(B)  Safe Havens.  There are a number of safe havens to this ground of deportation:

      (1)  Five-Year Limitation.  To trigger this ground of deportation, the noncitizen must have become a public charge within five years after admission.  The five-year period may relate to the first entry of the noncitizen, instead of the first lawful entry.[1330]  The government has the burden of proof on this issue.  See § 5.24, supra.[1331]

 

      (2)  Definition of Public Charge.  In 1999, the INS issued field guidance and a proposed rule to define “public charge.”[1332]  Immigrants may accept assistance, but may not use it as a means by which to maintain their income.  The INS defined “public charge” as a person who “has become . . . or is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.”  The INS excludes a number of important benefits from consideration in making this determination.[1333]  On the other hand, it will consider programs that provide cash assistance for income maintenance in making a public charge decision.  These programs include: (1) Supplemental Security Income (SSI); (2) Temporary Assistance for Needy Families (TANF) cash assistance; (3) general assistance programs; and (4) “programs . . . supporting aliens who are institutionalized for long-term care.”

 

The Board of Immigration Appeals[1334] followed three judicial decisions in establishing three prerequisites to a finding of public charge: “liability for payment, demand for payment, and refusal or omission to pay.” [1335]

      (a)  The government agency providing the cash benefit or long-term institutional care must by law impose a charge or fee for the assistance, which the immigrant or designated relatives or friends must be legally obligated to repay.  If there is no requirement of repayment, the immigrant is not a public charge.  The deportation ground is not shown when state law fails to impose liability for repayment of a benefit.[1336]

 

      (b)  The agency must demand repayment from the immigrant or his or her sponsor.

 

      (c)  The immigrant or sponsor must fail to repay on demand. If the immigrant or sponsor fails to pay either because of a lack of demand or because the state agency violates the duty to obtain reimbursement, the noncitizen is not a public charge.[1337]

 

      (3)  The Cause of Indigence Must Have Existed at Entry.  This ground of deportation does not exist unless the causes of the noncitizen becoming a public charge existed at the time of entry; if they arose after entry, the person is not deportable on this ground.[1338]  Therefore, an immigrant accepting public assistance because of a physical or mental impairment occurring after entry will not thereby become a public charge.[1339]

      (4)  Other Safe Havens.  These requirements give rise to a number of safe havens.  If someone is actually paying the noncitizen’s expenses, s/he is not a public charge.[1340]  If the relatives of the noncitizen can pay, and offer to pay, s/he is not a public charge.[1341]  If the agency has made no demand for repayment, s/he is not a public charge.[1342]  (If the immigrant and sponsor are indigent, and it would be useless to make a demand, it is possible the lack of a demand may not defeat a claim of public charge.)[1343]  Public assistance resulting from unemployment that occurred or other conditions arising only after entry will not support a conclusion of public charge.[1344]

 

      (5)  Burden of Proof.  Generally speaking, the government has the burden of proving by clear and convincing evidence every fact essential to a ground of deportation. See § 5.24, supra.[1345]  The statute defining this ground of deportation, however, provides that any noncitizen is deportable who has become a public charge within five years after entry from causes not affirmatively shown to have arisen since entry.[1346]  In effect, this places the burden on the noncitizen affirmatively to show that the cause of becoming a public charge arose since entry.  If s/he does not do so, the government’s prima facie case will be sufficient to establish this ground of deportation.[1347]  The immigrant may attempt to rebut the presumption by showing that s/he did not become a public charge, or that the cause of becoming a public charge arose since the time of entry.  In attempting to do so, the noncitizen has the burden of proof.[1348]  The conclusion that the immigrant was in good health at the time of entry, supported by the public health examination, may be of assistance in proving this fact,[1349] but is insufficient, in and of itself, to overcome the presumption.[1350]  “Medical evidence based on a clinical examination submitted either on behalf of the alien or the government is of course the best form of proof.  Based on the examination, the physician may testify about whether the alien suffered from the affliction at the time of entry.”[1351]

[1330] See Gegiow v. Uhl, 239 U.S. 3 (1915).

[1331] See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 72.04[13][b] (2004).

