Friday, October 29, 2021

Public Charge Returns to SCOTUS, But Only About Procedure Not Substance

The Supreme Court has agreed to hear a case involving the infamous "public charge" rule of the Trump administration. But cert is limited to issues of civil procedure, not substance. As USA Today puts it: "The main question for the court is whether the states may defend the Trump rule in court at all."

This is a good time for a refresher on "public charge."

Under INA § 212(a)(4)(A), noncitizens are "ineligible for visas or admission" if "in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge." There statute lays out some factors regarding this inadmissability charge at INA § 212(a)(4)(B) (age, health, family status, assets, resources, and financial status, and education and skills).

For years, this exclusion ground focused on whether the noncitizen seeking a visa would be "primarily dependent on the government for subsistence."

In 2018, under the Trump administration, things changed. IRLC has a great timeline about it all. Here's the short version: the government sought to expand the definition of "public charge." Lawsuits ensued. Once President Biden was elected, his administration stopped defending the rule. The rule was removed it from the Federal Register and adjustments to the Foreign Affairs Manual (FAM) with regards to the new rule were also walked back. Ultimately, a federal court in Illinois blocked the rule nationwide and the Supreme Court, in March 2021, dismissed a challenge to it.

So, no the issue is heading back to SCOTUS but, as said above, not on its substance but rather the procedural question of the states' ability to defend it.


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