Earlier this week, acting Director of U.S. Citizenship and Immigration Services Ken Cuccinelli announced that the U.S. Department of Homeland Security will be implementing a new interpretation of a long-standing provision aimed at deporting legal immigrants deemed by immigration officials as “liable to become a public charge.”
Under the new final rule published in the Federal Register on Wednesday, receiving SNAP benefits (a.k.a. food stamps), most forms of Medicaid, Section 8 Housing Assistance and other federal benefits will count as negative factors in an immigration officer’s consideration of applications for visa renewal, legal permanent residency (a.k.a. green card) and naturalization.
Despite DHS’s claim that the new rule is meant to clarify ambiguities under section 212(a)(4) of the Immigration and National Act, the history of the provision’s implementation in U.S. immigration law is fraught with arbitrary interpretation, expansive application and outright discriminatory treatment towards vulnerable immigrant populations.
The public charge provision (also referred to as “liable” or “likely” to become a public charge, or LPC) was first adopted into federal immigration law in 1882, the same year Congress passed the Chinese Exclusion Act, which essentially barred Chinese nationals from entering the U.S.
Under the 1882 Immigration Act, “convicts, lunatics, idiots, or any person unable to take care of himself or herself without becoming a public charge,” was prohibited from entry. In latter revisions to the immigration statute in 1903, 1907, and 1917, the LPC provision was expanded to both block undesirable immigrants at a port of entry, like Ellis Island in New York or Angel Island in San Francisco, and to apply retroactively to immigrants applying for an extension or change in their status.
For decades, historians have documented how, throughout its checkered history, the hallmark of the LPC provision has been its malleability to fit a wide range of individuals and circumstances deemed by immigration officials to be outside the bounds of inclusion in the U.S. nation-state. Using broad interpretive and discretionary powers, immigration officers have relied on racist, classist and sexist stereotypes in their application of the LPC provision.
During the late 19th and early 20th centuries, the LPC rule was disproportionately applied to poor and working-class women. Single mothers, women pregnant outside of wedlock and self-supporting female-headed households were either denied entry or retrospectively deported for lacking a male breadwinner.
Similarly, ethnic, racial and sexual minorities were unduly stigmatized as diseased, mentally unfit or morally deficient under the LPC rule. In one of the most egregious historical examples, Jewish refugees fleeing pogroms during the Russian Civil War and the latter rise of Nazi Germany were denied travel visas and asylum petitions because of their religious identity.
By the mid-1920s, the abuse of the LPC rule had become so widespread that immigration courts became backlogged with cases filed by immigrants and reformers seeking an end to its unjust application. Although the use of the LPC rule continued into the mid-20th century, calls for reform were successful in substantially curtailing its use after the 1930s.
Article continues below
If history is our guide, then we should be wary of the Trump administration’s efforts to revitalize the use of the LPC provision to deport immigrants that are already legally residing in and contributing to the U.S.
Even with its new definitions, the LPC rule still grants wide discretion to immigration officials in determining whether “an alien is likely to become a public charge.” As in the past, the use of the LPC provision will disproportionately burden poor and working-class immigrant households by separating families and placing substantial economic barriers to their integration as vital parts of this “nation of immigrants.”
Speaking with Breitbart radio in October of last year, Cuccinelli argued that states could use “war powers” to block Central American migrants, many of whom were reportedly planning to seek asylum in the US and who’d formed a so-called caravan, from coming across the border.
“We’ve been being invaded for a long time, and so the border states clearly qualify here to utilize this power themselves. And what’s interesting is they don’t need anyone’s permission,” Cuccinelli said. “They can do it themselves. And because they’re acting under war powers, there’s no due process. They can literally just line their National Guard up with, presumably with riot gear like they would if they had a civil disturbance, and turn people back at the border. Literally, you don’t have to keep them, no catch and release, no nothing. You just point them back across the river and let them swim for it.”
“When someone comes across your border without your permission, it’s an invasion,” he added. “Their purpose here is to violate the border, to violate our sovereignty, for their own purposes. That’s an invasion. And here, I don’t think with the caravan it’s even debatable because you’ve got an entire group that’s organized itself to come into the country.”
