Public Charge Law is Rarely Used to Deport Immigrants—Is That About to Change?
On February 24, 2020, U.S. Citizenship and Immigration Services implemented a new rule that expands the definition of who counts as a public charge[1]. This rule will limit the ability for many immigrants—millions, by some estimates[2]—to enter or remain in the U.S. legally and complete the path to citizenship. The principle of excluding immigrants to America who do not meet, or are not perceived to meet, certain standards of self-sufficiency is older than the legal framework of the current immigration system[3].
However, when it comes to immigration enforcement, government records indicate the use of so-called "public charge" statutes has been extraordinary rare. Based upon an analysis of internal government case-by-case data obtained under the Freedom of Information Act, the Transactional Records Access Clearinghouse (TRAC) at Syracuse University documents for the first time just how infrequent the use of public charge statutes has been in Immigration and Customs Enforcement (ICE) efforts and in Immigration Court proceedings[4].
Under a more expansive approach to the public charge rule, is that about to change?
Public Charge Almost Never a Factor in Deportation
| Totals ICE Removals FY 2015-2019 | 1,225,130 |
| Total Public Charge Deportations | 123 |
| Percent of total | 0.010% |
Out of over 1.2 million deportations by ICE between fiscal years 2015 and 2019[5], 123 people were deported for allegedly violating the public charge rule under the Immigration and Nationality Act[6]. In ICE's removal-by-removal internal records, public charge deportations amount to one-hundredth of one percent of all deportations, or only 1 out of every 10,000. This number includes all cases where the most serious immigration charge fell under one of the public charge statutes. Data were not available where the alleged violation of the public charge rule was only of secondary consideration because another deportable violation was the primary removal grounds.
Public charge-based deportations appear to be on a modest rise despite representing a microscopic fraction of total deportations. In 2015 and 2016, ICE deported just 10 and 11 people (respectively) on public charge grounds. Under President Obama, that translates into just over 4 deportations in every 100,000 were for public charge violations.
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Between FY 2017 - FY 2019 under President Trump, this increased to 14 deportations in every 100,000 for public charge violations. Public charge deportations totaled 28 in 2017, 44 in 2018, and declined slightly to 30 in 2019. Six public charge-based deportations have taken place in October and November of FY 2020.
A significant proportion of ICE removals take place under its Secure Communities program. While Secure Communities supposedly focuses on individuals with a criminal history, ICE records indicate that a few were still deported primarily on public charge grounds. Since FY 2009, the agency's files indicate 30 deportations have taken place on these grounds. Four of the 30 cases included a charge of "likely to become a public charge[7]", and 26 included a charge of "has become a public charge within five years of entry[8]."
Less Than Half of All Public Charge Cases are Sustained in Immigration Court
Out of 4.7 million Immigration Court cases completed from October 1995 to January 2020, only 13,096 cited public charge statutes on the Notice to Appear (NTA) filed by DHS as a basis for the government seeking removal of the individual. Thus the usage of allegedly becoming a public charge as grounds for removal is also exceedingly rare in court proceedings. Court case-by-case records indicate that public charge grounds were cited in only 28 out of every 10,000 cases (0.28%), and were sustained in only 13 out of every 10,000 cases (0.13%). See Tables 2 and 3 at the end of this report.
When DHS does bring "public charge" charges against immigrants in court, it is usually cited along with other violations of the immigration rules. Only 10 percent of the time is it the sole charge. So reliance upon concerns that the immigrant is likely to become, or has become, a public charge as the sole reason for seeking removal are even rarer.
Finally, the records show that when the "public charge" rules are cited as the basis for seeking removal it is sustained less than half of the time (46%). When a "public charge" violation is the sole basis for seeking removal, it is sustained more often—71 percent of the time.
The use of the public charge rule as a basis for seeking an immigration judge to remove an individual has fluctuated from year to year. However, there has been an uptick in its usage starting in FY 2015. See Table 2. Once President Trump assumed office the number of cases topped 1,000 per year for the first time. But because case completions have also been increasing, the proportion of cases this represents have actually been falling steadily since FY 2017. See Table 3.
The Future of Public Charge Use
In the press release announcing the new public charge rule, Ken Cuccinelli, the acting deputy secretary of the Department of Homeland Security, said that the rule was meant to enforce "longstanding law requiring aliens to be self-sufficient, reaffirming the American ideals of hard work, perseverance and determination[9]." Yet given the extraordinarily rare use of existing public charge statutes over the past 25 years, TRAC finds little data to suggest that America's immigration enforcement institutions are awash in immigrants who are unable to be self-sufficient. In fact, public charge violations are a rarity as far as ICE and the Immigration Court are concerned. Nonetheless, public charge-based immigration restrictions are a rapidly evolving area of law and public debate, which could impact future ICE's arrest, detention, and deportation programs as well as new cases that come before the Immigration Court.
