Public Charge Grounds of Inadmissibility and Deportability: Legal Overview
Released: 2017-02-06T00:00:00

C ongress has long sought to ensure that aliens immigrating to the United States are able to support themselves. The country's first general immigration law, enacted in 1882, excluded aliens who were deemed "likely to become a public charge" after they came to the United States. A little over 20 years later, in 1903, Congress made aliens who had migrated to the United States deportable if they became public charges within two years after entry (subsequently increased to five years). Both provisions have been modified somewhat over the years, but remain part of the Immigration and Nationality Act (INA). Congress has also enacted other provisions designed to promote the "national policy" that "aliens within the Nation's borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations." Key among these provisions is the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, which generally restricts noncitizens' eligibility for public benefits. The public charge grounds are of recurring interest to Members of Congress because of questions about whether aliens who receive various forms of public assistance are inadmissible or deportable on public charge grounds.

This report provides an overview of the public charge grounds of inadmissibility and deportability. In particular, it describes the statutory basis for the public charge grounds; seminal administrative and judicial decisions construing the meaning of public charge ; and regulations and other guidance promulgated by executive agencies after the enactment of PRWORA to address questions about whether aliens who receive public benefits that they are permitted to receive under PRWORA could potentially be subject to removal on public charge grounds. The report concludes by discussing why an alien's previous or present receipt of public benefits, in itself, has generally not sufficed to result in the alien being found to be removable.

The Immigration and Nationality Act

Since 1903, the INA has contained two separate provisions addressing the public charge grounds. One provision, currently codified in Section 212 of the INA, addresses the public charge grounds of inadmissibility (formerly, excludability) and specifies that "[a]ny alien who ... is likely at any time to become a public charge is inadmissible." This provision generally applies to

aliens seeking to obtain visas or admission at ports of entry; aliens within the United States who seek to adjust their status to that of lawful permanent resident (LPR); and aliens who entered the United States without inspection.

If such aliens are found to be inadmissible on public charge grounds, they are, respectively, barred from entering the United States, denied adjustment of status, or subject to removal from the country.

Another provision, currently codified in Section 237 of the INA, addresses the public charge ground of deportability and specifies that "[a]ny 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 provision applies to LPRs and other aliens admitted to the United States.

However, while the INA provides that an alien may be inadmissible or deportable on public charge grounds, it does not define what it means for an alien to be a public charge. Such determinations were historically made using certain tests developed by the case law, discussed below. Then, in 1996, Congress amended the INA provisions regarding the public charge ground of inadmissibility to require that consular and immigration officers take certain factors "into account" when determining whether aliens are inadmissible or ineligible for adjustment of status on public charge grounds. These factors include, "at a minimum," the alien's age; health; family status; assets, resources, and financial status; and education and skills. In addition, the 1996 amendments also authorize consular and immigration officers to consider any affidavit of support furnished on behalf of an alien and provide that certain family-sponsored and employment-based immigrants are inadmissible if they do not have the requisite affidavit of support.

No similar amendments have been made as to the public charge ground of deportability , which is still assessed based upon a three-part test developed by the case law, discussed below. It is important to note, however, that public charge has been construed more narrowly for purposes of the grounds of deportability than it has been construed for purposes of the grounds of inadmissibility, in part, due to the differences between deportation and exclusion. Because the "deportation statute dislodges an established residence" in the United States, it "must be strictly construed." The same is not true with the INA's provisions regarding inadmissibility.

Early Administrative and Judicial Decisions

Given this general lack of statutory guidance, the executive and judicial branches initially construed the term public charge in adjudicating cases involving individual aliens. Immigration officers would consider certain factors in determining whether particular aliens were inadmissible or deportable on public charge grounds. If the alien appealed, the determinations of these officers were subject to review by the Board of Immigration Appeals (BIA or Board), the highest administrative body for interpreting and applying immigration law. Then, if they were appealed, the BIA's decisions were subject to review by the federal courts. Numerous decisions, dating back to at least 1903, address the applicability of the public charge grounds to particular aliens. However, two BIA decisions, in particular, helped establish what it means for an alien to be a public charge.

