GIVE ME YOUR TIRED, YOUR HUNGRY, WHO CAN AFFORD RENT: WHY THE PUBLIC CHARGE RULE IS ARBITRARY AND CAPRICIOUS

By: Mimi Alworth, Volume 104 Staff Member

Since the late 1800s, the United States’ immigration policy has maintained that a foreign person seeking to enter the United States can be turned away if she is a “Public Charge.” The definition historically includes only the most destitute applicant.^[1] However, in 2018, the Department of Homeland Security (DHS) began rulemaking that proposed to vastly expand the pool of non-citizens who could be a Public Charge.[2] Special interest groups, state and local governments, and members of the general public sharply criticized the new interpretation in the official comment section of the final rule, and DHS considered the criticisms in varying degrees (or not at all).[3] After DHS released the final rule, many of these stakeholders immediately sued the government on the grounds that the rule, among other things, likely violated the APA’s “arbitrary and capricious” standard.[4] No court has yet addressed whether including Section 8 Housing as a Public Charge consideration was arbitrary and capricious, but courts would likely find that DHS’s response to comments on Section 8 Housing is arbitrary and capricious.

I.  THE DEFINITION OF PUBLIC CHARGE: BEFORE AND (POTENTIALLY) AFTER

For the past 20 years, the Department of Homeland Security (DHS) interpreted the definition of Public Charge to mean the “totality of the circumstances.” This interpretation asks whether the applicant is likely to become a public charge in the future, so any public benefits an applicant received in the past are not considered.^[5] While DHS can consider cash benefits the applicant currently receives at the time she applies, DHS cannot consider non-cash benefits, such as food stamps, Medicare, or public housing.^[6] This interpretation of Public Charge excludes only a small number of applicants.^[7]

On August 14th, 2019, in a drastic change of policy, the Department of Homeland Security issued a final rule with a new interpretation of the definition of Public Charge.^[8] The new rule interprets Public Charge as someone who was more likely than not to receive a public benefit for 12 months out of 36-month period.^[9]  It also adds several factors to the “totality of the circumstances” test.^[10] The proposed rule would consider non-cash benefits, including:

• Supplemental Nutrition Assistance Program (SNAP, formerly called “food stamps”);
• Section 8 Housing Assistance under the Housing Choice Voucher Program;
• Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation);
• Public Housing under the Housing Act of 1937, 42 U.S.C. 1437 et seq.; and
• Federally funded Medicaid.^[11]

When the proposed rule requested comments, it received 266,077 individual comments, mostly opposed to the rule.^[12]After the final rule was published, non-profits, states, and local governments filed lawsuits in federal district courts.[13]Those courts issued preliminary injunctions, including a few that were nationwide.^[14] Although most of the plaintiffs argued that the rule was “arbitrary and capricious,” only two district court decisions examined the merits of those arguments.^[15] Since DHS has already appealed many of these preliminary injunctions,[16] analyzing the successful “arbitrary and capricious” arguments at the preliminary injunction stage provides a framework for future arguments.

II.  “ARBITRARY AND CAPRICIOUS” CHALLENGES AT THE PRELIMINARY INJUNCTION STAGE

An “arbitrary and capricious” challenge to a rule attacks the agency’s decision-making process, not the substance of the rule itself.^[17] The legal standard for arbitrary and capricious is whether the agency has “entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”^[18] If there is a previously established interpretation, the agency has the burden of “showing good reasons” for the policy change.^[19]

In City and County of San Francisco, the Northern District of California found that the proposed rule was likely arbitrary and capricious on two grounds.[20] First, the court concluded that DHS completely failed to take state and local disenrollment rates into account.^[21] For instance, one official comment found that this rule would cost hospitals $17 billion.^[22] The court noted that DHS “wholly failed to engage in this entire category of comments.”^[23] Second, the court concluded that the government inadequately responded to public health concerns. Official commentators argued that if fewer non-citizens get vaccinated, citizens could be at greater risk for disease.^[24] DHS conceded to this logic but did not address these consequences at all.[25] On December 5, 2019, the Ninth Circuit issued a stay of injunction, and found, among other things, that the new Public Charge rule was likely not arbitrary and capricious.[26] However, the subject was not reached neither by the Supreme Court,[27] and the Seventh Circuit has yet to issue an opinion on the injunction in Illinois.[28]