Neither the White House nor US Citizenship and Immigration Services responded to a request for comment.
The early days of SLLI
“State Legislators for Legal Immigration has been formed to serve as a unifying force to bring all levels of government together to terminate America’s illegal alien invasion from the Keystone State of Pennsylvania; to every city, community, small town, main street, front porch and back yard; across our fruited plains; and from sea to shining sea,” the group’s website read at the time, drawing from “America the Beautiful.”
In a May 2007 press release announcing he was joining the group, Cuccinelli explained his participation in terms of security.
“We face very real security threats today,” Cuccinelli said at the time. “Porous borders and lax immigration enforcement have left us vulnerable not only to terrorist attacks but to increasing levels of crime in our communities. Those already accustomed to flagrantly disregarding our laws do not hesitate to traffic their deadly cocktail of drugs and gang violence into Virginia.”
Shortly after Cuccinelli joined the newly founded group, Metcalfe sent a letter to President George W. Bush on behalf of the state lawmakers saying the Constitution required that “illegal alien invasion” be “terminated” to protect Americans.
“President Bush, as you well know, the federal government has a Constitutional obligation to secure our borders from the entry of illegal aliens,” the letter read. “Article 4, Section 4 of the U.S. Constitution states that our government ‘shall guarantee’ to every state in this Union a Republican form of government and shall protect each of them against INVASION.”
“The illegal alien invasion must be terminated to protect Americans from increasingly documented incidences of homicide, identity theft, property theft, serious infectious diseases, drug running, gang violence, human trafficking, terrorism and the growing cost to taxpayers,” it continued.
In December 2007, the group hosted a public event at the National Press Club that featured representatives from the immigration advocacy group FAIR, which seeks to limit immigration overall, on the anniversary of Pearl Harbor to warn against the “invasion” of undocumented immigrants into the US. Cuccinelli was not among the state lawmakers present for the event.
Metcalfe did not respond to an inquiry from CNN.
Turning ‘invasion’ into standard rhetoric
Cuccinelli would cite his ties to State Legislators for Legal Immigration when campaigning for Virginia attorney general in 2008, citing his status as an early member of the group on his campaign website.
“As a founding member of State Legislators for Legal Immigration, I am committed to passing legislation that removes the economic incentives that fuel illegal immigration,” Cuccinelli’s website read in 2008. “Legal immigrants began their story in the United States with respect for our laws. Illegal aliens have begun their history with us in an unlawful way. Those who choose to break additional laws by stealing identities, dealing drugs, joining criminal gangs, driving without a license or committing fraud must receive prompt justice.”
The group has grown steadily less active, but Cuccinelli’s rhetoric has remained largely the same since 2007.
Speaking at the conservative Red State Gathering in August 2014, during a time when thousands of unaccompanied minors were arriving at the border, Cuccinelli said Texas was being “invaded.” He suggested, in response to a question from the audience, that then-Texas Gov. Rick Perry — now Trump’s energy secretary — should be allowed to enter treaties and wage war against the children arriving from Central America.
“Article One, Section 10, Clause 3 says states can’t enter into treaties or wage war except when actually invaded. Obviously we all know what Governor Perry’s been doing lately. Understand that he has absolute constitutional authority and the federal government cannot stop him. They cannot stop him,” Cuccinelli said.
He added: “He can use whatever power the state has to stop actual invasion. And a Border Patrol member could want someone to be allowed in and Texas could stop them. I actually think if I were Governor Perry, I’d be quietly going around other governors and asking for monetary contributions, because we’re not being invaded, Texas is. And so they have constitutional prerogative that we don’t have in Virginia right now. “
Seven months later, Cuccinelli suggested Democrats were in favor of unchecked immigration.
Speaking on conservative radio in March 2015, Cuccinelli said President Barack Obama was encouraging “invasion” of the US by undocumented immigrants.
“I mean, we’re being invaded,” Cuccinelli said at the time. “We’re being invaded, right? One person at a time, we’re being invaded. And the president isn’t protecting us from invasion, he’s encouraging the invasion, and he’s doing it unconstitutionally.”
