Volume 108

A Vessel for Discrimination: The Public Charge Standard of Inadmissibility and Deportation

by Anna Shifrin Faber

Awareness of the public charge provision has increased in recent months. In October 2018, the Trump Administration released a proposed rule to expand the definition of public charge, and in August 2019, the Department of Homeland Security (DHS) issued a final rule enacting the expanded public charge analysis (Final Rule).

Before the Final Rule, DHS officers could only consider public benefit programs relied on by individuals with little-to-no income when determining whether an immigrant was a public charge. Now, DHS officers will consider programs established to help working individuals and families, such as federal housing assistance through public housing and Section 8, healthcare coverage through nonemergency Medicaid, and food assistance through the Supplemental Nutrition Assistance Program (SNAP). This means that DHS officers can look at new factors when determining whether an individual is likely to become a public charge.

There are two ways of understanding the public charge framework: interpretation and application. Historical interpretation derives a common principle of a public charge as someone primarily or wholly dependent on the government, usually because of their inability to work. Historical application of public charge shows how it has been co-opted for discriminatory use. This Note demonstrates that public charge should be defined by its common principle, not by its history of discriminatory application.

First, this Note surveys the current state of the public charge policy and summarizes the history of public charge. It also explores the modern transformation of the relationship between noncitizens and public benefits, with elected officials and policymakers using the language of public charge as a tool to deny noncitizens access to public benefit programs and weaponizing the use of public benefits to exclude and deport immigrants. Second, this Note illustrates how the lack of a formal definition of public charge allowed for inconsistent and biased application, but a central principle—an individual primarily or wholly dependent on the government—grounded the interpretation. Third, this Note offers evidence to support the central principle and proper definition of public charge as a person primarily or wholly dependent on the government. This section looks to modern and historical dictionary definitions, modern federal statutory provisions and agency guidance, the use of public charge at the time it was enacted as federal law, and common law interpretation. Ultimately, it becomes clear that public charge should be understood as it was written and interpreted, not as it came to be applied as a catchall tool for discrimination.

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