Comments on INS No. 1989-99 Inadmissibility and Deportability on Public Charge Grounds

IMMIGRATION LAW & POLICY

Comments on INS No. 1989-99 Inadmissibility and Deportability on Public Charge Grounds

64 Fed. Reg. 28676 (May 26, 1999)

RE: INS No. 1989-99 Inadmissibility and Deportability on Public Charge Grounds 64 Fed. Reg. 28676 (May 26, 1999)

The purpose of this letter is to comment on the proposed rule, Inadmissibility and Deportability on Public Charge Grounds, that was published in the Federal Register on May 26, 1999. The proposed rule is a very positive development and the organizations whose signatures are attached to this letter support its objective, to clarify public charge law and establish clear standards governing public charge determinations.

Clear public charge rules have been desperately needed. The preamble to the proposed rule correctly recognizes that there has been considerable public confusion about the relationship between the receipt of federal, state, and local public benefits and public charge determinations in immigration law. The confusion has caused immigrants and their families to avoid using benefits that they need, including such essential services as emergency and other medical assistance, children's immunizations, basic nutrition programs and treatment of communicable diseases. Concern over public charge issues has also prevented immigrants and their families from applying for supplemental benefits, such as child care and transportation vouchers, that are designed to aid individuals in gaining and maintaining employment. Finally, the absence of clear public charge rules has undermined the Government's policies of increasing access to health care and helping people to become self-sufficient.

The undersigned organizations commend the INS for recognizing the pervasiveness of the confusion and for seeking to end the confusion by writing the proposed rule. Once finalized, the rule will clarify public charge law and further the Government's policies of improving public health and helping people to become self-sufficient.

The proposed rule is generally written in plain English that is accessible to lawyers and non-lawyers alike. The question-and-answer format, in particular, simplifies complex laws and promotes clarity about the legal standards. We commend the INS for utilizing this format.

The comments that follow are supportive of the proposed rule and are intended to strengthen it. The comments generally track the sequential order of the proposed rule.

§ 212.100(a): This section indicates that sections 212.100 through 212.112 apply to immigrants seeking admission to the United States or adjustment of status to lawful permanent residency, except for the categories of immigrants described in section 212.110 or to other categories of immigrants who may be exempted by law. This section provides context for the rules that follow and distinguishes it from sections 237.10 through 237.18 that cover deportability. It is a useful introduction to the rule.

§ 212.101 What law governs a determination of whether I am inadmissible on public charge grounds?

§ 212.102 What is the meaning of "public charge'' for admissibility and adjustment of status purposes?

This section defines the term "public charge." It is key to eliminating confusion in the community about what constitutes a "public charge."

The phrase "long-term care" as used in the definition is undefined. We feel that this is a mistake, because it is likely to lead to inconsistent adjudications, and the resulting uncertainty is likely to cause some individuals to needlessly forego seriously needed care.

Absent a clear regulatory definition of long-term care, the decision about this technical issue will be made by immigration officials and judges who have no expertise in the nuances of different kinds of health care. In the minds of these decision makers, a convalescent hospital stay of as little as 3-months may constitute a "long-term" stay. Others may make unfounded assumptions about the medical impact of a particular condition. Knowing this, intending immigrants and their advisors will be forced to assume the worst.

The consistent thrust of the proposed rule is to guide the discretion of immigration decision makers in areas out of their expertise so that immigrants may have some degree of certainty about the impact of their health care and other social services choices. This same philosophy should govern the definition of long-term care.

A minimum period of twelve consecutive months is a reasonable dividing line between short-term and long-term institutionalization. It provides clear guidance to immigrants and their counselors, as well as the INS, immigration judges and the State Department that institutionalization for less than twelve consecutive months does not constitute "long-term" institutionalization and is consistent with the definition of permanent disability for Supplemental Security Income (SSI) purposes.

