NOT DEAD YET PUBLIC COMMENT ON RULE CHANGE ON INADMISSIBILITY
BASED ON A PUBLIC CHARGE DETERMINATION
December 7, 2018
This comment is submitted by Not Dead Yet, a national disability rights organization, in response to a request for comment on a rule change proposed by the Department of Homeland Security (DHS) dealing with inadmissibility to the United States based on a public charge determination (“proposed rule”). We urge that the proposed rule be withdrawn because it introduces criteria for making a public charge determination that are arbitrary and capricious and are counter to the best interests of the nation. The proposed rule discriminates against people with disabilities, people with health problems, elders, youth and lower income persons. It ratchets up existing biases in the immigration law exponentially.
The proposed change would have no effect on reducing unlawful immigration. Instead, it would make it immeasurably harder for disabled persons or for families with disabled persons who they don’t want to leave behind to lawfully come into or stay in the country. It would interfere with family members helping each other in the way that strong families often do. For example, a family of modest means whose members have contributed to the country for years might not be able to invite an elderly or disabled relative still in their country of origin to live with them. This could be so even though they have no thought of looking to the government for assistance. Indeed they may even be counting on the relative to provide afterschool childcare so that both parents would feel comfortable about working full-time. The proposed rule could also be used to bar a newly graduated engineer with spina bifida or another physical limitation from entering or staying in the country because at some point in the future she may apply for a Medicaid waiver to get in-home support so she can work until retirement age.
Currently, the term “public charge” refers to an individual who is likely to become “primarily dependent on the government for subsistence”. The use or likely use of publicly-funded health care, nutrition, and housing programs have never been considered in making a public charge determination since these programs are vital to keeping our communities healthy and safe and individuals productive.
The proposed rule would broaden the definition of “public charge” to anyone who uses or is ever at any time likely to use any of a range of government assistance programs. These programs include food stamps, federal housing and rental assistance, non-emergency Medicaid benefits, or Medicare Part D healthcare subsidies even if the person is otherwise eligible for the program. Thus, longstanding policy about what is good for the country would be up-ended.
Additionally, a variety of other factors could be used to bolster a public charge determination, some of which are highly subjective or speculative. Immigration officers would therefore have to make personal judgment calls in applying them. For instance, the presence of a medical condition considered “likely” to require extensive medical treatment or institutionalization, or that may interfere with the ability to provide for oneself, or to attend school or work, would be considered a heavily weighed negative factor. Conclusions could differ widely as to whether this factor is present, for example, in the case of a person with moderate cerebral palsy with entry level bookkeeping skills who currently has no general health problems. As most people with disabilities can attest to, prejudice against people with disabilities is extremely prevalent and medical predictions about the future can be notoriously inaccurate.
Among the more objective but still discriminatory factors that could be considered are whether the person is younger than 18 or over 61, lack of private health insurance (or lack of financial resources to pay for medical costs) and having an income under 125% of the Federal Poverty Level. These factors are arbitrary and not indicative of the role that a person can play in society.
As the National Council on Independent Living has stated, “The current definition of “public charge” already discriminates against immigrants with disabilities, but with the proposed changes, disabled and low-income immigrants are right in the crosshairs.” http://www.advocacymonitor.com/page/3/
The proposed rule would apply to both persons seeking initial admittance into the country and persons who are already in the country and are seeking an extension of their visas or permanent residency. This is so even if such persons or their families are paying taxes that fund the programs they, and many Americans, might someday need.
It would also mean that immigrant families who have been in America for some time would be forced to imperil their own health by forgoing the assistance they would otherwise be entitled to in order not to jeopardize their right to lawfully remain in the country.
Indeed, as the Health Affairs blog has stated, “If promulgated these changes will almost certainly harm the health of immigrants and their families. Most obviously, the changes will create a significant disincentive for immigrants to enroll in publicly-funded health insurance programs. In its comments, DHS estimates that 2.5 % of the eligible population of immigrants and their family members who are otherwise eligible for Medicaid or Medicare Part D subsidies will either dis-enroll or forego participation in the programs. In reality, many more immigrants, including many who are not actually subject to the public charge requirement because they have an exempt status, are likely to avoid coverage due to fear of negative immigration consequences…” https://www.healthaffairs.org/do/10.1377/hblog20180927.100295/full/
DHS itself concedes that the changes could result in “worse health outcomes,” “increased use of emergency rooms,” “increased prevalence of communicable diseases,” “increased rates of poverty” as well as other problems.
Again, as the Health Affairs blog has stated, “Despite acknowledging these drawbacks, DHS claims that the regulations are, nevertheless, necessary to ensure ‘self-sufficiency’ among immigrants. Yet, when it comes to health, the goal of complete self-sufficiency is unrealistic…Look across the life span, and it’s easy to recognize that none of us is self-sufficient during our childhood, and few of us will be in the future if we live long enough…That is just as true for non-citizen immigrants as everyone else. As DHS notes, almost 20 % of American citizens rely on the programs affected. The demand that immigrants achieve self-sufficiency is implausible. It is also cruelly demeaning to all Americans who rely on the programs that are targeted.” https://www.healthaffairs.org/do/10.1377/hblog20180927.100295/full/
Where is the gain for America? How would the proposed rule create a safer, more prosperous nation? How would it create stability or promote what most of us see as American ideals?
For the sake of the country and for the sake of all of us – disabled or not, recent immigrant or not – the proposed rule must be withdrawn.
Sincerely,
Diane Coleman, JD, President/CEO
Lisa Blumberg, JD, Consultant