Protecting immigrants and the community:
A new approach to public charge determinations

By Linton Joaquin and Braden Cancilla.*  This article was originally published in Interpreter Releases, Vol. 76, No. 22, June 7, 1999.  Posted with permission.

Two weeks ago, the INS issued landmark field guidance that defines the term "public charge," establishes procedures to be used by INS officers when making public charge determinations, and clarifies the benefits that immigrants can receive without public charge consequences.⁽¹⁾  Simultaneously with the new guidance, the Department of Justice published a proposed rule addressing the same issues,⁽²⁾ and the Department of State issued a cable incorporating the definitions and rules contained in the guidance.⁽³⁾  The guidance took effect on May 21, 1999.

The INS issued the guidance and proposed rule to alleviate "considerable public confusion about the relationship between the receipt of federal, state, and local public benefits" and "public charge" determinations in immigration law.⁽⁴⁾  This confusion has caused immigrants and their families to refrain from accessing benefits to which they are entitled, including such essential services as emergency and other medical assistance, children’s immunizations, basic nutrition programs, and the treatment of communicable diseases.  Concern over public charge issues has also prevented immigrants and their families from applying for supplemental benefits, such as childcare and transportation vouchers, that are designed to aid individuals in gaining and maintaining employment.

The chilling effect of public charge concerns on the use of benefits by immigrants and their families directly conflicts with important governmental policies of increasing access to health insurance and health care, and helping people to become self-sufficient by drawing temporarily on public support when seeking a new job or recovering from an accident or illness.  As the State Department cable explains:

Ample evidence existed to demonstrate that such confusion led many persons in the immigrant community to choose not to sign up for important benefits, especially health-related benefits, which they were eligible to receive, as they were concerned this would affect their or a family member’s immigration status.  When the problem reached the magnitude at which [U.S. government] domestic policy experts began to fear an adverse impact on public health and welfare, it became evident that clarification of the public charge provision was needed.⁽⁵⁾

The INS guidance, issued after extensive consultation with federal benefit-providing agencies, is specifically intended "to reduce the negative public health consequences generated by the existing confusion and to provide aliens with better guidance as to the types of public benefits that will and will not be considered in public charge determinations."⁽⁶⁾

The Guidance in General

The new guidance brings much-needed clarity and uniformity to INS and State Department public charge rules.  This will help to alleviate unnecessary suffering in the immigrant community by making it easier for immigrants and their families to secure public benefits to which they are entitled.  Highlights of the new guidance include clarifications of the following points:

• use of non-cash benefits by an immigrant (other than institutionalization for long-term care at government expense) may not be considered during public charge determinations, nor may cash benefits be considered unless they are for purposes of income maintenance;

• use of cash benefits for income maintenance by an immigrant’s family members is not attributed to the immigrant when determining if the immigrant is likely to become a public charge unless the family relies on the benefits as its sole means of support;

• an immigrant’s use of cash public assistance for income maintenance or institutionalization for long-term care at government expense may be considered during public charge determinations.  This does not lead, however, to a per se determination that an individual is inadmissible as a public charge, but rather is one of a number of factors to be considered in a forward-looking evaluation of the totality of the immigrant’s circumstances;

• INS officers cannot instruct or suggest that immigrants repay benefits previously received as a condition of entry;

• there is no public charge test for naturalization; and

• there are only very narrow circumstances under which aliens can be deported or removed from the U.S. as public charges.

This article analyzes these and other salient points made in the guidance.  The substantive content of the guidance is similar to the proposed rule, but is effective immediately.  Significantly, a question-and-answer publication that the INS released at the time the guidance was announced states that:

Aliens may rely on INS’ field guidance in determining the benefits that they may safely accept before the final rule is issued.  If the final rule is different from the proposed rule, INS will issue additional guidance at that time designed to ensure that non-citizens who relied on the current guidance will not suffer harsher immigration consequences based on that reliance.⁽⁷⁾

"Public Charge" Defined

The guidance adopts the proposed rule’s definition of "public charge" to mean an individual who has become (for deportation purposes) or who is likely to become (for admission/adjustment purposes) "primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense."⁽⁸⁾  Institutionalization for short periods of rehabilitation does not constitute such primary dependence.⁽⁹⁾