The principle that an attending physician determine whether a patient can reasonably be expected to be discharged is standard in benefits law. Generally, treating physicians have superior knowledge about the mental or physical condition of their patients. As explained in Coffman v. Bowen, 829 F. 2d 514, 517 (4^th Cir. 1987):

See also similar provisions in the Social Security Administration’s regulations governing SSDI and SSI, 20 C.F.R. §§ 404.1527(d) and 416.927(d). See also, Pinneke v. Preisser, 623 F. 2d 546, 550 (8^th Cir. 1980) and Visser v. Taylor, 756 F. Supp. 501, 507 (D. Kan. 1990) (applying treating physician rule to determination of medical necessity under Medicaid).

§ 212.103(a): This section lists public benefits that are considered to be "public cash assistance for income maintenance." The list successfully clarifies the types of public cash assistance that, if received, may have public charge consequences. This will assist immigrants and advocates to understand the consequences of the receipt of such benefits.

§ 212.103(c): This section clarifies that receipt of certain types of cash benefits will not have public charge implications if the benefits are not intended for income maintenance.

This section properly excludes such cash benefits from public charge considerations because they are supplemental in nature.

§ 212.103(d): This section clarifies that cash benefits that have been earned are irrelevant to the public charge ground of inadmissibility. The examples used in this section are helpful to understand the types of cash benefits that are irrelevant because they are earned. Two additional examples, Unemployment Insurance and State Disability Insurance and their equivalents are common and would also make good examples. It is requested that they be included in this section as well.

§ 212.104(a): This section clarifies the factors that an immigration officer or consular official must consider, "at a minimum," when determining if an immigrant is inadmissible or ineligible to adjust status on public charge grounds. It clarifies that at an immigrant’s age, health, family status, assets, resources, financial status, education, and skills must be considered when making a decision on whether the immigrant is likely to become a public charge. This section also establishes that the decision-maker must consider the "totality of the circumstances" before determining whether an immigrant is likely to become a public charge, and that no single factor, other than the lack of an affidavit of support, will control the decision.

The section indicates, in part, that "[n]o single factor…will control this decision, including past or current receipt of public cash benefits, as described in paragraph (b) of this section." To be complete, the section should also state that past or current institutionalization for long-term care at government expense will not, in and of itself, determine if an immigrant is likely to become a public charge. The sentence should be modified to read: "[n]o single factor…will control this decision, including past or current receipt of public cash benefits or institutionalization for long-term care at government expense, as described in paragraph (b) of this section."

The Field Guidance on Deportability and Inadmissibility on Public Charge Grounds has a section in it that requires adjudicators who deny cases based on public charge concerns to issue denial orders that reflect consideration of each of the relevant factors and that articulate the reasons for the adjudicator's determination. 64 Fed. Reg. 28689 at part 2, Admission and Adjustment of Status (May 26, 1999). A similar requirement should be inserted into the final rule. It should expressly require the denial to be in writing and it should govern all adjudicators who make public charge decisions. This would assist immigrants understand the basis for denials and ensure that adjudicators properly consider relevant factors. It would also promote uniformity in public charge determinations.

§ 212.105(a): This section clarifies that receipt of public cash assistance for income maintenance and institutionalization for long-term care at Government expense will be relevant to public charge determinations and that receipt of non-cash public benefits will not be relevant because such benefits are of a supplemental nature and do not demonstrate primary dependence on the government.

The division between non-cash benefits and other benefits as developed in this section is a valid dividing line to determine if an individual is likely to become a public charge. It is simple to understand and will help to eliminate confusion in the community about the public benefits that are "safe" to receive.

§ 212.106(a): This section provides guidance to immigrants who have been institutionalized for long-term care or received public cash assistance for income maintenance about the requirements for them to be found admissible or eligible to adjust status. As such, it helps immigrants and their advocates to understand the potential consequences of receipt of such assistance. This will help immigrants to make informed decisions and ease confusion in the community about the consequences of receipt of such benefits.

