You have probably heard that the Department of Homeland Security (DHS) has proposed a re-write of the laws governing who is a "public charge" and therefore an inadmissible alien who cannot be admitted to the United States.
The proposed rules and the explanations offered by DHS are set out in 182 pages of single-spaced small print in 83 Federal Register 51114-511196 (Wed., Oct. 10, 2018). You can also access the 182 pages of DHS's proposed changes here: Download DHS Proposed Public Charge Rule.101018.
DHS's stated purpose for all of its changes was "to provide clarity for the public and immigration officers[.]" 83 F.R. at 51134, second unnumbered paragraph under "V. Discussion of Proposed Rule." Parenthetically, although the DHS often referred to "proposed rule" in the singular, it proposed many changes that would affect several rules.
The public and immigration officers are both unlikely to see the DHS's efforts as "clarity."
For example, at one point the DHS proposes that absence of a statutorily required affidavit of support under a certain statute "conclusively establishes an alien's inadmissibility on public charge grounds." 83 F.R. at 51178. An immediate problem is that the statute relied on by the DHS, 8 U.S.C.A. Section 1183a, does not require any affidavit of support.
Rather, Section 1183a prescribes the things required to be in an affidavit of support when there is one. That is very different, and heaven help the public and the immigration officers who search Section 1183a in vain for what is not there, namely, a statutory requirement for an affidavit of support.
After the DHS identifies this non-existent "conclusive presumption" in its heading number "1" under "Public Charge Inadmissibility Determinations," the DHS next says in effect "never mind," and announces secondly that "2" the determinations are based on the totality of the circumstances.
Which is it?
How is the public and how is an immigration officer to be expected to reconcile the DHS hierarchy of, first, a conclusive presumption based on a statutory requirement that doesn't exist and, second, in any case the totality of the circumstances?
Good questions. I think that in these proposed rules the DHS clearly expects too much from the public and expects too much from immigration officers processing immigrants standing in lines at the U.S. borders.
A second example of how the DHS's proposed rules do not really shine a light on "clarity" but instead, if they do anything it is to turn out the lights, comes from its new proposed requirement that immigration officials are told to calculate the "Fifteen percent [15%] of Federal Poverty Guidelines (FPG) Standard for Monetizable Benefits[.]"
Seriously. See 83 F.R. at 51164-51165.
The proposed new additions are in the proposed subsection (b) of Section 212.21, titled "Public benefit." In that new subsection, the DHS first proposes a calculation of what it calls "monetizable" benefits, by which it means benefits that can be readily calculated into money, more or less. These things include cash assistance, Supplemental Security Income (SSI), and so-called "General Assistance."
But -- remember that the DHS wants the public and immigration officers to clearly understand that a "public charge" is a person who gets any public benefits at all -- the DHS wants to tell immigration officers to also calculate benefits which the DHS thinks cannot be readily calculated into money, but which it wants immigration officers to try to do according to formulas it proposes for such things as food stamps, housing vouchers, and rental assistance.
Not done yet! The DHS also wants immigration officers to apply this formula:
(2) Any of one or more of the following non-monetizable benefits if received for more than 12 months in the aggregate within a 36 month period (such that, for instance, receipt of two non-monetizable benefits in one month counts as two months)[.]
Proposed 8 CFR § 212.21(b)(2), published in 83 F.R. at 51290.
What does that even mean?
And how is an immigration officer at the border expected to figure that out?
Last but not least is this third example of snatching "clarity" from the laws of immigration, which appears in the DHS's proposed Section 212.21(b)(3):
(3) The receipt of a combination of monetizable benefits under paragraph (b)(1) of this section where the cumulative value of such benefits is equal to or less than 15 percent of the Federal Poverty Guidelines for a household size of one within any period of 12 consecutive [sic; the missing word the DHS is still searching for is apparently the word "months"] based on the per-month FPG for the months during which the benefits are received, together with one or more non-monetizable benefits under paragraph (b)(2) of this section if such non-monetizable benefits are received for more than 9 months in the aggregate within a 36 month period (such that, for instance, receipt of two non-monetizable benefits in one month counts as two months)[.]
I do not know if this passage passes for "clarity" in the language of a federal bureaucrat, but after over 40 years as a lawyer I can say without hesitation that no other person, no jury, and no judge would ever confuse this with "clarity."
In the end, if the purpose of these changes proposed by the DHS is to cover up an intent to stop immigrants from entering the U.S., then perhaps that purpose has been achieved here, however foreign and unlawful that purpose may be.
But the DHS's stated purpose in proposing these changes is to achieve "clarity." In that, the DHS clearly and totally fails.
Leave your Comments on the changes through the preferred submission Federal eRulemaking Portal: www.regulations.gov. The federal government has assigned the following numbers to these proposed rules changes to identify your Comments on these particular rules: DHS Docket No. USCIS-2010-0012; RIN 1615-AA22.
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