The following are my full Comments of December 3, 2018 in response to the DHS Proposed Public Charge Rules: PENALIZING THE DISABLED, monetizing PREJUDICE. 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 3, 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 previously filed Comments, UNAUTHORIZED AND MISDIRECTED filed on 12.01.18, are expressly incorporated herein by reference.
DHS's proposal to so-called "monetize" the receipt of public benefits and in particular the receipt of SSI or Social Security Insurance benefits is an attempt to penalize the disabled and put a money value on prejudice.
The DHS rationalizes that the Department of Health and Human Services "in some respects" equated "dependence" with the receipt of public benefits. Specifically, the DHS claims that HHS has put a money value on, or "monetized," indicators of a "lack [of] self-sufficiency and [so] be dependent on the public for support." 83 FR at 51164. That is not true.
The HHS did not say that.
Further, the DHS changes in this regard depend themselves on a claim that "it is possible and likely probable" that putting a money value on receiving many kinds of public benefits will successfully predict a "public charge" that should be excluded from the United States. The DHS claim fails not only because it is disingenuous, equating "possible" with "likely probable" and in the same sentence no less, but because it has no evidentiary support. Certainly the DHS provided no evidentiary support for this assertion, as it was required to do. Rather than providing evidence, the DHS stated that the Department of Health and Human Services is responsible for a claim that HHS has yet to make.
Further, in making this claim and in writing these proposals the DHS has neglected to provide any definition of what the new changes mean by making benefits "monetizable." You and I may think that we know what "monetizable" probably means, but the DHS has not told us what the DHS has in mind with that term over all. There is no evidence to support that standard, and the DHS is in addition not authorized to declare that an excludable "public charge" includes a person who has received undefined "monetizable" benefits as a general presumption of law.
The proposed rule change is 8 CFR 212.21(b), 83 FR at 51289-51291. But to say again there is no overall definition either in DHS's own rationale or in the rules changes proposed by the DHS of "monetizable," no guidance to or reflection of proper interpretation of this newly invented federal regulatory word. The changes proposed by DHS fail for these reasons alone.
The DHS proposes to exclude people who receive SSI benefits by "monetizing" them in particular. "According to one analysis," says the DHS, "SSI expenditures totaled approximately $54.7 billion in fiscal year 2017, and represented one of the largest Federal expenditures for low-income people." 83 FR at 51166. Carried to its logical conclusion, this would be a reason to remove everyone who receives or has received SSI regardless of where they were born.
Once again the DHS does not tell the full story. SSI benefits represented 1.4% of the Federal Budget in fiscal year 2012. "Introduction to the Supplemental Security Income (SSI) Program" at 5 (Center on Budget and Policy Priorities, Revised Feb. 27, 2014). There is no reason to believe that the complete data recited in the "one analysis" relied on by the DHS for 2017 would be any different. SSI was 0.33% of Gross Domestic Product in the years 2011-2012 and "expected to decline to 0.23 percent of GDP in 2037." Id.
Finally and most important of all, 86% of SSI benefits are paid to the disabled. Those were the numbers as of December 2012. Id. at 4. There is little reason to expect the numbers to be any different in December 2018.
It is irrational and insupportable to exclude disabled people by claiming that disabled people are "likely to become a public charge." One human illustration will suffice here. The DHS proposals would have excluded Dr. Stephen Hawking, perhaps the greatest theoretical physicist of his generation, because he was in a wheelchair and spoke with the aid of a machine.
Conclusion
Courts are reasonably unlikely to accept this proposed definition of "likely to become a public charge" because of "monetized" "public benefits" including but not limited to SSI. Judges are unlikely to accept this for many reasons: These definitions are not authorized, they are not supported either by evidence or experience, and they rely on putting words in other people's mouths that they did not say.
Moreover, the reliance on SSI benefits in particular to exclude people from admission to the United States is an illustration of how unconscionable the DHS's announced conception of "monetizable public benefits means likely to become a public charge" really is: It is nothing less than an attempt to penalize the disabled and to put a profit on prejudice.
Thank you for your consideration.
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