§ 212.106(b): This section indicates that the length of time during which an immigrant previously received benefits or was institutionalized at Government expense, as well as the distance in time from the immigrants' current application for admission or adjustment, are significant to the public charge decision. These points are useful as a general guide to understand the effect that the quantity and duration of receipt of public cash assistance or institutionalization at government expense may have on public charge determinations.

The Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, which has a similar section, provides an example of when the negative implication of past receipt of such benefits or past institutionalization may be overcome. It indicates, "For instance, a work-authorized alien who has current full-time employment or an AOS should be found admissible despite past receipt of cash public benefits, unless there are more adverse factors in the case." 64 Fed. Reg. 28689, 28690 (May 26, 1999). The example provided in the Field Guidance helps to clarify the circumstances under which the negative implication of the receipt of such benefits may be overcome. We recommend that you add the example to the end of this section as well.

§ 212.107 Will I be required to pay back any public benefits that I have received before an immigration officer or immigration judge will find me admissible or eligible to adjust status?

This section correctly indicates that immigration officers and immigration judges do not have the authority to require that immigrants reimburse public benefit-granting agencies for assistance received.

Due to the recent history of immigration authorities improperly conditioning receipt of legal permanent residence on the repayment of public benefits, the section should also state that immigration officers and immigration judges not only do not have the authority to do this, but are instructed not to do this. We recommend that the introductory sentence be modified as follows: "Immigration officers and immigration judges do not have the authority to require, and shall not require, you to reimburse public benefit-granting agencies for assistance that you have received."

§ 212.108 Are there any special requirements for aliens who are seeking to immigrate based on a family relationship or on employment?

This section explains that having an affidavit of support on file is a prerequisite for "certain" immigrants to obtain family-based immigrant visas or employment based visas and that failure to have an affidavit of support will result in immigrants being found inadmissible or ineligible to adjust status on public charge grounds. The section also states that "certain" widows and widowers of U.S. citizens and battered spouses and children of citizens and lawful permanent residents are exempt from filing affidavits of support.

The references to "certain" immigrants, without precise descriptions of the referenced immigrants, leaves the section vague and incomplete. We request that the section explain, briefly and in simple English, precisely which "certain" immigrants are required to file affidavits of support and which widows, widowers and battered spouses and children are exempt from filing affidavits of support. This would strengthen and clarify the section.

§ 212.109 Will I be considered likely to become a public charge because my spouse, parent, child, or other relative has become, or is likely to become, a public charge or has received public cash assistance?

Family members of immigrants have declined to receive public benefits out of fear that their receipt might have public charge consequences for the immigrant. This has had a devastating impact on the community.

This section clarifies that public charge determinations are individualized and the fact that one, or all, of an immigrant's close relatives has become, or is likely to become, a public charge will not make the immigrant inadmissible as a public charge, unless the evidence shows that the immigrant, individually, is likely to become a public charge. It also clarifies that public cash benefits for income maintenance received by that immigrant's relatives will not be attributed to the immigrant for admission or adjustment purposes unless they also constitute the immigrant's sole support.

This section is correct and well written. It furthers the proposed rule's objective of clarifying the public charge rules thereby ensuring that relatives of immigrants receive benefits that they critically need. This will alleviate unnecessary suffering in the community.

§ 212.110 Are there any individuals to whom the public charge ground of inadmissibility does not apply?

This section lists individuals for whom the public charge ground of inadmissibility does not apply, thereby clarifying the categories of immigrants that are exempt from the public charge provisions. However, two common categories of immigrants, Lautenberg parolees and special immigrant juveniles, both of whom are exempt from public charge grounds of inadmissibility, have been left off the list. We recommend that they be added to the list.

The law regarding Lautenberg parloees is found at section 599E of the Foreign Operations Appropriations Bill signed on November 21, 1989 (Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1990), Pub. L. No. 101-167, 103 Stat. 1195), as amended by § 582 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1993, Act of Oct. 6, 992, Pub. L. No. 102-391, 106 Stat. 166.

