New York State Attorney General Letitia James addressing media outside the U.S. Supreme Court Tuesday, April 23, 2019. Photo: Diego M. Radzinschi/ALM

Attorneys for a coalition, led by New York Attorney General Letitia James, looking to block the implementation of the Trump administration's "public charge" rule argued Monday that the measure exposed immigrants, and the community at large, to greater risk from the COVID-19 pandemic.

The arguments followed a decision by the U.S. Supreme Court in January to lift a district court's injunction in October initially blocking the rule, which would make it easier for the federal government to deny legal status to immigrants who apply for public assistance, from taking effect.

But that ruling, paving the way for implementation of the Trump administration proposal, came before the onset of the COVID-19 outbreak, which challengers say fundamentally changes the burden imposed by the Trump administration's policy.

The high court, in a two-sentence order last month, denied James' emergency request to modify the earlier ruling in light of the continuing public health crisis, but did allow the coalition to refile its petition with the U.S. District Court for the Southern District of New York, "as counsel considers appropriate."

Attorneys for the coalition, which also includes attorneys general from Connecticut and Vermont as well as the New York City Law Department, asked U.S. District Judge George B. Daniels on Monday to halt the rule's implementation for the duration of the pandemic, arguing that immigrants were now less likely to seek coronavirus testing and treatment for fear that their use of public benefits would later be held against them as a result of the rule.

That "disincentive" not only endangered immigrants and their families, but also put other members of the public at increased risk because it hampered the efforts of local governments to stop the spread of the disease, lawyer Elena Goldstein argued on behalf of the state.

Goldstein noted that more than 28,000 people had died since New York filed its motion and argued that no one could have predicted the global crisis when Daniels issued his nationwide injunction in October.

This is a "new injunction, based on new facts," she said.

Goldstein and her colleagues also pointed to informal guidance from U.S. Citizenship and Immigration Services, which acknowledged the "possibility that some aliens impacted by COVID-19 may be hesitant to seek necessary medical treatment or preventive services" and said that use of benefits to receive testing, treatment or a possible vaccine would not be considered as a part of admissibility determinations.

"That provides no assurances for what it means for the federal government to take that into account," she said.

Attorneys for the administration countered that Daniel's previous injunction had already addressed concerns about the spread of "communicable disease" and argued that Daniels lacked the authority to take up the issue. The coalition's latest motion, they said, was simply a "retread" of Daniel's since-stayed injunction, in an effort to "invalidate the rule altogether."

"The rule itself hasn't changed," said Keri Berman, an attorney with the Civil Division of the DOJ.

Daniels, however, signaled skepticism with the government's position throughout approximately three hours of argument.

"No, no, no. It has changed," Daniels said. "The rule is not the same."

At the time of the October injunction, Daniels noted, the potential harm to immigrants was different, indicating that the pandemic's spread across the U.S. had likely changed the calculus.

"Now, we are living the worst-case scenario. We don't have to guess what the worst possible consequences are," he said. "One of the consequences could be death from the coronavirus."

In his questioning, Daniels extracted a concession from DOJ attorney Joshua Kolsky that the alert published by USCIS was "informal guidance" and questioned whether what might happen if the administration "three months from now" were to go back on its own policy.

"I don't see any basis that USCIS is going to refuse to apply its own policy," Kolsky responded.

Kolsky said that the rule was not retroactive and the government could not consider benefits that were used before it went into effect. The use of benefits, he said, would not automatically disqualify immigrants for green cards and certain visas but instead would factor into a "totality-of-the-circumstances" analysis.

Daniels ended Monday's hearing without issuing a ruling. He said he would be back in touch with the parties in the "next couple weeks."

The challenged rule expanded the definition of "public charge" from someone who was primarily reliant on the government to include any "alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period."

Government attorneys have argued that Congress has intentionally left the precise definition ambiguous, giving federal agencies the authority to offer "reasonable" interpretations of its meaning.

Daniels issued his injunction last October, in a fiery opinion that skewered the rule as "repugnant to the American Dream of the opportunity for prosperity and success through hard work and upward mobility."

The U.S. Court of Appeals for the Second Circuit left the Daniels' ruling in place while it considered an appeal. However, the high court lifted order in a 5-4 ruling, where two of the court's conservative justices decried the use of nationwide injunctions in litigation challenging the implementation of federal policy.

 

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