Because the INS is adopting this definition immediately, the guidance instructs officers to not place any weight on the receipt of non-cash public benefits (other than institutionalization) or the receipt of cash benefits for purposes other than for income maintenance with respect to determinations of admissibility or eligibility for adjustment on public charge grounds.⁽¹⁰⁾  Similarly, INS officers should not initiate or pursue public charge deportation cases against aliens who have not received public cash benefits for income maintenance or who have not been institutionalized for long-term care.⁽¹¹⁾

Public Charge Admissibility Determinations

Under the INA, a noncitizen seeking admission to the U.S. or seeking to adjust status to that of a lawful permanent resident (LPR) is inadmissible if the individual, "at the time of application for admission or adjustment of status, is likely at any time to become a public charge."⁽¹²⁾  The new guidance instructs that a "totality of the circumstances" test is to be used when determining if an individual is likely to become a public charge.  At a minimum, officers must consider the factors listed in INA § 212(a)(4), including the individual’s age, health, family status, assets, resources, financial status, education, and skills when making a public charge inadmissibility determination.⁽¹³⁾

The guidance instructs that determination of an individual’s financial responsibility should be a prospective evaluation based on the factors listed above as well as other factors.⁽¹⁴⁾  It also cautions that the existence or absence of a particular factor should never be the sole criterion for determining if an individual is likely to become a public charge.⁽¹⁵⁾  Likewise, the guidance notes that the Attorney General has ruled that to be likely to become a public charge, "[s]ome specific circumstances, such as mental or physical disability, advanced age, or other fact reasonably tending to show that the burden of supporting the alien is likely to be cast on the public, must be present.  A healthy person in the prime of life cannot ordinarily be considered likely to become a public charge, especially where he has friends or relatives in the United States who have indicated their ability and willingness to come to his assistance in case of an emergency."⁽¹⁶⁾

Importantly, the guidance requires that "every denial order based on public charge must reflect consideration of each of these factors and specifically articulate the reasons for the officer’s determination."⁽¹⁷⁾  This instruction should promote both uniformity and accountability in public charge determinations.

Use of non-cash public benefits.  The guidance and the proposed rule provide specific rules to be used to identify which kinds of public benefits may be considered in making public charge determinations.  These rules are based on consideration of the nature and purpose of the public benefit, taking into account the fact that many benefit programs promote important public policies.  This is the first comprehensive explanation of the rules that determine which benefits are relevant to public charge.⁽¹⁸⁾

A basic tenet of the guidance is that non-cash benefits (other than long-term care for individuals who are institutionalized) should not be taken into account in making public charge determinations, nor should special purpose cash assistance that is not intended for income maintenance.⁽¹⁹⁾  The "past, current, or future receipt of these benefits should not be considered in determining whether an alien is or is likely to become a public charge." The guidance also instructs that an immigrant need not repay benefits already received or withdraw from a benefit program in order to be eligible for admission or adjustment of status.⁽²⁰⁾

The guidance provides a specific list of common non-cash benefits and special purpose cash benefits that are not to be considered when making a public charge determination.  It cautions that it is not possible to list all the benefits that are not relevant to a public charge determination, but it lists as examples the following:

1. Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care;⁽²¹⁾
2. the Children’s Health Insurance Program (CHIP);
3. nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs;
4. housing benefits;
5. child care services;
6. energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP);
7. emergency disaster relief;
8. foster care and adoption assistance;
9. educational assistance, including benefits under the Head Start Act and aid for elementary, secondary, or higher education;
10. job training programs; and
11. in-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter).

