How a Sludge-Filled Policy Stoked Uncertainty and Fear for Immigrant Families – By Kelli Garcia

Sludge is a new term for me (variant of nudge, but negative):

As a child growing up in Texas, I sometimes worried about getting caught up in an immigration raid. It was, in many ways, a fantastical fear. I was born in the United States, as were both my parents and all of my grandparents.

And, yet, my fear had some basis in reality. Cheech Marin’s 1987 film, Born in East L.A., about an American citizen being deported to Mexico and trying to get back to the United States, captured both the fear and absurdity of the moment. The United States does, after all, have a long history of deporting American citizens that continues to this day.

The climate of fear created and fanned by anti-immigrant rhetoric was and is real, not just for me but for many others. In 2018, one study estimated that about 50 percent of the United States’ Latino citizens reported fearing that they, a family member, or close friend could be deported.

This fear and anxiety have real consequences on individuals, families, and society. Several years ago, a harsh immigration policy implemented by the Trump Administration led people not to apply for benefits that they were eligible for. Because the consequences of running afoul of the rule could be dire, these changes created a chilling effect on who applied for benefits, reducing applications even for those who weren’t targeted by it.

This is an example of what behavioral scientists call sludge—when a policy’s design or implementation makes wise decisions more difficult through “friction and bad intentions.”

The United States immigration laws and regulations are full of sludge. Complicated and costly immigration processes have compounded disparities in who is able to apply for and obtain U.S. citizenship. The public charge rule I’m focusing on is an over-100-year-old law, rooted in racist and xenophobic beliefsthat people should not be admitted to the United States if they are “paupers or likely to become a public charge.” The law’s inexact language leaves ample room for policymakers to add or reduce sludge. The Trump-era change added sludge. Now, changes made by the Biden Administration aim to reduce it. But fear and uncertainty linger, preventing people from accessing the benefits they need.

From 1999 to 2019, the only things considered when determining whether someone was likely to become a public charge was whether they had received cash assistance from the federal government or had been institutionalized for long-term care at the government’s expense. In 2019, the Trump Administration’s new regulations expanded the types of programs the government would consider. The rule now factored in the use of housing, nutrition, and health programs. It also listed characteristics that would be weighted negatively against a person, such as having an income below 125 percent of the federal poverty line. The rule was long, complicated, and confusing.

In reality, the public charge determination applies to very few people in the United States. Refugees, asylees, and other groups of immigrants admitted to the United States for humanitarian reasons are excluded from the law. In addition, most immigrants in the United States who could be subject to the public charge rule are also excluded from using the types of safety net programs that would have been considered in the public charge determination.

But when the stakes are high and information is unclear, people err on the side of caution. The mere announcement of the now-defunct rule reduced the number of eligible immigrants enrolled in health, nutrition, and housing assistance programs, including in programs that were not affected by the rule.

For example, at ideas42 we found that Minnesota counties with higher proportions of noncitizens experienced larger declines in enrollment in food assistance through the Women, Infants, and Children (WIC) program than did counties with fewer noncitizens. This occurred even though participation in WIC was not considered part of the public charge determination. Applied nationally, our results suggest that the public charge rule announcement reduced overall WIC enrollment by over 28,000 people. Similarly, after the announcement of the Trump public charge rule, enrollment in the Supplemental Nutrition Assistance Program (SNAP) in Minnesota declined 6.3 percentage points more for noncitizens than citizens, even though nearly all of Minnesota’s noncitizen SNAP enrollees were exempt from the rule.

The rule also required certain immigrants who apply to become permanent residents to provide extensive and complicated documentation about any public benefits programs they used. Under these circumstances, it’s not surprising that many immigrants chose not to apply.

As a kid in Texas, my friends and I were careful not to be too loud in the movie theater or linger too long in a store for fear of drawing the attention of authorities. Similarly, many immigrants and citizens in mixed-status households stayed away from benefits programs for fear of running afoul of the confusing rule.

This fear persisted even after the Biden administration halted enforcement of the rule in March 2021. A September 2021 survey of 1,000 families with at least one immigrant family member found that 46 percent did not apply for assistance when they needed it because they feared it could harm their immigration status. Some immigrants expressed fear that merely seeking medical care could affect their immigration status. This fear contributed to vaccine hesitancy among Latino communities.

In September, the Biden Administration issued a new rule that provides clear guidance on when receipt of public benefits will be considered in the public charge determination. Unlike the 2019 rule, the new public charge regulations strive to be “clear, fair, and comprehensible.” Under the new rule, the Department of Homeland Security will only consider public cash assistance, including Supplemental Security Income, Temporary Assistance for Needy Families, and state, local, and tribal cash benefit programs and government funded long term institutional care. The rule specifically states that nutrition programs, the Children’s Health Insurance Program, Medicaid, housing benefits, and any benefits related to immunizations or testing for communicable diseases will not be considered in the public charge determination.

In developing these new regulations, the Department of Homeland Security considered the importance of reducing the chilling effect, not just for the benefit of individual people but also for society at large. Government benefit programs are supposed to help people when they need it. Making sure people can access medical care, have enough to eat, and have a roof over their heads helps society as a whole. By reducing immigrants’ participation in these programs, the 2019 public charge rule contributed to the very harms these programs were meant to address. The clarity of the new rule is intended to restore eligible immigrants’ participation in government benefits programs so that these programs can once again achieve their goals.

No parent should be afraid that accessing public benefits to feed their children or get medical care could lead to losing their right to remain in this country. No child should fear that a parent could be deported if they get reduced-priced lunches at school. As our and others’ research has shown, policies that create fear and uncertainty can undermine our social safety net and public health systems. I know from my own experience how easy it is for fear to change behavior in ways that can seem irrational. People respond to confusion with fear. By providing clarity, the new public charge rule should reduce fear and help ensure benefits programs serve those who are eligible.

Disclosure: Kelli García is an employee of ideas42, which provides financial support to Behavioral Scientist as a Founding Partner. Founding Partners do not play a role in the editorial decisions of the magazine.

Source: How a Sludge-Filled Policy Stoked Uncertainty and Fear for Immigrant Families – By Kelli Garcia

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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