Starting in October, the Trump administration’s new definition of who constitutes a “public charge” will likely thwart thousands of low-income immigrants from obtaining legal permanent resident status in the United States. The rule, which in the past has only affected applicants who leaned heavily on cash aid to get by, will make it harder for recipients of Medicaid, housing vouchers, food stamps, or other basic subsidies to obtain green cards—even if they have no criminal records, pay their taxes, and reside in this country legally.
When immigrants are denied permanent residence and their prior legal status expires, they’re supposed to leave, often abandoning families, jobs, and communities. This new measure, then, effectively criminalizes poverty. Lawyers and advocates reported a drop in immigrants’ willingness to rely on life-saving state benefits even before the rule was made official, and they now worry that the policy will push more and more families into the shadows: They won’t get the help they need to feed their families, stay healthy, and feel safe.
The public charge rule has been criticized as unfair, undemocratic, and above all, un-American. It is all of those things—but it’s also unsurprising. Reporting on the intersection of money and migration for years before going through the US immigration process myself, I saw this coming. Borders have always existed much more for the poor than for the rich; what’s more, immigrants are now largely regarded not as people but as economic assets. Will they contribute to the economy? Are they a worthy investment? What is the cost-benefit breakdown?
This is what happens when society applies market logic to every aspect of life—and it’s the direction in which many countries had been moving, even before Trump, Brexit, and the revival of ethno-nationalist politics around the world.
For years, the United Kingdom has required immigrants, including those married to British citizens, to make a certain amount of money if they want to emigrate. That sum was recently raised to £36,000 ($43,639) from an already significant £30,000. Every EU country has salary requirements for certain categories of immigrants. To settle in Australia, you must prove you can support yourself until you find a job (if you are given a work permit at all). Virtually all the nations in the world require either employer or family sponsorship, and offer “investor” visas to foreigners who can make large financial contributions and support themselves in full. It’s not primarily about who you are, or even where you’re from—though that factors in significantly. It’s about how much you can pay.
Refugees and asylum seekers know all too well that the more cash you have to spend on lawyers, the better your chances are of resettlement. But professionals with fancy degrees get squeezed, too: Filing fees for basic immigration paperwork in the United States cost hundreds of dollars. (This is the money with which US Immigration and Citizenship Services is funded—US taxpayers subsidize keeping people out with walls and security, but not letting people in.) And good luck navigating the bureaucracy without a lawyer: I recently tallied up all the money I spent on immigration since graduating from college in 2008, and it came to $15,000. (That sum does not include college itself—which allowed me to be eligible for a visa in the first place.)
Oh, and about that “line” that Republicans want immigrants to get in? You can buy your way out of that, too. USCIS gives applicants the option of shelling out an additional $1,410 for what’s known as “premium processing,” which cuts the wait time for a status approval (or denial) from several months to 15 days.
It feels absurd to bring up the ultrarich in the context of Trump’s new rules, but even 1 percenters can’t escape the creeping trend of costlier and costlier immigration, particularly to the United States. The US EB-5 visa, which wealthy foreigners can obtain by investing in state-designated development projects, almost doubled its original minimum investment of $500,000. This means a whole class of already wealthy people (an overwhelming proportion of whom come from China) may no longer afford the cost.
Curiously, applying market logic to immigration has pushed other countries to cut costs. After a devastating hurricane season a couple of years ago, the island nation of St. Kitts and Nevis–which has sold its citizenship legally to wealthy foreigners for decades—was so desperate for cash that it lowered the price of citizenship to just over $200,000 for a family of four, down from more than $300,000.
A hundred thousand dollars is the equivalent of pocket change to a billionaire. But at every income bracket, the difference between legal and illegal immigration often boils down to how much you can spend. That, of course, hurts those with the least the most.
How do these rules affect immigrants who are neither impoverished nor exceedingly rich? My own case might be instructive. I’m not the kind of person Trump is targeting—at least, not yet—but I recently came close to understanding what it feels like to be subject to his immigration restrictions, and in particular, experiencing the fear the administration’s cruel policies create.
It was early 2017, and I’d had a disruptive couple of years. I’d had to change apartments a bunch of times, and my employer, Al Jazeera America, abruptly shut down the year prior, leaving 800 of us to get by on a generous severance package, but with a finite and ultimately unaffordable health insurance policy.
