COMMENTS ON PROPOSED PUBLIC CHARGE RULE – 83 FR 51114

USCIS’s proposed public charge rule violates the Due Process and Equal Protection clauses of the Fourteenth Amendment as applied to spouses of U.S. citizens. Additionally, the proposed rule exceeds USCIS’s statutory authority when applied outside the context of applications for visas, admission, or adjustment of status. Lastly USCIS has made analytical errors in studying this proposed rule, and should grant more time for comment on the proposed rule to allow time for interested parties to comment.

INA § 212(a)(4) and USCIS’s proposed rule violate the Equal Protection and Due Process clauses of the Fourteenth Amendment as applied to spouses of US citizens

INA § 212(a)(4) and the proposed public charge regulations will deny US citizens the right to live with their alien spouses in the United States. By forcing US citizens to choose between living with their spouse in the US, or leaving the U.S., this section of the INA and the regulations promulgated thereunder deny U.S. citizens their fundamental right to marriage.

Marriage is recognized as a fundamental right.[1] “[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy”[2] The Supreme Court has consistently rejected restrictions on marriage based on race,[3] sexual orientation,[4] ability to pay child support,[5] and imprisonment.[6] In Zablocki a Wisconsin statute restricted marriage unless the marriage applicant could demonstrate “that the children covered by the support order are not then and are not likely thereafter to become public charges” (internal quotations omitted). The Supreme Court found that this statute was unconstitutional under both the Due Process and Equal Protection clauses of the Fourteenth Amendment. INA § 212(a)(4) and USCIS’s proposed regulations are unconstitutional for the same reasons recognized in Zablocki.

Although U.S. citizens are free to marry nationals of any country, refusing admission of immigrant spouses denies U.S. citizens the opportunity to live with their spouse in the U.S. Denying this opportunity removes the central benefit of the fundamental right to marriage, namely living with one’s spouse. Thus, by refusing admission of spouses of U.S. citizens on public charge grounds, USCIS denies U.S. citizens a fundamental right. USCIS should therefore exclude spouses of US citizens from its proposed rule, and cease applying INA § 212(a)(4) to spouses of US citizens so that it remains compliant with the Constitution.

Ultra Vires nature of the proposed rule

USCIS essentially acknowledges the ultra vires nature of its proposed rule at 83 FR 51135:

Although section 212(a)(4) of the Act by its terms only applies to applicants for visas, admission, and adjustment of status, and thus does not, by its terms, render aliens who are likely to become a public charge ineligible for the extension of stay or change of status.

Congress has not given USCIS authority to consider the public charge basis of inadmissibility except in the context of applications for visas, admission, or adjustment of status. Considering an alien’s likelihood of becoming a public charge in connection with a request for any other benefit exceeds the authority delegated by Congress. USCIS should therefore limit its application of the proposed rule to applicants for visas, admission, or adjustment of status.

Analytical errors in preamble

Tables 11 and 12, and 14 through 28 purport to show the likelihood of an alien becoming a public charge based on the enumerated statutory factors. These tables, however, fail to distinguish the various immigrant categories, including categories that are exempt from the public charge grounds of inadmissibility. Without this level of detail in the analysis, USCIS does not know whether exemption from public charge inadmissibility is the most reliable indicator of the likelihood of becoming a public charge. If exemption from this ground of inadmissibility is the most reliable indicator, then this entire proposed rule is an enormous waste of time and resources. Therefore, USCIS should investigate this possibility before promulgating the proposed rule.

Request for more time

By USCIS’s own analysis, the proposed rule would remove billions of dollars from the healthcare industry. Other industries not considered in USCIS’s analysis would surely suffer as well. As these major industries provide countless jobs to U.S. citizens, their opinions on the proposed rule should be considered. Sixty days is simply too short for all interested stakeholders to fully consider USCIS’s analysis and comprehensively respond. Accordingly, USCIS should extend the notice and comment period for an additional 90 days.

[1] See e.g. Obergfell v. Hodges, 576 US ____, at 11.

[2] Id. at 16.

[3] Loving v. Virginia, 388 U.S. 1 (1967).

[4] Obergfell v. Hodges, 576 US ____.

[5] Zablocki v. Redhail, 434 U.S. 374 (1978).

[6] Turner v. Safley, 482 U.S. 78 (1987).

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