[1332] Memorandum from Michael A. Pearson, Executive Associate Comm’r, Field Operations, to all INS offices, Public Charge: INA Sections 212(a)(4) and 237(a)(5) (May 20, 1999) (INS Public Charge Memo), reproduced in 4 Bender’s Immigr. Bull. 632 (June 15, 1999), 76 Interpreter Releases 885 (June 7, 1999). See also 64 Fed. Reg. 28,689-93 (May 26, 1999) (INS proposed rule); INS Public Charge Fact Sheet (May 25, 1999) http://www.ins.usdoj.gov/graphics/publicaffairs/factsheets/public_cfs.htm; INS Public Charge Questions and Answers (May 25, 1999) http://www.ins.usdoj.gov/graphics/publicaffairs/questsans/public_cqa.htm.

[1333] It will not consider: (1) Medicaid and other health insurance and health services; (2) the Children’s Health Insurance Program (CHIP); (3) nutrition programs; (4) housing benefits; (5) child care services; (6) energy assistance; (7) emergency disaster relief; (8) foster care and adoption assistance; (9) educational assistance; (10) job training programs; or (11) community-based programs, services or assistance.  In addition, “earned cash payments that provide income . . . do not support a public charge determination.”

[1334] Matter of B, 3 I. & N. Dec. 323 (BIA, Acting Att’y Gen. 1948).

[1335] C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 71.07 [3] (2004).

[1336] Matter of V, 2 I. & N. Dec. 78 (BIA 1944).

[1337] Matter of B, 3 I. & N. Dec. 323, 326 (BIA, Acting Att’y Gen. 1948).  See also 64 Fed. Reg. 28,689, 28,691 (May 26, 1999) (supplementary information to INS proposed rule).

[1338] Matter of S, 5 I. & N. Dec. 682 (BIA 1954); Ex parte Costarelli, 295 F. 217 (D. Mass. 1924).

[1339] Matter of S, 5 I. & N. Dec. 682 (BIA 1954) (existence of psychosis, in an of itself, does not establish that it came about because of a condition that existed at the time of entry); Foley ex rel. Schenck v. Ward, 13 F. Supp. 915 (D. Mass. 1936).

[1340] Ex parte Kichmiriantz, 283 F. 697 (N.D. Cal. 1922). Cf. Matter of CR, 7 I. & N. Dec. 124 (BIA 1956).

[1341] United States ex rel. Donatello v. Comm’r, 4 F.2d 808, rev’d on other grounds, 8 F.2d 362 (E.D.N.Y. 1925); Nocchi v. Johnson, 6 F.2d 1 (1st Cir. 1925); Ex parte Orzechowska, 23 F. Supp. 428 (D. Or. 1938).

[1342] Matter of C, 2 I. & N. Dec. 538 (BIA 1946).

[1343] Matter of M, 2 I. & N. Dec. 694 (BIA 1946).

[1344] See Graham v. Richardson, 403 U.S. 365 (1971) (noncitizens becoming public charges as a result of causes occurring after entry are not subject to deportation, so state may not deny welfare benefits on this basis).

[1345] See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 72.04[13][b] (2004).

[1346] INA § 237(a)(5), 8 U.S.C. § 1227(a)(5) (emphasis supplied). 

[1347] Foley ex rel. Schenck v. Ward, 13 F. Supp. 915 (D. Mass. 1936).

[1348] Canciamilla v. Haff, 64 F.2d 875 (9th Cir. 1933); Ex parte Nung, 30 F.2d 766 (9th Cir. 1929).

[1349] Foley ex rel. Schenck v. Ward, 13 F. Supp. 915 (D. Mass. 1936).

[1350] Canciamilla v. Haff, 64 F.2d 875 (9th Cir. 1933).

[1351] C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 71.07 [3] (2004), citing United States ex rel. Powlowec v. Day, 33 F.2d 267 (2d Cir. 1929); United States ex rel. Casimano v. Comm’r, 15 F.2d 555 (2d Cir. 1926).

Other

DEPORTATION - PUBLIC CHARGE
According to the INS Guidance issued in the Federal Register in May of 1999, the only types of benefits that raise public charge issues are cash income assistance programs like TANF and SSI.  Housing subsidy programs are not among the programs that INS considered creating public charge concerns.  In fact they were expressly excluded. Hopefully when it publishes a final rule on public charge, USCIS will reaffirm the earlier INS Guidance.