Public Charge Rule

Folleto sobre la carga pública en Español

On August 14, 2019, the Department of Homeland Security (DHS) published a final rule related to public charge in the Federal Register. The rule will not take effect until October 15, 2019. Some counties immediately filed a lawsuit to block the new rule, and additional litigation is expected (which could delay implementation).

EBSC is committed to providing accurate, up-to-date information to our community members. We oppose this new rule, which will have a huge and detrimental impact on working families who are low-income, advanced age, and may be suffering from chronic illness.

This does not apply to people who gained humanitarian-based statuses such as refugees, asylees, SIJS, T visa, U visa VAWA, and Cuban Parolees, among other programs. The new regulation also excludes the receipt of Medicaid/MediCal for people under 21, pregnant women, and emergency services.

If you think this new rule applies to you, IT’S VERY IMPORTANT YOU SEEK ADVICE FROM A LAWYER BEFORE DIS-ENROLLING FROM PROGRAMS. Call EBSC at: 510-540-5296 or email: or come to our drop-in legal clinic at 2362 Bancroft Avenue in Berkeley.

What is the “public charge” rule and how might it affect you?

  • The new “public charge” rule would link a person’s immigration status to their income, age, educational attainment, health and use of certain public programs such as SSI, Food Stamps, TANF, Medicaid, and some housing programs. It would give the Department of Homeland Security authority to deny applicants green cards, visas, or entry into the U.S. if there is a risk they will use these government-funded programs.
  • This new rule primarily applies to people who are seeking residency through family petition. It also applies to permanent residents who seek readmission to the U.S. after traveling abroad 180 days or more while receiving public benefits, and a few more categories.
  • Even if you are applying for residency through your family member, most public benefit programs included in the new rule are not available to undocumented immigrants.
  • And of course, benefits received by your US citizen children and other family members don’t count.

For more information, please see excellent information developed by our friends at the Immigrant Legal Resource Center (ILRC) and check this website for updates.

