Wake Forest Law Review

By Agustin Martinez

Across the globe, the COVID-19 pandemic has devastated many lives,[1] including those of immigrants living in the United States.[2]  U.S. Citizenship and Immigration Services (“USCIS”) recently announced that it “will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination . . . even if such treatment is provided or paid for by one or more public benefits” as defined by the new public charge rule.[3]  USCIS’s announcement came days after several congressional leaders asked the Trump Administration to rescind the new public charge rule altogether, in light of the rule’s chilling effect on immigrants seeking COVID-19-related medical assistance.[4]

USCIS’s announcement clarified that obtaining COVID-19-related testing and treatment will not factor into a future public charge analysis, even if such testing or treatment is publicly-funded.  But what about the payments that millions of Americans will receive as part of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) that was recently signed into law by President Trump?[5]  Some immigrants, for example, recipients of Deferred Action for Childhood Arrivals, are expected to receive CARES Act payments.[6]  Will accepting these federally-funded payments negatively affect these immigrants’ chances of obtaining lawful permanent resident status (i.e., a green card) in the future as a result of the new public charge rule?  Although USCIS has not yet directly answered this question,[7] the answer is “no” based on existing law.  Immigrants who are eligible for CARES Act payments should rest assured that receiving this economic relief will not negatively impact any public charge determination in the future.[8]   

Under American immigration law, a person deemed likely to become a public charge is inadmissible, meaning that the person can be denied a green card, visa, or admission into the country.[9]  The new public charge rule does not change this basic principle.[10]  But it does significantly expand the types of publicly-funded programs that USCIS may take into account when assessing whether a person is likely to become a public charge in the future.[11]  Consequently, the new rule may cause immigrants who are eligible for CARES Act payments to think twice before accepting these publicly-funded payments.

The new public charge rule’s definitions[12] and USCIS’s policy manual[13] help answer whether an immigrant’s acceptance of a CARES Act payment will, in turn, be deemed acceptance of a public benefit as defined by the new rule.  Under this regulatory guidance, CARES Act payments are not public benefits, and therefore, USCIS should not consider acceptance of such payments during future public charge determinations.

The new public charge rule generally defines a public benefit as “[a]ny Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits),” “Supplemental Nutrition Assistance Program (SNAP),” “Section 8 Housing Assistance under the Housing Choice Voucher Program,” “Section 8 Project-Based Rental Assistance,” “Medicaid,” or “Public Housing under section 9 of the U.S. Housing Act of 1937.”[14]  At first glance, it would seem that CARES Act payments fall within the “Federal, State, local, or tribal cash assistance for income maintenance” public benefit category.  That, however, would be an incorrect interpretation of the new rule for the simple reason that CARES Act payments are considered tax credits under the Act.[15]  Indeed, Congress specifically referred to these payments as tax credits within the CARES Act’s text.[16]  Thus, since the new public charge rule expressly excludes “tax credits” from its definition of public benefit, a CARES Act payment is not a public benefit as defined by the rule.[17]

USCIS also confirms, in its policy manual, that tax credits are not public benefits under the new rule.[18]  The agency further explains that “[c]ash emergency disaster relief – Stafford Act disaster assistance including financial assistance provided to persons and households under the Federal Emergency Management Agency’s Individuals and Households Program and any comparable disaster assistance provided by State, local, or tribal governments” does not mean “cash assistance for income maintenance”[19]  This “cash emergency disaster relief” carveout, along with USCIS’s decision to exclude COVID-19-related testing and treatment from future public charge determinations,[20] likely means that the agency will not interpret CARES Act payments as public benefits.