Making a living as a freelance writer is never easy, and for a confluence of reasons related to an expiring COBRA health-insurance plan, a handful of story ideas that never panned out, and several publications’ taking an inordinate amount of time to pay me for the work I’d done, I found myself signing up for Obamacare on the New York State health exchange and reporting an income of close to zero over the period the healthcare.gov questionnaire asked about.
I was also applying for a green card at the time, and I knew well enough to check whether receiving a health care subsidy would hurt my chances with immigration. The answer was a clear “no” at the time, so when the website gave me the option to go on Medicaid until my circumstances changed and the person at the other end of the toll-free line said it was my right, I took it. I didn’t want to pay the penalty for having no insurance. I was healthy. It was free. I signed up and forgot about it.
A few months later, a draft of the public charge rule was released. I clicked on some news headlines revealing the administration’s intentions, and those sent me down a rabbit hole of immigration forums (the experience is a bit like Googling a headache and finding out that you definitely are dying of cancer). I soon found myself dripping cold sweat and trying to tamp down a panic attack. I turned off my phone, convinced I would be promptly deported, and terminated my insurance plan as soon as I could.
I’d only needed to use the insurance once. I was at an offshore-tax conference in Miami to give a talk about how buying passports can help rich people dodge taxes, and the night before my lecture, the pinkie toe on my left foot swelled up to what felt like 10 times its size. In the early hours of the morning, the pain grew unbearable, so I called up the local hospital to ask if I could come in to get it checked out. They took all insurance, they said. Come on in.
I stood up, got dressed, and tried to squeeze into sandals, but they wouldn’t fit over my monstrous pinkie, so I made my way down the elevator and onto the parking lot in flimsy white hotel slippers. The conference had put me up in the Ritz Carlton, in a room bigger than my Brooklyn apartment, and the chain’s golden-lion logo on my feet caught the light from the hotel’s awning as I waited for a cab, clutching my Medicaid card, hoping my care would be covered. My foot hurt like hell, but I wasn’t sure whether to laugh or cry.
After a long wait at the hospital, a sunburned ER doctor sliced my toe open as I looked away: a nasty abscess, but nothing serious. And my green card arrived a year and a half later during the last government shutdown: my filing fees at work.
I was lucky; I still am. Still, my visit to the hospital and notably, the insurance I used to pay for it felt like a close call. What if I’d applied for permanent residence a year or two later, after they’d changed the rules? What if my financial situation had not improved? Where would I be if they’d thought of me as what we all, in some way and at some point, end up being: a public charge?
California — the state with the largest population of immigrants — filed a federal lawsuit Friday hoping to derail the Trump administration’s attempt to deny green cards and visa extensions to foreign nationals who use Medicaid, food stamps or other public assistance, or might in the future.
The lawsuit is the fourth legal challenge filed this week since administration officials rolled out a new rule on Monday that seeks to redefine who will be eligible for permanent residency and a path to full U.S. citizenship. The rule, set to take effect in mid-October, will give preference to wealthier, educated immigrants who can support themselves, and it will make it more difficult for immigrants who rely on public help or are determined to be likely to need federal assistance.
Opponents of the rule argue that punishing legal immigrants who need financial help endangers the health and safety of immigrant families — including U.S. citizen children — and will foist potentially millions of dollars in emergency health care and other costs onto local and state governments, businesses, hospitals and food banks.
“This cruel policy would force working parents and families across the nation to forego basic necessities like food, housing, and health care out of fear. That is simply unacceptable,” California Attorney General Xavier Becerra said in a statement on the lawsuit, which also includes as plaintiffs the District of Columbia, Maine, Pennsylvania and Oregon. “In California, we know that welcoming and investing in all communities makes our entire nation stronger. I know this being the son of hard-working, modest immigrants who likely would have been victims of this regressive policy. We will fight this unlawful rule every step of the way,”
Ken Cuccinelli II, acting director of U.S. Citizenship and Immigration Services, speaks during a briefing at the White House. (Evan Vucci/AP)
Federal officials say the rule ensures that immigrants can cover their own expenses in the United States without burdening taxpayers for food, housing and other costs. U.S. officials note that the change is not retroactive and exempts refugees and asylees who fled persecution for safety in the United States.
