More Public Charge-Related Litigation Filed Today + Update on Litigation on DHS Public Charge Rule

Dear Allies,

Today, attorneys from the Legal Aid Society of New York, Center for Constitutional Rights, NILC, and Paul, Weiss, Rifkind, Wharton & Garrison LLP filed a lawsuit in the U.S. District Court for the Southern District of New York challenging three State Department-focused wealth tests—1) the January 2018 FAM revisions to the public charge provision, 2) the Interim Final Rule to change the definition and evaluation of public charge, and 3) the Trump Administration’s Health Insurance Proclamation, which has been enjoined (blocked) by a District Court in Oregon. Plaintiffs in the lawsuit are individuals whose family members would be subject to consular processing/State Department public charge policies to obtain lawful permanent resident status, as well as Make the Road New York, African Services Committee, American Refugee Center New York, the Central American Refugee Center – New York, Catholic Charities Community Services, and the Catholic Legal Immigration Network, Inc.

These State Department changes would effectively institute a wealth test on people seeking to come to the United States. The January 2018 FAM changes have already led to exponential increases in denials by consular officials of low-income individuals seeking to immigrate through family members. Similar to the DHS Final Rule, the DOS Interim Final Rule would allow the Trump administration to deny lawful permanent residence to people who may use essential services like Medicaid, SNAP or housing at some point in the future, based on stricter income tests, their English language ability, health conditions, and other factors in the totality of circumstances test. And the Health Insurance Proclamation would restrict immigration to the U.S. by people who  cannot show that they will be able to buy “acceptable” health coverage (which does not include subsidized ACA coverage) or that they have an unspecified level of resources to cover their potential health care costs.

Although this lawsuit does NOT address the proposed DHS regulations on public charge, this is welcome news for families that have been kept apart due to the cruel changes in policies governing who can immigrate to the United States. 

The plaintiffs are asking the court to:

  • Stop the State Department from using the January 2018 public charge instructions and Interim Final Rules in processing applications for visas abroad 

  • Stop the State Department from implementing the Health Insurance Proclamation for people seeking immigrant visas from abroad

  • Declare that the State Department changes are invalid under the Administrative Procedure Act and violate the Constitution’s equal protection guarantee under the law

For now, below and linked here are some talking points and tweets: 

  • These are all bricks in Trump’s invisible wall — like Trump’s infamous DHS public charge regulation, the “junk insurance” proclamation, the State Department’s public charge changes to the Foreign Affairs Manual, and State’s interim final rule all have 3 things in common

    • They’re racially-motivated wealth tests designed to send the message that if you’re not white and you’re not wealthy, you’re not welcome in the United States

    • They’re all designed to work together to instill fear in millions of immigrant families, and restrict the lawful immigration system to a privileged few

    • They’re all brutal, reckless, wrong, and against the law

  • Like DHS’ public charge policy, the State Department’s policies are already doing damage

  • We are committed to fighting Trump’s invisible wall agenda on all fronts

  • Our top priority is protecting immigrant families from Trump’s unlawful abuses

  • We won’t stop until we tear down the invisible wall and build a better future for our country

UPDATE ON LITIGATION IN DHS RULE - HEARING JANUARY 7 IN NYC         

And as you know, our litigation partners are also fighting back against the final DHS rule, which was initially scheduled to take effect on October 15, 2019. Initially, five federal courts issued preliminary injunctions halting the rule, while legal cases challenging it proceed through the courts. Two federal appellate courts have since lifted the injunctions, but three remain in effect: two nationwide injunctions issued by a court in New York (to be considered by the 2nd Circuit Court of Appeals), and an injunction issued by an Illinois court that applies only to that state. 

The 2nd Circuit will hold a hearing on Tuesday, January 7 on the federal government’s motion to lift the New York district court’s nationwide preliminary injunctions. Advocates are awaiting the outcome of that hearing.  The legal fight will continue, but for now, the longstanding public charge policy that governs decisions made by immigration officials inside the U.S. remains in place. For an updated state of play, click here.

Along with our partners, the Protecting Immigrant Families campaign is continuing to monitor the impact of these changes. Please stay tuned for any future ways to support our litigation partners!

If you hear reports of people being denied entry to this country due to public charge, please use the link here to share information.
 

Thank you for your continued partnership!

Madison Allen, Center for Law and Social Policy, &
Sonya Schwartz, National Immigration Law Center

Visit us at https://protectingimmigrantfamilies.org/
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