The law regarding adjustment for special immigrant juveniles is found at INA § 245(h) (waiving certain grounds of inadmissibility, including public charge, for the adjustment of juveniles who are dependent on the state, in cases where it would not be in the child's best interest to be returned to his or her home country.)

§ 212.111 Are there any waivers for the public charge ground of inadmissibility?

This section states that, except for the waiver for certain aged, blind, or disabled applicants for adjustment of status under section 245A of the Act, there are not waivers available for the public charge grounds of inadmissibility. This is incomplete. Public charge grounds of inadmissibility are effectively waived for immigrants who post a public charge bond. 8 U.S.C. § 1183. This section should be modified to reflect this.

§ 212.112 Is it possible to provide a bond or cash deposit to ensure that I will not become a public charge?

§ 237.11 What law governs whether I am deportable on public charge grounds?

§ 237.13 What specific benefits are considered to be "public cash assistance for income maintenance?'

§ 237.14 Are there any forms of public benefits that I can receive without becoming deportable as a public charge?

§ 237.15 What other conditions must be met for me to be deportable as a public charge?

Section 237.15 articulates a test that must be met for an immigrant to be deported from the United States. The test is derived from Matter of B-, 3 I&N Dec. 323 (BIA and AG 1948) which articulated very narrow circumstances under which an immigrant may be deported as a "public charge." The test, however, as applied in this section, misconstrues Matter of B- and unnecessarily expands the circumstances under which an immigrant can be deported as a public charge. This has the effect of deterring immigrants from receiving critical benefits that they are entitled to receive and undermines a central purpose of the proposed rule which is to improve the public health. As such, this section should be modified to narrowly apply the public charge test for deportability.

In the preamble to the proposed rule, the INS determined that the existing Matter of B- test for public charge deportations applies to demands for repayment of means-tested benefits under the new affidavit of support. 64 Fed. Reg. 28676, 28680 (May 26, 1999). As such, section 237.15 could permit immigrants to be deported as public charges, in part, if they have a sponsor who completed an affidavit of support on the immigrant's behalf and the sponsor fails to repay certain Federal, State or local means-tested public benefits provided to the immigrant if demanded to do so. Matter of B- should not be read so expansively.

The Matter of B- test evolved primarily to establish a defense to deportation for certain aliens involuntarily rendered destitute. In the vast majority of reported cases, the doctrine was interpreted and applied to prevent, rather than facilitate, deportation of involuntarily destitute people. See Matter of B-, supra, and federal court cases cited therein (immigrants not deported); Matter of V-, 2 I&N 78 (BIA 1944) (alien not deported); Matter of C-, 2 I&N 538 (BIA 1946) (immigrant not deported); Matter of P-, 4 I&N 565 (Central Office, 1951) (immigrant not deported); Matter of F-, 5 I&N 209 (BIA 1953) (immigrant not deported); Matter of L-, 6 I&N 349 (BIA 1954) (alien not deported); and Matter of V-, 5 I&N 725 (BIA 1954) (immigrant not deported) and compare Matter of C-R-., 7 I&N 124 (BIA 1956) (immigrant deported under a separate "institutionalized at public expense" ground to which Congress did not intend the 3-part public charge test to apply) and Matter of M-, 2 I&N 694 (BIA 1946) (alien deported where there was evidence of "constitutional psychopathic inferiority" and public charge.)

Close analysis of Matter of B-, demonstrates that it is the statute providing the benefit or care that must establish liability, not any other law that imposes a support obligation on a family member or someone else. For example, under the statute at issue in Matter of B-, the immigrant was provided free institutional care, but she and her relatives were liable for payment of supplementary expenses by the terms of the statute under which the benefit was provided. The obligation thus arose from the statute conferring the benefit to the immigrant not from any other source. Under the proposed rule, an immigrant may be deported as a public charge even if the underlying statute that confers the benefit does not obligate the immigrant or anyone else to repay the benefit. As such, the proposed rule is overly broad. It should be modified to narrowly reflect that an immigrant may be deported only if the immigrant receives public cash assistance or is institutionalized for long-term care at government expense and the underlying statute conferring the benefit requires the immigrant to repay the benefit and repayment does not ultimately occur if timely demanded.

