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QUESTIONS PRESENTED

I. What definition of "public charge" is appropriate for use in enforcing the Immigration and Nationality Act?

II. What legal mechanisms are available for enforcement of the "public charge" provisions?

BRIEF ANSWER

It is claimed that the term "public charge," as it pertains to immigrants, is not defined in statute or regulation, but the case law and legislative history demonstrate that a "public charge" is an alien who has become or is likely to become dependant on any U.S. means-tested benefit program. Moreover, the definition of the term carries major implications since the natural meaning of "public charge," makes it clear that this definition is correct.

The Immigration and Nationality Act (INA) asserts that "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 to become a public charge is inadmissible." 8 U.S.C. § 212(a)(4) (2003). The INA also states that any alien who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable." 8 U.S.C § 237(a)(5) (2003). These statutes serve as the foundation for public charge doctrine.

Furthermore, the INA provides enforcement mechanisms for addressing public charge problems. These mechanisms include actions to enforce "affidavits of support" (AOS), 8 U.S.C. § 213A(e) (2003), and general enforcement by the Department of Homeland Security (DHS) for violations of the INA. 8 U.S.C. § 103 (2003). Together, these mechanisms provide a framework for the enforcement of the public charge statutes.

However, "interim rules" of questionable legitimacy were issued by the INS in 1999, which purport to delineate between various kinds of public assistance. "Inadmissibility and Deportability on Public Charge Grounds," 64 Fed. Reg. 28,676 (May 26, 1999). These rules, or the current common interpretation of these rules, complicate the task of enforcement. Any action to compel enforcement of the public charge provisions would likely require a direct challenge to the legitimacy of these rules and their interpretations.

FACTS

Since the 1996 amendments to the INA, which introduced the "affidavit of support" (AOS) 8 U.S.C. § 213A (2003), and the current common interpretation of the proposed INS rules, misinterpretation of the term "public charge" has made circumvention of U.S. immigration law particularly easy. Under the INA, immigrants have two methods for entering the United States. The first exists in the form of a bond given by the Attorney General. The bond is issued with "sufficient surety in such sum and containing such conditions as the Attorney General shall prescribe, to insure that at the expiration of such time or upon failure to maintain the status under which he was admitted or to maintain any status subsequently acquired under section 248, such alien will depart from the United States." 8 U.S.C. § 214 (2003). The second method, the AOS, is a legally binding contract between a citizen or legal permanent resident and the Attorney General, which states that the immigrant sponsor will provide support to maintain an immigrant at an annual income no less than 125 percent of the Federal poverty line. 8 U.S.C. § 213A (2003). Some immigrants, however, abuse their sponsorship by receiving unauthorized cash assistance through programs, such as Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), or Medicaid. Public Charge, U.S. Department of Justice May 25, 1999.

According to the Center for Immigration Studies, 25.5 percent of immigrant households received public assistance in 2002. Steven A. Camarota, Immigrants in the United States - 2002: A Snapshot of America's Foreign-born Population, Center for Immigration Studies (2002). The study shows that 22.3% alone received Medicaid, responsible for a significant amount of the 210 billion dollar Medicaid program. The study also shows that even after the 1996 welfare reforms, which curbed eligibility for many immigrants, that immigrant use remains higher than native use for almost all public assistance programs. Id. at 2. Contrary to the law's intent, and the respectfully expressed intent of Congress to prevent abuse of the welfare system, it is clear that there is significant use of the U.S. welfare programs by immigrants.

History of the Public Charge Provisions

Federal immigration law first incorporated the "public charge" issue in the Immigration Act of 1882, which stated that any immigrant was excluded from admissibility to the United States if he/she "was unable to take care of himself or herself without becoming a public charge." Immigration Act of 1882, ch. 374, § 22 Stat. 186 (1882). The Immigration Act of 1891 required deportation of immigrants who had become public charges, Immigration Act of 1891, ch. 551 § 26 Stat. 1084 (1891), and The Immigration Act of 1917 imposed a five-year time limit on which immigrants could be deported as public charges. Immigration Act of 1917, ch. 29, § 39 Stat. 874 (1917). The McCarran-Walter Act of 1952, Pub. L. No. 82-414, reorganized our immigration law, collecting codifying, and revising existing provisions. Enacted in 1952 and amended in 1965, the INA provides the basis for the modern view on the public charge issue. The modern INA continued the American tradition of making any immigrant likely to become a public charge inadmissible to the United States. 8 U.S.C. § 212(a)(4) (2003).