But even if a CARES Act payment was erroneously deemed a public benefit in an individual case, it is highly unlikely that the payment, alone, would result in the recipient being deemed a public charge.  That is because public charge determinations are, by law, forward-looking and based on the totality of the immigrant’s circumstances.[21]  It would be quite surprising—not to mention, inconsistent with both the Immigration and Nationality Act and the CARES Act—for a one-time payment, authorized by Congress to provide assistance in the midst of a global pandemic, to negatively impact a person’s green card eligibility in the future. To remove any chilling effect[22] and alleviate fear in the immigrant population, USCIS should confirm, like it did for COVID-19-related testing and treatment, that CARES Act payments are not public benefits as defined by the new public charge rule.  Even without this additional guidance, however, the law is clear that there should be no public charge repercussions when eligible immigrants receive CARES Act payments.


[1]  See Ed Yong, How the Pandemic Will End, Atlantic (Mar. 25, 2020), https://www.theatlantic.com/health/archive/2020/03/how-will-coronavirus-end/608719/.

[2]  See Miriam Jordan, ‘We’re Petrified’: Immigrants Afraid to Seek Medical Care for Coronavirus, N.Y. Times (Mar. 18, 2020), https://www.nytimes.com/2020/03/18/us/coronavirus-immigrants.html.

[3]  Public Charge, U.S. Citizenship & Servs. [hereinafter Public Charge] (emphasis added), https://www.uscis.gov/greencard/public-charge (last visited Apr. 4, 2020).  There are actually two new public charge rules.  One, which was promulgated by the Department of Homeland Security (“DHS”), applies to cases adjudicated by USCIS.  Public Charge, Immigrant Legal Res. Ctr. [hereinafter Immigrant Legal Res. Ctr.], https://www.ilrc.org/public-charge (last visited Apr. 4, 2020).  The other, which was promulgated by the Department of State (“DOS”), applies to cases involving individuals who go through a process outside the United States, at a consulate or embassy, to obtain lawful permanent resident status.  Id.  This article refers to a single “new public charge rule,” since both the DHS rule and the DOS rule are virtually identical.  Id.

[4]  Press Release, Torres: As USCIS Ends Public Charge Rule for Coronavirus Cases, Every American is Safer, Congresswoman Norma Torres (Mar. 16, 2020), https://torres.house.gov/media-center/press-releases/torres-uscis-ends-public-charge-rule-coronavirus-cases-every-american

[5]  See Tara Siegel Bernard & Ron Lieber, F.A.Q. on Stimulus Checks, Unemployment and the Coronavirus Plan, N.Y. Times (Apr. 3, 2020), https://www.nytimes.com/article/coronavirus-stimulus-package-questions-answers.html.  These cash payments are known by different names, including “economic impact payments,” “recovery rebates,” and “stimulus checks.”  Libby Kane & Tanza Loudenback, Everything We Know About the Coronavirus Stimulus Checks that Will Pay Many Americans Up to $1,200 Each, Bus. Insider (Apr. 3, 2020), https://www.businessinsider.com/personal-finance/coronavirus-stimulus-check-questions-answers-2020-4.

[6]  See Understanding the Impact of Key Provisions of COVID-19 Relief Bills on Immigrant Communities, Nat’l Immigration Law Ctr. 12 (Apr. 1, 2020) [hereinafter Understanding the Impact of Key Provisions], https://www.nilc.org/wp-content/uploads/2020/04/COVID19-relief-bills-understanding-key-provisions.pdf?fbclid=IwAR2yiNB-kyhr-33bQTVp7YcdNBZ4LeBbia6JUIzbGOhf6d1jJYY9Rzgjs_c (explaining the eligibility requirements for CARES Act payments, which include having a valid social security number); see also Monique O. Madan, Millions of Immigrant Families Won’t Get Coronavirus Stimulus Checks, Experts Say, Miami Herald (Mar. 26, 2020), https://www.miamiherald.com/news/local/immigration/article241531211.html (“Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) holders would be able to qualify for the money because they are issued Social Security numbers.”).

[7]  See Public Charge, supra note 3 (explaining USCIS’s position as to COVID-19-related testing and treatment, but not CARES Act payments).

[8]  The question of which immigrants are eligible for CARES Act payments is beyond the scope of this article, but the sources cited supra note 6 provide some guidance on this question.

