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January 10, 2020

Trump admin's 'public charge' rule cannot take effect—at least not yet

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    A federal appeals court on Wednesday refused to lift a lower court's nationwide injunction blocking the Trump administration from enforcing its so-called "public charge" rule, which would allow federal officials to consider whether immigrants are receiving or are likely to receive Medicaid or other public benefits when reviewing their residency applications.

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    Final rule details

    The 837-page final rule—which was scheduled to take effect on Oct. 15, 2019—would broaden the criteria immigration officials can take into account when considering whether an immigrant is likely to become a so-called "public charge" while reviewing his or her immigration status or application for permanent residency. Under the final rule, officials would be able to consider whether immigrants receive:

    • Housing assistance;
    • Medicaid—with a few exceptions for pregnant women, new mothers, children, and adults under age 21, as well as whether the individual is receiving Medicaid benefits to cover an "emergency medical condition" or disability services related to education;
    • Supplemental Nutrition Assistance Program benefits, which often are referred to as "food stamps"; and
    • Welfare.

    Officials under the final rule would be able to deem an individual a public charge if he or she receives one of the qualifying public benefits for 12 months or more in a 36-month period. The final rule states that immigrants who are not citizens or legal residents and who receive or are likely to receive public benefits above a specific threshold generally would be ineligible for a change of their status or an extension of stay.

    States file suit, and judges block the final rule

    Attorneys general (AGs) from several states and Washington, D.C., last year filed lawsuits challenging the final rule.

    Thirteen state AGs in one lawsuit claimed the rule "reverses a decades-old, consistent policy without reasoned analysis."

    In a separate lawsuit, AGs from four states and Washington, D.C., claimed the final rule exceeds the Trump administration's authority under federal immigration law and violates the Constitution's equal protection guarantee, as well as the states' rights to protect their residents.

    Last October, U.S. District Judge George Daniels in the Southern District of New York and U.S. District Judge Rosanna Malouf Peterson in the Eastern District of Washington issued separate preliminary injunctions blocking the final rule nationwide as lawsuits challenging the policy proceeded. That same month, U.S. District Judge Phyllis Hamilton in Oakland issued a preliminary injunction temporarily blocking the final rule in California, Maine, Oregon, Pennsylvania, and Washington, D.C. Other judges also issued injunctions blocking the final rule.

    The Department of Justice (DOJ) appealed several of the judges' rulings, including the nationwide injunctions, and requested that appeals courts stay the injunctions so the policy could take effect while cases challenging the final rule continue.

    In response, a three-judge panel of the 9th Circuit Court of Appeals in a 2-1 ruling issued last December lifted the regional injunction issued in California, as well as the national injunction issued in Washington. However, the panels' rulings did not apply to the nationwide injunction issued by Daniels, meaning that injunction remained in place.

    Federal appeals court refuses to lift nationwide injunction

    A three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan on Wednesday refused to lift Daniels' nationwide injunction blocking the Trump administration from enforcing the public charge rule.

    According to the Associated Press, the appeals-court panel, which on Tuesday heard arguments regarding DOJ's request to stay the injunction, questioned why the injunction should be lifted while the lawsuit challenging the rule proceeds, noting that a judge is scheduled to hear arguments regarding the entire lawsuit in coming months.

    The appeals-court panel in its ruling also requested that the administration expedite its appeal of the lower court's ruling against the rule by submitting legal papers for the appeal by Feb. 14, Reuters reports.

    The New York injunction is the only nationwide injunction that currently is in effect.


    New York AG Letitia James (D) called the ruling "a victory for the millions of immigrants in [New York] and in this country that have been sidelined, disrespected, and demeaned by the Trump administration."

    The Department of Homeland Security (DHS) and DOJ did not respond to requests for comment, Reuters reports. The White House did not immediately respond to a request for comment, according to The Hill (Rosenberg/Stempel, Reuters, 1/8; Kruzel, The Hill, 1/8; Hajela, Associated Press, 1/9).

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