The Ableist and Racist Public Charge Rule

The Ableist and Racist Public Charge Rule

Charlene Echeverria Burciaga 

Associate Editor

Loyola University Chicago School of Law, J.D. 2023

The Public Charge Rule perpetuates anti-immigrant sentiment and keeps poor, disabled migrants who were often Black, Brown, and ethnically oppressed out of the United States. It makes pathways to citizenship contingent upon wealth and the absence of disability. As the Autistic Self Advocacy Network puts it, the Public Charge Rule is a “clear echo of the racist and ableist policies of the eugenics era.”

The Public Charge Rule was first enacted through the Immigration Act of 1882, the first general immigration law emanating and expanding the Chinese Exclusion Act. The Chinese Exclusion Act specifically banned Chinese immigration and naturalization; the Immigration Act of 1883 expanded that ban to include any person likely to be “primarily dependent on the government for subsistence.” Therefore, any person who is likely to be a Public Charge is ineligible to become a lawful permanent resident (“LPR”) and is subject to detention, removal, and deportation. The Public Charge Rule has undergone several different amendments, often dependent on the current President’s sentiment on immigration. However, the Public Charge Rule, regardless of the changes, has always explicitly targeted Black and Brown poor and disabled migrants, making it an ableist, elitist, and racist regulation. As of August 20, 2021, U.S. Citizenship, and Immigration Services (“USCIS”) is seeking public comment on the Public Charge regulation. However, its abolishment is the only solution to stopping the continuous oppression of disabled and poor communities.

The Public Charge Rule over the last twenty-two years

The application of the Public Charge Rule has been expanded and narrowed over the years. In 1999, United States Immigration and Naturalization Service (“INS”) (later fractured into USCIS, U.S Immigration and Customs Enforcement (“ICE”), and U.S. Customs and Border Protection (“CBP”)) released new guidance called the Field Guidance on Deportability and Inadmissibility on Public Charge Grounds (“1999 Interim Field Guidance”), stating that “any non-cash benefit, except for institutionalization for long term care at the governmental expense, was never a factor in a Public Charge determination.” Meaning that government benefits such as Supplemental Nutrition Assistance Program (“SNAP”), section 8, and Medicaid would not determine whether a person would be a Public Charge. However, if the person is disabled and potentially will require long-term medical institutionalization, they were automatically barred from becoming LPRs.

Under the Trump administration, the Public Charge Rule “Final Rule” that was to go into effect on October 15, 2019, incorporated the consideration of benefits such as SNAP, Section 8, and Medicaid. Therefore, not only were disabled people unable to become LPR’s if they had the potential or required medical institutionalization, but any person receiving any of the designated benefits for more than twelve months. Therefore, if a person had SNAP and Section 8 for twelve months, they were considered a Public Charge because each benefit counted for one month, meaning they had twenty-four months of benefits over the twelve-month limit. Furthermore, it expanded Department of Homeland Security’s (“DHS”) discretion to decide whether they thought the person was likely to become a Public Charge in the future. The guidelines required the DHS to weigh positive and negative factors such as employment history, health history, and household assets that could cover foreseeable medical treatments, institutionalizations and provide adequate self-care. DHS had to decide whether the person would be a Public Charge by evaluating the totality of the circumstances.

Furthermore, applicants were required to submit additional documents such as declarations of self-sufficiency and receipt of benefits. However, before implementing the Trump administration’s Final Rule, DHS was enjoined from enforcing the Rule by several federal courts, and the 1999 Interim Field Guidance was implemented in its place again. Although positively impacting those solely using government benefits, disabled people are still heavily discriminated against by the rule. It is important to note that during the Obama administration, applying the 1999 Interim Field Guidance, the Public Charge Rule was used much more frequently, increasing the number of refusals of immigrant visas from 897 refusals in 2015 to a staggering 20,941 refusals in 2019. Regardless of the administration in office, the Public Charge Rule has limited immigration of people who are poor, disabled, and disproportionately Black, Brown, and ethnic minorities.

What is happening now?

Currently, DHS is looking to readjust that regulation and is seeking public opinion regarding the Public Charge Rule. Some argue this could be helpful and potentially loosen the tight requirements. However, a new proposed regulation is still imposing and limiting on those who seek lawful entry. Furthermore, it discriminates against people with disabilities and further marginalizes them. A new Public Charge regulation, rather than abolition of the rule, could continue to be harmful to communities already disadvantaged.