The Court of Appeals for the Second Circuit denied the government’s request to let a new rule go into effect that would make it much harder for low-income immigrants to obtain permanent residency. This public charge rule has been challenged by states and immigrant groups across the country and was supposed to start last October.
The government wanted the appeals court to stay a national injunction issued last fall by a district court judge in New York. In October, Judge George B. Daniels said it was “repugnant” for the government to deny green cards to immigrants who take benefits including food stamps.
In its appeal, the government argued that two other courts in California and Virginia had already lifted similar injunctions. The one in New York was the last remaining national injunction. U.S. Department of Justice Attorney Daniel Tenny said the government would suffer harm if the rule continues to be blocked, because immigrants who have taken public benefits are still receiving green cards.
The Trump administration has argued it’s trying to prevent too many low-income immigrants from becoming permanent residents if they’re likely to need costly government benefits. Those who use 12 months of non-cash benefits, including food stamps and housing assistance, within three years would be considered at risk of becoming a public charge.
But immigrant advocates countered that this much more strict definition of public charge is illegal, and that an immigrant who accepts three different forms of non-cash assistance for just four months, because of an emergency, could be denied a green card under the rule. They also said the rule would discriminate against blacks, Latinos and others from poor nations.
Susan Welber, an attorney with the Legal Aid Society, said the Department of Homeland Security even acknowledged the rule would scare legal immigrants from accepting public assistance.
“DHS itself conceded in issuing the rule that it would have devastating effects on public health, that it would cause people to disconnect from benefits they need and that they’re eligible for,” she said.
Listen to reporter Beth Fertig’s story on WNYC:
In Tuesday’s hearing, two of the three judges on the court of appeals panel expressed reluctance about upending the status quo, noting that a full hearing will be held in a few months on whether to lift this particular injunction. One judge, Guido Calabresi, asked Tenny if there had been a declaration of emergency issued by the president or anyone else. Tenny replied, “No, your honor.”
The local case was brought by the states of New York, Connecticut, Vermont, as well as New York City and the immigrant advocacy organizations African Services Committee, the Asian American Federation, Make the Road New York, Catholic Charities Community Services and CLINIC.
Ghita Schwarz, a senior staff attorney at the Center for Constitutional Rights, said the government’s argument was flimsy.
“Every time a government policy is challenged that’s not harm to the government if they can’t implement it right away,” Schwarz explained. The Center for Constitutional Rights represented the immigrant rights groups, along with the Legal Aid Society and Paul, Weiss, Rifkind, Wharton & Garrison LLP.
Make the Road New York issued a statement saying, “Today, the court rejected the Trump administration’s claims that it cannot wait to implement its dangerous and discriminatory public charge policy change.”
The organization said it looks forward to continuing its fight until a final decision is reached on the legality of the rule change, “and we are thrilled that immigrants across the country remain protected.”
New York City’s Corporation Counsel, James Johnson, also said, “We will continue to aggressively fight this unlawful, unfair and discriminatory new public charge rule, which is an affront to the City’s values, and will immeasurably harm its immigrant communities.”
The U.S. Justice Department declined to comment.
The public charge rule still faces other hurdles. Federal appeals courts have yet to decide on the underlying legality of preliminary injunctions issued last year in New York and other states. On Monday, the appellate panel in Manhattan put that case on an expedited calendar. And full trials have yet to be scheduled by district court judges to determine whether the public charge rule itself is legal.