By Mitchell Antalis
A series of four federal appellate court decisions in 2020 created a new circuit split regarding the legality of a Trump-era immigration rule adopted by the Department of Homeland Security (“DHS”) that altered the grounds for “public charge” inadmissibility determinations for noncitizens. The circuit split set the stage for a Supreme Court showdown early in 2021 in an appeal from a Second Circuit case, but it was recently dismissed upon joint request from all parties as the government lost interest in pursuing the appeal following policy changes instituted by the Biden administration. However, eleven states recently filed a motion to intervene in a Ninth Circuit appeal, so the issue is far from resolved.
What Is the Public Charge Rule?
TheImmigration and Nationality Act (INA), enacted in 1952, governs U.S. immigration policy. One of the INA’s provisions allows a noncitizen to be denied admission to or continued residency in the U.S. if he or she is “likely at any time to become a public charge.” In 1996, Congress provided additional guidance which requires agencies to consider the following five factors “at a minimum” when making a public charge determination: (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education skills.
This legislative framework was further supplemented by administrative guidance issued in 1999 within the Immigration and Nationality Service (INS), a predecessor agency of DHS. The INS positively defined “public charge” to mean a person who is “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.”
In 2019, DHS announced a new rule governing the public charge doctrine that made two substantive changes to the previous guidelines. First, it replaced the “primarily dependent” language, instead defining “public charge” as a noncitizen who “receives one or more public benefits for more than 12 months in the aggregate within any 36-month period.” Second, the new rule incorporated certain non-cash federal benefits that were previously excluded into its definition of “public benefit.” In layman’s terms, the new definition considers participation in certain non-cash governmental support programs—such as Medicaid, Supplemental Nutrition Assistance Program (SNAP), and public housing assistance—relevant to whether an individual is deemed a public charge, whereas the old definition under the 1999 guidance specifically disallowed consideration of most non-cash public benefits.
Procedural History of Circuit Court Cases
The publication of the DHS rule prompted legal action from several states and immigrant-rights organizations in four circuits across the nation. In each case, the plaintiffs argued that DHS’s new rule violated the Administrative Procedure Act (APA) because it was: (1) an unlawful interpretation of the INA that exceeded DHS’s congressionally granted authority; and (2) an arbitrary and capricious application of the law. In each case, the district court agreed that the concerns raised by the plaintiffs likely made the DHS rule unlawful and issued a preliminary injunction barring enforcement of DHS’s new rule.
On appeal, the Second, Fourth, Seventh, and Ninth Circuits each evaluated the appropriateness of the preliminary injunctions issued by the district courts. Before the circuit-level appeals were heard, however, the Supreme Court, in a rare procedural move, issued a stay of the district court’s preliminary injunction in the Second Circuit case. This stay effectively allowed the DHS rule to be enforced while the appeal process was ongoing.
Each circuit court was required to analyze whether the plaintiffs’ APA-based claims had merit. The APA declares unlawful any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
In evaluating whether the DHS rule violated the APA as “not in accordance with the [INA]” the circuit courts used a two-step framework from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. At step one, a court considers whether congressional intent is clear; if it is, the court must determine simply whether the agency’s rule comports with congressional intent. If congressional intent is ambiguous, however, then step two requires the court to defer to the agency in determining whether its rule is a reasonably permissible construction of the applicable statute (here, the INA).
In evaluating whether the DHS rule violated the APA as an arbitrary and capricious application of the law, the circuit courts considered whether DHS’s rule was rationally devised in that DHS gave significant and fulsome consideration of all potential issues and harms arising from the rule change before implementing it.
Circuit Court Holdings
Each circuit used the above framework to come to a different conclusion. For instance, the Second Circuit focused largely on the history of the public charge doctrine, finding it had a consistent meaning that was ratified by Congress in the INA. Under Chevronstep one, it held that the DHS rule did not comport with the standardized meaning of “public charge” as set forth in the INA.
In contrast, the Seventh Circuit found that “public charge” had no standardized meaning under step one but held the DHS rule invalid under step two of Chevron because its definition of public charge was not a reasonably permissible interpretation of the term “public charge” in the INA.
In yet another different opinion, the Ninth Circuit found that the DHS rule was likely to be found arbitrary and capricious under the APA because DHS failed to adequately consider the rule’s effect on multiple public health and financial issues for states and other localities.
The Second, Seventh, and Ninth Circuits all upheld preliminary injunctions barring enforcement of the DHS rule. In the only case to rule the other way (creating the circuit split), the Fourth Circuit held that the DHS rule was a permissible interpretation of the INA because the meaning of the term “public charge” was purposefully ambiguous and allowed administrative agencies a reasonable degree of discretion in defining the term for policy purposes. It also held that DHS’s reasoning underlying the rule was sound, so the law was not developed arbitrarily or capriciously.
Takeaway Moving Forward
The public charge doctrine sits at an interesting crossroads. On one hand, there exists a 3-1 circuit split that favors finding the DHS rule unlawful. However, the Supreme Court’s stay of the preliminary injunction in the Second Circuit could be indicative of its opinion that the DHS rule is lawful. Even though the promulgated DHS rule will not be enforced by the Biden administration due to its divergent ideological philosophy regarding immigration, resolution of this circuit split could nonetheless be valuable to future administrations by providing clarity surrounding the limits of enforcement power for administrative agencies.