The INS guidance instructs that state and local programs that are similar to the federal programs listed above should also be excluded from consideration for public charge purposes.  It also notes that states may adopt different names for the same or similar publicly funded programs.  In California, for example, Medicaid is called "Medi-Cal" and CHIP is called "Healthy Families."  It concludes that "[i]t is the underlying nature of the program, not the name adopted in a particular state, that determines whether or not it should be considered for public charge purposes."⁽²²⁾

The guidance also instructs that earned cash payments that provide income, such as Title II Social Security benefits, government pensions, and veteran’s benefits, among other forms of earned benefits, do not support a public charge determination. Thus, these benefits may be received without public charge consequences.⁽²³⁾

Importantly, the guidance also expressly instructs that not all cash assistance is provided for purposes of income maintenance, and thus "not all cash assistance is relevant for public charge purposes."  For example, some energy assistance programs provide supplemental benefits through cash payments, in addition to vouchers or in-kind benefits.  Likewise, cash payments could also be provided for child care assistance. Even cash payments under Temporary Assistance for Needy Families (TANF) do not count for income maintenance if they are limited to supplemental assistance rather than income maintenance.  "Such supplemental, special-purpose cash benefits should not be considered in public charge determinations because they are not evidence of primary dependence on the government for subsistence."⁽²⁴⁾

Current receipt of cash assistance for income maintenance and current institutionalization.  According to the new guidance, if at the time of application for admission or adjustment an alien is receiving cash public assistance for income maintenance or is institutionalized for long-term care, that benefit should be taken into account under the totality of the circumstances test, along with other statutory factors under § 212(a)(4)(B)(i) and any affidavit of support.  Nonetheless, the guidance notes that it is possible, for example, that "an alien receiving a small amount of cash for income maintenance purposes could be determined not likely to become a public charge due to other positive factors under the totality of the circumstances test."⁽²⁵⁾

Programs that provide cash assistance for income maintenance include:

1. Supplemental Security Income (SSI) under Title XVI of the Social Security Act;
2. Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act—the successor to the AFDC program);⁽²⁶⁾
3. State and local cash assistance programs that provide benefits for income maintenance (often called "General Assistance" programs); and
4. Programs (including Medicaid) supporting aliens who are institutionalized for long-term care (e.g., those who are in a nursing home or mental health institution).⁽²⁷⁾

The guidance instructs, however, that past or current receipt of such cash benefits "does not lead to a per se determination that an alien is either inadmissible or deportable as a public charge."  Rather, "such benefits should be taken into account under the totality of the circumstances test for purposes of admission/adjustment and should be considered for deportation purposes under the standards of section 237(a)(5) and Matter of B– [3 I&N Dec. 323 (BIA and AG 1948)]."⁽²⁸⁾

This is a critical point under the guidance.  It stands for the proposition that INS officers and consular officials cannot just automatically assume that an individual who receives assistance under the four categories above is inadmissible as a public charge.  For example, if an immigrant receives a small amount of assistance under one of these programs, but is also healthy, in his or her 20s, educated, and has family in the U.S. willing and able to assist him or her, the INS or consular officer could and should find that the immigrant does not fall under the public charge ground, based on the totality of the circumstances.

Past receipt of cash assistance for income maintenance and past institutionalization.  Past receipt of cash income-maintenance benefits "does not automatically make an alien inadmissible as likely to become a public charge, nor does past institutionalization for long-term care at government expense."  Rather, the guidance instructs, "this history would be one of many factors to be considered in applying the totality of the circumstances test."⁽²⁹⁾

In the case of an individual who has received cash income-maintenance benefits in the past or who has been institutionalized for long-term care at government expense, "an INS officer determining admissibility should assess the totality of the alien’s circumstances at the time of the application for admission or adjustment and make a forward-looking determination regarding the likelihood that the alien will become a public charge after admission or adjustment."⁽³⁰⁾  The longer ago an individual received such cash benefits or was institutionalized, the less weight these factors will have as a predictor of future receipt.  Also, "the length of time an applicant has received public cash assistance is a significant factor."⁽³¹⁾  Thus, "the longer an alien has received cash income-maintenance benefits in the past and the greater the amount of benefits, the stronger the implication that the alien is likely to become a public charge."⁽³²⁾

Importantly, the guidance instructs that the negative implication of past receipt of such benefits or past institutionalization may be overcome by positive factors in the individual’s case demonstrating an ability to be self-supporting.  For instance, "a work-authorized alien who has current full-time employment or an [affidavit of support] should be found admissible despite past receipt of cash public benefits, unless there are other adverse factors in the case."⁽³³⁾

