Supreme Court ruling on “public charge” rule could affect thousands of Colorado immigrants

The High Court ruled 5-4 Monday in favor of a Trump administration rule critics say will "penalize" immigrants and favor the wealthy

The United States Supreme Court ruled Monday to allow the Trump administration to more stringently screen immigration applicants by income and use of public programs (photo by Phil Cherner)
The United States Supreme Court ruled Monday to allow the Trump administration to more stringently screen immigration applicants by income and use of public programs. (Photo by Phil Cherner)

Colorado immigration advocates decried a Monday Supreme Court ruling that allows the Trump administration to broaden income and public benefits tests for legal immigrants.

The new rule greatly expands the ability of the Department of Homeland Security to judge whether an immigrant applying for a temporary visa or permanent legal residency (a green card) will become a “public charge,” or a burden on the public system. Refugees, those seeking asylum and those applying for citizenship won’t be subject to the test and the use of benefits by an applicant’s spouse or child will not be considered. The previous public charge standard was codified by the Clinton administration and the criteria for denial since then was limited to whether an immigrant would be likely to rely on cash benefits or become institutionalized. 

Now, DHS caseworkers are to take into consideration any past use of food assistance, subsidized housing or certain Medicaid programs along with cash benefits. The applicants’ age, health, family status, education and skills will also be factored in. For green card applicants, caseworkers also will decide the likelihood that the immigrant will at “any time in the future” use public programs for 12 months or longer within a three-year span. If so, the application will be denied. 

Under the new rule, an immigrant’s application will also be “heavily weighted” for approval if the applicant’s household income is above 250% of the Federal Poverty Line — about $31,225 annually for a single-person in 2020 — and weighted toward denial if the applicant’s income is under 125% FPL, or about $15,600 per year in 2020. In the past, only the person sponsoring an immigrant’s application would need to prove an income above 125% FPL. Immigrants will also have the option of paying a $8,100 bond to get around a public charge denial in certain cases. 

Officials in the Trump administration argue that the rule forces immigrants to be “self-sufficient” and ensures they will not burden the system by relying on public benefits. 

“Self-sufficiency and self-reliance are key American values not to be litigiously dismissed, but to be encouraged and adopted by the next generation of immigrants,” Ken Cuccinelli, acting deputy secretary of DHS, said in a statement Monday. 

Immigrants and immigrant advocates strongly disagree.

“Ultimately, this new rule will make it harder for low-income immigrants to come into the U.S. and will also harm immigrants and their families who have been here… deterring them from enrolling in the much needed social services that are available to them,” Gabriela Flora, program director for the American Friends Service Committee, said.

The rule has the potential to restrict the legal immigration of hundreds of thousands nationally per year, according to an analysis by the nonpartisan Migration Policy Institute. In addition, Elliot Goldbaum, director of strategic communications at the Colorado Fiscal Institute, said the rule will cause a “chilling effect” — a secondary impact affecting millions more, including 323,000 Coloradans, who may drop health insurance or public benefits for which they are eligible because they fear of losing immigration status. 

Goldbaum said the fact that immigrants with higher income will have a leg up in the application process, turns immigration into a wealth determination process.

The finalized rule, issued in August by DHS, was blocked by four federal judges. But Monday, in a 5-4 decision, the Supreme Court honored a request by the Trump administration to allow the rule to take effect while lower courts go through the appeals process. 

Goldbaum, responding to the administration’s self-sufficiency argument, said the U.S. was built as a place where people can come and make a life for themselves. Immigrants don’t rely on public programs more than citizens, he said. Citizens and noncitizens use public benefits at the nearly equivalent rate of 20% of the population, according to a U.S. Census Bureau’s 2013 Survey of Income and Program Participation.

“When we’re talking about the intent of what this country is built on… it’s never been based on wealth, and this rule really does make it that only the wealthy can come and be a part of this country” Goldbaum said. 

In its rulemaking the Department of Homeland Security stated that it “disagrees that the rule puts lawful permanent resident status beyond the reach of working-class and poor immigrant families.”

The Chilling Effect:

DHS, in the final rule, states that the rule is not meant to cause qualified immigrants to disenroll from benefits programs. But, fear that temporary or permanent legal status might be jeopardized could lead immigrants who qualify for public assistance programs to disenroll preemptively, Flora said. 

“The Trump administration has signaled that it intends to penalize immigrant communities for seeking help when they need it,” Flora said.

The Colorado Fiscal Institute estimates that chilling effect could impact 323,000 Coloradans, including more than 140,000 children. Immigrant family members could lose a source of family income, benefits or immigration status. Because of mass disenrollment from benefits programs, the institute also predicts up to a $298 million loss to Colorado’s GDP, with a related loss of 2,028 jobs and $12 million in lost state tax revenue.

In the original proposal, DHS acknowledged the chilling effect, citing a study by the U.S. Department of Agriculture on the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, after the passage of which enrollment in food stamps fell 54% among legal immigrants. But, DHS estimates a much lower number — 2.5% — of immigrants will disenroll from benefits because of the public charge rule.

Emily Johnson, director of policy analysis at the Colorado Health Institute, said CHI estimates 75,000 Coloradans — three-quarters of them U.S. citizens — will lose health insurance coverage as a consequence of confusion about the rule and the chilling effect. Immigrants worried of losing theirs or a family member’s immigration status could disenroll their citizen children or family members from coverage, unaware the rule doesn’t apply to them. Two-thirds of those losing coverage will be children. Also, she said, adding to the chilling effect, medical providers in immigrant communities report a reduction in people using medical services due to rhetoric around immigration, including from policies like the public charge rule. 

People who disenroll their kids might actually be aware that the rule doesn’t apply to them, Joe Hanel, director of communications at CHI, wrote in an email to The Colorado Independent.

“They just might not trust the government when it says the rule doesn’t apply. The chilling effect probably leads people to avoid official interactions with the government whenever possible,” Hanel wrote.


Update: This story has been updated with comment from Joe Hanel.