Proposed Change of Public Charge Definition Would Have Devastating Effects on Immigrants Accused or Convicted of Crimes and their Families

Marie Mark, Supervising Attorney Immigrant Defense Project and Natalia Renta, Staff Attorney Immigrant Defense Project 

The Trump administration continues to attack immigrant communities, now two years into his term. One of these attacks involves changing the legal definition of who is “likely to become a public charge,” a barrier some (not all) immigrants need to overcome when applying for a green card.

The proposed change, which is being considered now, would fundamentally change how immigration agencies determine who is likely to become a public charge. Previously the determination did not take into consideration the vast majority of public benefits. The rule proposed by the Trump administration significantly broadens the definition to consider many types of benefits—including Medicaid, Supplemental Nutrition Assistance Program, and housing subsidies, among others —punishing immigrants for being low-income and placing them at higher risk of deportation.

Communities and service providers have strongly advocated against this change, highlighting the devastating effects not having access to critical survival benefits would have on low-income immigrant families and communities. The particularities of how this proposed change would affect immigrants accused or convicted of crimes, however, has not been a significant part of this conversation. This is where IDP came in, submitting a public comment highlighting how the rule would undermine important state policy initiatives that are intended to make state criminal legal and family court systems more effective in ensuring safety and stability.

IDP identified three key areas where the proposed rule would make immigrants accused or convicted of crimes, along with their families and communities, even more vulnerable:

1. The proposed rule would restrict immigrant access to alternatives to incarceration, including substance abuse and mental health treatment programs.

In New York, as in many jurisdictions across the country, some individuals charged with criminal offenses access “problem-solving” courts and alternatives to incarceration programs. These courts offer non-traditional programs intended to provide support and assistance to those who have been charged with criminal offenses to address underlying issues that lead to arrests, rather than imposing jail or prison sentences and then releasing people to the community hobbled by a criminal conviction.

Currently, immigrants in New York who are eligible for public benefits can use them as part of a comprehensive treatment plan in Mental Health Court. However, key services, such as Medicaid, that are required to make these courts effective are funded by government benefits which would classify an immigrant as “likely to become a public charge” under the proposed rule. The same is true of housing subsidies which may be part of a coordinated services plan.

Under the proposed rule, immigrants who access government benefits as part of a court-ordered treatment plan are likely to be found inadmissible as a public charge, even though those who comply with all treatment mandates have their criminal charges dismissed or reduced. This severely undercuts the underlying goal of alternative to incarceration by creating an additional collateral consequence of participation. In this way, the proposed rule undermines reforms that are intended to reduce recidivism and spending on the criminal legal system and support stability for communities impacted by the side effects of mental illness and substance use disorder.

2. The proposed rule would negatively impact immigrants returning to their communities after any period of incarceration by limiting their access to re-entry supports.

The destabilizing power of incarceration applies to those who spend a night in jail after an arrest, those who spend time pre-trial in a local jail before family and friends find bail money or criminal charges are resolved, and people sentenced to jail or prison time following conviction of an offense. For working people, incarceration, regardless of the outcome of criminal charges, frequently leads to being fired or laid off. The resulting loss or decrease in income impacts both the individual and their family’s ability to pay rent, buy food, and pay for medical care.

Those with a family member who experiences a longer period of incarceration may need to rely on public benefits while adjusting to the long-term loss of household income. And those community members returning after having served a sentence may need to rely on public benefits while we ask that they restart their adult lives from scratch. An arrest should not lead to prolonged housing instability or food insecurity. The proposed rule will lead to the destabilization of those who rely on our social safety net to rebuild their lives in their community after being released from custody.

3. The proposed rule will result in the separation of immigrant families in the Family Court and child welfare system.

In New York City’s Family Courts, parents charged with abuse or neglect are currently able to access services which aid in the successful reunification of families. The Family Court Act specifically calls for services to ensure that children are safely reunified with their parents. However, parents who fear that using public benefits will jeopardize their ability to remain in the U.S. with their children are given unimaginable choices. If they use benefits to ensure their children have a stable home, they risk being deported and permanently separated from their children. If they refuse services, the Family Court may determine they cannot safely retain custody and care of their children, also resulting in family separation.

Without access to government benefits, the opportunity to accept court ordered services is illusory. The cost of essential substance abuse or mental health treatment is out of reach for the vast majority of New Yorkers without access to health insurance like Medicaid. Housing and food subsidies are similarly essential for families struggling to support children financially. It is unacceptable to create rules and policies that separate parents from their children because they are low-income.

The proposed rule undermines several important state policy initiatives designed to create stability in our communities and creates a dangerous disincentive to apply for benefits for immigrants in need of medical care (including mental health and substance use disorder treatment), food, and housing.

If the rule is approved the reality is that many immigrants will face impossible decisions: undergo drug treatment or risk deportation? Access services to ensure my children are housed and fed properly or face forced exile? Treat my mental health illness or give up my dream of eventually becoming a U.S. citizen? If this rule is approved in its current form, people who participate in court-ordered services will be further marginalized, a result which compounds harms instead of alleviating them. The rule as proposed fails to recognize the inherent dignity in all immigrants, regardless of their income, mental health, substance use, family circumstances, or involvement in a racially biased criminal legal system.