Further, under the public charge deportability test as evolved, if another individual is legally obligated to support the alien, the government must obtain the support from that individual, rather than seeking to deport the immigrant. As the court stated in Nocchi v. Johnson, 6 F.2d 1, 2 (1^st Cir. 1925), in language that the Board quoted with approval in Matter of B-:

Thus, the government cannot seek to deport the immigrant simply because individuals who are legally obligated to support the immigrant refuse to do so. To the extent that the new affidavit of support creates such a legal obligation for sponsors, the remedy for the state it to enforce the affidavit of support, not to deport the immigrant.

The new affidavit of support also does not create a debt owed by the immigrant, a necessary component of deportability under the established case law. If there is no demand made of the immigrant to repay the benefit, the immigrant is not a public charge. Matter of C-, 2 I&N Dec. 538 (BIA 1946). If the benefit is provided under a state law that does not create a debt as to the immigrant, the immigrant is not a public charge. Matter of V-, 2 I N Dec. 78 (BIA 1944). The new affidavit of support does not create a legal debt on the part of the immigrant and cannot therefore properly render the immigrant a public charge, for purposes of the deportability ground.

The rule’s expansion of the Matter of B- test to include sponsor liability under affidavits of support required by INA §213A also conflicts with Congressional intent to define the manner in which such affidavits are to be used. Section 213A of the INA was added by § 423 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) and amended by § 551(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In neither statute did Congress impose deportation consequences for reliance on such affidavits. Thus, there is no textual basis in the legislation for concluding that Congress intended to attach a new immigration consequence, namely deportability, to an immigrant’s failure to get their sponsor to support them. Nor does the legislative history support such an intent.

Rather, the process of enactment of INA section 213A indicates that Congress did not intend to change the public charge deportation ground. IIRIRA did not in any way amend INA § 237(a)(4), the public charge ground of deportability (other than to renumber the section as part of a general restructuring of the INA.) Notably, an amendment that would have broadly expanded this section was contained in the Conference Report, but Congress deleted it from the final bill. H.R. Conf. Rep. 828, 104^th Cong., 2d Sess. (1996), proposed section 531. Congress chose to leave the public charge ground of deportability intact, and the agency cannot expand it by administrative fiat. Moreover, administrative expansion of the ground would also contravene the well-established principle that deportability provisions must be strictly construed in favor of the immigrant. Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948); INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987).

The same public policy considerations which the new rule so thoughtfully reflects in other sections also support a narrow application of the public charge deportation provisions. The preamble to the rule recognizes the importance of the current national policy of promoting public health. 64 Fed. Reg. 28689, 28677 (May 26, 1999). This policy would be undermined if sponsored immigrants were to avoid critical public benefits that they are entitled to receive out of fear that they will be deported if a demand for repayment is made on the immigrant's sponsor and the sponsor is unable or unwilling to repay the benefit. Likewise, it could lead to unsound results, if for example, an abusive sponsoring husband's refusal to reimburse the state for benefits properly paid to his battered immigrant wife were to render the victim deportable. To avoid such results, the INS should narrow the test for public charge deportability to avoid conflict with sound public health policy otherwise advanced by the rule.

