EXCLUDING 'UNDESIRABLE' IMMIGRANTS: PUBLIC CHARGE AS DISABILITY DISCRIMINATION.

• Author: Rosales, Alessandra N.

TABLE OF CONTENTS INTRODUCTION I. PUBLIC CHARGE AND DISABILITY DISCRIMINATION A. History of Public Charge B. Final Public Charge Rule C. Section 504 of the Rehabilitation Act II. THE PUBLIC CHARGE RULE THROUGH A DISABILITY RIGHTS LENS A. Considering the Access/Content Distinction B. Eugenics and Law C. On Social Welfare and Disability D. Public Health Implications CONCLUSION INTRODUCTION

Maria Isabel Bueso, a California resident, immigrated from Guatemala as a child in 2003 for treatment of her rare genetic disease, mucopolysaccharidosis type VI. (1) Doctors had invited her to participate in a clinical trial, and due in part to her participation, the Food and Drug Administration approved a medication that significantly improved the survival rates of individuals with the disease. (2) In August 2019, the United States Citizenship and Immigration Services (USCIS) terminated a program for immigrants like Bueso that granted them "deferred action" while they received lifesaving medical treatment. (3) The government told Bueso that she and her family had to leave within thirty-three days or face deportation to Guatemala. (4) Several members of Congress wrote a letter to Acting Secretary of Homeland Security Kevin McAleenan criticizing USCIS's decision to eliminate medical deferred action. (5) While Bueso has since been granted approval to remain in the United States for two more years, (6) her case highlights the perilous intersection between immigration and disability.

Bueso is one of countless immigrants with a disability. (7) Existing immigration law disparately affects immigrants with disabilities, particularly through the inadmissibility ground known as "public charge." Prior to August 2019, a noncitizen was designated as a public charge if a consular officer or other immigration officer determined that the individual was likely to primarily rely on government support for subsistence. (8) As a public charge, this individual is ineligible for admission into the United States and legal permanent residence. (9) On August 14, 2019, however, the Department of Homeland Security (DHS) published the Inadmissibility on Public Charge Grounds Final Rule (the Final Rule), which further magnified the impact of this law on people with disabilities. (10) This rule concerned the designation of public charge status for individuals seeking adjustment of status, extension of stay, or change of status. (11) Under the Final Rule, the Trump Administration expanded the definition of a public charge to include noncitizens who receive one or more public benefits for more than twelve months within any thirty-six-month period. (12) This expanded definition raised the question of whether the Final Rule violated section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of disability, and if so, to what extent it affected immigrants with disabilities.

Disability issues within immigration law are not often addressed by legal scholarship. (13) Moreover, they have only been fleetingly addressed by the courts, even though some plaintiffs raised Rehabilitation Act claims in their challenges to the Final Rule. (14) With a focus on public charge as a ground of inadmissibility, this Comment seeks to highlight the breadth of the Final Rule's section 504 violations, presenting an analysis of the Final Rule through a disability rights lens. In doing so, it reads the rule as more than mere immigration regulation: in contravention of section 504 of the Rehabilitation Act, the Final Rule effectively denied individuals with disabilities access to public benefits and the liberty to be admitted or remain in the United States. Although the Biden Administration has since retreated from the Final Rule, (15) its implementation (and survival) signals the troubling perpetuity of disability discrimination in immigration law. Part I provides an overview of the public charge ground prior to the 2019 change, the development of the Final Rule from notice-and-comment to nationwide implementation to its demise, and the framework of section 504 of the Rehabilitation Act. Part II assesses the Final Rule from a disability rights standpoint by examining the access/content doctrine, eugenics, and the role of social welfare in the lives of those with disabilities. Part II also identifies public health as a policy concern that supports this Comment's conclusion that the Final Rule brazenly discriminated against immigrants with disabilities.

1. PUBLIC CHARGE AND DISABILITY DISCRIMINATION

   In a radio interview, then Acting USCIS Director Ken Cuccinelli (16) revised the renowned words etched onto the Statue of Liberty from "Give me your tired, [give me] your poor" (17) to "[G]ive me your tired and your poor who can stand on their own two feet and who will not become a public charge." (18) From childhood, Americans are indoctrinated with a rosy view of immigration at Ellis Island, (19) but immigration regulation reflects a much more nuanced story.