Public Charge Flyer in English


By Michael Smith
Director, Asylum Program
East Bay Sanctuary

Miguel is a handsome, twenty-something gay man from a Latin American country in which gays are persecuted. His story is not unusual, but many of us here in the land of compassion by the clock might not be aware of the truly horrible persecution gays suffer in lands of even less compassion. The child Miguel preferred to play house with girls rather than sports with boys. Because of his effeminate mannerisms his family insulted, threatened and beat him, at first for his own good – they wanted to make a man out of him; abusers often claim to be well intentioned and to have the best interests of their victims at heart. Later they abused Miguel because they hated and were humiliated by him. A close relative raped Miguel repeatedly, from the time he was eight until he was fifteen and able to defend himself. Because his culture told him he was different and wrong to be different, he blamed himself. He was confused. He didn’t know what it meant to be gay, to be attracted to boys and not girls. He thought something was wrong with him because everyone told him so. An outcast, he lived alone in the storeroom of the family business. He decided to hang himself and got the rope and tied the noose, but his only friend came to visit, saw the rope, scolded him and told his mother. After that he tried to kill himself three times by drinking and taking sleeping pills. Each time doctors pumped his stomach at the hospital. After that he found that if he didn’t take sleeping pills at night he had panic attacks. He drank heavily and took pills. He developed gastritis and when he was sixteen he bled from his mouth, nose and ears and had bloody diarrhea. He passed out. After a three-week stay in the hospital the doctor warned him that if he took another sleeping people or another drink of alcohol he would die. As soon as he got back to his room, he took a pill and a drink. And then another. And another. The light slowly went out and he went to sleep comforted and frightened by the certainty that all his misery and confusion would end. He woke up the next day, dizzy and terribly ill. He took the medicine the doctor prescribed and began to feel better.
He went away to school. Firmly in the closet, he wanted to pass for normal and live what everyone told him was a normal life. He dated a girl. He even had sex with her and got her pregnant. They married but he was miserable. He was living a lie. He could not have sex with his wife unless he was drunk. He was not being fair to his wife or himself and decided to break off the marriage, but he couldn’t face it. He returned to live alone in the family storeroom and drank himself into a stupor every night. He confessed that he was gay to his only friend, the one who had talked him out of hanging himself, and that friend beat him up.
He fled to the United States, crossing the border illegally. He made his way to San Francisco and learned that it wasn’t a crime or a sin to be gay, and he took some timid steps out of the closet. A little over a year ago he began sharing a room with another gay man from Latin America, not his lover. His roommate had been granted asylum and told Miguel he should go to the East Bay Sanctuary in Berkeley and they would help him. Miguel was tempted, but just couldn’t bring himself to do it. Everything he had ever done in his life had turned out badly, and he just didn’t think it was any use. He was afraid but did not know why or of what. If asked, he would have said he was afraid of being deported, which was true, but his real fear was of losing all hope.
His roommate’s boyfriend told him that he was making enormous progress but something was still missing. He urged him to do something to legalize his status if possible. Still, Miguel couldn’t bring himself to do it. Finally, the roommate’s boyfriend showed up one morning, got Miguel out of bed and kidnapped him. He took him to the East Bay Sanctuary.
Compassion as defined by Webster is the “sympathetic consciousness of others’ distress together with a desire to alleviate it.” Those of us who are not homophobes feel compassion for Miguel; we are sympathetic to his distress and want to do what we can to alleviate it. The United States is compassionate enough to have signed on to the Refugee Protocol which provides that “no Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.” As a Contracting State, the United States grants asylum to persons who have suffered severe and atrocious past persecution and/or have a well founded fear of future persecution upon returning to their country of origin. Miguel qualifies for asylum because he has been persecuted all his life on account of his sexual orientation (membership in a particular social group, that is, a gay man) and his life or freedom would be threatened if he were to return to his country of origin.
When our compassionate Immigration Service began granting asylum to too many undesirables, our compassionate Congress put a time limit on whatever desire they had to alleviate others’ distress by passing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which our then compassionate President signed. This reform said that it was the responsibility of the refugee to keep an eye on the clock because our compassion had limits. It stated that refugees had to apply for asylum within one year of entering the country or show that they could not do so because of extraordinary circumstances or that changed conditions materially affecting the applicant have occurred. One of the extraordinary circumstances noted in the law is trauma.
The East Bay Sanctuary interviewed Miguel, saw that he had every reason to be traumatized and sent him to a psychologist for a Psychological Evaluation. The psychologist diagnosed him as suffering from Post Traumatic Stress Disorder and Anxiety Disorder, with periods of depression, some of the symptoms of which are lack of initiative, low energy, avoidance, and a feeling of hopelessness. The evaluation stated: “Despite his outward presentation as a social, hard working individual, he often becomes avoidant, anxious and depressed, and thus frequently cannot attend to many tasks of daily living due to symptoms of depression, anxiety, and hopelessness over his situation. Such impairments have diminished Miguel’s ability to make decisions regarding his immigration status as well as other issues of self-development.”
The East Bay Sanctuary filed the application along with the Psychological Evaluation to show that Miguel did not apply within the one-year deadline due to extraordinary circumstances, that is, he was traumatized. A month after filing Miguel had an interview at the San Francisco Asylum Office.
Most Asylum Officers in San Francisco grant cases like Miguel’s. Unfortunately for him, he was interviewed by one of the least compassionate officers who denied his case, stating that although Miguel showed extraordinary circumstances, he did not file within a reasonable time. The reasonable time clock is another compassion-limited part of the 1996 regulation, which states that if the applicant shows extraordinary circumstances, such as trauma, s/he has a reasonable time to apply once s/he begins the process. Although a reasonable time is not defined in the law and it is not clear when it begins, the San Francisco Asylum Office generally considers six months after the client is referred to an attorney or agency to be a reasonable time. For some Asylum Officers, such as the one who interviewed Miguel, the reasonable time clock starts ticking the moment the applicant hears about asylum. The East Bay Sanctuary argued that Miguel was so traumatized that, although his roommate urged him to apply a year earlier, he could not bring himself to take action, and his reasonable time clock did not start ticking until he was taken by force to their office. Miguel and the Sanctuary lost that argument. The Asylum Officer who interviewed Miguel denied the application because Miguel’s roommate, an asylee, had told him to apply for asylum a year before he finally went to the East Bay Sanctuary. In other words, the Asylum Officer believed that Miguel was so severely traumatized that he merited an exemption from the one-year deadline, but not traumatized enough to excuse his delay after his roommate told him about Asylum.
The Asylum Officer showed an outrageous lack of compassion for a severely traumatized man, a human being who had been abused all through his childhood and adolescence, a human being who had been rejected and physically abused by his family, the very people who should have cared for and protected him, a human being who had been raped repeatedly from the age of eight to fifteen, a human being who had attempted suicide numerous times, a human being suffering from PTSD and Anxiety Disorder, a human being who thought everything was hopeless and needed more time to take a very long step out of the closet.
An exceedingly compassionate Senator from Utah assured our compassionate Congress that the 1996 law was written such that human beings with legitimate claims of asylum would not be “returned to persecution, particularly for technical deficiencies.” That, of course, was a lie. The whole purpose of the law was to prevent many people from obtaining asylum, generally undesirables, dark-skinned or gay, or people fleeing from countries whose murderous militaries our military trained and armed. Shocking to think that any compassionate Congressman would lie, but he did. And many other compassionate Congresspersons bought the lie, not because they believed it, but because they believed it would conceal their own lack of compassion and therefore carry no political risks, which is another kind of lie. To cover their lies all they had to do was include the words Reform and Responsibility to the title of the act. That’s the American way, the compassionate American way. Our compassionate Congresspersons knew that some Asylum Officers or Immigration Judges would interpret the exceptions broadly and protect asylum seekers, while others, not so compassionate, would be only to glad to keep a watchful eye on the compassion clock and use the law as an excuse to deny asylum for “technical deficiencies.” That’s human diversity, not only the gay or straight, the dark or light skinned, but the compassionate and those who have time limits on their compassion. And now Miguel finds himself in Removal (Deportation) Proceedings, in danger of being returned to his country where his life or freedom will be threatened. That was the clear intent of the law.
This law is particularly hard on LGBT refugees from underdeveloped countries, many of whom are severely traumatized. Citizens of developed countries cannot imagine the truly horrible persecution inflicted on LGBT human beings in many countries in the world where a step out of the closet can be a death sentence. We cannot imagine what it is like for LGBT human beings who flee from countries where they can be raped and murdered with impunity, where the authorities will not protect them, indeed, where the authorities often rape or murder gays. When these human beings manage to flee successfully to the United States their energies are focused on emotional and life style issues, such as coming out of the closet. Some, exhilarated by their new found freedom and acceptance, think they are in paradise and do not think about their legal status. They try to avoid thinking about the terrible suffering in the past by keeping busy, sleeping, drinking or taking drugs to self-medicate, but they cannot stop the memories that may flood them at any time. They have suffered a lifetime of persecution and need time to heal. Like Miguel, they don’t realize that the compassion clock is ticking away.