Based on the foregoing, we urge you to modify section 237.15(a) to read as follows:

(a) In addition to the requirements of section 237(a)(5) of the Act, and except as provided in paragraph (b) of this section, you are not deportable as a public charge unless the Service shows that:

Sections 237.15 and 237.16 could make immigrants with affidavits of support deportable even though liability under the affidavit may have been extinguished—for example, by accumulation or crediting of 40 quarters. This result flows from the fact that INS has not established any process for an immigrant or sponsor to obtain timely documentary proof that liability has been extinguished. An affidavit enforcement action is not the solution, since the futility provision of 237.15(b) does not require that such an action precede deportation proceedings in all cases. An immigrant would likely be hamstrung in defending against public charge deportation, since the rule only requires the government to demonstrate a right to seek repayment—which is less than liability. If, despite the reasons articulated above, the INS imposes deportability on immigrants with affidavits of support as described above, it should not do so until it establishes a simple administrative procedure for immigrants and sponsors to obtain proof that liability has been extinguished.

§ 237.16 Is the "Affidavit of Support under Section 213A of the Act'' (Form I-864) relevant to removal on public charge grounds of deportation?

In its essence, this section provides that an immigrant may be found to be a public charge if the immigrant has a sponsor who completed an affidavit of support on his behalf and the sponsor fails to repay certain Federal, State or local means-tested public benefits provided to the immigrant if demanded to do so. For the reasons articulated in our comment to section 237.15, this is improper. As such, this section should be deleted in its entirety.

Additionally, please note that the internal numeration in this section is incomplete. This section commences with section (a) but does not contain section (b). As such, it is incorrectly numbered.

§ 237.17 Does the 5-year period in § 237(a)(5) of the Act run only from my first entry into the United States?

This section clarifies that the 5-year period for public charge deportation purposes begins again upon each entry into the United States unless the immigrant is a returning LPR who is not considered an applicant for admission.

This section provides in pertinent part that, "[ i]f you have been lawfully admitted for permanent residence (LPR status), you are not considered an applicant for admission upon return to the United States after a trip abroad unless you are covered by one of the categories specified in section 101(a)(13)(C) of the Act, including an absence of 180 days or more from the United States." Rather than merely citing to 101(a)(13)(C) of the Act, this section would be strengthened if it were to indicate, in plain English, the factors listed in that section, in addition to an absence of 180 days or more from the United States, that could lead an LPR to be considered an applicant for admission to the United States. This would bring further clarity to the rule.

§ 237.18 Will I be considered a public charge because my spouse, parent, child, or other relative has accepted public benefits or has become a public charge?

The proposed rule seeks comments about whether any forms should be modified along with the final public charge rule. The affidavit of support (Form I-864), which is completed by persons applying to sponsor immigrants, contains a question that asks whether the sponsor or a member of the sponsor’s household has received means-tested public benefits within the past three years. This question should be deleted from the form because it causes potential sponsors to incorrectly believe that if they use benefits they will be considered public charges or found ineligible to sponsor immigrants. Because only a few benefit programs are relevant to the issue of whether a sponsor has "income," it is recommended instead that the section of the form which discusses "income" specify benefits (such as SSI and TANF) which the sponsor ought NOT to list in the "income" column. Also, the final rule should clarify that sponsors are not subject to public charge screening and that receipt of public benefits does not preclude potential sponsors from completing an affidavit of support.

Likewise, the Application to Register Permanent Residence or Adjust Status (Form I-485) contains a question about whether the applicant has received public assistance in the U.S. from any source, including the U.S. government or any state, county, city, or municipality (other than emergency medical treatment), or whether the applicant is likely to receive public assistance in the future. In light of the final public charge rule, the question is outdated and seeks irrelevant information. The question should be deleted in its entirety, or alternatively, modified to only inquire about the receipt of public cash assistance for income maintenance purposes or institutionalization for long-term care at Government expense.

All other forms that contain outdated or inappropriate "public charge" questions , such as suspension of deportation applications and cancellation of removal applications, should also immediately have the questions deleted or modified to harmonize with the final public charge rule.

