HIV, Disability and “likely to become a Public Charge” - PowerPoint Presentation

Slide1

HIV, Disability and “likely to become a Public Charge”

Gabriel M. Guimaraes

Staff Attorney, African Services

African Services Committee

October 28, 2019

Slide2

Questions to consider:

Is HIV a disability, a “medical condition” as described in rule or neither?

Is HIV infection a “medical condition” as stated in the rule?

Is the rule’s “medical condition” equivalent to disability?

Can the distinctions be used to client’s advantage?

Can disability or HIV status be overcome?

By avoiding/ changing benefits?

By preserving federal issue [disability discrimination] for appeal?

Slide3

The 3 Bars:

Public Charge Provisions (1882 – present) :

1882, 1903, 1907, 1917 (added bond provision & introduced deportability rule) (1924 (added affidavit of support), 1952, 1986 (created disability waiver for IRCA only), 1996 (codified the 5-factor test and made AOS enforceable as a contract)]

Disability bar (

at least

1907 – 1990):

1882 [(“lunatics, idiots”), 1903 (added “epileptics” and those w/ [infectious]diseases”), 1907 ("found or certified by the examining surgeon as being mentally or physically defective, such mental or physical defect being of a nature which

may

affect the ability of such [noncitizen] to earn a living”); 1990 (repealed)]

HIV bar (1888 – 2010)

1987 (on CDC list and Statutory Ban) 1990 – 1993 (CDC rule only), 1993 (statute & rule) 2009(statute repealed) 2010 (removed from CDC list).

Slide4

Inadmissibility based on Public Charge, Disability and Criminal Grounds

 

total

percent change

public charge ground

percent of total

disability ground

percent of total

criminal ground

percent of total

1871-1880

unreported

-

unreported

-

unreported

-

unreported

-

1881-1890

unreported

-

unreported

-

unreported

-

unreported

-

1891-1900

22,515

-

15,070

66.933%

1,309

5.814%

65

0.289%

1901-1910

108,211

+380.617%

63,311

58.507%

24,425

22.572%

1,681

1.553%

1911-1920

178,109

+64.594%

90,045

50.556%

42,129

23.653%

4,353

2.444%

1921-1930

189,307

+6.287%

37,175

19.637%

11,044

5.834%

2,082

1.101%

1931-1940

68,217

-63.965%

12,519

18.352%

1,530

2.243%

1,261

1.849%

1941-1950

30,263

-55.637%

1,072

3.542%

1,021

3.374%

1,134

3.747%

1951-1960

20,585

-31.980%

149

0.724%

956

4.644%

2,017

9.798%

1961-1970

4,831

-76.531%

27

0.559%

145

3.001%

383

7.928%

1971-1980

8,455

+75.016%

31

0.367%

31

0.367%

814

9.627%

1981-1990

19,759

+133.696%

unreported

-

0

0.000%

3,675

18.599%

1991-2000

>194,151*

-

unreported

-

unreported

-

unreported

-

2001-2010

1,484,719

-

unreported

-

unreported

-

unreported

-

2011-2016

1,369,119

-7.7865%

unreported

-

unreported

-

unreported

-

Slide5

Deportations based on Public Charge, Disability or Criminal Grounds

 

total

percent change

public charge ground

percent of total

disability ground

percent of total

criminal ground

percent of total

1871-1880

unreported

-

unreported

-

unreported

-

unreported

-

1881-1890

unreported

-

unreported

-

unreported

-

unreported

-

1891-1900

2,783

-

unreported

-

unreported

-

unreported

-

1901-1910

9,180

+229.861%

unreported

-

unreported

-

unreported

-

1911-1920

27,912

+204.052%

9,086

32.552%

6,364

22.801%

1,209

4.331%

1921-1930

117,086

+230.171%

10,703

11.614%

8,936

9.696%

8,383

9.096%

1931-1940

110,849

+27.051%

1,886

1.611%

6,301

5.382%

16,597

14.175%

1941-1950

129,887

-5.327

143

0.129%

1,560

1.407%

8,945

8.071%

1951-1960

96,374

+17.175%

225

0.173%

642

0.494%

6,742

5.191%

1961-1970

231,071

-25.802%

8

0.008%

236

0.245%

3,694

3.833%

1971-1980

655,163

+140.482%

31

0.013%

38

0.016%

2,524

1.089%

1981-1990

2,780277

-8.065%

unreported

-

0

0.000%

213,071

100.000%

1991-2000

2,313,494

+207.486%

>3,507*

-

0

0.000%

238,362

36.382%

2001-2010

1,484,719

+324.364%

unreported

-

0

0.000%

1,022,312

36.771%

2011-2016

1,369,119

-16.789%

unreported

-

0

0.000%

895,815

38.721%

Slide6

Public Charge Rule of Inadmissibility

Disability Bar

1888 – Congress creates public charge rule of exclusion

1907 – Disability bar

1978 – Rehabilitation Act of 1973 applied to Executive Agencies – requires DOJ regulations.

