The Solicitor General filed an emergency application Tuesday with the US Supreme Court to stay injunctions and allow implementation of the new “public charge” rule.
The Department of Homeland Security (DHS) rule concerns an interpretation of the Immigration and Nationality Act. The new rule would restrict immigrants who may rely on public assistance from entering the US. DHS would designate such immigrants who rely on monetary or nonmonetary government assistance or may do so in the future as a “public charge” under the new rule. Such “public charges” can be denied admission into the US. The Solicitor General described the purpose of the rule in his application:
This application concerns a Department of Homeland Security (DHS) rule, promulgated through notice-and-comment rulemaking, interpreting a statutory provision stating that an alien is inadmissible if, “in the opinion of” the Secretary, the alien is “likely at any time to become a public charge.” 8 U.S.C. 1182(a)(4)(A); see 84 Fed. Reg. 41,292 (Aug. 14, 2019) (Rule). Whereas a 1999 guidance document had interpreted “public charge” to mean an alien who was at a minimum “primarily dependent” on a limited set of cash benefits from the government, the Rule extends the set of covered benefits to include certain designated non-cash benefits providing for basic needs such as housing and food and asks whether the alien is likely to receive such benefits for more than 12 months in aggregate within any 36-month period.
A New York federal court injunction in October prohibited the rule from national implementation. DHS appealed the decision, but the US Court of Appeals for the Second Circuit refused to overturn the injunction. The Solicitor General appeals to the Supreme Court to remove the injunction arguing that the government will not be able to revisit immigrants’ cases once they are admitted to the country. DHS is confident that its rule will be upheld and characterize allowing immigrants admission who will be considered “public charges” pursuant to the rule as a permanent injury to government resources.
Justice Ruth Bader Ginsberg will first review the Solicitor General’s application and may refer it to the full court for further consideration.