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), amended the INA to admit aliens who might otherwise become public charges when an "affidavit of support" (AOS) is submitted on the immigrant's behalf by a sponsor. 8 U.S.C. § 213A (2003). The IIRIRA modern public charge doctrine was enacted by introducing the AOS, which incurred a legally binding obligation on immigrant sponsors. 8 U.S.C. § 213A (2003).

INS Rulemaking

In 1999, the Immigration and Naturalization Service (INS) issued an "interim rule with request for comments" that set forth an inexplicably narrow interpretation of what constitutes a violation of the AOS requirements. "Inadmissibility and Deportability on Public Charge Grounds," 64 Fed. Reg. 28,676 (May 26, 1999). The INS proposed a regulation that defined public charge as "an alien who has become or is likely to become primarily dependant on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long term care at government expense." "Inadmissibility and Deportability on Public Charge Grounds," 64 Fed. Reg. at 28,676. Some claim that this definition permits immigrants and their children to use a wide variety of welfare programs without affecting their immigration status. This interpretation differs considerably however from the strict standard intended by Congress during the promulgation of the statutes. The misinterpretations of the proposed regulations have caused confusion and enforcement paralysis, contributing to the situation in which only twelve immigrants having been deported as public charges since 1980. The occurrences of deportation on public charge violations are so rare that the INS no longer publishes statistics on public charge as a cause for deportation. Why are Immigrants on Welfare, Federation for American Immigration Reform, Oct. 2002.

DISCUSSION

I. A "public charge" is defined as an alien who has become or is likely to become dependant on any U.S. means-tested benefit program.

This definition of public charge as an alien is apparent from (1) the statutory language, (2) the case law and (3) the legislative history of the statutes. A basic principle of immigration law has always been to promote self-sufficiency in a manner that does not allow access to means-tested public assistance for immigrants. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 400 (1996). The (1) statutory language exhibits a standard of deportation for immigrants that become dependant on any means-tested benefit program. The (2) case law furthers this standard by holding the AOS as a legally binding obligation, broken upon any welfare violation of the INA by the immigrant. The (3) legislative history of the relevant statutes illustrates the Congressional intent to promote self-sufficiency for immigrants and prohibits immigration from acting as a mechanism to import welfare recipients.

All three sources assert that public charge doctrine should be invoked to prevent immigrants from becoming a drain on U.S. public resources. This resulting definition of "public charge" is broader than the current common interpretation of the proposed INS regulations, which drastically limits the conditions under which an immigrant is considered a public charge.

A. The statutory language defines "public charge" as an alien who has become or is likely to become dependant on any U.S. means-tested benefit program.

The INA asserts that "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 to become a public charge is inadmissible." 8 U.S.C. § 212(a)(4) (2003). In determining whether or not an alien is likely to become a public charge, the statute contains express factors to be taken into consideration, including age, health, family, and financial status. 8 U.S.C. § 212(a)(4)(B) (2003). Furthermore, "any alien who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable." 8 U.S.C § 237(a)(5) (2003). These three statutes reflect a zero-tolerance standard against immigrant public charges residing in the United States.

Nevertheless, the INA also provides two ways for an immigrant to be excluded from deportability under certain circumstances. The first asserts that "family-sponsored immigrants may seek admission as a spouse or child of a United States citizen by petitioning the attorney general for classification." 8 U.S.C. § 204(a)(1)(A) (2003). The second method allows a U.S. citizen or legal permanent resident to file an AOS for the immigrant. 8 U.S.C. § 213A(a) (2003). The latter provision states that the sponsor must maintain the alien at an annual income that is "not less than 125 percent of the poverty line" and that AOS is "legally enforceable against the sponsor by any entity that provides any means-tested public benefit." 8 U.S.C. § 213A(a)(1) (2003). A court would infer from the amendments to the INA that the goal of the statutes is to prevent unnecessary abuse of the welfare system by aliens. This is inherent in the original language of the INA, which asserted that paupers and vagrants were ineligible to receive visas. Immigration and Nationality Act, ch. 477, § 66 Stat. 163 (1952). Subsequent amendments held that alien workers that were unable to sustain themselves weren't to be admitted to the United States. Immigration and Nationality Act, Pub. L. 89-236, § 79 Stat. 911, (1965). These stipulations existed up through and beyond the 1996 amendments and still exist despite the codification of the AOS and other additions to the INA. Based on the consistency in the statutory language, a court would likely hold that the current common interpretation of the proposed regulations violates the statutes and the natural meaning of "public charge." Therefore, the current common interpretation of the proposed INS regulations fails to capture the intent to limit abuse of the welfare system, including through use of the affidavit of support.