1986 IRCA legalization provision allows a waiver of public charge for disabled, blind or elderly applicants

1984 DOJ promulgates Rehabilitation Act regulations barring use of discriminatory criteria

1990 – Congress passes ADA and repeals 1907 disability bar.

1996 PROWORA: ends fed most benefits for noncitizens, and makes affidavits of support into enforceable contracts.

IIRIRA: Congress creates 5 factor test for public charge but rejects definition as 12 months of benefit use

IIRIRA: Provision including “health” as one 5 factors in balancing test does not preempt federal disability law. IIRIRA begins 68 other provisions with preemptive language: “Notwithstanding any other provision of law . . .”

1999 Rule – only cash & long-term institutionalization

relevant

to PC.

2003 – DHS adopts DOJ’s 1984 Regulations

2019 Enjoined DHS Rule would define Public Charge as Congress rejected: 12 months of benefit use.

2019 Rule would make disability a “negative factor” or “heavily weighted factor” if no insurance.

Slide7

PUBLIC CHARGE RULE

DISABILITY BAR

HIV BAN

1981 AIDS hits mainstream media

1986 IRCA waives PC for disabled

1984 – DOJ

regs

bar ”criteria”

1986 HIV virus identified

1987 HIV CDC list & Statutory Ban

1990 –Congress passes ADA & repeals 1907 disability bar

1990 Congress passes Ryan White Act & repeals Ban but HIV stays on CDC list.

1993 – Congress debates whether public charge rule is enough to protect US from “invasion” of HIV.

1993 Clinton’s efforts to remove HIV from CDC list backfire: new HIV ban

1996 – PROWORA ends non-citizen benefits. IIRIRA codifies 5 factor test.

“Health” becomes one of 5-factors in balancing test.

ADAP and Ryan White Benefits exempted from PROWORA

1999 Rule – only cash & long-term institutionalization

relevant

to PC.

2003 – DHS adopts DOJ’s 1984 Regulations

2009 HIV Ban Repealed

2010 HIV off CDC list

2019 Rule adopt Public Charge definition rejected by Congress

2019 Rule turns disability into negative factor.

Slide8

Definitions of Disability

For Protection from

Disaibility

Discrimination (ADA/Rehabilitation Act)

A person who has a physical or mental impairment that substantially limits one or more major life activity.

Remedy: reasonable accommodation [as applied] or injunction [facial violation]

For Disability Income Eligibility (SSA)

unable to engage in any substantial gainful activity (SGA)

by reason of any medically determinable physical or mental impairment(s) which:

can be expected to result in death; or,

last for a continuous period of not less than 12 months.

Remedy: disability income

Slide9

Definitions from Immigration Law

Disability Bar (1907 – 1990) (34 Stat 898)

“mentally or physically defective,

such mental or physical defect being of a nature which

may

affect the ability of such [noncitizen] to earn a living

as “found to be” or “certified by the examining surgeon “

(34 Stat 898)

DHS Rule Inadmissibility on Public Charge Grounds (2019)

Negative factor: “diagnosed with a medical condition

that

is likely to

require extensive medical treatment or institutionalization OR

that

will

interfere with the alien’s ability to provide and care for himself or herself, to attend school, or to work

upon admission or adjustment of status.”

Negative factor becomes

Heavily Weighted

(precludes admission on bond)

IF APPLICANT IS:

Uninsured,

Without prospects of obtaining

private

insurance, AND

Without financial resources to pay for reasonably foreseeable medical costs related to such medical condition.

Slide10

Is HIV+ (asymptomatic) a disability?

HIV + = disabled for purposes of disability discrimination.

Bragdon

v. Abbott

, 524 U.S. 624 (1998).

HIV + = not disabled for purposes of disability income (SSI/SSD or private disability insurance)

However, in NYC, asymptomatic HIV = eligible for HASA benefits, regardless of ability to work!!!!

Slide11

Keep in mind. . .

HIV can also be a basis for relief:

Asylum; “Other Serious Harm” (Humanitarian Asylum), even during Travel Ban;

Hardship Waivers or Cancellation of Removal (42b)

“Medical Deferred Action” [particularly if institutionalized]

AND

Most adjudicators have misconceptions about living with HIV. Client must drive the narrative.

Slide12

Disability = at least 3 different ”medical conditions”

Strategy depends on ‘condition’

Evidence of employment, skills,

enrollment in school

2) evidence of likely improvement

3) private insurance? SS credits?

