The following are my full Comments of December 2, 2018 in response to the DHS Proposed Public Charge Rules: PUBLIC CHARGE NOT PUBLIC PARIAH. In the Comments below, I am providing the addresses for you to be able to send your own Comments, and the DHS Docket Number etc. that the federal government agency requires in order to process Comments.
December 2, 2018
BY POSTING TO FEDERAL eRULEMAKING PORTAL
AND BY U.S. MAIL
Federal eRulemaking Portal: www.regulations.gov.
BY U.S. MAIL:
Ms. Samantha Deshommes
Chief, Regulatory Coordination Division
Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security
20 Massachusetts Avenue NW
Washington, DC 20529-2140
Re: DHS Docket No. USCIS-2010-0012. RIN 1615-AA22.
To the Department of Homeland Security:
These Comments concern changes to Public Charge Rules proposed by the DHS. The Department's proposed addition of a "public charge" definition and of a "public benefits" definition are not authorized by Congress and are not the result of experience.
Any interpretation of a statute, whether it is an administrative interpretation like that proposed by the DHS in 83 FR 51114-51296, or by a Court, begins of course with the language of the statute itself. With regard to excluding aliens as "likely at any time to become a public charge" the starting point is paragraph A of subsection 1182(a)(4), which reads in full 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.
As was pointed out in an earlier comment, which is expressly incorporated herein by reference, Congress chose not to give a definition of "public charge" in the statute. Moreover, interpretation of any statute requires a look at the entire statute in which the provision to be interpreted is found. These defects render the proposed rules changes invalid, unlawful, and unauthorized. UNAUTHORIZED AND MISDIRECTED: Comments to DHS Proposed Changes to Public Charge Rules 12.01.18, which to say again, is expressly incorporated herein by reference.
The DHS interpretation in its proposed rules changes is contrary to the intent of Congress, which left the determination of "likely to become a public charge" to be established by the evidence provided to a hearing officer and ultimately to a judge. Congress clearly provided for a determination based on the characteristics of individuals as they actually present themselves, and not determined by detailed 'tests' contrived in advance. Congress simply did not intend for admission into the United States to rest merely on the arithmetical results of arbitrary numbers put into a contrived formula.
That is why Congress did not give a definition of "public charge." The DHS proposes, to the contrary, to define who is a "public charge" before any evidence can be introduced. DHS's proposed definition of a "public charge" excludable from admission to the United States is "an alien who receives one or more public benefits[.]" 83 FR at 51157. The DHS proposes to introduce a previously unknown definition of "public benefits," in turn, "to include a specific list of cash aid and noncash medical care, housing, and food benefit programs." 83 FR at 51158. The "public benefit" proposed rule in particular is set out as proposed 8 CFR § 212.21(a) & (b), 83 FR at 51289-51291.
For nearly a century, Federal case law has required evidence that aliens are "likely to become public charges" before they can lawfully be excluded from entry into the United States on that ground. The definitions of "public charge" and "public benefits" which the DHS proposes to introduce reflect the opposite of the clear intent of Congress. Congress clearly required a case-by-case determination of "likely to become a public charge" within the meaning of Section 1182(a)(4)(A), quoted above, and the Federal Courts have added that this determination must be based on evidence not opinions. The DHS proposals are not supported with so much as an attempt at evidence to support these definitions. The DHS simply proposes these definitions because it wants to, apparently. That is not good enough for them to become law.
Conclusion
The "public charge" and "public benefits" definitions written by DHS do not "clarify" the meaning and application of Section 1182(a)(4)(A) as the DHS says they do, they rewrite it. This the DHS may not do.
Thank you for your consideration.
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