Ken Cuccinelli II, acting director of U.S. Citizenship and Immigration Services, said Monday that the “public charge” rule will encourage and ensure “self-reliance and self-sufficiency for those seeking to come to, or to stay in, the United States.” He also noted that it will “help promote immigrant success in the United States as they seek opportunity here.”
The Justice Department declined to comment on the lawsuits Friday. However, Cuccinelli has said officials expect the rule “to withstand any legal challenges.”
In a separate lawsuit Friday, nonprofit organizations that serve Asians, Africans and other immigrant groups in Northern California warned that the rule is fueled by the Trump administration’s “racial animus” and disproportionately targets nonwhite immigrants, and they urged a federal judge to put a stop to it.
“This pernicious regulation would create a byzantine structure designed to send one message and one message only: ‘If you are not white and wealthy, you are no longer welcome in this country, the land of opportunity,’ ” Marielena Hincapié, executive director of the National Immigration Law Center, told reporters Friday.
In an unusual move, the organizations’ lawsuit challenges the appointment of Cuccinelli to his USCIS post. The organizations said Cuccinelli — a former Virginia attorney general, who took over the role in June — technically does not meet the federal criteria needed to serve in the position on an acting basis, and they asked the court to declare his appointment and the rule invalid. The lawsuit says that only someone who has already been confirmed by the Senate or has served in the agency for at least 90 days in the year prior — among other qualifications — is eligible for the role.
Cuccinelli rolled out the rule on Monday, and the next day Santa Clara County and the city of San Francisco filed a lawsuit to block it in U.S. District Court in the Northern District of California. Three of the lawsuits are filed in the jurisdiction of the U.S. Court of Appeals for the 9th Circuit, which has heard nearly all of the major immigration litigation challenging President Trump’s policies.
California Attorney General Xavier Becerra speaks in June. (Rich Pedroncelli/AP)
On Wednesday, 13 Democratic state attorneys general followed with a separate lawsuit in Washington state, saying the rule is a“radical overhaul” of immigration rules, and that it violates the Constitution and other laws. The states are led by Washington State Attorney General Bob Ferguson and Virginia Attorney General Mark R. Herring, who succeeded Cuccinelli as the state’s top prosecutor in 2014.
Nationwide, advocates for immigrants fear hundreds of thousands of migrants will withdraw from food, housing and medical-care programs. They also worry that businesses will suffer and that hospitals will bear higher costs to provide emergency services. They say immigrants in the United States legally could lose their legal status or even be deported if they use public aid.
USCIS says the new rule applies to all immigrants seeking green cards or visa renewals, mainly from inside the United States because they are the only immigrants who would have access to public benefits.
Officials have said they expect nearly 400,000 immigrants to be subject to the rule every year, though they did not provide an estimate of how many could be denied green cards or other immigration benefits as a result.
They also project that more than 232,000 immigrants and their U.S. citizen relatives in nearly 9,000 households across the United States could withdraw from a public benefits programs as a result of the rule, or about 2.5 percent of the enrolled population, according to a USCIS spokeswoman.
The estimate is based on the number of public benefits recipients who are members of households with at least one foreign-born noncitizen. Such a withdrawal would slash federal and state payouts by $2.47 billion a year, which includes $1.5 billion in federal aid and just more than $1 billion in state aid.
California has the largest number of immigrants living within its state borders — about 10 million — according to the American Community Survey, a Census Bureau survey that provides population estimates. About 50 percent of California’s immigrant population is made up of naturalized citizens; approximately 5 million people could be affected by the new rule. Texas has 3 million people who could be affected, and New York and Florida each have about 2 million.
DHS said the rule “provides a clear framework” for examining someone’s probability of becoming a public charge, examining factors such as a person’s income, assets, age, education and English fluency.
Cuccinelli, who outlined the new rule at the White House, said Tuesday that officials want to ensure that immigrants will be self-sufficient.
Asked if that conflicts with a 1903 plaque at the Statue of Liberty that reads “Give me your tired, your poor,” Cuccinelli gave NPR’s “Morning Edition” a revised version: “Give me your tired and your poor who can stand on their own two feet and who will not become a public charge.”