First, in its 1948 decision in Matter of B— , the BIA established the prevailing test for determining whether an alien is deportable on public charge grounds. There, a majority of the Board granted the INS's motion to withdraw the order and warrant of deportation and dismiss removal proceedings against an alien who had been committed by the courts to a state hospital. In so doing, the BIA articulated a three-part test for determining whether an alien is deportable on public charge grounds that, it said, had been "implicit" in prior judicial decisions and "applied administratively over a long period of time." For an alien to be deportable as a public charge under this test:

(1) The State or other governing body must, by appropriate law, impose a charge for the services rendered to the alien ....

(2) The authorities must make demand for payment of the charges upon those persons made liable under State law.

(3) [T]here must be a failure to pay for the charges.

Applying this test to the alien in question, the BIA found that the alien could not be deemed a public charge because the Illinois statute governing commitment at the state hospital provided that hospital residents were entitled to receive free maintenance, care, and treatment. Residents were only legally liable for their clothing, transportation, and other incidental expenses, which the record "clearly show[ed]" that the alien's sister had paid. In its decision, the Board also emphasized that "[t]he fact that the State or municipality pays for the services accepted by the alien is not, ... by itself, the test of whether the alien has become a public charge."

Subsequently, in its 1974 decision in Matter of Harutunian , the BIA reaffirmed that a "totality of the circumstances" test—as opposed to the three-part test of Matter of B — applies in determining when an alien is inadmissible on public charge grounds. In Harutunian , the Board affirmed immigration officials' determination that a 70-year-old alien who had relied on state "old-age assistance benefits" for support was ineligible for adjustment of status on public charge grounds. The alien had sought to overturn this decision by citing the precedent of Matter of B— , since California did not require repayment of old-age assistance benefits of the type the alien received. However, the BIA rejected this argument, primarily because it construed public charge as having a different meaning in Section 212 of the INA than it does in Section 237. In support of this conclusion, the Board first noted the differences between deportation and exclusion. In particular, the Board noted that deportation "dislodges an established residence" in the United States, while aliens outside the United States generally have no constitutional right to enter the country. Thus, it concluded that the grounds of deportability must be more "strictly construed" than the grounds of inadmissibility. The Board also noted that the legislative history of the public charge ground of inadmissibility supported the view that Congress intended "elements" such as age, financial status, and family support be considered in determining whether an alien is a public charge. The Board further emphasized that administrative authorities had historically taken the view that the alien's physical and mental condition, as well as the alien's economic circumstances, were to be considered in determining whether the alien is inadmissible on public charge grounds. In addition, the BIA viewed the three-part test of Matter of B — as inappropriate in determining inadmissibility, since the public charge ground of inadmissibility is concerned with whether the alien is "likely to become a public charge at some time in the future, a prediction which necessarily precludes the element of reimbursement."

Applying this "totality of the circumstances" test to the alien in question, the BIA found in Harutunian that immigration officials had properly determined that the alien was ineligible for adjustment of status on public charge grounds. The alien had been on welfare since her arrival in the United States, and she was receiving such assistance at the time she applied for adjustment of status. In addition, the alien was aged, unskilled, uneducated, and without family or other support. In light of these circumstances, the Board concluded that the alien could be deemed a public charge, "even though the state from which she will receive old age assistance [had not sought and] may not permit reimbursement."

PRWORA and Resulting Guidance

The enactment of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 prompted the then Immigration and Naturalization Service (INS) to issue guidance defining public charge and describing the application of the public charge grounds. PRWORA is best known for generally barring noncitizens who do not fall within PRWORA's definition of "qualifed aliens" from receiving federal, state, and local "public benefits" and for significantly restricting the receipt of "federal means-tested public benefits" by qualified aliens. However, even with these restrictions, noncitizens may receive certain public benefits under PRWORA. For example, PRWORA expressly exempts specified benefits—including emergency medical assistance and certain disaster relief—from its general prohibition upon the provision of federal, state, and local public benefits to aliens who are not qualified aliens. PRWORA also exempts specified categories of qualified aliens—including refugees, asylees, and certain victims of domestic violence—from the five-year bar upon their receipt of federal means-tested public benefits. Because PRWORA permits noncitizens to receive some public benefits, aliens and commentators have raised questions about whether aliens who take advantage of such benefits could potentially be found to be removable as a result of doing so. In 1999, the INS responded to these questions by proposing regulations and issuing a field guide defining public charge , and describing how immigration officials viewed receipt of public benefits when making public charge determinations.

