Texas filed this suit in early January 2023 to challenge a regulation DHS finalized in September 2022 that defines when immigrants can be denied a visa or green card because they are likely to become a “public charge.” U.S. immigration law has had a “public charge” provision since 1882–the same year (and for similar reasons) that Congress enacted the Chinese Exclusion Act–but Congress has never defined the term. The federal agencies responsible for enforcing immigration law (like DHS), however, have long defined it as applying only to those likely to become primarily dependent on the government for subsistence (like those in the historical poorhouses). In 2019, however, DHS under President Trump issued a regulation to dramatically (and cruelly) expand that interpretation. The regulation challenged in this case repeals the Trump-era regulation and adopts in its place the historical understanding of “public charge.” Texas alleges that the challenged regulation conflicts with immigration law and was adopted without going through required procedures.
Shortly after Texas filed suit, Judge Tipton set a conference for April 3, 2023 to decide on a schedule for the case.
Texas’s Complaint alleges that the repeal of the 2019 rule and the adoption of the 2022 rule: (1) conflicts with the statutory definition of “public charge”; (2) was arbitrary and capricious, in violation of the APA, becase it failed to adequately explain the significant departures from the 2019 rule; and (3) violated the APA’s notice-and-comment requirements.