Deportability on Public Charge Grounds

 

Introduction

The Immigration and Nationality Act (INA) contains a deportability provision for an alien who becomes a “public charge” within 5 years of entry into the United States when the alien cannot affirmatively show that he or she became a public charge for reasons that arose subsequent to entry. This provision affects aliens who are not exempt from the public charge ground of inadmissibility. In this article, we will examine the relevant statutes, agency guidance, and administrative precedent regarding the public charge deportability ground.

Public Charge Grounds

Please see our full article to learn about the concept of public charge for both the inadmissibility and deportability contexts [see article]. This article contains links to our other resources on public charge.

Understanding Public Charge and Applicable Benefits

On May 26, 1999, the then Immigration and Naturalization Service (INS) issued a “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds” (“Public Charge Field Guidance”) [see 64 FR 28689]. This legacy INS guidance remains good law today.

The Field Guidance explains that “'public charge' means an alien who has become (for deportation purposes) or who is likely to become (for admission/adjustment purposes) 'primarily dependent 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.'” Conversely, the Field Guidance takes the position that “[i]nstitutionalization for short periods of rehabilitation” does not implicate public charge. These definitions apply in both the section 212(a)(4) inadmissibility and the section 237(a)(5) deportability contexts. To read about it in more detail, please see our overview of public charge [see section].

It is important to note that, in general, means-tested public benefits trigger public charge concerns. These benefits are those that are intended primarily for income maintenance. Furthermore, institutionalization for long-term care (meaning care for an indefinite period) at government expense also triggers public charge concerns. This narrow definition of means-tested public benefits excludes earned benefits, Medicaid (other than for institutionalization for long-term care), and many other common benefits, including unemployment compensation. Before continuing with this article, please see the comprehensive list of benefits in our overview of public charge [see section].

Public Charge Deportability Statute

Section 237(a)(5) of the INA reads as follows:

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.

This means that in order to be deportable for public charge, the following two things must be true:

  1. The alien became a public charge within five years after the date of entry; and
  2. The alien cannot affirmatively show that he or she became a public charge for reasons that arose subsequent to such entry.

It is important to note that the five year clock restarts each time an alien makes an “entry” into the United States.1 In contemporary immigration law, the concept of entry has been supplanted by that of “admission” (generally constituting “lawful entry” under the old statutory scheme). This is significant for certain lawful permanent residents (LPRs). In most circumstances, an LPR is not deemed to be making a new “entry,” or to be seeking “admission,” when he or she returns to the United States from a short trip abroad. In such cases, an LPR would not restart the 5-year clock in section 237(a)(5). However, if an LPR is considered to be seeking admission the clock would restart after he or she is admitted. Please see our full article to learn about when an LPR is considered to be seeking admission [see article]. Furthermore, please see the relevant section of our unrelated article on section 212(f) of the INA to learn more about the concept of “entry” vs “admission” [see section] (please note that this link is provided solely for the discussion of the terms “entry” and “admission,” section 212(f) does not relate to public charge).

Conversely, nonimmigrants are always considered to be seeking admission when entering the United States.

Legacy INS Discussion

The INS examined the deportability provision for public charge thoroughly in its 1999 Public Charge Field Guidance. In this section, we will examine the guidance itself and the administrative precedent that it relies upon.

Overview

Firstly, at 64 FR 28689, the Field Guidance explains that, although the inadmissibility and deportability provisions for public charge rely upon the same definitions, “the standards applied to public charge adjudications in each context are significantly different…” Intuitively, this makes sense. In the inadmissibility context, adjudicators seek to ascertain whether an alien is likely to become a public charge. In the deportability context, adjudicators must ascertain, under the test set forth in section 237(a)(5), whether the alien has become a public charge, and if so, whether he or she became a public charge within 5 years of entry and whether it was for circumstances that arose subsequent to such entry.

Also at 64 FR 28689, the INS explained that “officers should not initiate or pursue public charge deportation cases against aliens who have not received public cash benefits for income maintenance or who have not been institutionalized for long-term care.” In short, this makes clear that the only benefits that will trigger scrutiny under section 237(a)(5) are those benefits that were deemed to be subject to public charge implications at the time the alien last made an entry into the United States.

Three-Part Test in the Public Charge Deportability Context

At 64 FR 28691, the Public Charge Field Guidance sets forth a three-part test for determining whether an alien is deportable on public charge grounds. The test was established in the Matter of B, 3 I&N Dec. 323 (BIA and AG 1948). Interestingly, this Board of Immigration Appeals (BIA) and Attorney General (AG) decision interpreted the public charge provision of the Immigration Act of 1917. However, because the language of the public charge provision has changed little, the decision remains good law. The Field Guidance describes the three-part test as follows:

  • 1. “The state or other government entity that provides the benefit must, by law, impose a charge or fee for the services rendered to the alien. In other words, the alien or designated relatives or friends must be legally obligated to repay the benefit-granting agency for the benefits or services provided, if there is no reimbursement requirement under law, the alien cannot be said to be a public charge.”

The first part of the test puts the emphasis on “reimbursement.” In order for the benefit to qualify, it must be a benefit for which repayment is obligated. If reimbursement is not required under law, receipt of the benefit cannot render the alien removable on public charge grounds. We will explain after we discuss step 3 why this renders the scope of the public charge deportability provision very narrow.

  • 2. “The responsible benefit-granting agency officials must make a demand for payment for the benefit or services from the alien or other other persons legally responsible for the debt under federal or state law (e.g., the alien's sponsor).”

