By Suzanne Monyak

Law360 (March 19, 2020, 8:48 PM EDT) -- The Trump administration is defending its decision to implement its controversial wealth test for immigrants during a pandemic, telling the Ninth Circuit on Thursday that the policy is unlikely to spur immigrants to disenroll from federal health benefits.

U.S. Department of Justice attorney Gerard Sinzdak told the appeals court that the so-called "public charge" rule, which penalizes green card applicants found likely to use public assistance in the future, probably won't encourage immigrants to drop health benefits like Medicaid because most aren't eligible for those programs in the first place.

The Justice Department also noted that U.S. Citizenship and Immigration Services had issued guidance stating that using a public benefit to be tested or treated for COVID-19, the disease caused by the new coronavirus, won't be considered a negative factor in a green card application.

"In any event, the rule contains numerous exceptions that help ensure that the rule does not reduce access to emergency and other urgent care," Sinzdak wrote.
 
A group of more than a dozen attorneys general behind a challenge to the policy, including Washington state, had urged the federal government to stop enforcing the rule, which evaluates a green card applicant by their past use of public benefits, as well as other factors like age and health, in light of the spread of the virus.

The states said that implementing the rule during an outbreak is "irresponsible and reckless," noting that Washington, one of the states contesting the rule in court, had been hit particularly hard during the early days of the outbreak.

"Communities across America are undertaking extensive efforts to limit the spread of COVID-19. Your agency's public charge rule undermines those efforts by deterring individuals from accessing critical health benefits to which they are legally entitled," the states wrote earlier this month in a letter filed at several courts weighing the immigration rule.

Five federal judges have found that the immigration rule is likely illegal, but the U.S. Supreme Court has permitted the U.S. Department of Homeland Security to enforce the restrictions in all 50 states while legal challenges continue. The policy took effect in all 50 states in late February, just weeks before the number of confirmed COVID-19 cases in the United States jumped.

It's true that most immigrants without green cards are not eligible for the public benefits programs that would tank a green card application. The Migration Policy Institute has found that less than 1% of immigrants could be denied based on past usage.

However, immigrant advocates have warned that the rule still has a chilling effect in immigrant communities, making them afraid to seek medical assistance or benefits they are entitled to, which aren't included in the restrictions.

In this case, after a Washington federal judge blocked the rule across the U.S., the Ninth Circuit found that the states that challenged the rule were likely to lose their case and lifted that lower court order.

A USCIS spokesperson referred to the agency's guidance stating that coronavirus treatment won't hurt a green card applicant's chances, and a spokesperson for the Washington Attorney General's Office didn't immediately return a request for comment.

The federal government is represented by Daniel Tenny, Gerard Sinzdak, Joshua Dos Santos and Jack Starcher of the DOJ's Civil Division.

The states are represented by their attorneys general's offices.

The case is State of Washington et al. v. USDHS et al., case number 19-35914, in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Haylee Pearl.

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