[9]  See 8 U.S.C. § 1182(a)(4)(A) (2018) (“Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.”); 8 C.F.R. § 212.21(a) (2019) (“Public charge means an alien who receives one or more public benefits, as defined in paragraph (b) of this section, for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).”); Immigrant Legal Res. Ctr., supra note 3 (“[Immigration] law says that those who are viewed as likely to become dependent on the government in the future as a ‘public charge’ are inadmissible.”).

[10]  See Immigrant Legal Res. Ctr., supra note 3 (providing basic background of public charge law before the new rule was implemented).

[11]  See 8 C.F.R. § 212.21(b) (listing the benefits that are considered “public benefits” for purposes of the new public charge rule); Immigrant Legal Res. Ctr., supra note 3 (“The rules expand the list of publicly-funded programs that immigration officers may consider when deciding whether someone is likely to become a public charge. Under the new rules, federally-funded Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps), Section 8 housing assistance and federally subsidized housing will be used as evidence that a green card or visa applicant is inadmissible under the public charge ground.”).

[12]  8 C.F.R. § 212.21.

[13]  Chapter 10 – Public Benefits, U.S. Citizenship and Servs. [hereinafter Chapter 10 – Public Benefits], https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-10 (last visited Apr. 4, 2020).

[14]  8 C.F.R. § 212.21(b)(1)–(6) (emphasis added).

[15]  See Coronavirus Aid, Relief, and Economic Security Act, H.R. 748, 116th Con. § 2201 (2020) (providing that the Internal Revenue Code will be amended to state that “[i]n the case of an eligible individual, there shall be allowed as a credit against the tax imposed by subtitle A for the first taxable year beginning in 2020 an amount equal to the sum of—(1) $1,200 ($2,400 in the case of eligible individuals filing a joint return), plus (2) an amount equal to the product of $500 multiplied by the number of qualifying children (within the meaning of section 24(c)) of the taxpayer”) (emphasis added); see also Kane & Loudenback, supra note 5 (“The payment . . . is technically an advance tax credit meant to offset your 2020 federal income taxes.”) (emphasis added).

[16]  See H.R. 748 § 2201.

[17]  8 C.F.R. § 212.21(b)(1).

[18]  Chapter 10 – Public Benefits, supra note 13 (“Other benefits not considered public benefits in the public charge inadmissibility determination include, but are not limited to . . . Tax Credits . . . .”) (emphasis added).

[19]  Id. (footnote omitted).

[20]  Public Charge, supra note 3.

[21]  See 8 C.F.R. § 212.22(a) (“The determination of an alien’s likelihood of becoming a public charge at any time in the future must be based on the totality of the alien’s circumstances by weighing all factors that are relevant to whether the alien is more likely than not at any time in the future to receive one or more public benefits, as defined in 8 CFR 212.21(b), for more than 12 months in the aggregate within any 36–month period (such that, for instance, receipt of two benefits in one month counts as two months).”).

[22]  See Jordan, supra note 2.

DSC_0289

By Eric Jones

On June 16, 2015, the Fourth Circuit issued a published opinion in the civil removal case Yanez-Marquez v. Lynch.  Maria Yanez-Marquez (Yanez) was petitioning to the Fourth Circuit for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal from an order for her removal from the United States.  The Circuit Court held that the violations of Yanez’s Fourth Amendment rights were not egregious, and thus denied her petition for review.

 