Under the Matter of L, 6 I&N Dec. 349 (BIA 1954), the benefit-granting agency must make the demand for repayment within five years of the alien's entry in order for the alien to be deportable. Furthermore, in order for the alien to be deportable on public charge grounds as a result of the failure of his or her sponsor to repay the agency, the benefit-granting agency must “take all available actions to collect from the sponsor.” This includes filing appropriate actions in court and taking all steps available under the law to enforce a final judgment against the alien's sponsor or other party obligated to repay the agency. Please see our full article to learn about the concept of sponsor liability [see article].

  • 3. “The alien and other persons legally responsible for the debt fail to repay after a demand has been made.”

If the alien and/or other persons responsible for the repayment of the debt fail to repay the debt after step 2 has been completed, the alien becomes deportable on public charge grounds. It is important to note that steps 1 and 2 must be satisfied before an alien is deportable under section 237(a)(5) of the INA.

Interestingly, the Field Guidance explains that “[d]eportations based on public charge grounds have been rare…” This is because most aliens in the United States are unlikely to have a legal obligation to repay public benefits. Accordingly, this means that benefit-granting agencies are generally unlikely to demand such repayment. The situation in which it is likely that (1) there will exist a legal obligation to repay public benefits and (2) such repayment would be demanded are situations in which a sponsor is required in order for the alien to procure an immigrant visa (through adjustment of status or consular processing). This makes the public charge deportability ground most pertinent in family-sponsored immigrant visa cases [see category]. Please see the relevant section of our public charge article to learn about situations in which a sponsor is required in order for an alien to overcome the statutory presumption of public charge [see section]. The Field Guidance put it concisely, “[o]nly aliens who apply for immigrant visas or adjustment of status on or after December 19, 1997, may be sponsored under the new, enforceable [adjustment of status], which could satisfy the standards for deportation under Matter of B.” Please note that this also applies to certain visas procured through consular processing where sponsors are required.

Additionally, the Field Guidance explains that “under the 'deeming' rules, the sponsor's spouse's income and resources will be attributed to the alien in assessing his or her eligibility to receive a means-tested benefit…” This means that in most cases the alien would be unlikely to have an income low enough to receive means-tested benefits that would implicate public charge concerns.

Finally, the Field Guidance notes that, even if an alien appears to be subject to section 237(a)(5), the alien may move to affirmatively show that he or she became a public charge for reasons that arose after entry. If the alien can show that he or she became a public charge for reasons that arose after entry, the alien will not be removable even if he or she meets each prong of the three-part test established in the Matter of B.

Relationship to Inadmissibility

At 64 FR 28690, the Field Guidance explained that if an alien, at the time of seeking adjustment of status, is deportable on public charge grounds due to an outstanding public debt, he or she is inadmissible. If the debt is paid, the alien will no longer be inadmissible on account of it. In such a case, the United States Citizenship and Immigration Services (USCIS) would move on to establishing whether the alien is likely to become a public charge under the totality of the circumstances test.

At 64 FR 28691, the Field Guidance explains that the USCIS may not demand that the alien repay a public debt which meets the three-part test in the Matter of B. However, it must inform the alien that, if he or she fails to repay the debt, the alien will continue to be inadmissible to the United States. Additionally, adjudicators are required to inform the alien that repayment of the debt will not guarantee that he or she would be found to be admissible.

In the Matter of Harutunian, 14 I&N Dec. 583 (RC 1974) [PDF version], the Regional Commissioner deciding the case held that the three-part test set forth in the Matter of B is not applicable to a determination of “excludability” (a term under old statutory scheme now replaced by the concept of “inadmissibility”). This is because the Matter of B test is for making a determination predicated on events that have already transpired, whereas an inadmissibility determination is based on the likelihood of future events transpiring.

Relationship to Naturalization

There is no public charge test for naturalization. At 64 FR 28693, the Field Guidance explains the limited situation in which an alien charged as removable under public charge grounds could face indirect complications related to public charge issues. Please see our short article to learn more [see article].

Conclusion

Public charge is a more pertinent issue in the inadmissibility context than in the deportation context. However, it is still important for immigrants and their sponsors to be cognizant of the public charge deportability provision. If an alien is unsure whether a particular benefit may implicate public charge concerns, he or she should consult with an experienced immigration attorney.

Furthermore, it is worth noting that public charge analysis in the inadmissibility context is much broader than in the removal context. In considering inadmissibility, the USCIS or the Department of State (DOS) is required to analyze the likelihood that an alien will become a public charge in light of the totality of the circumstances. This means that aliens should exercise caution in taking benefits that may implicate public charge concerns with respect to seeking future immigration benefits.

Finally, there have been unsubstantiated rumors that the administration of President Donald Trump is considering broadening the public charge rules. At this time, no changes have been made or proposed by the Trump Administration regarding the definition of public charge. Separately, President Trump's new enforcement priorities [see article] render an alien who is already here illegally and who is receiving public benefits a top removal priority. However, this applies only to aliens who are already in the United States without legal status for other reasons, and is distinct from the inadmissibility and deportability provisions for public charge.

We will address the rumors on site and post any updates if there are moves to change the rules surrounding inadmissibility and/or deportability on public charge grounds.

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  1. See generally National Immigration Project of the National Lawyers Guild. “1 Immigr. Law and Defense § 6:4: Inadmissible at the time of entry or adjustment of status.” Immigration Law & Defense. (March 2017 Update) (retrieved from Westlaw on Mar. 22, 2017)