III.  INCLUDING SECTION 8 HOUSING IS ALSO ARBITRARY AND CAPRICIOUS

Though none of the district courts that issued preliminary injunctions on the Public Charge rule addressed the issue,  DHS’s justification for including Section 8 Housing within the proposed Public Charge rule is also likely arbitrary and capricious.^[29] One group of official comments explained that allowing immigrants to use Section 8 Housing “can help ease the burden of rent in high-cost cities, help alleviate homelessness, promote economic stability, allow the flexibility for families to pay for other necessities, and promote self-sufficiency.”^[30] The government responded by saying that DHS included Section 8 Housing within the meaning of Public Charge because the definition of public charge requires non-citizens applying for admissibility to “rely on their own capabilities.”^[31] Therefore, DHS’s response to this comment is similar to its response on the topic of public health concerns. Here, the government does not provide an evidentiary basis for why eliminating Section 8 Housing will save the government any money, while the official comments provided specific evidence of harm.[32]

Another group of commentators explained that the new Public Charge rule has already caused a “chilling effect.” Non-citizens who still qualify for other housing benefits, such as “Housing Opportunities for Persons With HIV/ AIDS; Domestic Violence Shelter Operations; and Family Source Center services” have not pursued those benefits because they are not informed about the scope of the rule.^[33] The government’s response ignored the “chilling effect” argument entirely, saying simply that these non-citizens would be eligible for relief so it didn’t matter if they disenrolled.[34]Therefore, DHS’s response to this comment fails similarly to the state and local cost analysis in City and County of San Francisco.[35]

In his declaration in support for the Plaintiff’s preliminary injunction, Associate Professor Ryan Allan of the Humphry School of Public Affairs[36] explained the projected effect of including Section 8 Housing as a factor in the public charge definition, considering the impact on teenagers alone.  His projection, which does not even take into account the “chilling effect,” estimates that the United States would lose $183,569,80 in forgone earnings as a result of this new rule.[37] His declaration and prediction support the position that the government’s implementation of this rule is arbitrary and capricious.

CONCLUSION

On December 5, 2019, the Ninth Circuit granted a stay on the injunction over the Ninth Circuit.[38] On January 27, 2020, the Supreme Court, in a 5-4 decision, granted a stay of the Second Circuit’s injunction over the whole country.[39] The Seventh Circuit has yet to rule on the injunction in Illinois, leaving Illinois as the sole state where the injunction on the Public Charge rule still exists.[40] This, by no means, is the end of litigation against the public charge rule. Going into the next stage of litigation, Plaintiffs have many strong arguments in their arsenal, but making the case that DHS acted in an “arbitrary and capricious” manner when it included Section 8 Housing in its new Public Charge analysis is a path that Plaintiffs should consider.

[1] Make the Rd. New York v. Cuccinelli, No. 19 CIV. 7993 (GBD), 2019 WL 5484638, at *7 (S.D.N.Y. Oct. 11, 2019); City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., No. 19-CV-04717-PJH, 2019 WL 5100718, at *9 (N.D. Cal. Oct. 11, 2019).

[2] See generally Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (to be codified at 8 C.F.R. Parts 103, 212, 213, 214, 245 and 248).

[3] See infra note 14.

[4] 5 U.S.C. 706(2)(A).

[5] Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,690 (March 26, 1999) (explaining that a healthy person in the prime of life would not ordinarily be considered likely to become a public charge). 8 U.S.C. 1182(a)(4). The Immigration and Nationality Act (INA) states that “Public Charge” will take into account an applicant’s “age; health; family status; assets, resources, and financial status; and education and skills.” 8 U.S.C. 1182(a)(4)(B) (2018). An affidavit of support from someone within the United States can be taken into account, if provided. 8 U.S.C. 1182(a)(4)(B)(ii)(2018). Notably, certain immigrants are exempt from this rule, including asylees, refugees, and other vulnerable populations. 8 U.S.C. 1182(a)(4)(E) (2019).

[6] Id. at 28,690. Cash benefits include Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), State and local cash assistance programs that provide benefits for income maintenance, programs (including Medicaid) supporting aliens who are institutionalized for long-term care. Id.

[7] DHS statistics on how many people are inadmissible (meaning they are not allowed in the United States on temporary visas or allowed to become Lawful Permanent Residents) for a specific reason are hard to nail down. Congressional Research Center, Immigration: Frequently Asked Questions About “Public Charge” 11 (2018). For context, in 2016, there were 1,183,505 people who became Lawful Permanent Residents. 274,617 who were found inadmissible on any grounds. Office of Immigration Statistics, 2016 Yearbook of Immigration Statistics, at tbl.36: Aliens Determined Inadmissible: Fiscal Years 2005 to 2016 (2016), https://www.dhs.gov/immigration-statistics/yearbook/2016/table36.