The Execution of the Search Warrant

In June of 2008, agents from Immigration and Customs Enforcement (ICE) were granted a search warrant for 402 Harbor Drive, Annapolis, Maryland, because it was suspected that the landlord was harboring illegal aliens.  The warrant was to be executed between 6:00 a.m. and 10:00 p.m., and described the residence as a “single-family home.”  The warrant was broad and authorized agents to seize “illegal aliens, travel documents, financial records, and photographs of harbored aliens.”  At approximately 5:00 a.m. on June 30, ICE agents knocked on the door of the residence and entered to begin the search.  According to Yanez, the agents burst into the bedroom where she and her partner were sleeping, and pointed guns at them while demanding that they “don’t move” in both English and Spanish.  Upon being informed that Yanez was pregnant, the agents called a female agent to assist and reassure her.  Yanez was never handcuffed or led outside of the dwelling, but was questioned for 5-10 minutes about her identity.  As a result of the search, the agents arrested Yanez’s partner, and had her sign several forms indicating that Yanez had been illegally present in the United States since April of 2007.  The agents also seized Yanez’s pay stubs, tax returns, and photo albums as they left at 9:15 a.m.  The ICE contested Yanez’s statements regarding the timing of the search as well as the force used during the search.

 

The Removal Proceedings

Yanez was issued a notice to appear before an Immigration Judge (IJ) for removal proceedings.  On February 10, 2010, the Department of Homeland Security (DHS) filed a submission of intended evidence, including the forms Yanez signed during the search, the warrant itself, and the affidavit supporting the warrant.  Yanez filed a motion to suppress the evidence, arguing that during the search, the agents “egregiously violated” her Fourth Amendment rights.  The IJ found that, accepting Yanez’s claims as true, her rights had not been “egregiously violated.”  Although the execution of a search warrant prior to the time it was granted would constitute a violation of Yanez’s Fourth Amendment rights, the IJ reasoned that being early by a single hour “does not amount to conduct that ‘shocks the conscience,’” and thus was not an egregious violation.  As to the force used, the IJ found that Yanez had made no showing of excessive force, noting that agents executing a search warrant are reasonably cautious about dangerous situations.  The IJ found that the agents had acted reasonably, had not brandished their guns for longer than necessary to assure their safety, and had gotten a female agent to aid and comfort Yanez as soon as was reasonable.  For these reasons, the IJ denied the motion to suppress the evidence.  On December 13, 2010, the IJ found that the DHS had satisfied their burden, and ordered that Yanez be removed from the United States and returned to El Salvador.

On appeal to the BIA, the BIA held that the exclusionary rule, which operates to exclude evidence obtained in violation of the defendant’s Fourth Amendment rights, does not apply in civil removal proceedings unless the violations were egregious.  The BIA then, relying on the reasoning of the IJ, held that the violations had not been egregious, and thus affirmed the IJ’s order.

 

The Applicability of the Fourth Amendment in Civil Removal Cases in the Fourth Circuit

Initially, the Fourth Circuit noted that the question of the applicability of the Fourth Amendment exclusionary principle was a matter of first impression for the Circuit.  The Court began by analyzing the Supreme Court of the United States’ ruling in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).  In Lopez-Mendoza, the Supreme Court held that the ordinary Fourth Amendment exclusion, which barred all evidence obtained through any violation of the Fourth Amendment, was inapplicable to civil removal proceedings because the costs of exclusionary principle, including dramatically increased complexity to the streamlined process of removal, outweighed the benefits of the exclusionary principle.  Additionally, because civil removal proceedings are not criminal and do not punish but merely prevent continued illegal activity, the Court reasoned that the Fourth Amendment protections were not as critical.  Four Justices in Lopez-Mendoza vigorously dissented, and the majority opinion opined in dicta that “egregious violations” and “widespread” violations by officers may nevertheless render the exclusionary principle applicable in some instances.

In this case, the Fourth Circuit held that the exclusionary principle must apply to all egregious violations of the Fourth Amendment because “[t]o hold otherwise would give no effect to the language used by the Supreme Court in Lopez–Mendoza expressing concern over fundamentally unfair methods of obtaining evidence.”  The Circuit Court further held that refusing to apply the exclusion “would ignore the fact that eight justices in Lopez–Mendoza seem to have agreed that the exclusionary rule applies in removal proceedings in some form.”  Thus, in the Fourth Circuit, an petitioner in a civil removal case must show not only that her Fourth Amendment rights were violated, but also that those violations were “egregious.”