Trump also backed the policy Tuesday, saying it was about putting “America first.”
“I don’t think it’s fair to have the American taxpayer paying for people to come into the United States,” he said.
Columnist focusing on politics, populism, and American conservative thought
August 16 at 2:36 PM
People who support high levels of low-skilled immigration often claim that immigrants do work that native-born residents won’t. The facts surrounding the Immigration and Customs Enforcement raids of seven Mississippi chicken processing plants show how untrue that claim is.
Documents released Thursday suggest that the operators of those plants knowingly hired undocumented immigrants for years in violation of federal law. They show that many of the workers wore ankle bracelets provided by ICE to monitor their location while others used multiple names and provided different Social Security numbers when applying to work at the same plant. If true, the only logical conclusion can be the operators wanted to hire people whose illegal status meant they wouldn’t push for higher wages or make trouble.
Neither the companies that operate the plants nor any of their executives have yet been charged with violating immigration law, The Post reports. Peco Foods said it is cooperating with investigators, while Koch Foods denied knowingly employing people with false documentation to work. The other plants, PH Food, A&B and Pearl River Foods, did not respond or declined to comment to Post reporters.
Each of the plants have put out statements that they use the federal E-Verify system for all employees, though the newly released documents show that may not be the case at PH Food.
Such alleged flouting of the law is not a victimless crime. Each of the plants is located in cities or counties with high levels of poverty and extremely low incomes. There were plenty of workers available who probably would have loved to get jobs at the plants.
Jasper County, the location of one of the plants owned by Peco Foods, is a case in point. Jasper’s unemployment rate this June was 7.4 percent, more than twice the national average. A majority-black county, Jasper County has a median household income of only about $35,000 and a 23.8 percent poverty rate. Those who live there need those jobs, but the employer’s alleged scheme denied them that basic chance.
The other plant locations have similar demographics. Canton, Miss., is nearly 70 percent African American, with a 31.4 percent poverty rate for blacks. Scott County is 38 percent black, has a median household income of around $33,000 and a poverty rate more than 21 percent. Leake County is 42 percent black, has a median household income just under $36,000 and a poverty rate of nearly 22 percent. Pelahatchie, a town in Rankin County, is 40 percent black with a median income of just $35,000. Sense a pattern?
Given these figures, the economic impact of illegal immigration becomes clear. The Pew Research Center estimates that more than 7.5 million undocumented immigrants are in the U.S. labor force. Assuming their unemployment rate is roughly equal to the 3.7 percent national average, that means more than 7 million jobs are held by undocumented workers. That can’t help but depress wages and opportunities for native-born American. As the Mississippi figures show, those victims of illegal immigration are often exactly the poor people of color whose continued poverty is a national tragedy.
This won’t stop until immigration enforcement becomes a national and state priority. Mississippi law requires businesses to use E-Verify, the federal online system that checks the validity of Social Security numbers for job applicants, but that did not stop these employers from allegedly hiring hundreds of undocumented workers. Federal, state and local governments need to coordinate their systems and root out businesses employing these workers, or last week’s ICE raids will continue to be a drop in a huge bucket.
There are lots of things the government can do to seriously enforce our immigration laws. National mandatory E-Verify is only the beginning, as the Mississippi example shows. Businesses should also be required to submit valid Social Security numbers for every employee, and the IRS should then audit large numbers of companies to check compliance. Companies should be denied tax deductions for employees found not to be validly in the United States, which would significantly increase those firms’ federal and state tax bills.
We can also do a lot more to ensure native-born citizens get the first crack at these jobs. One of the raided plants opened in Leake County in 2017, but apparently there was no concerted effort to ensure these new jobs went to local residents. That’s a government failure, as each county has a host of entities tasked with finding jobs for the unemployed, the disabled, mothers on welfare or prisoners reentering the community. These people are our fellow citizens — the ones most in need of the low-skilled, entry-level jobs that undocumented immigrants most often gravitate to. We should be more aggressive about seeking opportunities for these people and pressure local employers to look to these entities first when filling new openings.
The Trump administration has been serious about building the wall to keep illegal immigrants out of the country. The Mississippi ICE raids should be a wake-up call that spurs the administration to make employment enforcement every bit as much as priority as building the wall.