   Public charge doctrine, until recently, has not been the subject of public discourse regarding immigration law. This Part traces the historical evolution of the public charge ground of inadmissibility to its culmination in the Final Rule and outlines the Rehabilitation Act. Section I.A introduces the origins of the public charge ground and its amendments by the supreme Court, Congress, and the Board of Immigration Appeals. Section I.B discusses the contours of the Final Rule and subsequent litigation. Section I.C describes section 504 of the Rehabilitation Act.

   1. History of Public Charge

      There are two categories of noncitizens: immigrants and nonimmigrants. (20) Immigrants, or legal permanent residents, may remain and work in the United States on a long-term basis. (21) Nonimmigrants have temporary visas to come as students, tourists, seasonal workers, and the like. (22) To come to the United States, a noncitizen must be eligible for a nonimmigrant or immigrant visa and be admissible.

      According to the Immigration and Nationality Act (INA), "admission" is the lawful entry of a noncitizen into the United States "after inspection and authorization by an immigration officer." (23) The INA enumerates the exclusion grounds that render noncitizens ineligible for admission to the United States unless a waiver applies. (24) The provisions apply to noncitizens outside the United States seeking admission, noncitizens who entered without inspection, (25) and noncitizens within the borders who are applying for permanent residence. (26) Public charge is one of these grounds of inadmissibility. (27)

      Over time, changes in immigration law have been prompted by an aversion to certain kinds of immigrants. Laws regarding public charge shifted from the overt exclusion of immigrants with disabilities to exclusion by proxy. Under the "proxy" scheme, the focus was reliance on government assistance, which indirectly envelops immigrants whose disabilities necessitate costly healthcare and other public benefits. (28) But even so, as long as the immigrant was not primarily dependent on government assistance, they were not deemed to be a public charge--until the Trump Administration began to implement its policies in 2018.

      While public charge doctrine was initially nebulous, Congress and the courts further defined it over time. In the Immigration Act of 1882, Congress enacted "public charge" as an exclusion ground, prohibiting the admission of "any person unable to take care of himself or herself without becoming a public charge." (29) While the statute did not define "public charge," it explicitly excluded "any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge" from admission. (30) This legislation was passed in response to Henderson v. Mayor of New York, (31) in which the Supreme Court held that state regulation of immigration through taxation of immigrants was unconstitutional, (32) leaving states without a direct source with which to fund the cost of immigrants. The 1882 Act also established an "immigrant fund" to provide "for the care of immigrants arriving in the United States," signaling that a noncitizen was not considered a public charge merely for receiving some public assistance. (33)

      In 1907, Congress enacted an immigration statute that designated "paupers" and "professional beggars" as likely to become public charges. (34) The Supreme Court subsequently stated that a noncitizen is likely to become a public charge due to their "permanent" personal characteristics; the conditions of the city in which admission is sought do not affect the public charge determination. (35) In the wake of the enactment of sweeping social welfare legislation in the 1930s, (36) the Board of Immigration Affairs articulated a test to determine whether an individual is a public charge: (1) a noncitizen is charged for services rendered to them under law, thereby creating a cause of action in contract, (2) payment is demanded from the noncitizen, and (3) the noncitizen fails to pay for the charges. (37) The Board also stated that if the noncitizen accepts government services, that "does not in and of itself make the [noncitizen] (38) a public charge." (39) In 1974, however, the Board narrowed the scope of its three-part test, holding that its application would be limited to the determination of whether a noncitizen had become a public charge after admission to the United States. (40)

      Subsequent regulations focused on cash assistance as the identifier for public charges. The Immigration and Naturalization Service (INS) (41) promulgated a final rule in 1987 that classified individuals seeking adjustment of status as public charges if they had received public cash assistance. (42) The INS explained that cash assistance would not include food stamps, public housing, or other noncash benefits. (43) In response to the growth in the undocumented immigrant population in the 1990s...