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Law360 (March 11, 2020, 10:51 PM EDT ) The states challenging the federal government's "public charge" rule penalizing green card applicants who use public benefits urged the government Wednesday to stop enforcing the policy in light of the spread of COVID-19.
Attorneys general for the District of Columbia and 15 states including New York, Vermont and Connecticut outlined their concerns in a letter addressed to Acting U.S. Department of Homeland Security Secretary Chad Wolf and U.S. Citizenship and Immigration Services Acting Director Kenneth T. Cuccinelli.
Continuing to enforce the public charge rule will discourage immigrants from using the public health care system and could help the illness spread, the states argued.
"Failure to immediately stay implementation of the rule so that we can take the steps necessary to contain and mitigate the outbreak of the disease puts the public health and safety of our communities at increased risk," the states said.
The letter was also filed as part of a lawsuit brought by the states of New York, Vermont and Connecticut challenging the rule, but the other signatory states are part of other ongoing public charge litigation also alleging among other things that the rule violates the U.S. Constitution and administrative law.
DHS finalized the rule in August, expanding the agency's definition of "public charge" and making certain immigrants who use housing subsidies, government health benefits or food stamps ineligible for permanent residency or entry into the U.S.
Under the new test, DHS will weigh a number of factors — including past usage of public assistance programs, English proficiency and age — to determine if an immigrant is likely to become a so-called public charge in the future.
The U.S. Supreme Court cleared the way in February for the Trump administration to implement its new test for immigrants in all 50 states, temporarily lifting the last remaining injunction shielding Illinois residents from the contested immigration rule. U.S. Citizenship and Immigration Services was cleared to start enforcing the rule in all states, including Illinois, on Feb. 24.
"DHS's implementation of the public charge rule during this public health crisis is irresponsible and reckless," the states said in the letter. "As noted by plaintiff states in ongoing litigation challenging the Rule, DHS openly concedes the rule could lead to 'increased prevalence of communicable diseases,' disenrollment from public programs, and increased use of emergency rooms as a primary method of health care."
The states added, "With this threat looming, however, DHS's policy of deterring immigrants from using the medical benefits to which they are legally entitled directly undermines and frustrates our public health professionals' efforts, putting our communities and residents at unnecessary risk."
The Department of Homeland Security did not immediately respond to a request for comment.
The plaintiff states and local governments in the New York case are represented by the attorneys general of New York, Vermont and Connecticut and the corporation counsel of the City of New York.
The federal government is represented by Eric Soskin, Joseph H. Hunt, Keri L. Berman, Kuntal V. Cholera and Joshua M. Kolsky of the U.S. Department of Justice's Civil Division.
The case is State of New York et al. v. U.S. Department of Homeland Security et al., case number 1:19-cv-07777, in the U.S. District Court for the Southern District of New York.
--Additional reporting by Suzanne Monyak. Editing by Emily Kokoll.
For a reprint of this article, please contact reprints@law360.com.