Additionally, the guidance instructs that past receipt of non-cash benefits (other than long-term care for individuals who are institutionalized) should not be taken into account, nor should past receipt of special-purpose cash benefits that are not for income maintenance, such as cash payments for energy assistance or child care assistance.⁽³⁴⁾

Use of cash benefits by an immigrant’s family member.  The guidance clarifies public charge rules with regard to immigrants whose family members receive benefits.  As a general rule, the receipt of cash benefits by a member of the applicant’s family "is not attributable to the applicant for purposes of determining the likelihood that the applicant will become a public charge."  If, however, the family relies on the benefits "as its sole means of support," the applicant may be considered to receive public cash assistance.  This determination is to be made on a case-by-case basis and upon consideration of the totality of an applicant’s circumstances.⁽³⁵⁾  Accordingly, the guidance instructs, "Service officers should not attribute cash benefits received by U.S. citizen or alien children or other family members to alien applicants for purposes of determining whether the applicant is likely to become a public charge, absent evidence that the family is reliant on the family member’s benefits as its sole means of support."⁽³⁶⁾

Repaying benefits previously received.  The guidance notes that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) did not create any requirement that immigrants repay benefits received in the past to avoid being found inadmissible on public charge grounds, nor has such a requirement ever existed.  Accordingly, the guidance states, "officers should not instruct or suggest that aliens must repay benefits previously received as a condition of admission or adjustment, and they should not request proof of repayment as a condition for finding the alien admissible to the United States."⁽³⁷⁾

This instruction addresses a problem that arose over the past several years, and that both the INS and the State Department have previously acknowledged.  In December 1997, both agencies issued memoranda clarifying that INS officers and consular officials are prohibited from requiring immigrants to repay government benefits that they or their relatives received in the past.⁽³⁸⁾

Not only do the INS and the State Department have no authority to request repayment of benefits, but also, as the guidance notes, the fact that an immigrant has repaid benefits is relevant to the public charge inadmissibility determination "only in very limited circumstances."  These circumstances arise when an alien applying for admission or adjustment is deportable on public charge grounds under INA § 237(a)(5) due to an outstanding public debt for a cash benefit or the costs of institutionalization.⁽³⁹⁾  Most properly received public benefits do not create a debt.⁽⁴⁰⁾  Only a debt that satisfies the strict three-part test under § 237(a)(5) (described in the following section) will render an alien deportable as a public charge and therefore ineligible for admission or adjustment.⁽⁴¹⁾  In the rare circumstances where there is such a debt and a state or governmental agency has taken action to collect the debt, an immigrant’s repayment of the debt means that he or she will no longer be inadmissible based on the debt, and the usual totality of the circumstances test will apply.⁽⁴²⁾

Additionally, the guidance notes that if an INS officer finds evidence of possible benefit fraud, that information should be forwarded through official channels to the appropriate benefit-granting agency for possible investigation and enforcement action.  In such cases, the guidance instructs, "absent a determination of fraud by the benefit-granting agency," immigration benefits to which the alien is otherwise entitled should not be withheld or denied.⁽⁴³⁾

Public Charge as a Ground of Deportability

Aliens who have been admitted to the U.S. may be deported if they are found to have become "public charges," but only in unusual circumstances.  The guidance clarifies the "rare" circumstances under which this may occur.⁽⁴⁴⁾

INA § 237(a)(5) states that any alien who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable.  The guidance notes that this section requires a two-step determination.  First, the INS must determine whether the alien has become a public charge within five years after the date of entry.⁽⁴⁵⁾  Second, if the individual has become a public charge, then the INS must determine whether the immigrant has demonstrated that he or she became a public charge because of circumstances that arose after entry into the U.S.  An individual who can make such a showing is not removable under § 237(a)(5).⁽⁴⁶⁾

To satisfy the first prong of this test—determining that an individual has become a public charge—the guidance clarifies that only cash benefits for income maintenance or institutionalization for long-term care can give rise to a finding of public charge.⁽⁴⁷⁾  Moreover, "the mere receipt of a public benefit by an alien does not make an alien a public charge for purposes of deportation under section 237(a)(5)."⁽⁴⁸⁾  Instead, under Matter of B–, 3 I&N Dec. 323 (BIA and AG 1948), the INS must find that the alien’s situation meets "a strict three-part test" to come within the public charge ground of deportability.⁽⁴⁹⁾  To be a public charge under § 237(a)(5), the guidance explains that the following three requirements must be met:

1. The state or other government entity that provides the cash benefit or long-term institutional care must, by law, impose a charge or fee for the assistance.  In other words, the immigrant or designated relatives or friends must be legally obligated to repay the benefit-granting agency for the benefits or services provided.  If there is no reimbursement requirement under law, the immigrant cannot be said to be a public charge;
2. The responsible benefit-granting agency officials must make a demand for payment for the assistance from the immigrant or other persons legally responsible for the debt under federal or state law (e.g., the alien’s sponsor); and
3. The immigrant or other person legally responsible for the debt must fail to repay after a demand has been made.⁽⁵⁰⁾

The guidance also notes that in order for an alien to become deportable as a public charge as a result of the failure of the sponsor to repay the agency, the benefit-granting agency must take all available actions to collect from the sponsor.  This includes filing an action in the appropriate court and taking all steps available under law to enforce a final judgment against the sponsor or other party.⁽⁵¹⁾

Importantly, the guidance also notes that the demand for repayment must be made within five years of an immigrant’s entry in order to render the individual deportable as a public charge, citing Matter of L–, 6 I&N Dec. 349 (BIA 1954).⁽⁵²⁾

Given this strict standard, it is not surprising that deportations based on public charge grounds have been rare.⁽⁵³⁾  Moreover, the guidance identifies several reasons for believing that removal under this ground will not be any more frequent under the new immigration and welfare laws.  For aliens who are not sponsored under the new enforceable affidavit of support, it is unlikely that there will be a legal obligation to repay public benefits or that the benefit-granting agency will make demand for repayment.  Thus, just as in the past, the first two prongs of the above test generally will not be satisfied.

The guidance cautions that individuals who apply for immigrant visas or adjustment of status on or after December 19, 1997 must be sponsored under the new affidavit of support, which could create an enforceable obligation satisfying one of the standards for deportation under the test of Matter of B–.  As the guidance notes, however, under the new welfare reform laws, these same immigrants often are barred from receiving federal means-tested public benefits for the first five years after admission or adjustment—the period during which the ground of deportability can be an issue.⁽⁵⁴⁾

In sum, only if an immigrant receives a cash benefit for income-maintenance within five years of entry or is institutionalized for long-term care (despite the eligibility limitations), there is a demand for repayment by the benefit-granting agency, and the sponsor or other responsible party fails to repay, can the immigrant become deportable as a public charge.  Moreover, even in this case, the alien must be given an opportunity to prove that he or she became a public charge for causes that arose after entry.  For these reasons, the INS does not anticipate any significant increase in cases of deportability on public charge grounds resulting from the new enforceable affidavits of support.⁽⁵⁵⁾

Categories of Immigrants Exempt from Public Charge Rules

The public charge grounds of inadmissibility and deportability do not apply to numerous categories of noncitizens.  These include:

• refugees and asylees, both for purposes of admission and for purposes of adjustment to LPR status;⁽⁵⁶⁾
• Amerasian immigrants, for their initial admission;⁽⁵⁷⁾
• applicants for adjustment of status under the Cuban Adjustment Act (CAA);⁽⁵⁸⁾
• adjustment applicants under the Nicaraguan Adjustment and Central American Relief Act (NACARA);⁽⁵⁹⁾
• adjustment applicants under the Haitian Refugee Immigration Fairness Act (HRIFA);⁽⁶⁰⁾ and
• applicants for registry under INA § 249 (allowing individuals who have resided continuously in the U.S. since January 1, 1972 to become LPRs).⁽⁶¹⁾

The guidance’s list of adjustment provisions that are exempt from public charge determinations is not exhaustive.  Additional provisions exempt from public charge that are not mentioned in the guidance include (1) adjustment applicants who are Lautenberg parolees;⁽⁶²⁾ and (2) adjustment for special immigrant juveniles.⁽⁶³⁾

