Unpacking the References to Public Benefits and the Privacy Act in Trump’s Executive Order on Interior Enforcement

Unpacking the References to Public Benefits and the Privacy Act in Trump’s Executive Order on Interior Enforcement

By Matthew Lopas, NILC health policy attorney
MARCH 2, 2017

One lesson President Trump’s administration learned from his campaign is that misinformation and fear are powerful tools—tools they are now using in drafting, releasing, and carrying out his executive orders. They are already putting these lessons into practice in an issue area ripe for exploiting misunderstanding: public benefits and economic supports.

The reality is that low-income immigrants have limited access to health, nutrition, and other programs and use benefits at a lower rate than people who were born in the U.S., due in part to complicated eligibility rules and misinformation. However, for years, anti-immigrant activists have perpetuated a myth that immigrants abuse these programs, and nativist advocacy organizations have insinuated that any use of these programs by immigrants is somehow fraudulent.

As Trump released his executive orders about immigrants and immigration, activists, lawyers and immigrants struggled to figure out what they mean and if they introduce new risks to using particular programs. The haphazard way in which the administration issued the orders, their vague language, and the leaked draft of an executive order affecting public benefits has only raised more concerns. But with regard to some provisions, when you dig deeper, there’s less than at first appears.

Changes to Enforcement Priorities and Questions Regarding Public Charge

Take the executive order on “interior enforcement” and the Department of Homeland Security memo laying out how it will be implemented. The policies detailed in these documents are extreme. By essentially making almost anyone who is “removable” (i.e., whose immigration status or circumstances make them eligible to be processed for deportation) a “priority” for immigration enforcement, these policies will harm millions of families, if not by fracturing them through deportations, then by engendering fear.

As we at the National Immigration Law Center prepared our analysis of the interior enforcement executive order, many folks reached out to us about a provision in the DHS memo that identifies as a priority for removal people who “have abused any program related to receipt of public benefits.” The question that this provision invites is: Is it saying that anyone who could be deemed a “public charge” is an immigration enforcement priority? The short answer: No.

In a separate “Q&A” posted on its website, under question 18, “What threshold of abuse of a public benefit program will render someone removable?,” DHS says, “Those who have knowingly defrauded the government or a public benefit system will be priority enforcement targets” (emphasis added).

Legitimate use of programs for which someone is eligible does not constitute abuse. NILC and others have long advised people that misrepresenting facts or using false information to obtain benefits can threaten their access to those programs and can also cause serious immigration problems.

The concept of public charge is quite different, though. For more than a hundred years, being deemed a person who is “likely to become primarily dependent on the government for subsistence” has been a ground of inadmissibility, meaning that it can prevent the person so deemed from being allowed to enter the U.S. or obtain lawful permanent residence here. To determine whether someone is likely to become a public charge, the government uses what lawyers call a “totality of the circumstances” analysis, which basically means that the government must take into consideration all relevant factors, such as age, health, family status, assets, resources, financial status, and educational background. The determination is not based solely on one factor.

In making public charge determinations, currently U.S. Citizenship and Immigration Services relies on field guidance from 1999 which clarifies that receipt of either of two types of public benefits may make a person a public charge: (1) cash assistance and (2) Medicaid used for long-term care, like at a nursing home. And a person having used either program is only one factor the agency would weigh. Most important to this determination is the contract (known as an “affidavit of support”) signed by a sponsor (usually a close relative) promising to support the person.

Also, certain people are exempt from being subject to the public charge ground of inadmissibility—refugees; asylees; survivors of trafficking, domestic violence, and other serious crimes; special immigrant juveniles; and certain others. Lawful permanent residents applying for U.S. citizenship similarly are not subject to the public charge ground of inadmissibility.

We should note again that a draft executive order was leaked on Jan. 25 that would drastically change the existing guidance and practices on public charge described above. This draft executive order has NOT been finalized or signed.

Protections under the Privacy Act

A more concrete way that the “interior enforcement” executive order has caused unnecessary fear is via its section 14, which says, “Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.” It sounds scary; and coming from an administration that has basically made any removable noncitizen an immigration enforcement priority, it has made some wonder if this provision increases their risk of being deported.

But the Privacy Act has always applied only to U.S. citizens and lawful permanent residents. So the executive order is restating existing law, not creating new law. Some privacy-related policies and practices may change under the Trump administration—for example, the administration has indicated that it intends to disregard a longstanding policy that encourages federal agencies to treat all information as if it is subject to the Privacy Act’s provisions. So people could experience more difficulty when, for example, they try to access and correct their own records at certain agencies.

But when it comes to health, benefits, and other economic support programs, there are independent federal and state laws that protect the confidentiality of medical records and other information about individuals receiving health coverage or other benefits. These laws haven’t been altered by the executive order.

Section 14 of the executive order is certainly the administration’s way of sending a signal to federal agencies about what its priorities are, but that doesn’t mean that agencies may ignore or overturn existing law. It’s up to us, the people, to insist that our federal, state, and local agencies and offices obey and enforce all relevant privacy laws. NILC is ready to support you in your efforts to hold agencies to account.

We at NILC know that in combatting the Trump administration’s use of fear to advance its harmful and often illegal policy goals, our role is to use more constructive and honest tools—facts and the law—to ensure that people are able make the best-informed decisions for themselves and their families.