Advocates are concerned that despite the public charge rules, the use of public benefits may continue to cause denials in cases of immigrants applying for suspension of deportation/cancellation of removal and certain other forms of discretionary relief. While there is no public charge barrier to obtaining such relief, immigration judges and INS officers sometimes view the receipt of public benefits as a negative factor that justifies denial in the adjudicator’s discretion or because the immigrant lacks "good moral character" for receiving benefits, in effect applying a type of public charge analysis. Allowing adjudicators to continue to do so is a disincentive for immigrants and their U.S. citizen family members to access critical services and is at odds with the proposed rule’s stated policy objective of "reduc[ing] the negative public health consequences generated by the existing confusion" over what benefits may have adverse immigration consequences. The remaining uncertainty regarding the effect of using non-cash benefits in such circumstances will also undermine efforts to publicize the INS’ newly improved public charge rule, because health care providers and other community groups will not be able to deliver a clear and uniform message that receiving health care and other critical benefits will not hurt one’s immigration case.

We urge you to strengthen the public charge rule by stating that immigration judges, INS officers and other relevant adjudicators cannot consider the receipt of public benefits as a negative factor when determining moral character or when making discretionary decisions, at least where the benefit is not cash assistance for income maintenance or institutionalization for long-term care at government expense.

The Field Guidance on Deportability and Inadmissibility on Public Charge expressly indicates that there is no public charge test for purposes of naturalization. 64 Fed. Reg. 28689, 28693 at part 8, Naturalization (May 26, 1999). This is helpful because there has been a misperception in some parts of the community, and among some naturalization adjudicators, that there is a public charge test for naturalization. To eliminate this misperception, the final rule should also expressly indicate that there is no public charge test for purposes of naturalization.

Immigrants who are HIV positive are subject to excludability on health related grounds pursuant to INA § 212(a)(1)(A). There is a waiver of this ground of exclusion. In practice, the waiver requires that the immigrants establish, in part, that no cost would be incurred by any level of government agency without the prior consent of that agency.

The proposed public charge rule generally permits immigrants to access health benefits without public charge consequences. The part of the test that requires immigrants to establish that no cost would be incurred by any level of government agency to obtain a health related waiver is, in practice, at odds with the public charge rule. When seeking a waiver of the health related grounds of exclusion, HIV positive immigrants often completely avoid any health care provided by governmental agencies thereby facilitating an argument on their behalf that no cost would be incurred by an level of government agency without the prior consent of that agency. This is particularly tragic with regard to those HIV positive immigrants who are completely exempt from public charge determinations but avoid critical health care in order to facilitate a waiver of the health related ground of exclusion. See e.g. 212.110 of this proposed rule for immigrants who are exempt from public charge determinations. This undermines both the immigrants' health and public health and is at odds with the public charge rule which is intended to alleviate unnecessary suffering in the community.

To prevent this suffering, and to harmonize the public charge rule with the health related ground of excludability for immigrants who are HIV positive, it is requested that the final public charge rule state that the receipt of non-cash benefits by immigrants is presumed to be done with the prior consent of any government agency providing such benefits. This would permit all immigrants to access health benefits that they need and are entitled to receive and further a central objective of the public charge rule which is to improve public health.

Many battered immigrant spouses and children are "qualified aliens." 8 U.S.C. § 1641(c). As such, they are statutorily eligible to receive public cash assistance for income maintenance and other benefits. A policy decision has been made to make these immigrants eligible for such benefits, even before they become legal permanent residents in many instances, out of recognition that benefits are necessary to help the victims to escape and recover from abuse.

To protect themselves from their abusers, battered immigrant spouses and children are often encouraged to reside apart from their abusers. Indeed, to meet the statutory definition of "qualified alien" these victims are obligated to live apart from their abusers. Id. The separation of victims from their abusers, however, often results in the loss of income for the victim and results in economic hardship that necessitates their receipt of public cash assistance for income maintenance while they reorient themselves and become self-sufficient.