The proposed regulations would have defined public charge , for purposes of both the grounds of inadmissibility and the grounds of deportability, to mean:

an alien who has become primarily dependent on the Government for subsistence as demonstrated by either: (i) [t]he receipt of public cash assistance for income maintenance purposes, or (ii) [i]nstitutionalization for long-term care at Government expense (other than imprisonment for conviction of a crime).

Government would have referred to any federal, state, or local entity. Public cash assistance for income maintenance , in turn, would have been defined to include, but not be limited to, Supplemental Security Income (SSI) and, with certain exceptions, Temporary Assistance for Needy Families (TANF). Forms of cash benefits "not intended for income maintenance" would have been expressly excluded from consideration in public charge determinations (e.g., the Low Income Home Energy Assistance Program (LIHEAP), Child Care and Development Block Grant Program (CCDBGP), food stamp benefits issued in cash). Cash benefits that had been "earned" would also have been excluded, including benefits under Title II of the Social Security Act, government pension benefits, and veteran's benefits.

The proposed regulation would also have spelled out the role that receipt of public cash assistance for income maintenance plays in determining whether an alien is inadmissible or deportable on public charge grounds. As to inadmissibility , the rule would have noted that Section 212 of the INA requires consular and immigration officers to consider, "'at a minimum, [the alien's] age, health, family status, assets, resources, financial status, education, and skills in making a decision on whether [the alien is] likely to become a public charge." It would also have noted that public charge determinations are based on the "totality of the circumstances" and "[n]o single factor," other than the lack of any required affidavit of support, is controlling, including past or current receipt of public cash assistance. As to deportability , the rule would have specified that aliens are generally not deportable on public charge grounds unless the INS shows that

1. the government entity that provided, or is providing, public cash assistance for income maintenance, or the costs of institutionalization for long-term care, has a legal right to seek repayment of those benefits; 2. that entity demanded repayment of the benefit within five years of the alien's entry to the United States; 3. the alien or any other party obligated to repay the benefit failed to do so; 4. there is a final administrative or court judgment requiring the alien or another party to repay the benefit; and 5. the benefit-granting agency, or other applicable government entity, has taken "all actions necessary to enforce the judgment," including "all collections actions."

The INS never finalized these regulations. However, at the same time it issued the proposed regulations, the INS also issued a field guide on inadmissibility and deportability on public charge grounds that incorporated the definition of public charge and other guidance provided in the proposed regulations. Commonly referred to as the "Pearson memorandum," after its author, this field guidance has continued to be cited as an authoritative source on the public charge grounds of inadmissibility and deportability. Similar guidance appears in other sources, most notably the State Department's Foreign Affairs Manual, discussed below.

Current Regulations and Other Guidance

The public charge grounds are currently discussed in the regulations of both the Departments of Homeland Security (DHS) and State (DOS), as well as in DOS's Foreign Affairs Manual. The DOS regulations address only the grounds of inadmissibility, since consular officers are responsible for the issuance of visas to aliens outside the United States, but generally play no role in determining whether aliens within the United States are deportable. DHS officials, in contrast, determine whether aliens arriving at U.S. ports of entry are to be admitted; whether applications for adjustment of status are to be granted; and whether aliens within the United States are to be removed. Thus, the DHS regulations address both inadmissibility and deportability.