FY 1996 - FY 2020*
| Fiscal Year | Public Charge on NTA | ||
|---|---|---|---|
| Number Charged | Number Sustained | Percent Sustained | |
| 1996 | 249 | 124 | 50% |
| 1997 | 278 | 140 | 50% |
| 1998 | 505 | 210 | 42% |
| 1999 | 882 | 368 | 42% |
| 2000 | 708 | 296 | 42% |
| 2001 | 540 | 229 | 42% |
| 2002 | 525 | 222 | 42% |
| 2003 | 440 | 207 | 47% |
| 2004 | 366 | 167 | 46% |
| 2005 | 275 | 174 | 63% |
| 2006 | 298 | 188 | 63% |
| 2007 | 304 | 182 | 60% |
| 2008 | 312 | 187 | 60% |
| 2009 | 268 | 148 | 55% |
| 2010 | 279 | 142 | 51% |
| 2011 | 288 | 157 | 55% |
| 2012 | 265 | 140 | 53% |
| 2013 | 308 | 142 | 46% |
| 2014 | 386 | 181 | 47% |
| 2015 | 736 | 287 | 39% |
| 2016 | 938 | 358 | 38% |
| 2017 | 1,254 | 573 | 46% |
| 2018 | 1,265 | 564 | 45% |
| 2019 | 1,021 | 485 | 48% |
| 2020 | 406 | 213 | 52% |
| Total | 13,096 | 6,084 | 46% |
FY 1996 - FY 2020*
| Fiscal Year | NTA Cases Completed | Percent With Public Charge | Percent with Sustained Public Charge |
|---|---|---|---|
| 1996 | 180,228 | 0.14% | 0.07% |
| 1997 | 188,640 | 0.15% | 0.07% |
| 1998 | 184,389 | 0.27% | 0.11% |
| 1999 | 159,350 | 0.55% | 0.23% |
| 2000 | 156,726 | 0.45% | 0.19% |
| 2001 | 153,912 | 0.35% | 0.15% |
| 2002 | 155,256 | 0.34% | 0.14% |
| 2003 | 171,967 | 0.26% | 0.12% |
| 2004 | 173,960 | 0.21% | 0.10% |
| 2005 | 227,447 | 0.12% | 0.08% |
| 2006 | 249,924 | 0.12% | 0.08% |
| 2007 | 206,473 | 0.15% | 0.09% |
| 2008 | 215,112 | 0.15% | 0.09% |
| 2009 | 218,412 | 0.12% | 0.07% |
| 2010 | 211,849 | 0.13% | 0.07% |
| 2011 | 207,864 | 0.14% | 0.08% |
| 2012 | 185,514 | 0.14% | 0.08% |
| 2013 | 164,384 | 0.19% | 0.09% |
| 2014 | 151,710 | 0.25% | 0.12% |
| 2015 | 160,453 | 0.46% | 0.18% |
| 2016 | 169,489 | 0.55% | 0.21% |
| 2017 | 172,504 | 0.73% | 0.33% |
| 2018 | 189,010 | 0.67% | 0.30% |
| 2019 | 267,344 | 0.38% | 0.18% |
| 2020 | 145,474 | 0.28% | 0.15% |
| Total | 4,667,391 | 0.28% | 0.13% |
Footnotes
[1] https://www.uscis.gov/greencard/public-charge
[2] https://www.migrationpolicy.org/news/chilling-effects-us-public-charge-rule-commentary
[3] Johnson, K. (2009). Understanding Immigration Law. New Providence, RI, LexisNexis.
[4] TRAC's data for this report was obtained from Immigration and Customs Enforcement (ICE) and the Executive Office for Immigration Review (EOIR) through the Freedom of Information Act (FOIA). TRAC does not have data from U.S. Citizenship and Immigration Services (USCIS) that would provide insight into immigrant and non- immigrant applications and adjustment of status cases, which, for now, is the focus of the new public charge rule.
[5] The total number of deportations ICE reported in its annual end-of-fiscal-year reports equals 1,225,130.
[6] Section 212(a)(4) of the INA (8 USC 1182) outlines the public charge rule as one of the grounds of inadmissibility.
[7] "Likely to become a public change" is the common name for section 212(a)(4)(A) of the Immigration and Nationality Act. It is grounds for inadmissibility before an individual has been lawfully admitted to the United States. We include within this category a small number of public charge cases involving a 241(a)(5) charge, i.e. reinstatement of removal, which allows ICE to deport an individual who previously received a removal order and left the country.
[8] "Has become a public charge within five years of entry" is the common name for section 237(a)(5) of the Immigration and Nationality Act. It is grounds for removability after an individual has been lawfully admitted to the United States.
[9] https://www.dhs.gov/news/2020/02/24/dhs-implements-inadmissibility-public-charge-grounds-final-rule