The following are significant excerpts from Comments of December 1, 2018 that the DHS Proposed Public Charge Rules are UNAUTHORIZED AND MISDIRECTED. In the excerpts below, I am providing the address to which to send your own Comments, and the DHS Docket Number etc. that the federal government agency requires in order to process Comments. The full UNAUTHORIZED AND MISDIRECTED Comments are accessible here, as well as of course on the DHS website or regulations.gov: Download UNAUTHORIZED AND MISDIRECTED. Comments to Proposed Public Charge Rules Changes.12.01.18.
December 1, 2018
BY POSTING TO FEDERAL eRULEMAKING PORTAL
AND BY U.S. MAIL
Federal eRulemaking Portal: www.regulations.gov.
[PLEASE NOTE THAT THE MAILING ADDRESS BELOW AND DOCKET NO. AND RIN ARE SEPARATED BY "/" BECAUSE TYPEPAD WILL NOT ALLOW SINGLE-SPACED ENTRIES HERE. THE INFORMATION IS PROVIDED ANYWAY. THANK YOU.]
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 Department's proposed amendments are not authorized by Congress.
The Department of Homeland Security can act only with authority delegated by Congress. Here, the Department’s cited Legal Authority does not authorize the DHS to issue a regulation that redefines terms in ways they were not previously defined by statute or are misdirected from their stated purposes.
These Comments address in particular the Department's proposed changes to 8 C.F.R. §§ 212.20 through 212.24 inclusive.
To begin with, over all the DHS proposed rules changes are unauthorized and so they cannot state the law concerning the subjects they address. The DHS's "Legal Authority" for its changes is cited in 83 Federal Register at 51124 (Wed., Oct. 10, 2018), and again at the beginning of the proposed rules changes at 83 FR at 51289. No Congressional statute conveys authority to a federal administrative agency to rewrite the statute. The statutes cited by the DHS are no exception.
* * *
The 183 pages published in the Federal Register containing the rationales (83 CFR 51114-511289) and the proposed "Public Charge Rules" changes (83 CFR 51289-51296) offered by the DHS, substantially if not entirely rewrite statutes enacted by the U.S. Congress, particularly but not only 8 USCA § 1182(a)(4). They are unauthorized and so they are invalid for that reason alone.
For ease of reference, paragraph A of subsection 1182(a)(4) reads in full as follows:
(4) Public charge
(A) In general
Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.
First and foremost, Congress did not give a definition of "public charge." See 8 USCA § 1182(a)(4) and not just paragraph (A) quoted immediately above.
As the DHS noted itself in footnote 21, 83 FR at 51123, the U.S. Senate Judiciary Committee in which this legislation originated in 1952 recommended adopting the phrase, "public charge," which had already been in use in immigration law for a long time as of 1952. "The committee noted that there was no definition of the term 'likely to become a public charge[.]" And the committee did not recommend a definition of the term. Nor did Congress provide a definition of the term when Congress voted as a whole to enact this measure into law as a statute. .In that process Congress displayed its clear intent not to provide a definition of "likely to become a public charge."
Moreover, interpretation of a word or phrase in a statute requires a look at the structure of the entire statute to interpret it. This is what a Court would look at, and it is how an administrative agency like the DHS is required to look at a statute as well. The structure of Section 1182 reflects the intent of Congress to leave the determination of who is "likely to become a public charge" to a case-by-case process.
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The claim is made in the rationale for these proposed changes published in the Federal Register that the development of "public charge" in immigration law was framed by a "relationship between public charge and receipt of public benefits[.]" 83 FR at 51123. This claim is false.
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DHS's second claim about the development of "public charge" in immigration law is that "public charge" has been framed by "consideration of a sponsor's affidavit of support within public charge inadmissibility determinations." 83 FR at 51123.
This claim too is refuted by the clear language of subsection 1182(a)(4) and of every other statute written by Congress addressing immigration issues, particularly and uniquely 8 USCA § (a)(4)(B)(ii).
* * * :
In particular, the DHS stated link between "public charge" and "receipt of public benefits" is unauthorized and misdirected. The DHS proposes to invent and deploy a new definition of "public charge" different from and unlike those set out in the statute, 8 USCA § 1182(a)(4)(A), quoted in full above. The most significant unrelated addition is the proposal that "public charge" exclusion from the U.S. applies to any person who "receives one or more public benefits[.]" There are several problems with this addition, each of which invalidates the proposed change.
It bears repeating that Congress did not equate the receipt of public benefits with a "public charge" liable to being excluded from the United States. The statute as a whole refutes any misdirected attempt to conflate the two concepts.
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If public benefits were so important, they would have been listed in the immigration statutes as grounds for exclusion. They were not.
Conclusion.
It may be that the things that DHS asserts are true, but merely asserting them to be true does not make them so. There must be evidence to support an administrative agency's proposed rules changes, and insufficient if any evidence is provided by the DHS for these proposed rules changes.
In any case, Congress has seen fit to provide a different statutory procedure than the DHS is authorized to write in these proposed rules changes.
All that has been pointed out above is obviously inconsistent with DHS's assertion of "nonexistent" legislative guidance and case language. The guidance is there; DHS just does not want to follow it.
Thank you for your consideration.
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