Returning LPRs, Naturalization Applicants, and Additional Provisions

LPRs returning after brief absences.  The new guidance notes that under INA § 101(a)(13)(C), most LPRs who have been outside the U.S. for 180 days or less are not considered applicants for admission and therefore are not subject to the grounds of inadmissibility.  Accordingly, the guidance instructs that absent an indication that they may be applicants for admission, such LPRs should not routinely be questioned upon their return to the country on issues related to the likelihood that they will become a public charge.⁽⁶⁴⁾

There are some exceptions to this 180-day rule for individuals who have abandoned their residence, engaged in criminal conduct, or left the country while removal proceedings were pending.⁽⁶⁵⁾

Naturalization.  The guidance clarifies that there is no public charge test for purposes of naturalization.  It specifies two "narrow circumstances," however, under which the public charge issue can arise in a naturalization case.  First, an applicant’s original admission for permanent residence may not have been "lawful," as required for naturalization, if at the time of admission or adjustment the immigrant "withheld or misrepresented material facts relating to the public charge issue at the time of admission or adjustment."⁽⁶⁶⁾  The second possible circumstance under which public charge may be relevant would be where the applicant’s initial admission was lawful, but he or she later became deportable as a public charge, within five years of entry for reasons that arose prior to entry under the narrow test described above.  The guidance notes that "[t]his would not be a bar to naturalization unless the Service actually instituted deportation proceedings against the alien."⁽⁶⁷⁾  As a practical matter, the guidance notes, neither of these situations is likely to occur.⁽⁶⁸⁾

The guidance also instructs that the INS has no authority to make the repayment of public assistance a condition of granting naturalization, and that officers should not request proof of repayment from applicants in connection with a naturalization adjudication.⁽⁶⁹⁾

Public charge and sponsors.  The guidance clarifies that using benefits does not affect an individual’s ability to submit an affidavit of support and sponsor immigrants.  While public charge does not apply to them, sponsors must meet a different requirement, to establish that they have income or assets sufficient to support the immigrant at 125 percent of federal poverty guideline levels.  A sponsor cannot count any cash benefits as "income" toward meeting the requirement that the sponsor have income or assets sufficient to support the immigrant at the 125 percent of poverty guidelines income threshold.  The guidance clarifies, however, that a sponsor’s "receipt of other means-tested benefits, such as Medicaid, is not disqualifying for sponsorship purposes."⁽⁷⁰⁾  The guidance also notes that public benefit programs are increasingly available to families with incomes above 125 percent of the poverty line, so that a sponsor’s receipt of benefits is not inconsistent with meeting this requirement.⁽⁷¹⁾  Thus, as the INS itself concludes, while "cash benefits…cannot be counted toward meeting the 125 percent income threshold…they are not held against the sponsor if he or she can meet the 125 percent test through other resources," and "other means-tested public benefits—such as Food Stamps, Medicaid, or CHIP—have no effect on sponsorship."⁽⁷²⁾

The Form I–864 affidavit of support asks whether the sponsor or a member of the sponsor’s household has received means-tested public benefits within the past three years.  The guidance clarifies that the purpose of this question is not to determine whether the sponsor is or is likely to become a public charge, because the public charge determination does not apply to sponsors.  Rather, the purpose of the question is "to ensure that the adjudicating officer has access to all facts that may be relevant in determining whether the 125-percent annual income test is met."⁽⁷³⁾

Public charge bonds.  The guidance also notes that INA § 213 allows individuals who are inadmissible because they are likely to become a public charge to be granted a waiver in the discretion of the Attorney General, if they provide a public charge bond.  This provision was only minimally amended by IIRIRA, and the guidance directs that, where appropriate, officers may use public charge bonds "as has been done in the past."⁽⁷⁴⁾  Notably, the Board of Immigration Appeals recently reversed an Immigration Judge’s (IJ’s) decision finding a respondent inadmissible for being likely to become a public charge, where the IJ failed to advise the respondent of the availability of a waiver under § 213.⁽⁷⁵⁾

Suspension of deportation and other discretionary determinations.  One area in which receipt of public benefits has been considered relevant, in addition to public charge determinations, has been in the consideration of applications for discretionary relief, particularly with respect to suspension of deportation and cancellation of removal.  Thus, although the public charge grounds of inadmissibility and deportability do not apply to determinations of whether to grant suspension or cancellation, a respondent’s receipt of benefits has been considered a factor that is relevant to whether he or she should be granted discretionary relief.

