For weeks, 13-year-old Juan (names and details have been changed to protect our clients’ identities) lay in bed, refusing to leave his room, even to eat or to shower. His mother, Maria, was terrified that her son was becoming more and more depressed. Maria and Juan had only recently arrived in Massachusetts after fleeing Juan’s abusive father in Colombia. Maria sought support and counseling services for her son, but, increasingly, Juan was too depressed to leave his room. Finally, a clinician recommended that Maria have Juan evaluated in the emergency room. Maria told her lawyer, “Juan is refusing to be screened by a mobile crisis team, even though he’s very depressed and won’t leave his room. . . . He’s afraid the hospitalization will be too expensive and it will be used against us in our immigration case. What should I do?”
Maria and Juan’s fear is rooted in confusion over recently announced changes in the public charge rule, which is used by immigration officials to determine whether a person can become a legal permanent resident. Advocates for children should make sure they understand not only the specifics of the public charge rule but also the broader climate of fear in which immigrant families are living, so that they can most effectively advocate for their clients and help families fight fear with facts.
Chilling Effects of the Trump Administration’s Immigration Policies
Like Juan and Maria, many families are fearful of accessing needed services for children from schools, social services, and the health care system. The public charge rule change is only one of many sweeping Trump administration changes to federal immigration law and policy that have intimidated, frightened, and confused some of our most vulnerable clients. While Trump’s campaign rhetoric focused on the construction of a border wall between the United States and Mexico, his executive orders and regulatory changes affect deportation, asylum, refugee resettlement, the admission of individuals from certain Muslim-majority countries, and multiple stages of the immigration process. Tragic images from migrant detention facilities proliferate in U.S. media directed at Spanish-speaking viewers. All these factors lead to an environment of general distrust of government and any government-related systems.
A December 2018 survey by the Urban Institute, a nonprofit research organization, captured some of the first formal data on the impacts of the proposed rule change on families accessing public services. According to its analysis, one in seven adults in immigrant families reported that they had avoided participating in public benefits programs over the last year, out of fear that it would harm their chances of obtaining a green card.
Recent data from the Centers for Medicaid and Medicare Services (CMS) indicate that child enrollment in Medicaid and the Children’s Health Insurance Program (CHIP) is declining, and immigration and health care policy experts suspect that the Trump administration’s immigration policies may have affected that decline. CMS estimates that more than 1.1 million children dropped off from Medicaid/ CHIP between December 2017 and June 2019. Historically, Medicaid enrollment increases during economic downturns but does not then shrink in bull markets. A drop in child enrollment is unusual and has occurred in only one year since 2000.
Anecdotally, over the past 18 months, advocates have reported that parents of children with disabilities are considering withdrawing them from special education or even declining to enroll them in school altogether. We have received many calls from immigrant parents fearful of signing forms that allow school districts to seek Medicaid reimbursements for special education services that students receive.
What Is the Public Charge Rule?
Long-standing federal immigration law provides that the federal government may deny a green card application for a U.S. resident who is likely to become dependent on the government for income—a public charge. Until the Trump administration’s proposed changes, the federal government defined public charge narrowly and considered the use of only two types of benefits: cash assistance for income maintenance, like Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF), and institutionalization for long-term care at government expense, like nursing homes. Other non-cash benefits have not historically been considered in making a public charge determination.
On August 14, 2019, the Department of Homeland Security published the new public charge rule, originally set to take effect on October 15, 2019. The new rule sought to expand the list of federal government benefits that count toward public charge status to include Medicaid coverage for adults, public housing, Section 8 housing assistance, and the Supplemental Nutrition Assistance Program (formerly known as food stamps), so that they would all count against applicants. In addition, specific time limits are imposed, such that the definition of a public charge is a person who is likely to need these specified federal benefits for more than 12 months in any future 3-year period.
Many federal programs are not considered, even under the new public charge test, including Medicaid received by children under the age of 21, emergency medical assistance, school lunch programs, food pantries, and disaster relief. All special education services provided under the Individuals with Disabilities Education Act (IDEA) also are explicitly excluded from consideration.
Similarly, many immigrants are exempt from the public charge test. It applies only to U.S. residents who are applying for a green card. Family members’ receipt of benefits also does not count against the applicant.
Prior to the October 15, 2019, effective date, immigration advocates across the country filed legal challenges, and injunctions issued by multiple federal courts postponed implementation indefinitely, as the cases make their way through the court system.
How This May Affect Juvenile Attorneys’ Representation
While attorneys may not ask, or want to ask, the immigration status of their child client, they should be aware of the concerns of this vulnerable community. Access to social services is often critical to a positive outcome in a juvenile court matter. It is important that attorneys inform themselves to help allay their clients’ fears and fight rhetoric with fact. Here are some important pointers:
- The public charge test is not part of the U.S. citizenship application. Clients with green cards are not at risk. It’s also not a test given to determine deportation decisions. A U.S. resident must apply for a green card before immigration officials would apply a public charge test.
- Although the fear of accessing special education services and health care is very real, the threat is not. The changes in the public charge rule specifically exempt IDEA services and Medicaid for children under the age 21. Anyone—with or without a green card—can avail themselves of the special education and health care services to which they are entitled.
- Right now (as of December 2019), the proposed rule change has been enjoined: Health care, nutrition, and housing benefits cannot be used to deny a green card to an applicant on the basis of public charge status. The public charge rule as it is currently formulated applies only to benefits like SSI, TANF, and institutionalization for long-term care.
- If the proposed public charge rule does go into effect, non-cash benefits used before the effective date cannot be considered. The effective date will not be retroactive.
Sadly, the data suggest that the anti-immigrant rhetoric of the Trump administration has already affected the access of families to critical social services. Our work as advocates for children and families is to remain informed and educate our clients so that kids get the care that they need and remain entitled to under the law.