States Urge Justices To Halt 'Public Charge' During Pandemic

By Suzanne Monyak
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Law360 (April 13, 2020, 7:22 PM EDT) -- A trio of states asked the U.S. Supreme Court on Monday to rethink its decision permitting the Trump administration to implement a wealth test for immigrants in light of the coronavirus pandemic, warning that the rule threatens public health.

New York, Vermont and Connecticut, joined by New York City, told the justices that the so-called “public charge” rule, which penalizes green card applicants found likely to use public assistance programs, deters immigrants from using food and health care benefits out of fear, even those that wouldn’t count against them under the policy.

As a result, immigrants could be discouraged from seeking out medical testing or treatment if they feel sick, increasing the chances that they could die from COVID-19, the disease caused by the coronavirus, or spread the virus inadvertently, the states argued.

“Every person who doesn’t get the health coverage they need today risks infecting another person with the coronavirus tomorrow,” New York Attorney General Letitia James, who led the state coalition, said in a statement Monday.

The high court had given the U.S. Department of Homeland Security the green light earlier this year to carry out the new immigration rule while an onslaught of legal challenges to it continued, despite five federal court orders that the measure was likely illegal.

DHS started implementing the policy in all 50 states in February, allowing the department to deny green cards to immigrants who have used certain public benefits in the past or are considered likely to use them in the future based on factors like age, education level and health.

But in Monday’s request, the states fighting the policy in court contended that the spread of the novel coronavirus, which has infected more than 500,000 people in the U.S., including more than 100,000 in New York state alone, calls for a second look at that high court order.

“By deterring immigrants and their family members from obtaining publicly funded health insurance and medical care, the Rule is undermining efforts to slow the spread of the virus — putting everyone at higher risk of infection,” the states argued in the motion. “A temporary lifting or modification of the stay is thus warranted to prevent these dangerous public-health harms.”

The federal government has previously defended its implementation of the rule during the pandemic, saying that most immigrants who don’t yet have green cards aren’t eligible for most federal public benefits like Medicaid anyway.

U.S. Citizenship and Immigration Services has also issued a statement saying that the public charge rule “does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19,” and that immigrants won’t be penalized for any benefits used to seek testing or treatment for the coronavirus.

The agency said that immigrants who use benefits while out of school or work because of the virus, for example, “can provide an explanation and relevant supporting documentation,” which the agency will consider when evaluating their green card applications.

But USCIS’ statement may have only increased confusion, the states said. According to the motion, doctors and nonprofits have continued to observe immigrants refusing coronavirus testing out of fear of being labeled a “public charge.”

A spokesperson for the U.S. Department of Justice didn’t immediately respond to a request for comment on Monday.

The states are represented by the attorneys general of New York, Connecticut and Vermont. New York City is represented by James E. Johnson, corporation counsel.

The federal government is represented by Solicitor General Noel Francisco. 

The case is Department of Homeland Security, et al., Applicants v. New York, et al., case number 19A785, at the U.S. Supreme Court.

--Editing by Jill Coffey.

For a reprint of this article, please contact reprints@law360.com.

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