Disability Rights and DHS’s Proposed Public Charge Exclusion Rules Mark C. Weber DePaul University College of Law NFB Jacobus tenBroek Disability Law Symposium March 28, 2019 (c) Mark C. Weber 2019

Disability, Immigration, and the Public Charge Exclusion History of categorical exclusions for people with disabling conditions Connection to the Eugenics movement Eventual elimination of nearly all categorical exclusions, some other progress on eliminating disability stereotypes in immigration and naturalization processes Retention and continued application of the public charge exclusion (c) Mark C. Weber 2019

The Proposed Regulations Replacing the standard of primarily dependent on cash benefits or institutionalized care with one of receipt of monetizable benefits equaling 15% of FPG for household of one, or non-monetizable benefits for 12 of 36 months (9 of 36 months if both) Including in the determination receipt of nonemergency Medicaid, SNAP, housing subsidies, Medicare Part D, maybe even CHIP Making disability, as well as income less than 125% of FPG, even up to 250% of FPG, into important factors https://www.regulations.gov/docket?D=USCIS-2010-0012 (c) Mark C. Weber 2019

Some Impacts of the Proposed Regulations Vast numbers of immigrants with disabilities will be disqualified from entry, extension of nonimmigrant stay, or adjustment of status Vast numbers of immigrants and families with members who are immigrants will be deterred from obtaining benefits needed for health and self-sufficiency (c) Mark C. Weber 2019

A Few Numbers (source: Kaiser Family Foundation) 550,000 individuals living within the U.S. obtained LPR status in 2017; about 380,000 of them did so through a pathway subject to a public charge determination. 94% of noncitizens who originally entered the U.S. without LPR status have at least one characteristic DHS would weigh negatively in a public charge determination under the proposed rules; 42% have characteristics that DHS could consider heavily weighted negative factors and over 34% have incomes below the 125% FPG threshold. If the proposed rule leads to Medicaid disenrollment rates ranging from 15% to 35% among Medicaid and CHIP enrollees living in a household with a noncitizen, between 2.1 to 4.9 million Medicaid/CHIP enrollees would disenroll. (c) Mark C. Weber 2019

Objections to the Proposed Rules Discrimination against persons with disabilities Inconsistency with previous, more reasonable interpretations of the INA Conflict with other laws and governmental policies Irrationality in many additional respects https://www.regulations.gov/document?D=USCIS-2010-0012-62742 (c) Mark C. Weber 2019

Possible Legal Strategies? Arbitrary and capricious, contrary to the INA, Welfare Reform, ACA? Section 504 – analogy, oddly enough, to Hobby Lobby? Individual or collective litigation? Other ideas? (c) Mark C. Weber 2019