By Michael Smith

A common response to the humanitarian crisis at our southern border is that it’s not our problem.  It’s an ignorant response, ignorant in many ways, ignorant for humanitarian reasons and ignorant of history. To say that it’s not our problem is to be without compassion and to deny that we helped create the problem.

We needn’t go as far back as the Monroe Doctrine to see the terrible effects our government’s policies have had on much of Latin America. We only have to look back to the 1980’s to see what has caused this exodus of children fleeing the Central American Pharaohs we aided and abetted. Most are from Guatemala, El Salvador, and Honduras, Central American countries where long standing and brutal military dictatorships led, in the first two countries, to long lasting and brutal civil wars, and, in the third, long lasting and savage repression. Nicaragua also had a brutal military dictatorship and a brutal civil war, but, for the most part, Nicaraguan children are staying home.  Why is Nicaragua different?

Our government, as is our custom, supported the brutal dictators. Only in Nicaragua was the brutal dictator, Anastasio Somoza, defeated and a popular government installed, which our government promptly tried to overthrow by arming and training the brutal Contras. In El Salvador, Guatemala, and Honduras our government gave the most training and assistance to the worst human rights abusers, the Atlacatl Battalion in El Salvador, the Kabiles in Guatemala, and Battalion 316 in Honduras. The great irony is that any and all ex-members of those infamous units, many of whom received training at the School of the Americas in Georgia, are barred from entry into the United States because they engaged in torture and/or extrajudicial killings.  The ex-Kabiles are also inadmissible for the additional reason that they participated in genocide against the indigenous population of Guatemala. Also in denial, then President Reagan routinely signed White Papers stating that the Guatemalan military was improving its human rights policies and activities—this during the height of the genocide—so that Congress would continue funding those torturers and murderers. He even absurdly stated that the Guatemalan military was getting a “bad rap” on human rights.  In the 1985 presidential elections in Guatemala Reagan also supported, unofficially, Mario Sandoval Alarcon, the founder of the White Hand death squad. The Reagan administration liked death squads so much that they even cozied up to Roberto D’Aubuisson, also known as Blowtorch Bob because of his predilection for using a blowtorch when torturing victims, particularly women. D’Aubuisson masterminded the assassination of Archbishop Romero and was the founder to the Arena political party that reigned in El Salvador, with U.S. support, for 18 years after the end of the civil war. As there was no civil war in Honduras, Battalion 316 was a death squad organization that kidnapped, tortured, disappeared, and murdered opponents of the dictatorship in order to preempt any popular uprising.

After negotiated peace agreements were signed and civilian governments elected, the military remained the true power in these three countries.  In 2009, when the popularly elected President of Honduras, Zelaya, lost favor with the real rulers, the military overthrew him in a coup and installed a new President whom our government immediately recognized.  As the militaries of these countries committed terrible, large scale human rights abuses for many years, it should be no surprise that they continue to do so. These histories of violence and corruption have proved to be a fertile soil for breeding more violence and corruption. El Salvador, Guatemala, and Honduras have overwhelming problems of uncontrolled violence due to street gangs, drug cartels, and a continuation of political persecution, while their legal justice systems are so corrupt that prosecutions are rare, successful prosecutions rarer. These governments fail miserably in their obligations to protect their citizens because their militaries, complicit in the violence, prevent them from doing so. The situation is so bad that the level of violence in these countries is higher than it was during the truly brutal civil wars.

Only Nicaragua of the four Central American countries that experienced a brutal civil war in the 1980’s is not torn apart by terrifying acts of violence. I believe this is due to the fact that the Sandinistas—the people who led the popular uprising that overthrew Somoza and his brutal National Guard—maintained control of the military and police after they lost the 1990 elections. Only in Nicaragua was there no death squad activity after the civil war ended.  Only in Nicaragua today is there no culture of violence that forces children to flee. Only in Guatemala, El Salvador, and Honduras are the children so terrified, so desperate that they embark on the long and dangerous exodus to reach the promised land.  This is the problem we helped create. This is our problem.