B. The case law defines "public charge" as an alien who has become or is likely to become dependant on any U.S. means-tested benefit program.

The Supreme Court, in its only ruling on the issue, held that public charges are "mentioned between paupers and professional beggars, who are likely to become occupants of almshouses for want of means with which to support themselves in the future." Gegiow v. Uhl, 239 U.S. 3, 9 (1915). In Gegiow, a group of Russians were detained for deportation by the Acting Commissioner of Immigration because they were likely to become public charges as a result of having little money and limited employment opportunities. Id. at 8. The court construed this as the natural meaning of the words, "public charge." Id. at 9. Although the language is somewhat archaic, a court would find that the rationale in this case is similar to the statutory intent, which is to keep immigrants from becoming a drain on U.S. welfare. The current common interpretation of the proposed INS regulations conflicts with this "natural meaning," since it actually allows immigrants to rely on certain mean-tested welfare programs for subsistence.

More recently, the Ninth Circuit held that a totality of circumstances must be considered in defining public charges. Zambrano v. INS, 972 F.2d 1122, (9^th Cir. 1992). In Zambrano, a class action was filed against the INS for its regulations regarding the public charge exclusion. Id. at 1130. Although the judgment was vacated on other grounds, the court held that many factors, such as age and financial status, should be included in determining whether or not an alien is a public charge. The current common interpretation of the proposed INS regulations undermines the holding in Zambrano by allowing immigrants to utilize many welfare programs without being subject to this analysis.

C. In its amendments to the INA, Congress intended to define "public charge" as an alien who has become or is likely to become dependant on any U.S. means-tested benefit program.

The amendments to the INA concerning the affidavit of support are found in two specific acts: The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, Pub. L. 104-193, § 400 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, Pub. L. 104-208, § 513 (1996). In both acts Congress limited the eligibility of certain aliens for Federal welfare, health, and other benefits.

During the Congressional debate prior to the enactment of the PRWORA, Representative Lamar Smith of Texas asserted that "perhaps the most fundamental requirement of America's immigration policy is that immigrants be self-reliant, not dependant on the American taxpayers for support." 142 Cong. Rec. H 7745 (1996). Smith's concern was later codified in public law, stipulating that "self-sufficiency has been a basic principle of United States immigration law since the country's earlier immigration statutes." § 400 at 104-132. The section also states that it is a compelling government interest to enact new rules for eligibility and sponsorship agreements in order to assure that aliens be self-reliant in accordance with national immigration policy. § 400 at 104-132. The PRWORA also asserts that the affidavits are a legally binding contract with regard to the income and resources of the sponsor. It also provides for many of the legal mechanisms to prevent immigrants from becoming public charges. § 403 at 104-132.

IIRIRA also intended to limit the eligibility of aliens for welfare. When it was passed in 1996, Congress intended to amend the INA so as to revise and reinforce prohibitions on the receipt of public welfare and other benefits by illegal immigrants. (96 CIS PL 104208). Specifically with regard to the affidavits of support, Congress intended to alter the INA so as to ensure that sponsors of immigrants are responsible for their support. The IIRIRA also amended the statutes to reflect the decision of the Courts in Zambrano, 972 F.2d 1122, (9^th Cir. 1992), which required a myriad of factors to be taken into consideration for determining whether or not an alien is a public charge.

It must be concluded that the legislative history surrounding the INA, and the amendments thereto, demonstrates Congress's single-minded desire to define "public charge" by its natural meaning; no legal immigrant-or illegal alien-may receive any form of means-tested benefit. To construe this definition in another way, such as the current common interpretation of the proposed INS regulations, is contrary to the intent of Congress.

II. A variety of legal mechanisms can be utilized for enforcement

Within the INA, a variety of legal mechanisms exists to enforce the law against public charges. These mechanisms fall into two categories: (1) mechanisms to enforce the affidavit of support specifically, and (2) general provisions presiding over the INA. Specifically, appropriate entities are entitled to the judicial means to enforce the AOS to compel reimbursement. 8 U.S.C. § 213A(e) (2003). In general, the Department of Homeland Security is responsible for the enforcement of all provisions of the INA. 8 U.S.C. § 103 (2003).