DHS Regulations and Guidance

The INS never finalized the proposed regulations regarding the public charge grounds, discussed above, and DHS has not proposed or promulgated similar regulations. Instead, the INS and, later, DHS promulgated specific regulations regarding the "special rules" used in determining whether certain applicants for adjustment of status are public charges. For example, DHS regulations currently provide that "special agricultural workers" who meet certain requirements are subject to the public charge grounds, but may not be excluded if they have a "consistent employment history" which shows the aliens' ability to support themselves and their families. The regulations further provide that "[p]ast acceptance of public cash assistance within a history of consistent employment will enter into" public charge determinations for special agricultural workers, with "the length of time an applicant has received [such] assistance" being viewed as a "significant factor." However, the weight given to the acceptance of public cash assistance is expressly said to "depend on many factors," and the overall analysis is "prospective in that [immigration officials] shall determine, based on the applicant's history, whether he or she is likely to become a public charge." In other words, pursuant to these regulations, prior receipt of public cash assistance would not necessarily result in an alien being found ineligible for adjustment of status if other factors suggest that the alien is unlikely to become a public charge in the future . There are similar "special rules" for other aliens seeking adjustment of status.

DHS regulations are currently silent as to the public charge grounds of deportability.

The Pearson memorandum has apparently continued to guide DHS's consideration of public charge determinations. The U.S. Citizenship and Immigration Service's (USCIS's) 2011 "fact sheet" on the public charge grounds, for example, defines public charge in the same way as the Pearson memorandum and expressly references the Pearson memorandum. As of February 4, 2017, this fact sheet is publicly available on the DHS website.

State Department Regulations and Guidance

The current DOS regulations, in contrast, address the public charge grounds of inadmissibility more broadly than the DHS regulations do. The DOS regulations emphasize the role that the alien's "circumstances" play in determining whether an alien is inadmissible, in part, by specifying that:

[a]ny determination that an alien is ineligible [on public charge] grounds must be predicated upon circumstances indicating that, notwithstanding any affidavit of support that may have been filed on the alien's behalf, the alien is likely to become a public charge after admission, or, if applicable, that the alien has failed to fulfill the affidavit of support requirement ....

Consular officers are expressly authorized to issue visas to aliens subject to the affidavit of support requirement, noted above, who "giv[e] ... a bond or undertaking in accordance with INA 213 and INA 221(g)," provided that the officer is satisfied that the giving of such bond or undertaking removes the likelihood that the alien will become a public charge, and the alien is otherwise eligible for a visa. However, consular officers are also required to presume that aliens not subject to the affidavit of support requirement who are relying solely on personal income to establish that they are not likely to become a public charge are ineligible for a visa if they do not demonstrate "an annual income above the federal poverty line" and are without "other adequate financial resources."

The DOS guidance in the Foreign Affairs Manual (FAM) largely parallels that in the 1999 INS proposed regulations and the Pearson memorandum. However, the FAM expressly characterizes the types of public cash assistance for income maintenance considered in public charge determinations as "means tested benefits." The FAM also defines institutionalization for long-term care , which is not defined in the Pearson memorandum, as "care for an indefinite period of time for mental or other health reasons, rather than temporary rehabilitative or recuperative care even if such rehabilitation or recuperation may last weeks or months." Overall, though, like the Pearson memorandum, the FAM emphasizes that public charge determinations are to be made based upon the "totality of the circumstances," considering the factors specified in the INA (e.g., age, health), as well as "any other factors thought relevant by an officer in a specific case." Past or current receipt of cash benefits for income maintenance or institutionalization at public expense "may be factored into" the determination when it constituted the alien's primary means of subsistence. However, under the FAM, "[a] finding of inadmissibility [on public charge grounds] cannot be based solely on the prior receipt of public benefits," or on institutionalization at public expense.

Public Benefits and the Public Charge Grounds

Collectively, the various sources addressing the meaning of public charge suggest that an alien's receipt of public benefits, per se, has historically been unlikely to result in the alien being deemed removable on public charge grounds. As previously noted, the INA does not define public charge , or link the public charge grounds of inadmissibility and deportability with the receipt of public benefits. DHS and DOS regulations are also silent as to the definition of public charge and the role that receipt of public benefits may play in public charge determinations. Other guidance from DHS and DOS does link the INA's public charge grounds with public benefits, in part, by defining public charge in such a way as potentially to encompass aliens who receive certain public benefits (i.e., SSI; certain TANF assistance; state and local cash assistance for income maintenance). However, this guidance also indicates that prior or current receipt of public benefits, in itself, has generally not sufficed for an alien to be found removable on public charge grounds. This guidance emphasizes that determinations as to admissibility involve projections regarding whether the alien is "likely to become a public charge" in the future that are based on the totality of the circumstances. These circumstances include, but are not limited to, prior receipt of benefits. The guidance similarly emphasizes that determinations as to deportability are made by applying a three-part test, previously discussed, which considers whether payment for any government-provided assistance was legally required, was demanded, and could be made.

