate for a lot of reasons. Like we mentioned, there’s been litigation over this topic virtually everywhere across the country, so… Yeah, this public charge issue has been hotly debated. It’s, people who have been searching for information about this ever since I’ve been doing this Nation of Immigrants podcast. And it’s something that, that matters to a lot of people because again, this is an attack on legal immigration. And so it’s an attack, frankly, on US citizens, and permanent residents as well, who are petitioning for family members and who are subject to these public charge rules.
Jacob Tingen: So I hope you’ve enjoyed this episode of nation of immigrants. As you can see, there’s a lot of work do, and I’m grateful that there are so many good lawyers and advocates trying to do what they can to keep these immigration things straight. If you’d like to help support the podcast and support advocacy for immigrants, visit jacobtingen.com where you can donate to support the podcast. You can follow us on YouTube, Twitter, Facebook. We’re pretty easy to find online, and thanks again for listening, and congratulations to everybody who no longer has to worry about this rule. So have a great weekend.
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