By Kristie De Peña

For well over 100 years, the United States has denied entry to immigrant applicants who may become primarily dependent on the government for subsistence, on the grounds that they will likely become a “public charge.” To reduce the likelihood, all family visa applicants must have a sponsor provide an Affidavit of Support that makes the sponsor liable to the government and the immigrant for failure to support the immigrant financially; failure to provide this affidavit will result in an inadmissibility determination. Similarly, an individual can be deported if he becomes a public charge within five years of entering the United States.

In recent months, the Trump administration has indicated a renewed interest in cracking down on the fraudulent use of immigration benefits that the administration alleges is rampant. Is it? By one metric—prosecutions for fraud—the answer is no.

Background

The 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), commonly known as welfare reform, introduced tight restrictions on recent immigrant use of virtually all public benefits. Qualified aliens, like lawful permanent residents (LPRs) or green card holders, are banned from means-tested programs for 5-years from their date of legal entry. The ban and subsequent tweaks to the rule sowed confusion among aliens who worried about the risk of deportation from obtaining such basic services as emergency medical assistance, or immunizations against communicable diseases.

Recognizing a potential risk to public health and other federal policy goals, clear definitions and standards for determining a public charge were laid down in a 1999 rulemaking by Immigration and Naturalization Service (INS, now U.S. Citizenship and Immigration Services or USCIS) after extensive inter-agency consultations. INS ultimately determined public charge to refer to being “primarily dependent on the government for subsistence” — not mere use of supplementary or non-cash benefits.

To deport or deny admission on public charge grounds requires an analysis of the immigrant’s “totality of circumstances” including age, health, family status, assets, resources, financial status, education, and skills. According to contemporary USCIS guidance, no single factor is sufficient for identifying a public charge.

Cash assistance and long-term institutionalization are the primary grounds for categorizing an individual as a public charge. Public charge determinations only affect those applying for a green card or seeking entry into the United States; not nonimmigrant visa applicants. Public benefits that do not count towards a public charge calculation are primary subsidized benefits, like transit and childcare subsidies.

Health services like immunization, testing and treatment of communicable diseases, and prenatal care also do not count towards the public charge determination. The same is true — for now — of nutrition programs like school meals, housing benefits, emergency disaster relief, job training programs, Title II Social Security, and community programs like soup kitchens and crisis counseling.

Prosecutions for fraud/false statements by immigrants are very low

Using prosecutions is a striking tool in measuring the credibility of fraud claims because the prosecutorial numbers are not influenced by politics. Furthermore, there is no dependable evidence that contradicts prosecutorial figures.

The illegal use of a benefit by an immigrant is not in and of itself criminal per se, but using false or misleading information to apply for the benefit is a felony, making it criminal for all intents and purposes.

Immigration prosecutions under 8 U.S.C. § 1001 — Fraud/false statements or entries generally — are low. Both the recent levels of prosecutions are low, and the yearly trends have been consistently decreasing over the past decade. Even at peak levels, prosecutions for fraud were fewer than 400 cases annually. You look at both levels and recent changes.

As of August 2018, there have been 35 prosecutions that lead with this charge, a 6 percent decrease from last year; a -33.8 percent decrease from 5 years ago; and an -87.1 percent decrease from 10 years ago, according to Transaction Records Access Clearinghouse (TRAC) which uses FOIA information to provide the following information.

It’s important to put this number in perspective. Give or take, there are roughly 43 million immigrants residing in the United States, which account for 13.5 percent of the population. Of those 43 million, there were 35 prosecutions for fraud, meaning that were was one case of fraud for every 1.228 million immigrants.

To be clear, there are mitigating factors. Immigrants cannot accept benefits for the first five years they are in the United States, so that changes the calculation slightly. Furthermore, there are additional cases whereby prosecutions under this statute are not the primary charge, but a secondary charge. Although the numbers of those cases is similarly low, it does skew the numbers slightly as well.

Immigration Prosecutions under 8 U.S.C. § 1001

The long-term trend, again according to TRAC, demonstrates a gradual decline in the number of immigration prosecutions for this crime.

Immigration Prosecutions under 8 U.S.C. § 1001 over 20 years

When you break it down by judicial districts, the relatively few cases prosecuted in 2018 are even more stark. During the first nine months of 2018, the district with the highest number of prosecutions—16— occurred in the Southern District of Florida. The next closest was seven prosecutions in Texas.

In 2017, the Justice Department said the government obtained 1.6 fraud-federal program prosecutions for every one million people in the United States; which is expected to drop to 1.5 per one million this year.

To be clear, that is not to say that immigrants are not committing fraud, but it does make clear that the prosecutions under the primary statute are exceedingly low, and arguably, do not justify the draconian changes to regulations on public charge that the administration released last Saturday night.

Given that the number of prosecutions of immigrants and Americans for fraud are very low, the purpose behind the government’s proposed regulation overhauling the the regulation to make determination as a public as a means of reducing said fraud is unfounded, and the rule itself, overly broad.