The principles set forth in the new guidelines should apply equally to such discretionary determinations, although the guidance does not expressly address this situation.⁽⁷⁶⁾ For example, the government’s goals of promoting preventive care and protecting public health were major factors leading to the INS’s issuance of the guidance that removed medical benefits from consideration in public charge determinations.  To penalize an immigrant in a suspension or cancellation case for using such benefits for him- or herself, or for his or her child, would run completely contrary to this policy.  Policy considerations thus clearly require that receipt of benefits not be considered a negative factor in discretionary determinations, at least where the benefit is not cash assistance for income maintenance.

The new interim rule for suspension of deportation and special rule cancellation of removal cases under the Nicaraguan Adjustment and Central American Relief Act (NACARA) recognizes that the principles of the guidance should apply to these determinations.  Thus, in deciding to remove from the NACARA application form a question that inquired into receipt of benefits by the applicant or his or her family member, the INS and Executive Office for Immigration Review (EOIR) stated:

[C]ommentators argued that the presence of such a question on the form would have a chilling effect on the legitimate access and use of programs promoting public health and well-being by NACARA beneficiaries and their United States citizen family members.  The Department [of Justice] initially included the question on the form to avoid surprise to an applicant who might be asked about receipt of public benefits at the hearing or interview, and to give the applicant an opportunity to prepare a statement of the circumstances that led to the receipt of public benefits.  However, in light of forthcoming guidance from the Department regarding the broader public charge issues, the question will be deleted from the Form I–881.  Omission of the question, however, does not mean that an adjudicator cannot raise the issue in the course of an interview or hearing in appropriate cases.  A full and accurate understanding of an applicant’s financial condition is always relevant to the determination to grant or deny relief.  In light of the ongoing review by the Department, and the possibility that this question may discourage people from applying for benefits to which they are entitled, the Department has decided that the limited value of reducing the element of surprise is outweighed by broader public health concerns.⁽⁷⁷⁾

Clearly, the way to promote public health and welfare concerns, and to prevent immigrants from being deterred from securing benefits for themselves and their families, is to ensure that their receipt of benefits not be considered a negative factor in their cases.  It is hoped that the final rule will apply these principles explicitly to discretionary determinations.

Because the guidance does not expressly address this situation, however, it is particularly important that practitioners use the principles of the guidance to educate IJs and other decision-makers regarding the differences among various kinds of public benefits, the public policies they promote, and the reasons that use of non-income-maintenance benefits should not be considered a negative factor in discretionary determinations.

The Violence Against Women Act.  The guidance also does not address public charge issues relevant to battered spouses and children filing self-petitions under the Violence Against Women Act (VAWA).  The questions-and-answers issued by the INS simultaneous with publication of the guidance states, however, that the Clinton administration is still considering the extent to which self-petitioners under VAWA are subject to the public charge requirements, and will address this in future guidance.⁽⁷⁸⁾

Conclusion

The guidance and proposed rule provide significant new clarity and uniformity to the area of public charge law.  Together, they define the term, "public charge," and establish procedures to be used by INS officers when making public charge determinations.  Most importantly, they clearly categorize the public benefits that immigrants can receive without public charge consequences.  This should be very helpful to immigrants and their families in understanding and determining which critical benefits are safe to claim, and should promote the public health and policy goals that led to the new rules.

These goals can be achieved only if the new guidance is fully understood by the officers charged with making public charge determinations, by the practitioners representing clients who are affected by those determinations, and by the immigrant community.  Practitioners, because they have better access to this information, have a particular responsibility to understand the differences among benefits programs and to ensure their clients learn which benefits are safe to receive.  It is also important for practitioners to have a full understanding of the guidance, in order to be able to understand how best to present their clients’ cases under these new rules.⁽⁷⁹⁾

End Notes

*Linton Joaquin is Director of Litigation for the National Immigration Law Center (NILC) in Los Angeles.  Braden Cancilla is a staff attorney with NILC.

1.  Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689–93 (May 26, 1999) (hereinafter Guidance).

10.  Id.

11.  Id.

12.  INA § 212(a)(4).