"An action to enforce an AOS may be brought against a sponsor of a public charge immigrant in any appropriate court, (1) by a sponsored alien with respect to financial support or (2) by the appropriate entity of the Federal Government, State, or by any other nongovernmental entity with respect to reimbursement." 8 U.S.C. § 213A(e) (2003). The INA asserts that if the sponsor "fails to abide by the repayment terms established by the appropriate entity, the entity may bring an action against the sponsor pursuant to the affidavit of support." 8 U.S.C. § 213A(a)(2) (2003). Furthermore, the agencies are entitled to a wide variety of remedies, including "specific performance and payment of legal fees or other costs of collection." 8 U.S.C. § 213A(c) (2003). The statute also threatens civil penalties for persons failing to notify the attorney general of any change of address during the period in which the affidavit is enforceable. 8 U.S.C. § 213A(d)(2) (2003). The scope of these provisions serves to prevent abuse of the welfare system by immigrant public charges. Consequently, a court would likely rule that it is not a lack of enforcement mechanisms, but a lack of enforcement of these mechanisms that is responsible for the current widespread abuse of means-tested public assistance programs by immigrant public charges.

In addition to the specific legal mechanisms available to enforce of the AOS, the INA asserts that "the Secretary of Homeland Security shall be charged with the administration of the Act and over all laws relating to the immigration and naturalization of aliens." 8 U.S.C. § 103(a)(1) (2003). "Vested in this authority is the right to sue in the name of the proper law officers of the United States in any state, territory, district or town in which an alien becomes a public charge." 8 U.S.C. § 213A (2003). Thus, the statutes guiding deportation apply to all violations of the INA, including abuse of the AOS.

CONCLUSION

A "public charge" is defined as an alien who has become or is likely to become dependant on any U.S. means-tested benefit program. Under the current common interpretation of public charge, the authorities are undermining the INA, the common law, and the legislative intent of Congress. The current common interpretation fails to acknowledge an important principle of immigration law: self-sufficiency. Predictably, the current common interpretation has added to the abuse of U.S. public resources by immigrant public charges.

However, a variety of legal mechanisms exist to prohibit the abuse of means-tested programs by immigrants. These range from specific enforcement mechanisms of the AOS to general enforcement of the INA by the Department of Homeland Security. Unfortunately, the sheer existence of these mechanisms is not sufficient to prohibit immigrants from violating and abusing federal law. Only by executing these mechanisms can agencies limit the abuse by immigrant public charges contributing to the 25.5 percent of immigrant households that are dependent on public assistance programs.

APPENDIX

Statutory Scheme

Chapter 2 of the INA sets forth the qualifications for the admission of aliens. Section 212 sets forth classes of aliens ineligible to receive visas or admission to the United States. Among the classes of aliens ineligible for visa or admission are those who, in the opinion of the Attorney General, are likely to be a "public charge." Section 212(a)(4) provides 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.

(B) Factors to be taken into account.

(i) In determining whether an alien is excludable under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien's--

(I) age;

(II) health;

(III) family status;

(IV) assets, resources, and financial status;

(V) education and skills;

(ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any affidavit of support under section 213A for purposes of exclusion under this paragraph.

(C) Family-Sponsored Immigrants.- Any alien who seeks admission or adjustment of status under a visa issued under section 201(b)(2) or 203(a) is excludable under this paragraph unless--

(i) the alien has obtained--

(I) status as a spouse or a child of a United States citizen pursuant to clause (ii), (iii), or (iv) or section 204(a)(1)(B); or

(II) classification pursuant to clause (ii) or (iii) of section 204(a)(1)(B); or

(ii) the person petitioning for the alien's admission (and any additional sponsor required under section 213A(f) or any alternative sponsor permitted under paragraph (5)(B) of such section) has executed an affidavit of support described in section 213A with respect to such alien.

(D) Certain employment-based immigrants.- Any alien who seeks admission or adjustment of status under a visa number issued under section 203(b) by virtue of a classification petition filed by a relative of the alien (or by an entity in which such relative has a significant ownership interest) is excludable under this paragraph unless such relative has executed an affidavit of support described in section 213A with respect to such alien.

Section 237(a)(5) also sets forth general classes of deportable aliens:

(5) Public charge. Any alien who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry is deportable.

Although section 101 of the INA, 8 U.S.C. § 101 (2003), defines many terms used in the statute, it does not provide a definition for "public charge."[1]

Regulation Text

Section 213.1 provides as follows with respect to admission under bond or cash deposit:

The district director having jurisdiction over the intended place of residence of an alien may accept a public charge bond prior to the issuance of an immigrant visa to the alien upon receipt of a request directly from a United States consular officer or upon presentation by an interested person of a notification from the consular officer requiring such a bond. Upon acceptance of such a bond, the district director shall notify the U.S. consular officer who requested the bond, giving the date and place of acceptance and the amount of the bond. The district director having jurisdiction over the place where the examination for admission is being conducted or the special inquiry officer to whom the case is referred may exercise the authority contained in section 213 of the Act. All bonds and agreements covering cash deposits given as a condition of admission of an alien under section 213 of the Act shall be executed on Form I-352 and shall be in the sum of not less than $1,000. The officer accepting such deposit shall give his receipt therefore on Form I-305. For procedures relating to bond riders, acceptable sureties, cancellation or breaching of bonds, see § 103.6 of this chapter.