Slide13

Client’s actual condition may not fit rule’s “medical condition” or may require

reasonable accommodation

1. Requiring treatment?

2. That

will

interfere with work?

3. Requiring institutionalization?

Slide14

BENEFITS

Health Insurance

Cash

Housing Subsidies

Slide15

Health Insurance

Heavily Weighted Positive:

No “medical condition” AND Employer insurance (private, unsubsidized)

Neutral

No medical condition AND no insurance

”medical condition” and Employer Insurance (private, unsubsidized)

Negative Factor

Medical Condition AND any subsidized insurance

except FEDERAL

Medicaid.

Note: this is unclear because of contradictory language in the i-944 instructions.

Heavily Weighted Negative Factor

Medical Condition, AND

NO insurance

Public Charge

Receipt of Federal Medicaid for 12 months in 36 month period. [unavailable for most adjustment applicants subject to public charge inadmissibility]

Slide16

Health Insurance & Form I-944 – Declaration of Self-Sufficiency

Requires adjustment applicants to list ”public benefits” [only those enumerated in the rule +

any

receipt of cash.”

Applicants are not

required

to include state benefits, or state health insurance

HOWEVER, a person with a “medical condition,” who reports as

uninsured,

will earn a “Heavily-weighted negative factor,”

Could USCIS interpret “uninsured” as “without private, unsubsidized insurance?”

Slide17

Is any “subsidized insurance” evidence of low income?

Under current law, “receipt of cash” is merely considered ”evidence of low income,” and not dispositive.

Reporting State Insurance, ADAP or ACA subsidies is independent evidence of low income –

could

count as additional factor.

Discouraged for persons w/o medical conditions

Lesser of 2 evils for persons w/ “medical conditions” to avoid “heavily weighted negative factor.”

Consider advantage of

Medicaid for Working Persons with Disabilities

Subsidies with higher income cut-off

Slide18

Concerns moving forward:

PROOF — States that offer a state version of Medicaid (i.e. New York)

should

make sure beneficiaries have document that proves their permissible, state “Medicaid” is not the Federal Medicaid, enumerated on the list.

CHANGE OF PLAN States, Advocates and Clients

should

ensure that a person who obtains a new green card is not

automatically

enrolled in Federal Medicaid. States must offer:

Notice

Opportunity to opt out

Alternatives to Federal Medicaid

at least until Public Charge rules are resolved

Slide19

Cash Benefits: SERIOUS CONSEQUENCES FOR PUBLIC CHARGE

Under current law: receipt of cash is deemed “evidence of income below 125%.” Can be rebutted by other evidence.

Under DHS rule,

any

receipt of cash for 12 months [or less, in combination with other enumerated benefits] defines a person as already being a “public charge.”

Even assuming DHS rule fails, USCIS is

still

likely to enforce current law with much more vigor, and treat

current

receipt of cash as dispositive.

Slide20

HOUSING PROGRAMS

Housing programs enumerated in the DHS rule (Section 8 and Public Housing) are generally not available to adjustment applicants subject to Public Charge

However: NYCHA and other Public Housing — by statute — allows non qualified family members to live with qualified immigrants/ USC, paying market rate.

HUD rule seeks to evict non-eligible family members;

IF HUD rule fails

— it is likely DHS will argue even the “market rate” in public housing constitutes receipt of “public housing” for purposes of public charge.

Slide21

DANGER: Permissible Housing Programs are often tied to IMPERMISSIBLE receipt of cash

Housing programs

not

included in the DHS rule’s enumerated benefits need not be reported on Form I-944:

HRA rental subsidies

HASA rental subsidies

Any subsidy administrated by a non-profit organization,

including:

Short Term Rental Assistance Program (STRAP), administrated by Gay Men’s Health Crisis (GMHC)

Rental Assistance Program (RAP), administered by Hispanic AIDS Fund (HAF)

However, HRA, HASA, (and possibly others) tie rental subsidy to receipt of cash benefit,

unless beneficiary reports > $466 monthly income. [

See

HASA “return to work” rules, explained by LAC & Empire Justice]

Slide22

Client 1

Undocumented immigrant with HIV

Rent paid by non-profit that funnels HOPWA

Insurance: ADAP

Client has high school education, has never worked in the U.S, wanted to be a lawyer – too ill to work at present. HOPWA based non-profit terminates rental subsidy because client now PRUCOL, and is eligible for HASA:

NYS State Medicaid

Rent up to $1600

$376 per month

Slide23

Client 2

TPS beneficiary 14 years

Receiving maximum state benefits: (Medicaid, Rental Subsidies, Cash)

Condition is serious, may need long-term care

Recently married USC earning $40k