Immigration and K-12 Education — Revised Public Charge Rule

State of California, et al. v. U.S. Department of Homeland Security, et al. Case No. 19-17213 – Federal Court of Appeals, Ninth Circuit

MEMBER(S) INVOLVED: Filed on behalf of all California school districts and county offices of education

IMPORTANCE OF STATEWIDE ISSUE:

The revised public charge rule may deter families from seeking assistances under affected programs (SNAP, Medicaid, housing vouchers, etc.) and under programs that are not directly affected, out of fear or misinformation, to the detriment of K-12 students. This would place an additional burden on schools, as children of immigrant families potentially become increasingly reliant on school-based health, nutrition, and other services.

SUMMARY OF THE CASE:

Historically, the public charge rule requires immigration officials to examine whether a noncitizen is “primarily dependent” on the government for subsistence when reviewing an application seeking an extension of stay, change of visa category, or lawful permanent resident status. In 2019, the public charge rule was revised to require immigration officials to consider, as a negatively weighted factor, the use of cash-based assistance programs as well as a wide variety of federal non-cash-based subsidies, including subsidies that an immigrant may be legally eligible to receive, such as Medicaid, SNAP/food stamps, Section 8 housing, etc. The revised public charge rule could impact immigration-related decisions for non-citizens receiving such subsidies and/or act as a strong deterrent for non-citizens who may want to apply for such subsidies in the first place. This could place an additional burden on schools, as children of immigrant families become increasingly reliant on school-based health, nutrition, and other services to avoid using federal programs.

On August 16, 2019, California, Maine, Pennsylvania, Oregon, and the District of Columbia filed suit against the U.S. Department of Homeland Security, among others, challenging the expanded definition set forth in the public charge rule. Plaintiffs sought a declaratory judgment proclaiming the revised rule unlawful under the Administrative Procedure Act and the U.S. Constitution’s equal protection guarantee. The District Court for the Northern District of California issued a preliminary injunction prohibiting implementation of the new public charge rule.

The Trump Administration appealed. On January 23, 2020, CSBA and the ELA filed an amicus brief before the Ninth Circuit Court of Appeals, focused on the impact the revised public charge rule is likely to have on public education in California.

Multiple similar lawsuits were filed in district courts throughout the country, and multiple cases were consolidated on appeal before the Ninth Circuit Court of Appeals. On December 2, 2020, the Ninth Circuit affirmed lower court orders barring the Department of Homeland Security (“DHS”) from enforcing the revised public charge rule in several states, including California, until the validity of the rule is determined.

On February 2, 2021, President Joe Biden issued Executive Order 14012, which ordered review of agency actions on the public charge rule. On March 15, 2021, United States Citizenship and Immigration Services (“USCIS”) published a final rule that removed the challenged 2019 public charge regulations from the Federal Register. These changes, which reinstated the previous USCIS’s 1999 field guidance, went into effect on March 9, 2021, after the government informed the Supreme Court that it will no longer defend the revised 2019 public charge rule issued by DHS under the Trump Administration. The Supreme Court subsequently dismissed the case.

CURRENT STATUS AND/OR OUTCOME:

Following dismissal by the Supreme Court, the State of Arizona and 12 other states moved to intervene and petition the Supreme Court to hear the matter. On April 8, 2021, the Ninth Circuit Court of Appeals denied the motions to intervene. The proposed intervening states subsequently petitioned the Supreme Court for certiorari on June 18, 2021, in an effort to overturn the Ninth Circuit’s denial of their motions to intervene. If certiorari is denied, that will be the end of this case. If certiorari is granted, the Supreme Court will set a briefing schedule to hear the matter.