Section 213a.1 provides a definition for means-tested benefit public benefit:

Means tested public benefit means either a Federal means-tested benefit, which is any benefit funded in whole or in part by funds provided by the Federal Government that the Federal agency administering the Federal funds has determined to be a Federal means-tested benefit under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law 104-193, or any State means-tested public benefit, which is any public benefit for which no Federal funds are provided that a State, State agency, or political subdivision of a State has determined to be a means tested public benefit.

Section 213a.1 provides a definition for sponsor:

Sponsor means a person who is either eligible to execute or has executed an affidavit of support under this part.

Section 213a.1 provides a definition for sponsored immigrant:

Sponsored immigrant means an immigrant on whose behalf a sponsor has executed an affidavit of support under this part, including any spouse or child who will accompany or follow-to-join the beneficiary of an immigrant visa petition filed by the sponsor.

Section 213a.2 provides as follows with respect to use of the affidavit of support:

In any case specified in paragraph (a)(2) of this section, an intending immigrant is inadmissible as an alien likely to become a public charge, unless a sponsor has executed on behalf of the intending immigrant a Form I-864, Affidavit of Support Under Section 213A of the Act, in accordance with section 213A of the Act, this section, and the instructions on Form I-864. An affidavit of support is executed when a sponsor signs a Form I-864 before a notary public or an Immigration or Consular Officer and that form I-864 is submitted to an Immigration or Consular officer. The sponsor must execute a separate affidavit of support for each visa petition beneficiary and for each alien who will accompany or follow-to-join a visa petition beneficiary. For any spouse or children immigrating with a sponsored immigrant, the sponsor may execute an affidavit of support by submitting photocopies of the Form I-864 and all accompanying documentation, but each photocopy of the Form I-864 must have an original signature. Under this rule, a spouse or child is immigrating with a sponsored immigrant if he or she is listed in Part 3 of Form I-864 and applies for an immigrant visa or adjustment of status within 6 months of the date the Form I-864 is originally signed. The signature on the Form I-864, including photocopies, must be notarized by a notary public or signed before an Immigration or Consular Officer.

Section 213a.4 provides the following with respect to requests for reimbursement:

Requests for reimbursement under section 213A(b)(2) of the Act must be served by personal service, as defined by § 103.5a(a)(2) of this chapter. The request for reimbursement shall specify the date the sponsor's affidavit of support was received by the Service, the sponsored immigrant's name, alien registration number, address, and date of birth, as well as the types of means-tested public benefit(s) that the sponsored immigrant received, the dates the sponsored immigrant received the means-tested public benefit(s), and the total amount of the means-tested public benefit(s) received. It is not necessary to make a separate request for each type of means-tested public benefit, nor for each separate payment. The agency may instead aggregate in a single request all benefit payments the agency has made as of the date of the request. The request for reimbursement shall also notify the sponsor that the sponsor must, within 45 days of the date of service, respond to the request for reimbursement either by paying the reimbursement or by arranging to commence payments pursuant to a payment schedule that is agreeable to the program official. Prior to filing a lawsuit against a sponsor to enforce the sponsor's support obligation under section 213A(b)(2) of the Act, a Federal, State, or local governmental agency or a private entity must wait 45 days from the date it issues a written request for reimbursement under section 213A(b)(1) of the Act. If a sponsored immigrant, a Federal, State, or local agency, or a private entity sues the sponsor and obtains a final civil judgment against the sponsor, the sponsored immigrant, the Federal, State, or local agency, or the private entity shall mail a certified copy of the final civil judgment to the Service's Statistics Branch, 425 I Street, NW., Washington, DC 20536. The copy should be accompanied by a cover letter that includes the reference "Civil Judgments for Congressional Reports under section 213A(i)(3) of the Act." Failure to file a certified copy of the final civil judgment in accordance with this section has no effect on the plaintiff's ability to collect on the judgment pursuant to law.

[1] Neither do the regulations issued pursuant to the INA, 8 C.F.R. Part 212, nor does the Bureau of Citizenship and Immigration Services website Glossary, found at http://www.immigration.gov/graphics/glossary3.htm#P.