US immigration policy cruel long before Trump

People in need wait to receive food from Central Texas Food Bank mobile food pantry in Kyle on Aug. 17. A new immigration policy will make it harder for green card applicants to become permanent residents if they qualify for public benefits such as food stamps. Organizations including Central Texas Food Bank may have to fill in the gap if people grow scared of signing up for food stamps. Eli Imadali/American-Statesman/Tribune News Service

NEW HAVEN, Conn. — A lot of people on left and right alike got angry about the Trump administration’s new “public charge” rule, which would largely bar citizenship to millions of legal immigrants who have accepted certain forms of state assistance.

Certainly the policy seems cruel. Nevertheless, critics are focusing on the wrong target.

If it’s wrong to deny green cards to immigrants because they’re poor, it’s hard to see why it’s right to deny entry to potential immigrants on the same basis. Yet we’ve been doing exactly that in practice for nearly two centuries, and the denial has been codified in federal law since 1882.

The new regulation, which runs to more than 200 pages in the Federal Register, is an interpretation of Section 212(a)(4) of the Immigration and Nationality Act, which provides that no immigrant shall be admitted to the country if he or she is “likely at any time to become a public charge.” This rule, sometimes called the LPC restriction, is the ground most frequently invoked for excluding potential immigrants and visitors.

The administration’s new interpretation holds that a person who has received specified public benefits while in the U.S. fulfills the criterion for being a public charge, and is therefore inadmissible. And under existing law, an inadmissible immigrant, even if a resident, cannot receive a green card.

In other contexts, the courts have allowed the use of the “public charge” provision to deny adjustments to the status even of immigrants already in the country. True, there are limits.

For example, the disqualifying public assistance must have been received by the applicant; it’s irrelevant whether assistance has been provided to members of the applicant’s family.

Similarly, once the applicant has crossed the border, the assertion that he or she is likely to become a public charge cannot be mere speculation.

The administration’s new approach may be ungenerous, but it may also prove to be consistent with the precedents.

And that’s the real problem.

By focusing on the new rule, critics are letting immigration law itself off the hook. The bigger issue is in the LPC restriction itself, which by design, under Democrats and Republicans alike, has long excluded huddled masses yearning to breathe free.

Even should the legal challenge to the regulation succeed, the bigger issue is the LPC restriction itself. As one scholar of immigration law has put it, “a prospective entrant must establish that he or she is and will continue to be a member of a particular socioeconomic class — most definitely not poor or likely to ever become poor — to lawfully migrate to the United States.”

The statute grants a great deal of discretion to both consular officials abroad and immigration officers at home. During the run-up to World War II, the “public charge” rule was notoriously used to refuse entry to Jews seeking to escape the Nazi onslaught. Until fairly recently, the same broad discretion was often used to prevent the entry of gays and lesbians, who were often considered more likely to become public charges. Today, there’s reason to think that the exclusion falls particularly hard on people of color.

Moreover, there’s reason to think that the rule has been applied differently to men and women. The historian Martha Gardner, in her book “The Qualities of a Citizen: Women, Immigration, and Citizenship, 1870-1965,” points out that historically the LPC restriction tended to reflect “a constrained and diminished evaluation of women’s role in the economy.”

In particular, “women arriving during the early 20th century who were alone, pregnant or with children” were “routinely” excluded as LPC — without regard to “their work skills.”

Decades ago, this gendered application of discretion — which some say continues to the present day — ensnared my family. In 1910, my great-grandmother, Addie Hunton, was returning to the country after two years of studying philology at a German university. Accompanying her were her two children (my grandmother and my great-uncle).

Although Addie lived in Brooklyn and was a U.S. citizen, her husband was Canadian — and her passport, in the tradition of the times, was an extension of her husband’s.

The immigration officer looked at her passport and her children and the color of her skin and decided she was a likely public charge. He would hear no argument about her skills.

It made no difference that until she headed to Europe to study, Addie had been gainfully employed in the U.S. The family was detained.