[8] Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,296 (Aug. 14, 2019) (to be codified at 8 C.F.R. Parts 103, 212, 213, 214, 245 and 248).

[9] Id.

[10] Id. at 41,295. The proposed regulations consider an applicant’s English-speaking ability, family size, gross income, credit score, age and more. Id.

[11] The proposed rule adds an additional form, the I-944, for applicants who are subject to the pubic charge rule. Id. at 41,295; see alsoinfra note 20.

[12] Id. at 41,297.

[13] Make the Rd. New York v. Cuccinelli, No. 19 CIV. 7993 (GBD), 2019 WL 5484638 (S.D.N.Y. Oct. 11, 2019) (nationwide injunction); City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., No. 19-CV-04717-PJH, 2019 WL 5100718 (N.D. Cal. Oct. 11, 2019) (injunction in California, Oregon, Washington, D.C., Maine, Pennsylvania); Washington v. US Dep’t of Homeland Sec., No. 4:19-CV-5210-RMP, 2019 WL 5100717 (E.D. Wash. Oct. 11, 2019) (nationwide injunction); Cook Cty., Illinois v. McAleenan, No. 19 C 6334, 2019 WL 5110267 (N.D. Ill. Oct. 14, 2019) (injunction in Illinois); Casa de Maryland, Inc. v. Trump, No. PWG-19-2715, 2019 WL 5190689 (D. Md. Oct. 14, 2019) (nationwide injunction).

[14] See supra note 13.

[15] The Eastern District of Washington also concluded that the rule was likely arbitrary and capricious but went into a much more generalized analysis of the issue. Washington, 2019 WL 5100717, at *19. Similarly, in the Southern District of New York, Judge Daniels found that the DHS had not proved that the updated list of “benefits” was somehow better than the previous list. Make the Rd. New York, 2019 WL 5484638, at *8. Decisions that did not reach the “arbitrary and capricious” analysis include Cook Cty., Illinois, 2019 WL 5110267; Casa de Maryland, Inc., 2019 WL 5190689, at *15.

[16] See, e.g., Washington, 2019 WL 5100717 (appeal filed Oct. 31, 2019); Cook Cty., Illinois, 2019 WL 5110267 (same); Casa de Maryland, Inc., 2019 WL 5190689 (appeal filed Nov. 4, 2019).

[17] City & Cty. of San Francisco, 2019 WL 5100718, at *30 (explaining that a court is not allowed to substitute its judgment for the agency’s judgment).

[18] Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (emphasis added).

[19] FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2008).

[20] The court also states that DHS acted “impermissibly with respect to the burden the I-944 form[,]” but that is out of the scope of this Post. City & Cty. of San Francisco, 2019 WL 5100718 at *31.

[21] Id. at *31–32.

[22] Id. at *32 (citing Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,475 (Aug. 14, 2019) (to be codified at 8 C.F.R. Parts 103, 212, 213, 214, 245 and 248)).

[23] Id.

[24] Id. at *35–37.

[25] Id. at *37.

[26] City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., 944 F.3d 773 (9th Cir. 2019).

[27] DHS v. New York, No. 19A785, 2020 WL 413786 (Jan. 27, 2020).

[28] See Cook Cty., Illinois v. McAleenan, No. 19 C 6334, 2019 WL 5110267 (N.D. Ill. Oct. 14, 2019)

[29] 5 U.S.C. § 706(2)(A) (2018).

[30] Inadmissibility on Public Charge Grounds, 84 Fed. Reg. at 41,376.

[31] Id.

[32] Id.

[33] Id. at 41,378.

[34] Id.

[35] See supra note 22 and accompanying text.

[36] Ryan Allan is Associate Professor of Urban and Regional Planning and Director of Graduate Studies for the Urban and Regional Planning Program at the Humphry School of Public Affairs at the University of Minnesota in Minneapolis, Minnesota.

[37] Declaration of Ryan Allan, Make the Rd. New York v. Cuccinelli, No. 19 CIV. 7993 (GBD), 2019 WL 5484638 (S.D.N.Y. Oct. 11, 2019)

[38] City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., 944 F.3d 773 (9th Cir. 2019).

[39] DHS v. New York, No. 19A785, 2020 WL 413786 (Jan. 27, 2020).

[40] Cook Cty., Illinois v. McAleenan, No. 19 C 6334, 2019 WL 5110267 (N.D. Ill. Oct. 14, 2019)