NOI 38: Appeals Court Chimes in on the Trump Admin’s Public Charge Rule

The Trump Administration's public charge rule gets an update in a new appeals court ruling from the 9th circuit.

Jacob Tingen: Nation of Immigrants. It’s nice to talk to you again. It’s good to be back and it’s good to be talking about public charge again. It’s always been a popular topic here. There’s been a recent ruling and I’m sure that you have questions that you’d like answered about this topic. That’s what we’re doing today. Welcome once again to Nation of Immigrants.

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. Until now, all of the news on public charge has generally been good news because the rule that had been promulgated by the Trump administration or the rule that had come out was essentially being overturned, which was great for my clients and for immigrants generally and for the family members of immigrants. We’ve talked about this rule before, the public charge rule, just kind of making things tighter, being more concerned about who comes into the United States. We actually in this podcast and in this live stream reviewed the decision that came out of New York and what they had to say about public charge.

Jacob Tingen: What’s interesting here is in the Ninth Circuit, which consists of a lot of western States, there had been an injunction also preventing the public charge rule from going into effect but that injunction was removed by this Ninth Circuit appellate court because there had also been an injunction in New York and I believe Maryland. The rule is still blocked nationwide. But it’s interesting to take a look at this opinion and kind of understand where the appeals court was coming from, what happened here, why they felt that they could lift this injunction. It’s a 78 page opinion, so I’m not going to tell you I’ve read it; I haven’t. Apparently it was issued yesterday. The news report that I read does pull out some interesting tidbits and I’d like to share some of them with you.

Jacob Tingen: Basically what’s interesting is, I guess this is in contrast to that ruling from the New York judge that we reviewed on the podcast where that New York judge said, “Hey, public charge has never been looked at in this manner. It’s never been defined this way.” And I thought that that New York judge had some compelling arguments.

Jacob Tingen: The judges on the Ninth Circuit court of appeals didn’t feel the same way. They said, “That we find that the history of the use of public charge and federal immigration law demonstrates that public charge does not have a fixed unambiguous meaning and that because it can be subject to multiple interpretations, the executive branch has discretion to interpret it.” Which is interesting; how much deference the courts should give to the executive branch. This is something we’ve also talked about in our series on US immigration courts.

Jacob Tingen: Chevron deference; I’m not sure if that’s the doctrine they’re calling up here. But generally there’s this idea that the federal courts shouldn’t get too much into the weeds with immigration issues unless they’re ambiguous. That’s kind of what the judge here is saying, “Look, it’s ambiguous, so we’re going to let the executive branch interpret this the way that it sees fit.”

Jacob Tingen: I do admit that I understand this argument but I prefer the argument from the New York judge for multiple reasons, because you can’t say that it is ambiguous and then redefine it to your whims. I mean that’s what the Trump administration has done is they said, “Well, we’re going to define public charge this way.” Even though public charge maybe has developed over time, maybe its understanding of what it means has developed over time, I feel like this change it’s never been quite this big or quite this drastic in how they’re looking at public charge.

Jacob Tingen: They address that to in their opinion, “Whether the change in policy results from changing circumstances or change in administrations, the wisdom of the policy is not a question we can review.” I don’t know that I would agree with that. I got the impression from the opinion written by the New York judge, definitely didn’t agree with that because … I mean the court was called on to review it and despite a history of some changes in its interpretation, it doesn’t seem like the agency can just do a 180 and say, “No, this is how we’re going to do it now. Completely opposite interpretations aren’t allowed and still claim that it’s ambiguous so we should get to decide what it means.” Of course the Trump administration issued a statement saying they’re happy with the decision.

Jacob Tingen: But what I think is interesting; it was a two to one decision. So one judge against lifting this injunction, two judges in favor of lifting the injunction. What’s interesting is there’s still a lawsuit proceeding on this issue in general, but basically there was just a preliminary injunction placing a hold on implementing this policy, preventing it from going into effect and then that hold’s been lifted while the litigation continues. One of the judges said, “You know, we should have left the injunction in place.” Two of the judges said, “You know, we’ll lift this injunction while the litigation continues.”

Jacob Tingen: But even the majority opinion had this to say, and I think it says a lot about the state of immigration law in the US currently.

Jacob Tingen: It says, “Declaring himself perplexed and perturbed Bybee,” the judge who wrote the opinion, “said the courts were being thrust to the center of the immigration fight in large part because lawmakers have abdicated their responsibilities.” Talking to Congress here, he says, “So far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates. We have seen case after case come through our courts, serious and earnest efforts, even as they are controversial to address the nation’s immigration challenges. Yet we have seen little engagement and no actual legislation from Congress,” Bybee wrote. “It matters not to me as a judge whether Congress embraces or disapproves of the administration’s actions, but it is time for feckless Congress to come to the table and grapple with these issues. Don’t leave the table and expect us to clean up.”

Jacob Tingen: This sounds like even though the judge lifted this injunction, he was not happy about it. Of course judge can’t make Congress do anything. Neither can any of us except for when we vote.

Jacob Tingen: It’s interesting that immigration is becoming a bigger and bigger issue. And a lot of these issues are being tangled up in the courts, which just goes to show or highlight the role that courts are playing in all of these issues. I appreciate what this judge wrote in his memo. It’s time for Congress to act. It’s been time for a long time. Congress is not likely to act anytime soon. It’s unlikely to come to an agreement over immigration given the administration’s positions and the kinds of things that they’re looking at.

Jacob Tingen: And on the issue of public charge, of course it would be awesome if we could get new rules or new laws about public charge and what it means, maybe defined by Congress more so than just an executive agency because that’s the problem here. Again, if you remember over the summer, new rules were issued about public charge, basically heightening the standards, heightening how much income you’d have to show and those kinds of things.

Jacob Tingen: That’s it for Nation of Immigrants today. I hope that you enjoy these summaries of information. I am going to record another episode today. There’s been another incident, another headline that I wanted to address. I don’t always do two in one day but today there will be.

Jacob Tingen: If you like what we’re doing here on the podcast, go ahead and subscribe to our YouTube channel, follow us on iTunes and you can also donate to the podcast. We’re finalizing our setup as a nonprofit, but even now funds that you donate to the podcast to support the podcast, we’re actually going to take that and try to support the legal bills of immigrants. So it’ll go to support that.

Jacob Tingen: Thank you all for subscribing and listening and following. We’ll be back with more information about immigration, about public charge and anytime we see any development on this rule, which we know is important and impacts a lot of people.

Jacob Tingen: The good news is even though this appellate court removed their injunction, there are still two more nationwide injunctions, and so the public charge rule, at least domestically still has not gone into effect. It’s nothing that you need to be worried about if you’re listening to this. Unfortunately, in the Department of State, so embassies and consulates, public charge is more of an issue there. So anybody who’s contemplating going to an interview in a consulate or embassy or even adjusting status in the United States, make sure you check in with your lawyer before you go and that you have ready answers to those public charge questions.

Jacob Tingen: Thanks again for listening and we will see you next time.

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