Even today, horror stories about the exercise of discretion under the LPC rule are common. The legal scholar Kevin Johnson tells the story of an elderly Chinese woman who applied for a tourist visa in order to visit her grandchildren in the U.S. before she died. The application was denied on LPC grounds, and she died without seeing her family.

But the potential for arbitrariness and bias in the application of discretion is only one difficulty with the statutory exclusion of those likely to become public charges. The restriction is also inconsistent with the spirit of the bootstrap story we like to tell ourselves, the chance for everyone who lives in the U.S. to climb the ladder of success.

Those who clamor for admission to build better lives for themselves and their families seek to fulfill precisely this dream.

So if you’re angry about the administration’s new rule, it’s not enough to lambaste the president. You should be fighting to change the underlying law.

It’s not evil for a country to prefer immigrants who are able to support themselves. We should always welcome those who bring along specialized skills that we need.

But if we’re going to call ourselves the land of opportunity, we shouldn’t exclude those who we think might have to struggle a bit. Helping others along as they seek to rise is also the American way.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. © 2019 Bloomberg.

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(12) comments

Holmes

Democrats today are saying no one even the president is above the law. So my question is, how come illegal’s are? I’ll wait…. Yes I'm real.

hermit thrush

this is an easy question. it really is the case that on one is against the law. that includes people who come here illegally. they shouldn't have done that. they should face consequences in proportion to what they have done. for many people, however, that doesn't mean they should be sent back.

Holmes -- the real one

ICE Opens Interdimensional Detention Center To Indefinitely Imprison Immigrants Across Infinite Number Of Multiverses

https://www.theonion.com/ice-opens-interdimensional-detention-center-to-indefini-1837476700?utm_source=TheOnion_Daily_RSS&utm_medium=email&utm_campaign=&utm_term=

rockloper

Deport republicans.

Holmes

Trump won 3084 of 3141 counties in the U.S. That's a lot of republicans to deport. The democrats want to confiscate 350 million guns when they can't even deport 15 million illegals. How are they going to deport 55 million republicans?

Gracie02

Who cares how many counties he won? He also lost the popular vote by almost 3 million...that doesn't matter either...he won the electoral vote... And the "Dems want to take away your guns" is just parroting the NRA's comments... Assault rifles...yes...all guns NEVER... As far as illegals, POTUS ran on that position, and won...elections have consequences...

hermit thrush

this thing about the counties is blatant fake news. how does a person fall for a thing like that?

rdsouth

So, what method should we use instead? Should we only rule out applicants with criminal histories? Should we filter out more? And on what basis? Should it be education? Need? Existing employment arrangements? To eliminate any bias, how about just a straight lottery: cap total immigrants per year and every applicant gets a lottery ticket. But to prevent spamming, somehow reduce the odds for applicants from countries that have a lot of lottery winners declining their wins.

Airball55

This is interesting!! Isn't it interesting that over decade after decade of either side rule, we still can't come up with a solution. The system is broke, in this case...not necessarily who is enforcing it. But hey, from what I read on here why would anyone want to come here anyway :)....

Holmes -- the real one

We could weed out everyone -- applicants and current citizens alike -- who can't pass a citizenship exam. But that would deplete the North Country. And then who would take them?

Airball55

Thats not cool. That characterization is something out of the Presidents playbook. Growing up in Potsdam NY and with all my family still in upstate I really don't think your comment is amusing at all. Hard working tax paying families and a pretty darn good set of colleges up here. Speak for yourself

Holmes -- the real one

Airball55 --

Are you aware of just what kind of questions are on the citizenship exam?

You bet we have a lot of smart and well educated people up here, that's true. But there are also a lot of folks who would struggle to name the branches of government much less to answer the other kinds of civics questions any immigrant would face.

The fact is -- what I said is true. Many would not pass the test -- even though they grew up here and paid taxes. That should be an embarrassment to all of us.

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