Civil Rights Organizations File Brief to Fight Changes to Public Charge in Foreign Affairs Manual

WASHINGTON, DC — Today, Asian Americans Advancing Justice – Los Angeles (Advancing Justice-LA), LatinoJustice PRLDEF, and Muslim Advocates alongside several organizations, with the law firm of Arnold & Porter Kaye Scholer LLP, filed an amicus brief in support of the City of Baltimore’s lawsuit challenging the Trump administration for its changes to the U.S. Department of State’s Foreign Affairs Manual (“FAM”). The changes include instructions for consular officials to deny visas based on public charge grounds. The brief contends that these changes are racist, based on animosity against racial minorities, and directed at non-white immigrants.

In early 2018, the Department of State updated the FAM to deny a person admission to the U.S.  if they may be considered a public charge. Contrary to its traditional practice, the government can now consider a person’s potential receipt of non-cash benefits, such as health or nutrition assistance, in evaluating whether that person is likely to become a public charge.  

In addition, the changes make an Affidavit of Support, which had long been sufficient to satisfy the public charge test, merely a “positive factor” in the public charge determination. These changes will disproportionately impact communities of color, causing people not to seek and/or to disenroll from vital health or nutrition benefits, and making it more likely for immigrants of color to be denied admission or temporary legal residency.

Historically, the public charge provision has been used to bar immigrants of color from coming to the U.S. in bigger numbers. The FAM update is just the latest in a series of this administration’s draconian changes to immigration policy driven by racial and religious animus that targets and disproportionately harms communities of color.

While changes have taken place in the FAM, there is still no change in how decisions about public charge will be made by immigration officials in the U.S.  

Doreena Wong, Health Access Project Director at Asian Americans Advancing Justice – Los Angeles said: “This expansion of the public charge provision is concerning because of its potential disproportionate impact on communities of color. Not only has it already cast a chilling effect on immigrant families, but it seeks to fundamentally transform our immigration system, shifting away from the long-standing priority of reunifying families from diverse parts of the world to privileging the white and the wealthy.”

Jose Perez, Deputy General Counsel and Legal Director at LatinoJustice PRLDEF said:  “The adopted rule communicates this administration’s continuing government animus against multiple marginalized communities of color including racial and religious groups, and will undermine the equity principles that are foundational to the United States.”

Sirine Shebaya, Interim Legal Director of Muslim Advocates said: “This new expansive interpretation of the public charge provision is yet another Trump Administration policy specifically designed to target immigrants of color and keep them out of the country. This discriminatory policy is a significant departure from prior practice. Beyond the fact that it will foreseeably cause more visa denials, it’s also causing significant harm by deterring immigrants and their communities from using public benefits to obtain even basic necessities like food and medicine for their children. The policy is discriminatory and harmful and should be set aside.”

Upnit K. Bhatti of Arnold & Porter, which represents the amici organizations, said: “This is not the first time this administration’s animus toward minorities has driven harmful policy and changes. This ongoing attack on immigrants and minorities needs to stop. The administration’s unprecedented expansion of the public charge rule will gravely harm communities of color. Children in need of medical care will be uninsured, and family members will be separated.”

A copy of the filing can be found here.