What Will Happen to the Public Charge?

The decision that came out of Chicago regarding the Public is one of the biggest things to happen to immigration this past week along with the 2020 Elections. The Public Charge rule allows the government to deny visa and green card applicants of immigrants who care liable to rely on government benefits.

Judge Gary Feinerman, who is in the Northern District of Illinois, granted summary judgement for plaintiffs in a case Cook County – Illinois v Wolf. The plaintiffs (the ones who filed the lawsuit) were trying to get the new Public Charge rule thrown out and it looks like they may have succeeded. Consult with your immigration attorney to determine who the Public Charge rule may affect you.

What is a summary judgment?

A summary judgement is when a judge in a case decides that there are no factual disputes, allowing them to decide on the law without a trial. When you are granted summary judgment, it means you win.

U.S. District Judge Gary Feinerman’s ruling stated that the Public Charge rule by the Department of Homeland Security (DHS) violates the Administrative Procedures Act (APA) under Immigration and Nationality Act (INA) of 1965. As such, the public charge rule is not in accordance with the law, and is deemed arbitrary and capricious.

How does a judge decide a case?

Judges look at the facts of a case. They look at both current law (the law in place when the facts happened) and case law (decisions that other judges have made) and apply that to decide what the outcome should be. To argue their position, both sides bring in cases and law to support their arguments.

One thing to keep in mind is that, like most of us, judges don’t like to lose. For a judge, losing refers to having a decision overturned by another judge after one of the parties appeals their decision on the case. As such, almost every judge makes their decision with supporting case laws and policies so that the higher court won’t send it back telling them they messed up. Judges may also assume the parties won’t appeal (since most don’t), but in a case like this, the Judge knew it would be appealed.

What is the Judge’s decision on Public Charge?

The Public Charge rule is invalid.

First, the Judge said that DHS’ Public Charge rule violates the Administrative Procedures Act under INA, which talks about aliens (people who are not US citizens) and their admissibility to the US.

In this case, the Judge had originally issued a preliminary injunction in July against Public Charge being enforced by DHS, saying it violated the law. It went on appeal, and the 7th District affirmed the injunction, meaning they agreed with the Judge’s reasoning and findings.

And so, Judge Feinerman said the law needs to be vacated and cannot be applied. That is why he issued the summary judgment. The federal attorneys had also admitted that if the 7th district upheld the injunction, then the Public Charge was invalid. 

The Public Charge rule is not in accordance with the law.

The 7th District said that Public Charge is both substantively and procedurally defective under the APA. The language used in the rule is ambiguous, arbitrary, and capricious, which means that there were significant flaws throughout the rule – both in the language (how the rule is described) and application (how the rule is implemented). With this reasoning, the court then said that the APA itself requires a court to vacate the rule.

Is the lawsuit still on-going?

It’s important to note that part of the lawsuit is still continuing. The plaintiff’s also argued that the Public Charge rule violated the 5th Amendment because it requires equal protection of the law based on race, ethnicity, and national origin. The government can’t use the laws because it dislikes certain races, ethnic groups, or people of certain foreign countries. Remember, this was one of the arguments regarding the travel ban.   

What they are saying with this part of their lawsuit is:

  • Asking if the Judge agrees that the government is discriminating against certain groups and violating the 5th Amendment with this rule; and
  • Requesting a permanent bar to be issued against DHS and its officials to prevent them from ever implementing the Public Charge.

Is the Public Charge ruling similar to the DACA decision?

The decision made by Judge Feinerman was similar to an earlier decision made regarding the Deferred Action for Childhood Arrivals (DACA) policy. The Supreme Court said that the Trump administration could not change DACA the way they had because the way they did it violated the APA. This was the ruling on the case, despite most of the conservative Supreme Court judges dissenting or disagreeing with it.

However, that decision did not say that the Trump administration could never end DACA. In fact, they probably could end it if they followed certain steps but that isn’t what happened. Instead of following those steps, the Trump administration took the unprecedented step of ignoring the Supreme Court decision.

How does the Public Charge going to the Supreme Court affect immigration?  

Now that Amy Coney Barrett is a Supreme Court Judge and Ruth Bader Ginsberg is gone, the decision on the Public Charge rule could be very different.

We know that most of the conservative judges, except for Roberts, said in the dissenting opinion that the Trump administration did not violate the APA and could legally end DACA. With Justice Barrett on the Court, she may change this outcome. 

We already know that she disagreed with ending Public Charge when it came before her in the lower 7th District Court. If the Supreme Court agrees to hear this (also known as granting certiorari), the next important thing to find out is when they will hear it. 

What we do know is that the Public Charge was implemented on February 24th, while the Public Charge decision took effect on November 2nd.

Can I still apply for an immigration benefit that uses Form I-944?

While the current administration is in place, it’s recommended that anyone who applied between those dates be prepared to submit the Form I-944 along with the necessary information, or their application could be denied by the US Citizenship and Immigraiton Services (USCIS).

However, if you’re applying after November 2nd, it’s highly advised to start gathering the necessary paperwork but don’t submit it yet. The current ruling stated that you don’t need to submit an I-944. In addition, since an injunction was issued in July, no one outside the US has had to or should submit the DS-5540.

Do I need to hire an immigration attorney?

Given the current state of immigration in the United States, it has become much more difficult to determine whether you qualify for immigration or immigration benefits and determine which forms and supporting documents you need to file.

If you’re considering filing a green card or visa application, it’s best to seek legal help from someone who is knowledgeable in immigration laws. Our experienced immigration attorney at Andres Mejer Law can help make your immigration journey more smoother and less stressful than it has to be. Contact us today to get a free initial consultation!