January 7, 2020, New York – Today, lawyers representing community groups in New York City argued before the Second Circuit Court of Appeals, urging the court to reject the Trump administration’s request to stay a preliminary injunction blocking a Department of Homeland Security “public charge” rule from going into effect. A federal judge enjoined the rule in October—after considering voluminous written submissions and hearing more than four hours of oral argument—issuing the first nationwide preliminary injunction against the rule, thus blocking it from taking effect until a final decision is reached on its legality. Community groups and attorneys say the rule would radically transform the test for determining whether someone might become a “public charge,” imposing an unprecedented—and racist—wealth test on noncitizens seeking family-based adjustment of status.

“We wholeheartedly reject the administration’s shameless attempts to impose a racist wealth test on our immigration system,” said Javier H. Valdés, Co-Executive Director of Make the Road New York. “We continuously see that the law is on our side on this issue, and we urge the courts to stop this latest attempt by the administration to deny status to immigrants based on a reckless and illegal attempt to redefine ‘public charge.’” 

In his decision issuing the preliminary injunction, Judge George B. Daniels wrote: 

“The Rule is simply a new agency policy of exclusion in search of a justification. It is repugnant to the American Dream of the opportunity for prosperity and success through hard work and upward mobility. Immigrants have always come to this country seeking a better life for themselves and their posterity. With or without help, most succeed.” 

Any benefits received while the injunction is in place cannot be used against individuals applying for adjustment of their immigration status. 

“This arbitrary and discriminatory rule erects an ‘invisible wall’ that threatens immigrant communities with widespread family separation,” said Ghita Schwarz, Senior Staff Attorney at the Center for Constitutional Rights. “The Second Circuit should uphold Judge Daniel’s decision, which is grounded in the clear intent of Congress and the consistent history of the Immigration and Nationality Act.” 

For more than 100 years, the designation “public charge” in federal immigration law has referred only to a narrow category of people who are institutionalized or otherwise completely or primarily dependent upon public assistance. The rule blocked by the preliminary injunction would redefine the term to include anyone the immigration service deems likely to receive, even temporarily or at a distant point in the future, any amount, however minimal, of a wide range of cash and non-cash benefits, including food assistance, healthcare, and housing assistance. To make that determination, government officials would consider factors such as English proficiency, credit scores, and access to private health insurance. Those applying for family-based adjustment of status and deemed a public charge would be denied permanent immigration status. 

“The government’s position that it cannot wait to implement its dangerous, new public charge policy while the appeals court hears an expedited appeal is baseless. The government can suffer no harm continuing to follow a policy that has been in place for over 20 years and that is consistent with a century of precedent before that. On the other hand, the harm that would be faced by our clients and client communities across the nation if the injunction is stayed would be extreme,” said Susan Welber, Staff Attorney in The Legal Aid Society’s Civil Practice Law Reform Unit. 

The lawsuit, Make the Road New York v. Cuccinelli, claims the rule violates the Immigration and Nationality Act, the Rehabilitation Act, the Administrative Procedure Act, as well as the Equal Protection Clause because the rule was motivated by unconstitutional racial animus and was intended to affect immigrants from countries with primarily non-white populations. Filings in the case point to statements demonizing immigrants of color uttered by Trump administration officials involved in drafting the rule. 

The Center for Constitutional Rights, The Legal Aid Society, and Paul, Weiss, Rifkind, Wharton & Garrison LLP filed the lawsuit on behalf of Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services, and Catholic Legal Immigration Network (CLINIC). New York State Attorney General Letitia James, joined by the States of Connecticut and Vermont and the City of New York, filed a separate lawsuit challenging the rule. Both lawsuits were filed in the U.S. District Court for the Southern District of New York. The New York Attorney General’s office also argued today, opposing the stay. 

For more information, see the Center for Constitutional rights case page for Make the Road New York v. Cuccinelli. 

Make the Road New York (MRNY) builds the power of immigrant and working class communities to achieve dignity and justice through organizing, policy innovation, transformative education, and survival services. We have 23,000+ members and operate five community centers in Bushwick, Brooklyn; Jackson Heights, Queens; Port Richmond, Staten Island; Brentwood, Long Island; and White Plains, Westchester County. On Twitter: @MaketheRoadNY 

The Legal Aid Society exists for one simple yet powerful reason: to ensure that New Yorkers are not denied their right to equal justice because of poverty. For over 140 years, we have protected, defended, and advocated for those who have struggled in silence for far too long. Every day, in every borough, The Legal Aid Society changes the lives of our clients and helps improve our communities. https://www.legalaidnyc.org/