Earlier this week, acting Director of U.S. Citizenship and Immigration Services Ken Cuccinelli announced that the U.S. Department of Homeland Security will be implementing a new interpretation of a long-standing provision aimed at deporting legal immigrants deemed by immigration officials as “liable to become a public charge.”
Under the new final rule published in the Federal Register on Wednesday, receiving SNAP benefits (a.k.a. food stamps), most forms of Medicaid, Section 8 Housing Assistance and other federal benefits will count as negative factors in an immigration officer’s consideration of applications for visa renewal, legal permanent residency (a.k.a. green card) and naturalization.
Despite DHS’s claim that the new rule is meant to clarify ambiguities under section 212(a)(4) of the Immigration and National Act, the history of the provision’s implementation in U.S. immigration law is fraught with arbitrary interpretation, expansive application and outright discriminatory treatment towards vulnerable immigrant populations.
The public charge provision (also referred to as “liable” or “likely” to become a public charge, or LPC) was first adopted into federal immigration law in 1882, the same year Congress passed the Chinese Exclusion Act, which essentially barred Chinese nationals from entering the U.S.
Under the 1882 Immigration Act, “convicts, lunatics, idiots, or any person unable to take care of himself or herself without becoming a public charge,” was prohibited from entry. In latter revisions to the immigration statute in 1903, 1907, and 1917, the LPC provision was expanded to both block undesirable immigrants at a port of entry, like Ellis Island in New York or Angel Island in San Francisco, and to apply retroactively to immigrants applying for an extension or change in their status.
For decades, historians have documented how, throughout its checkered history, the hallmark of the LPC provision has been its malleability to fit a wide range of individuals and circumstances deemed by immigration officials to be outside the bounds of inclusion in the U.S. nation-state. Using broad interpretive and discretionary powers, immigration officers have relied on racist, classist and sexist stereotypes in their application of the LPC provision.
During the late 19th and early 20th centuries, the LPC rule was disproportionately applied to poor and working-class women. Single mothers, women pregnant outside of wedlock and self-supporting female-headed households were either denied entry or retrospectively deported for lacking a male breadwinner.
Similarly, ethnic, racial and sexual minorities were unduly stigmatized as diseased, mentally unfit or morally deficient under the LPC rule. In one of the most egregious historical examples, Jewish refugees fleeing pogroms during the Russian Civil War and the latter rise of Nazi Germany were denied travel visas and asylum petitions because of their religious identity.
By the mid-1920s, the abuse of the LPC rule had become so widespread that immigration courts became backlogged with cases filed by immigrants and reformers seeking an end to its unjust application. Although the use of the LPC rule continued into the mid-20th century, calls for reform were successful in substantially curtailing its use after the 1930s.
If history is our guide, then we should be wary of the Trump administration’s efforts to revitalize the use of the LPC provision to deport immigrants that are already legally residing in and contributing to the U.S.
Even with its new definitions, the LPC rule still grants wide discretion to immigration officials in determining whether “an alien is likely to become a public charge.” As in the past, the use of the LPC provision will disproportionately burden poor and working-class immigrant households by separating families and placing substantial economic barriers to their integration as vital parts of this “nation of immigrants.”
David-James Gonzales, Ph.D. is a professor of history at Brigham Young University.