The Trump administration’s new “public charge” rule will force immigrants with disabilities to choose between receiving health care and staying in the U.S., advocates warn — and it’ll favor wealthy, able-bodied immigrants instead.
Issued this week and scheduled to go into effect on Oct. 15, the rule broadly intends to deny a visa or green card to immigrants who may one day rely on government assistance to pay for food, housing, or health care.
It’ll do that by requiring immigration officers reviewing green card applications to assess how much money in public benefits the applicant has used, and identify people who are “more likely than not” to rely on public assistance once they become a permanent resident.
Consequently, immigration experts warn that immigrants working and living in the country today might feel pressured to drop their Medicaid services — or those of a family member — so they can qualify for a green card and stay in the United States. At least 4 million non-citizens rely on Medicaid, according to estimates from the Migration Policy Institute, although it’s unclear how many of those recipients are disabled. (In general, the vast majority of people using public health insurance are either children, disabled or elderly.)
“People with disabilities will be particularly impacted,” Jackie Vimo, an economic policy analyst at the National Immigration Law Center, said, adding that Medicaid is the largest insurer in the U.S. for long-term support services. “For many people, Medicaid is the only source [of assistance] for community living support.”
United States Citizenship and Immigration Services did not respond to a VICE News request for comment by press time.
The federal health care program is vital for people with disabilities who require insurance and long-term services, like an in-home nursing attendant. It also lowers the cost of buying wheelchairs and other medical equipment, services that often aren’t covered by private insurance plans and can be prohibitively expensive for people paying out of pocket. Before this rule, immigrants on Medicaid were only considered a “public charge” if it was used to pay for institutional, long-term care.
And, even if an immigrant with disabilities makes the difficult decision to forgo Medicaid, they could still be penalized for a myriad of other new qualifications.
Under the new rule, immigration officers will also determine an applicant’s likelihood of relying on the government for income support based on a broader set of factors, like their age, income, assets, education, and family size.
Vimo says that immigrants with disabilities will “get double penalized” when immigration officials use all of these separate metrics to determine an applicant’s citizenship status, since people with disabilities are twice as likely to live in poverty as someone without any.
“The income test itself is going to disproportionately impact people with disabilities,” Vimo said. “One reason is that they’ll earn less, and another is higher cost of living –– that includes costs for accessible housing and transportation that people without disabilities don’t have to face. That’s just income.”
People living with disabilities also face higher barriers to finding stable housing and employment: more than half of the nearly 30,000 housing discrimination complaints filed in 2016 were disability cases. And unemployment rates for people with disabilities are “drastically higher” than those without, Vimo said.
“Just having a disability — it bleeds through everything,” says Karlo Ng, a supervising attorney at the National Housing Law Project.
Ken Cuccinelli, the acting director of U.S. Citizenship and Immigration Services, has repeatedly emphasized that the public charge has a century-old history and dates back to the 1882 Immigration Act. And the Trump administration said in the more than 800-page rule that it’s “not the effect of this rule to find a person a public charge solely based on his or her disability.”
But the 1882 law, as well as court decisions cited in the rule, did just that.
“While it appears like race and gender-neutral language, in practice, over time, the ‘likely to become a public charge’ rule was disproportionately applied, particularly to women,” Katherine Benton-Cohen, an associate professor of history at Georgetown University, told VICE News.
“What happened is that because ‘likely to become a public charge’ was not actually defined in the law, it was very subject to the whim of both administrators with the Federal Immigration Service in Washington and to the subjectivity of agents on the ground in places like Ellis Island and, later on, the U.S.-Mexico border,” she said.
In establishing precedent for a more expansive “public charge” rule, the Trump administration cited century-old court decisions that kept disabled people out of the country.
One citation includes a case that denied three people admission into the U.S. due to their “poor appearance,” speech impediment and small stature. Another is a case in which a 60-year-old man was excluded from the country over an amputated leg, “even though the man had adult children who were able and willing to support him,” according to the citation.
“These are eugenics-era cases,” said Samuel Bagenstos, a law professor at the University of Michigan specializing in disability rights and regulations, said of the citations. “There’s a real ugliness to it.”
The public charge laws have also been used to discriminate on race.
“The object was, in fact, to restrict the number of Jews, as well as to restrict other groups. ‘LPC’ was used against Mexicans as well as Eastern European Jews and Italians,” said Alan Kraut, a history professor at American University. “It’s a convenient way of dumping people across the border.
Advocacy groups like The Arc, a civil rights organization advocating for people with intellectual and developmental disabilities, have said the rule is discriminatory since it considers people without chronic health conditions and disabilities to a “positive factor.”
“In all, it’s just a throwback, essentially, to undervaluing people with intellectual disabilities,” said Molly Burgdorf, the director of rights policy at The Arc.
And last year, one in seven adults in immigrant families reported they were avoiding non-cash services like Medicaid because they wanted a green card one day, according to the Urban Institute.
That’s in part why 13 states filed a lawsuit to block the rule from taking effect in federal court Wednesday. San Francisco and Santa Clara County also sued the Trump administration, arguing that wealthier immigrants were the only people who would benefit from the new rule.
“Because you need help at some point doesn’t mean that you shouldn’t be a part of this great nation,” Burgdorf said.
Cover: President Donald Trump speaks during campaign MAGA rally at Southern New Hampshire University Arena, in Manchester, New Hampshire, United States on August 15, 2019. (Photo by Lev Radin/Anadolu Agency/Getty Images)