 

The Standard for “Egregiousness” of a Fourth Amendment Violation

The Lopez-Mendoza Court stated “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained” might be reason to apply the exclusion. Despite the use of “and” by the Supreme Court, the Fourth Circuit held that a petitioner can succeed if she can show either (1) egregious violation or (2) a violation that undermines the probative value of the evidence.  To hold otherwise, the Circuit explained, would dramatically reduce the application of the rule because nearly all evidence obtained through egregious violations is physical evidence, which has the same probative value regardless of the manner of acquisition.  Examples given by the Circuit of egregious violations included “a stop based on Hispanic appearance alone,” “repeatedly ignor[ing a] detainee’s request for counsel,” and “a nighttime warrantless entry into the aliens’ residence.”

The Fourth Circuit rejected the Ninth Circuit’s standard for egregiousness, which focuses on the “bad faith” of the agents, and embraced the “totality of the circumstances” test used by the Second, Third, and Eighth Circuits.

 

Yanez’s Alleged Fourth Amendment Violations

Yanez’s first allegation of egregious violation of her Fourth Amendment rights was that the warrant listed her residence as a “single-family home,” when it was in fact a multi-unit dwelling.  The Fourth Circuit explained that the warrant is sufficiently tailored when an agent executing it can “reasonably ascertain and identify the intended place to be searched.”  In holding that the warrant used to search Yanez’s home was adequate, the Circuit emphasized that the premises had been under ICE surveillance and agents had no reason to believe multiple families dwelled there, it was a small single-story home, and the premises had just one mailbox.  Thus, because the outward appearance is reasonably identified by a description of a “single-family home,” the Fourth Circuit rejected Yanez’s first argument.

Yanez next argued that, upon entry, the agents should have known it was a multi-family dwelling because “the bedroom door was locked,” which transforms it into a separate dwelling.  However, because it is not unusual for a bedroom door to be locked and there was no other indication in the home that it was a multi-unit dwelling, the Circuit held that the ICE agents had not made any mistake in proceeding with the warrant, and even if they had, it was an innocent and reasonable mistake.

Yanez’s final argument was that entering the home at 5:00 a.m. constituted a “nighttime search,” which fell outside of the warrant and implicates higher scrutiny because of the heightened intrusion.  The Fourth Circuit agreed that because a daytime search is defined as between 6:00 a.m. and 10:00 p.m., the search of Yanez’s residence was by definition a nighttime search.  The Fourth Circuit went on to hold that nighttime execution of a daytime warrant is a violation of the Fourth Amendment, absent consent or exigent circumstances.  Thus, because there was no consent given by either Yanez or the judge who issued the warrant, nor were there any additional facts which may have constituted exigent circumstances justifying a nighttime search, the Fourth Circuit held that the ICE had violated Yanez’s Fourth Amendment rights by executing the search.  However, when considering the totality of the circumstances, the Circuit held that this violation was not egregious.

Facts to support a finding of egregiousness included the fact that it was a nighttime search and the fact that the search was of Yanez’s home, where her privacy interests are strong.  Supporting the non-egregiousness of the search included the fact that no ICE agents threatened, coerced, or physically abused Yanez, nor did they offer or promise her anything in exchange for cooperation.  Additionally, Yanez was not handcuffed, nor was she removed from the home.  Furthermore, there was no evidence of diminished capacity, the questioning was not particularly lengthy, and there is no evidence that the agents were motivated by racial considerations.  Finally, the Circuit explained that presence of a valid search warrant for the premises reduces the harm of the intrusion, and the agents executing the warrant did not use force beyond that necessary to secure their safety.  The Fourth Circuit thus held that the nighttime search, while a violation, was nevertheless not an egregious violation of Yanez’s Fourth Amendment Rights.

 

The Fourth Circuit Denied Yanez’s Petition for Review

Because the alleged violations of Yanez’s Fourth Amendment rights were all either not violations at all or not egregious, the Fourth Circuit denied Yanez’s petition for review of the IJ’s order for her removal from the United States.