Rule of Law

BLOG: COVID-19 and the Public Charge Rule

Delays in cases on who constitutes a “public charge” for immigration purposes could negatively affect both noncitizens and citizens seeking to avoid and treat COVID-19.

Every moment, it seems like the novel coronavirus (COVID-19) pandemic is affecting a new part of daily life.  Earlier this week, the Supreme Court announced that it would postpone oral arguments scheduled between March 23 and April 1 due to recommended public health precautions, and many other federal courts are doing the same.  The cases postponed at the Supreme Court have little to do with COVID-19 itself; instead, they focus on issues such as the President’s tax returns and what constitutes a seizure under the Fourth Amendment.  But one issue on which litigation has been delayed in the lower courts has a much more direct connection to COVID-19. Indeed, delays in cases on this issue—i.e., who constitutes a “public charge” for immigration purposes—could negatively affect both noncitizens and citizens seeking to avoid and treat COVID-19.

Under the Immigration and Nationality Act, an individual may be excluded or removed from the United States if he or she is likely to become a “public charge.”  Throughout American history, the term “public charge” has been understood to refer to an individual who receives cash benefits from the government for subsistence or who experiences long-term institutionalization.  In August 2019, however, the Department of Homeland Security promulgated a new rule redefining the term “public charge.”  Under the Trump Administration’s rule, an individual may be deemed inadmissible to the United States or may be denied an adjustment of immigration status based solely on the acceptance of non-cash public benefits, including assistance through the Supplemental Nutrition Assistance Program (SNAP), Section 8 Housing Assistance, Section 8 Project-Based Rental Assistance, Medicaid (with some exceptions), and certain other forms of subsidized housing.  With the spread of COVID-19, this rule–as well as the atmosphere of fear that it has created–may well deter immigrants from seeking assistance with virus prevention or treatment, endangering noncitizens and citizens alike.

The legality of the public charge rule is being challenged in several federal courts, and in October 2019, district courts in New York and Maryland concluded that the rule is likely unlawful and issued nationwide preliminary injunctions to keep it from going into effect.  In late January, however, the Supreme Court decided, by a 5-4 vote, to let the Trump Administration’s rule go into effect by staying the nationwide preliminary injunction that is currently on appeal in the Second Circuit.

Several courts have since delayed their proceedings on the public charge rule, likely due to guidelines from the Centers for Disease Control and Prevention (CDC) restricting large gatherings in response to the spread of COVID-19.  For example, both the Southern District of New York and the Fourth Circuit rescheduled their March hearings in public charge cases for early May, though the clerk’s office for the Fourth Circuit stated that this change was not due to COVID-19.  While eliminating in-person oral arguments certainly makes sense given CDC guidance, the courts’ decision to delay these proceedings exacerbates the impact that COVID-19 is having on those who may be considered public charges, as well as others around them.

Some of the plaintiffs in these public charge cases have brought this issue of delay to the courts’ attention, but to little avail.  For example, on March 6, eighteen state attorneys general sent a letter to the Department of Homeland Security entreating DHS to “immediately stop implementation” of the public charge rule due to COVID-19.  In the letter, they explained that the public charge rule undermines the efforts to limit the spread of COVID-19 “by deterring individuals from accessing critical health benefits to which they are legally entitled.”  The plaintiffs challenging the public charge rule in two cases in the Southern District of New York notified the court of this correspondence, but the court nevertheless delayed oral arguments on motions to dismiss the cases.

Similarly, after arguments in the Fourth Circuit were rescheduled for May 5, the plaintiffs challenging the public charge rule filed a motion to expedite the court’s proceedings in order to reinstate the original argument date.  In their motion, the plaintiffs explained, “The COVID-19 outbreak has magnified the harms caused by the Rule—particularly to vulnerable populations, the organizations that support them, and the public-health officials who are on the front lines of managing this public-health crisis.  Because the Rule has deterred noncitizens and their family members from seeking necessary medical care, it will be more difficult to contain the effects and spread of this dangerous illness. An expeditious resolution of this case is especially necessary now that the COVID-19 outbreak is rapidly expanding in the areas served by [the organization challenging the Rule].”  The Fourth Circuit ultimately denied their motion, potentially deterring noncitizens who might be in real need of medical care from obtaining it.

To be sure, U.S. Citizenship and Immigration Services (USCIS) recently announced that immigrants who undergo medical testing or treatment for COVID-19 will not be penalized for doing so under the public charge rule when applying for naturalization.  But that announcement is insufficient for multiple reasons. For one thing, immigrants might not be aware of USCIS’s new exception to the public charge rule and therefore may still be deterred from seeking treatment for COVID-19 so long as the rule is still generally in effect.  Moreover, even if an immigrant is aware of USCIS’s new exception, she might still reasonably be concerned about inconsistent enforcement and wary that an immigration agent would hold COVID-19 treatment against her, despite the USCIS’s announcement, so long as the public charge rule is on the books.  As an example of the distrust created by the Trump Administration, even after the Administration was defeated in its attempt to add a citizenship question to the U.S. Census, one recent report states, “About three-quarters of Latinos in the United States worry that President Donald Trump’s administration will use information obtained through the census against them.”

Further, COVID-19 has significantly and swiftly increased the need for many people to rely on non-cash public assistance programs—because their place of employment has closed, their employer does not offer paid sick leave while they are quarantined or receiving treatment, or their children are not receiving the meals and childcare they usually would at school.  Yet USCIS’s announcement would still allow people to be penalized under the public charge rule for relying on the non-cash public benefits that they increasingly need as a result of COVID-19 to get through these particularly trying times. It is therefore all the more imperative that courts swiftly resolve the legal challenges to the public charge rule.

And importantly, an end to in-person oral arguments should not prevent expedient resolution of these cases.  Courts could hold arguments by teleconference, for example, or they could consider and decide these cases solely on the briefs, which were all filed before the spread of COVID-19.  Indeed, the Third Circuit has announced that oral arguments “will continue as scheduled” and may be completed by audio conference upon request, while the D.C. Circuit is also exploring the possibility of holding arguments remotely.  If the courts want to ensure a responsible and timely resolution to these cases, they should take advantage of readily available technologies and proceed with their increasingly vital work.