According to section 212.106(b) of the proposed rule, the receipt of public cash assistance for income maintenance is a negative factor that will be weighed in the totality of the circumstances in determining whether such immigrants are public charges. This creates a disincentive for the victims to access these critical benefits precisely at a time when they most need them. As a result, they may choose to either remain with their abuser solely for economic reasons, which places them in jeopardy of continued abuse, or they may separate from their abuser but forego public cash assistance entirely thereby suffering needless economic distress. Neither of these are sound results.

To correct this situation, we urge you to specify in the final rule that the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense that is received to ameliorate the consequences of domestic violence will not be considered against the victim in making a public charge determination. This would harmonize the final public charge rule with the sound public policy of making public resources available to assist victims of domestic violence to recover from abuse.

Clarification is Needed about Confinement or Hospitalization for the Criminally Insane and Similarly Situated Individuals

The public charge definition in section 212.101(a)(2) and section 237.12(a)(1)(ii) indicate that imprisonment for conviction of a crime does not constitute institutionalization for long-term care at government expense. It is requested that the term be clarified as encompassing confinement or hospitalization for the criminally insane, and similar situations that are equivalent to confinement in a penal institution, even if the affected individual is not "convicted" of a crime. See e.g., Matter of P-, 4 I&N 565 (BIA 1951); Matter of V-, 5 I & N 725 (BIA 1954).

Procedures for Reconsidering or Reopening Adverse Public Charge Decisions that Were Made Prior to the Issuance of the Final Rule Should Be Implemented

In the past, immigrants have been determined to be "public charges" based on factors that, under the proposed rule, would be inappropriate today. It is requested that the final rule include a provision that would permit immigrants to have their cases reconsidered or reopened if, prior to the effective date of the final rule, they have been determined to be a "public charge."

We request that procedures be established to monitor public charge adjudications to ensure that adjudicators properly follow the law when making public charge determinations. In particular, a centralized telephone number and address should be implemented, and advertised, through which immigrants and their advocates can advise the Government when the public charge rules are not being properly applied. This would provide an opportunity to monitor developments in the field and to correct any problems in the event they arise. It would also provide immigrants and their advocates assurances that the rules are being fairly and properly applied.

Further, we encourage the INS, State Department and Executive Office for Immigration Review to train their personnel on the final rules and procedures. This would ensure a uniform and correct application of the public charge rules in practice. Ideally, the trainings would involve community advocates who could provide valuable insight from the community's perspective.

On a related note, the INS has issued a four page Public Charge Fact Sheet, dated May 25, 1999, explaining the public charge rules. This document is very useful to community advocates to explain public charge rules to their constituents. The INS is commended for issuing it. We recommend that it be shortened, simplified, translated into numerous languages and issued on INS's letterhead. This would assist community advocates to educate the community about these important rules.

Finally, we encourage the INS to work with community advocates throughout the nation to develop community education materials and educate the community about these important rules. Joint collaboration between the INS and community advocates would be very powerful in educating the community about these rules and encouraging accurate and swift dissemination of information.

The proposed rule is a very positive development and its objective, to clarify public charge law and establish clear standards governing public charge determinations, is supported by the organizations whose signatures are attached to this letter.

Clear public charge rules have been desperately needed. Due to confusion about public charge law immigrants and their families have refrained from accessing benefits that they are entitled to receive, often with devastating public health consequences. The absence of clear public charge rules has undermined the Government's policies of increasing access to health care and helping people to become self-sufficient.

The INS is commended for seeking to end public confusion about public charge matters by writing the proposed rule in clear and simple language. In large part, the INS has succeeded in its objective of clarifying public charge standards and applications. In practice, it will help immigrants and their families to understand the benefits that are "safe" for them to receive and the potential consequences of receiving benefits that that have public charge consequences attached to them. This will help to educate the public and further the Government's policies of improving public health and helping people to become self-sufficient.

The comments made in this letter are intended to support, strengthen and further clarify the proposed rule. We support the INS's efforts in this area and look forward to prompt implementation of the final rule.