Baltimore Files Lawsuit Challenging Trump Immigration Policy on Non-Cash Benefits

Baltimore City’s solicitor sued the Trump administration on Wednesday, challenging a policy used by immigration officials outside the U.S. to determine whether would-be immigrants are likely to become a “public charge” through their use of health care and child care programs, among others.

Solicitor Andre M. Davis, who filed the case in U.S. District Court in collaboration with the nonprofit Democracy Forward, said the policy change is part of an ongoing attempt by the Trump administration to make life “miserable” for immigrants and potential immigrants. Davis said the policy could also cause immigrants already living in the city of Baltimore to forego programs like job training and school lunches if they have family members who might want to come to the U.S. in the future.

Davis accused the administration of executing “unlawful, anti-immigrant … policy behind closed doors.”

In January, the Trump administration amended the Foreign Affairs Manual, which governs decisions made by immigration officials outside the U.S., to allow consular officers to consider whether visa applicants or their family members, including their U.S. citizen family members, have received non-cash benefits. Non-cash benefits include programs like free school lunches, public health vaccinations, and Head Start.

Baltimore City Solicitor Andre M. Davis

The rule — which considers previous and current non-cash benefits by applicants and extended family members — imposes a heavily weighted negative factor in consideration for admission.

The lawsuit filed Wednesday contends that there was no public notice of the pending change in the Foreign Affairs Manual and no opportunity given for comment. The lawsuit also contends that the rule was arbitrary and capricious and violates the equal protection clause of the constitution.

In a news release, the city said the impact is already being seen in Baltimore. Enrollment in the city’s Head Start program has essentially ceased among the African immigrant population since the start of the 2018 school year, the city said.

The public charge policy could be expanded further by the Trump administration.

This September, the Department of Homeland Security announced that it was also seeking to change the rule for immigration officials in the United States; the comment period for that proposal is open.

“Under long-standing federal law, those seeking to immigrate to the United States must show they can support themselves financially,” Department of Homeland Security Secretary Kirstjen Nielsen said at the September announcement.

U.S. policy on non-cash benefits has changed over time. Under a previous policy clarified in 1999, the federal government specified that it would not consider Medicaid, the Children’s Health Insurance Program or other non-cash benefits in public charge determinations, according to the Kaiser Family Foundation, which has produced an extensive fact sheet on the issue.

Baltimore’s lawsuit seeks an injunction to require consular officials to revert to the previous version of the Foreign Affairs Manual.

“Baltimore is a welcoming City, known for embracing immigrants and also benefiting from their many contributions,” Mayor Catherine E. Pugh (D) said in a written statement. “This effort by the Trump Administration to create additional obstacles to those seeking to live in Baltimore is an affront to the ideals and principles on which this nation was founded. We are determined to resist this latest attempt to deprive our immigrant communities of basic services and are confident we will prevail.”

At a news conference in City Hall Wednesday livestreamed by Fox 45 Baltimore, Davis was asked why officials made the decision to file the lawsuit given other challenges facing the city.

“We have a lot of priorities. We care about all of our citizens and our residents. And this is an opportunity to fight back against what we perceive to be discriminatory, invidious, frankly hateful actions by the national government,” Davis said. “…We don’t regard this as a lesser concern in any way shape or form.”

Davis was also asked whether the lawsuit was filed as an attempt to raise Pugh’s national profile.

“The mayor gets plenty of national attention,” Davis said, noting that she chairs a task force within the U.S. Conference of Mayors that is fighting the Trump administration’s inclusion of a citizenship question in the 2020 Census.

“This is not some effort by Mayor Pugh to elevate her stature nationally. She feels very deeply about the people in this city,” Davis said.

Pugh did not speak at the news conference.

Davis said the city has partnered with Democracy Forward to file other lawsuits in the past, including to protect the Affordable Care Act.

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