RICHMOND (August 14, 2019) —Attorney General Mark R. Herring is co-leading a newly filed lawsuit against the latest attack on legal immigrants launched this week by President Donald Trump, Acting Secretary of Homeland Security Kevin McAleenan and Acting Director of U.S. Citizenship and Immigration Services Ken Cuccinelli. Under a radical overhaul of the so-called “public charge” rules announced Monday by Acting Director Cuccinelli, an immigrant who is legally in the country could have their legal status revoked, or even be deported, if he or she utilizes certain forms of assistance, such as food assistance to feed their U.S. citizen children, or housing assistance, even for a short time.
Even if an individual does not actually use benefits, the new rule expands the Trump Administration’s ability to deny visa renewal or green cards to anyone they think could possibly use a broad range of short-term benefits at some point in the future, without any clear formula for making that determination.
The Trump Administration’s overhaul could expose thousands of lawful immigrants and green card holders to deportation, and force them to make an inhumane choice of whether to protect their lawful immigration status or risk it by accessing healthcare, food, or housing assistance for which they are already eligible. In fact, the Department of Homeland Security has admitted that the rule would “deter legally present visa holders from using important assistance programs.”
“The conditions of the new rule, and the bizarre, un-American statements made by Acting Director Cuccinelli in defense of it, make it clear that this rule is designed to reduce legal immigration and favor wealthy, white immigrants,” said Attorney General Herring. “For centuries our Commonwealth and our country have been enriched by a diverse community of immigrants who came here with little money, but with ambition, drive, and creativity to spare. They have built businesses, created jobs, strengthened our communities, and contributed to our success, but now Ken Cuccinelli and Donald Trump are trying to turn away those they consider to be unworthy.
“This rule will not lead to greater opportunities or prosperity. It will lead to greater suffering and sickness as legal immigrants avoid food, housing, and healthcare assistance for fear of being swept up in the Trump Administration’s deportation machine. It’s shameful, and the way the Administration is going about it is unlawful. We will fight this cruel, discriminatory, and illegal rule every step of the way.”
A coalition of 13 states, led by Attorney General Herring and Washington State Attorney General Bob Ferguson, assert in their lawsuit that the Department of Homeland Security (DHS) violated federal immigration statutes, the Welfare Reform Act and the Administrative Procedure Act when it unlawfully expanded the definition of “public charge”.
In the lawsuit, the attorneys general write that the Trump Administration’s rule is “a radical overhaul of federal immigration law from a system that promotes economic mobility among immigrants to one that advantages immigrants with wealth.”
So-called “public charge” rules have existed in immigration law for several decades, but under long-standing law and policies, a public charge has had a very narrow, specific definition: an individual whose very survival depends upon one specific public benefit ― cash assistance ― or who is institutionalized for long-term care at government expense. The definition of “public charge” has not included temporary assistance, such as food or housing assistance or healthcare.
Under the new rule, a public charge now will include lawfully present individuals or families who will use a broad range of federal assistance for housing, food or health care at any time in the future, and for a short period of time. Consequently, many visa holders and green card applicants will and have already begun to refrain from seeking assistance for themselves or their families because it could make them ineligible to renew their legal immigration status or become a permanent resident, exposing them to deportation.
The rule also expands immigration officials’ ability to deny visas and green cards to any individual who they predict may use these types of assistance in the future. And if a current green card holder leaves the country 180 days they could also be labeled a public charge upon return and lose their lawful status.
As a consequence of the new rule, fewer families and children will receive services they need, including food, health care and housing. Many children will go without adequate meals, vaccines or shelter, and more families will suffer homelessness.
Hundreds of thousands of individuals will lose health care for themselves and their families. Many of these people will go to the emergency room for routine medical care, requiring states to cover the vastly more expensive medical costs.
Additionally, women could lose routine reproductive care services, resulting in more unintended pregnancies, more high-risk deliveries and increased costs for newborns whose health is compromised by the lack of adequate pre-natal care.
The attorneys general assert that the rule violates the Immigration and Nationality Act by redefining “public charge” in a way unconnected to its original meaning and Congress’ intent.
The lawsuit also asserts that the penalty that the rule creates for immigrants who use benefits for which they are legally entitled contradicts Congress’ intent and violates the Welfare Reform Act.
The attorneys general also assert that DHS violated the Administrative Procedure Act in numerous ways, including by reversing a decades-old, consistent policy without reasoned analysis and offering an explanation for the rule that runs counter to the evidence before the agency.
In addition to Virginia, today’s multistate lawsuit against DHS has been filed by Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Rhode Island, and Washington.
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