The case law interpreting and applying the public charge grounds similarly suggests that receipt of certain public benefits could result in a determination that an alien is inadmissible or deportable on public charge grounds, if certain other conditions are met. However, these cases also illustrate that prior receipt of public benefits, in itself, has not necessarily resulted in a determination that an alien is a public charge. For example, in Matter of A— , the BIA sustained an alien's appeal of a decision finding her ineligible for adjustment of status on public charge grounds. The INS district director had determined that the alien was ineligible because the alien's family had received "public cash assistance" for nearly four years, and neither the alien nor her spouse had worked for four years prior to filing the application for adjustment of status. The district director thus viewed the alien as "unable to support herself and her family without public assistance." The Board, however, disagreed, noting that the alien was "young" and had no "physical or mental defect which might affect her earning capacity." It also noted that the alien had recently begun working, and that during the time when she was absent from the workforce, she had been caring for her children.

Likewise, in Matter of T— , the BIA sustained the appeal of a mother and child who had been excluded on public charge grounds after their husband/father was excluded for having committed a crime involving moral turpitude. The mother and son sought permanent residence in the United States independent of the father, but were denied. In reversing this denial, the BIA noted that the mother was "quite capable of earning her own livelihood independent of her husband," and the child had training in a field which represented "a wide field of employment for this country." Prior or current receipt of public benefits was not at issue in this case. However, the Board's focus on the aliens' ability to earn a living, even without the contributions of the husband/father, is illustrative, and recurs in cases where aliens did receive public benefits (e.g., "welfare services," food stamps, "public assistance," Aid to Families with Dependent Children (AFDC), Medi-Cal).

Similar conclusions have been reached in the cases construing and applying the public charge grounds of deportability. As Matter of B — illustrates, receipt of public assistance has been merely one factor in determining deportability. There must also be (1) a legal obligation to repay that assistance; (2) a demand for repayment; and (3) a failure to repay the assistance. Where there is no legal obligation to repay the assistance, the alien has not been found deportable on public charge grounds. This was the case in Matter of B— , where Illinois law provided that residents at the state hospital were entitled to receive free maintenance, care, and treatment. In other cases, the government authorities did not request repayment, or the alien (or another responsible party) had the ability to pay. Thus, in Matter of P— , the BIA terminated removal proceedings against an alien, in part, because no demand for payment was made upon the alien or his relatives, and "it appears that the respondent had property" which could have been used for making payment had payment been demanded. The situation was the same in Matter of C— , because no demand for repayment of the assistance provided was made by the state within five years of the alien's last entry, and her husband had "some ability to pay." It should also be noted that, in making determinations regarding aliens' deportability on public charge grounds, only causes that pre-date their entry are considered. Causes which the alien can "affirmatively show" developed subsequent to entry do not factor into public charge determinations.

Conclusion

Congressional interest in the public charge grounds of inadmissibility and deportability seems likely to persist, in part, because of the interplay between the provisions of the INA providing for aliens' removability on public charge grounds and other provisions of immigration law that permit noncitizens to receive certain benefits. On the one hand, Congress has provided that aliens may be excluded or deported if they are likely to become, or have become, a public charge , a term which the executive branch has construed to mean that they are primarily dependent on the government for subsistence. On the other hand, Congress has also provided that certain public benefits (e.g., certain disaster relief) are exempt from PRWORA's restrictions upon the provision of federal, state, or local public benefits to aliens who are not qualified aliens. These two provisions could be seen to be reconcilable, especially if one focuses upon whether specific programs "count" as public benefits, or for purposes of public charge determinations. However, the overall picture may raise questions about how and why noncitizens can receive benefits without being subject to removal.