Most of Melba Bantay’s clients at Catholic Charities don’t have to worry about how recent changes in immigration rules will affect them personally. They have a green card, meaning they can stay in the United States, no matter what.
The ones who do concern Bantay, program director of the agency’s General Immigration Service, are the later arrivals to the U.S. Many of them are relatives of the green-card holders — who, as a consequence, feel nervous on their behalf.
“We feel so, so sad about this,” Bantay said. “Our program is set up to protect them.”
If the new federal “public charge” rule goes into effect Oct. 15 as scheduled, there may be much less protection for those who come to the U.S. and have little money.
That’s because their application will be screened on the basis of what kind of budgetary burden they’re expected to become in the future. Their income will be scrutinized, as well as their likelihood to seek help down the road.
How exactly the feds will project this future is the big unknown.
Most of the new immigrants would not qualify for federal programs intended for the poor. However, the rule would give the immigration agent — an employee of the U.S. Citizenship and Immigration Services (USCIS) — the discretion to assess the risk that they will become a “public charge,” reliant on the government.
What could cause an even bigger problem for Hawaii is that the state itself does fund some benefits for new immigrants and migrants, and the new rule could make these benefits risky to accept as well.
Compound that with the general lack of clarity about how the rule would be carried out, and the impending rule change has caused a lot of fear among the thousands trying to make their home in Hawaii.
Among the general fears is that somehow they, or someone in their family, may be rejected for a green card because of their financial situation.
And signs of that worry are already evident here. Even though the rule isn’t effective until Oct. 15, said Catherine Betts, some immigrants already are disenrolling from support programs that they need — and are legally entitled to get.
Betts is deputy director of the state Department of Human Services, one of the state agencies most concerned with the federal change.
Another is the Department of the Attorney General, headed by Clare Connors, who recently entered Hawaii as a party to a lawsuit challenging the federal rule.
Additionally, on Capitol Hill last week, Hawaii U.S. Sen. Mazie Hirono joined other sponsors of a bill with a similar aim. She and 26 other Democrats introduced the Protect American Values Act, barring the use of federal funds to implement the rule.
There is a reason for all the salvos. There are lots of immigrants in Hawaii who are checking their status and benefits.
According to the state’s Med-QUEST division, 30,896 noncitizens receive state services and benefits, with 5,246 of those being Micronesian migrants, here under the Compact of Free Association (COFA). COFA migrants also would be subject to closer scrutiny for those benefits, which are provided by state funds, Betts said.
Part of the issue, experts agree, is that many Hawaii immigrants are concerned with extended family members who have come to the U.S. at different times, some having citizenship or permanent residency, and some who don’t.
So even though the strict rule does not apply to one member, it might tag another, meaning that the whole family frets over what government benefits they take — such as Supplemental Nutrition Assistance Program, also known as SNAP or “food stamps — even if they are fully qualified for them.
“If for example there was a noncitizen parent with a citizen child, they could be eligible for federal benefits like SNAP,” Betts said. “And they may decide not to take something on behalf of their child.
“Just anecdotally, after the final (public) charge first was introduced, we did have families calling our Medicaid program, Quest, to disenroll from services,” she added.
Connors said there are three separate legal actions nationally, but added that she judged the complaint filed by her counterpart attorney general in Washington state as the best one to join. Her analysis looked at two aspects: whether the same legal argument applies to Hawaii, and whether this state suffers a similar effect alleged in Washington.
The evaluation checked off both points, so on Sept. 6 Hawaii joined a coalition of 13 other states challenging the new rule. Signing on with other states makes sense for Hawaii, she said, because by pooling resources all the states save on the litigation costs.
Washington has moved for a preliminary injunction to stop the rule from taking effect; that motion will be heard on Oct. 3, Connors said, so the hope is to blunt the Trump administration’s attempt to change this particular facet of immigration law.
She summarized the legal arguments as follows:
>> The rule is a violation of the Administrative Procedures Act. This claim includes the argument that the USCIS agent operating under the rule would use an “expansive new definition” of the term “public charge” that is inconsistent with its plain meaning, according to the motion filed in U.S. District Court, Washington state’s eastern district.
>> It violates the Welfare Reform Act and various immigration statutes.
>> It abridges the equal protection clause of the U.S. Constitution’s Fifth Amendment, Connors said, because it can be linked to a discriminatory motive through previous constraints on immigration.
“The narrative, essentially, that we’ve heard come out of this administration, it does give us concern that there is a discrimina- tory motive here that would violate the Fifth Amendment,” she added.
On the first point, the complaint alleges that the rule as written gives too much discretion to the immigration agent.
“We do think that giving this level of authority to the immigration agency is a problem,” Connors said.
State officials also note a conflict between the rule and the Hawaii Constitution. Article 9, Section 3 of the Hawaii Constitution, which asserts that the state “shall have the power to provide financial assistance, medical assistance and social services for persons who are found to be in need of and are eligible for such assistance and services as provided by law.”
“The department (DHS) feels that that’s federal overreaching into our state obligation to all persons in Hawaii,” Betts said.
The DHS Benefits, Employment and Social Services Division tallies the total benefits going to non-U.S. citizens at 8,086. In addition to SNAP, these include cash benefits such as Temporary Assistance for Needy Families (TANF), child care subsidies and Aid to the Blind and Disabled, Betts said.
A major concern is that 2,016 recipients of such benefits are COFA migrants, who are specifically mentioned in the rule. They could be deported for being a public charge, Connors said: The compact that allows their entry lists that among grounds for ejection, along with a felony record or other causes.
“One of the bigger concerns is how the federal government will actually operationalize this rule,” Betts added. “Are they going to have a check box, or some sort of question on their application for entrance into the country?
“I don’t think people want to be untruthful on something like a federal form when they’re entering a country. So I think a lot of people will opt out or disenroll from something that they are eligible for under state law.”
Immigration attorney Clare Hanusz said that more outreach to the community is needed to dispel fears and dissuade immigrants from pulling out of programs for themselves or their children.
“People who are already afraid of contact with government agencies are going to be that much more concerned,” Hanusz said. “We need to educate people locally what benefits they’re entitled to, and see that their kids get what they need.”
The fact is that Hawaii needs these immigrants to join the workforce, Bantay added.
If they fall below the recommended income (125% of the federal poverty level), that could weigh against them. But most will rise up the ladder, she said, with a little help.
“People who come here, even though they start with low income, it would be a loss for a community if they cannot remain,” Bantay said.