Comments to the DHS Proposed Rules Changes 12.05.18.
The deadline for leaving Comments is December 10, 2018. Because the deadline of December 10 is approaching, my Comments of 12.05.18 will be published both on Claims and Issues Blog at https://claimsissues.typepad.com/ and Claims and Bad Faith Law Blog at https://insuranceclaimsbadfaith.typepad.com/. As a result, this blog article may be longer than is usually the case here.
The following are my full Comments of December 5, 2018 in response to the DHS Proposed Public Charge Rules: PREDETERMINING PUBLIC CHARGE INADMISSIBILITY. In the Comments below, I am providing the addresses for you to be able to send your own Comments, and the DHS Docket Number etc. that the federal government agency requires in order to process Comments on or before December 10, 2018.
December 5, 2018
BY POSTING TO FEDERAL eRULEMAKING PORTAL
AND BY U.S. MAIL
Federal eRulemaking Portal: www.regulations.gov.
BY U.S. MAIL:
Ms. Samantha Deshommes
Chief, Regulatory Coordination Division
Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security
20 Massachusetts Avenue NW
Washington, DC 20529-2140
Re: DHS Docket No. USCIS-2010-0012. RIN 1615-AA22.
To the Department of Homeland Security:
These Comments concern changes to Public Charge Rules proposed by the DHS. The previously filed Comments, UNAUTHORIZED AND MISDIRECTED filed on 12.01.18, are expressly incorporated herein by reference.
DHS's proposal for a radically altered so-called "Public Charge Inadmissibility Determination" is unauthorized, contrary to law and experience, and in particular but without limitation redefines the discretion of considering a discretionary affidavit of support to transform it into a mandatory demerit if there is no affidavit of support contrary to the will of Congress expressed in 8 USCA § 1182(a)(4)(B)(ii).
Proposed rule change to new "Public Charge Inadmissibility Determination" regarding an "affidavit of support," 8 CFR § 212.22(b)(7), 83 FR at 51292, is unauthorized and contrary to law and experience. The DHS testifies falsely when it says that "[t]he absence of a statutorily required affidavit of support" under "8 U.S.C. 1183a, conclusively establishes an alien's inadmissibility on public charge grounds." 83 FR at 51178. And again the DHS testifies to "an absent or insufficient required affidavit of support" again citing Section 1183a. 83 FR at 51178 & n.406.
Section 1183a never requires an affidavit of support. Other statutes may require an affidavit of support, but Section 1183a does not. More to the point, the "public charge" determination set forth in 8 USCA § 1182(a)(4)(A)&(B) does not require an affidavit of support.
It is the "public charge inadmissibility" determination in those provisions of Section 1182(a)(4) that this portion of the DHS rationale directly addresses and which are directly addressed by the DHS proposed rule changes. To say again, the "public charge" determination set forth in 8 USCA § 1182(a)(4)(A)&(B) makes consideration of an affidavit of public support in making that determination a matter of discretion, it does not make it mandatory. In basic and simple terms, subparagraph (B)(ii) of Section 1182(a)(4) declares that the public charge inadmissibility determination "may also consider any affidavit of support under section 1183a of this title[.]" [Emphasis added.] In the law and in this statute, "may" conveys discretion, not a command. As used in this statute, it gives permission, it does not authorize punishment.
In this context, "may" has a settled meaning in experience and in the law which is, at best, ignored in the DHS proposed rules changes and which is, at worst, a re-definition of "discretionary" to mean "mandatory" because that is the DHS's desired result here.
In the specific case of "Family-sponsored immigrants" under the statutory framework established by Congress, an alien can successfully produce evidence on any of the factors enumerated for consideration by Section 1182(a)(4)(C)(i)(I), (II), or (III) without any affidavit of support at all.
Therefore the apparently contrary interpretation by the DHS of the statute is both unreasonable and unauthorized.
Moreover, to the extent that the language of the proposed rule change in 8 CFR § 212.22(b)(7) does not clearly convey the DHS's interpretation, DHS clearly stated its orientation toward the statutory provisions which address affidavits of support. As a result, the proposed rule change is not authorized and not a rational means to establish who is "likely to become a public charge" as required by Section 1182(a)(4).
Thank you for your consideration.
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