Family Court Bench Card on Immigrant Crime Victim Access to Public Benefits and Services 1

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1 Family Curt Bench Card n Immigrant Crime Victim Access t Public Benefits and Services 1 By Jrdan Tacher, Leslye E. Orlff and David Stauffer Natinal Immigrant Wmen s Advcacy Prject (NIWAP) June 13, 2014 Fr What Public Benefits D Undcumented Dmestic Vilence Victims Qualify? In 1996 Persnal Respnsibility and Wrk Opprtunity Recnciliatin Act (Welfare Refrm Act r PRWORA) 2 and the Illegal Immigratin Refrm and Immigrant Respnsibility Act (IIRAIRA) 3 severely limited access t federal public benefits and federal means-tested public benefits fr many immigrants. This legislatin als guaranteed as a matter f federal law and rders issued by the U.S. Attrney General that undcumented immigrants be prvided access t prgrams and services necessary t prtect life and safety. 4 Prgrams that meet the fllwing criteria are required by federal law t prvide services t all persns withut regard t immigratin status: 5 ffer in-kind services (services such as fd, shelter, and ther cmmdities); prvide services at the cmmunity level; prvide services regardless f the individual s incme r resurces; and are necessary t prtect life r safety Husing 6 Shrt-term shelter (defined as emergency shelter and transitinal husing) fr up t tw years fr the hmeless, fr victims f dmestic vilence, r fr runaway, abused, r abandned children 7 1 This dcument was develped under grant number SJI-12-E-169 frm the State Justice Institute. The pints f view expressed are thse f the authr(s) and d nt necessarily represent the fficial psitin r plicies f the State Justice Institute. This prject was supprted by Grant Ns TA- AX-K002 and 2013-TA-AX-K009 awarded by the Office n Vilence Against Wmen, U.S. Department f Justice. The pinins, findings, cnclusins and recmmendatins expressed in this publicatin are thse f the authr(s) and d nt necessarily reflect the views f the Department f Justice, Office n Vilence Against Wmen. 2 Persnal Respnsibility and Wrk Opprtunity Recnciliatin Act f 1996, Pub. L. N , 110 Stat. 2105, 2267 (1996) [hereinafter PRWORA]. 3 Illegal Immigratin Refrm and Immigrant Respnsibility Act f 1996, Pub. L , 110 Stat (1996) [hereinafter IIRAIRA]. 4 IIRAIRA 508, 8 U.S.C. 1642(d) (2011). 5 8 U.S.C. 1611(b)(1)(E) (2011). See als Final Specificatin f Cmmunity Prgrams Necessary fr Prtectin f Life r Safety Under Welfare Refrm Legislatin, 66 Fed. Reg. 3613, at 3616 (Jan. 16, 2001). 6 See Letter frm Andrew Cum, Sec y, U.S. Dep t f Hus. And Urban Dev., t HUD Funds Recipients (Jan. 19, 2001), available at (last visited Mar. 27, 2013); 8 U.S.C. 1611(b)(1)(D) (2011). See als Final Specificatin, supra nte 4. Federal preemptin precludes states frm restricting access t services and prgrams necessary t prtect life and safety. See Rci Mlina, Leslye Orlff and Benish Anver, Federal Preemptin f State Laws That Attempt t Restrict Immigrant Access t Services Necessary t Prtect Life and Safety, NAT L IMMIGRANT WOMEN S ADVOCACY PROJECT (January 11, 2013), available at (last visited Apr. 11, 2013). 7 8 U.S.C. 1611(b)(1)(D) (2011). See als Final Specificatin, supra nte 4. Natinal Immigrant Wmen s Advcacy Prject (NIWAP, prnunced new-app) American University, Washingtn Cllege f Law 4801 Massachusetts Avenue NW Washingtn, D.C () (f) niwap@wcl.american.edu wcl.american.edu/niwap

2 In-kind emergency disaster relief 8 Nutritin Assistance 9 Sup kitchens 10 Cmmunity fd banks 11 Senir nutritin prgrams and ther nutritinal prgrams fr persns requiring special assistance Assistance under the Natinal Schl Lunch Act, the Child Nutritin Act f 1966, r SNAP fr children under Special Supplemental Nutritin Prgram fr Wmen, Infants and Children (WIC) 13 Legal Services Organizatins may use any surce f funding including Legal Services Crpratin funds t prvide free legal services t victims (r immigrants whse child has been a victim) f dmestic vilence, child abuse, elder abuse, sexual assault, human trafficking and victims f U Visa crimes 14 withut regard t the victim s immigratin status. 15 Health Care Emergency Medicaid 16 T prtect life r safety, health services such as the fllwing are required by law fr all immigrants, regardless f status: 17 Mental health, crisis cunseling, and interventin prgrams Medical and public health services (including treatment and preventin f diseases and injuries, such as immunizatins) Substance abuse assistance Health Resurces and Services Administratin Prgrams (HRSA) funded cmmunity, migrant and primary healthcare prgrams 18 Public health assistance fr immunizatin, testing and treatment f cmmunicable diseases and schl vaccinatins 19 8 Exempt frm immigrant access restrictins. PRWORA 401(b)(2), 8 U.S.C. 1611(b)(2). 9 8 U.S.C. 1611(b)(1)(D) (2011). See als Final Specificatin, supra nte U.S.C. 1611(b)(1)(D) (2011). See als Final Specificatin, supra nte U.S.C. 1611(b)(1)(D) (2011). See als Final Specificatin, supra nte PRWORA, 8 U.S.C 1612(a)(2)(J), 1615(a) (2011) C.F.R (c)(3) 14 U Visa crimes include: rape; trture; trafficking; incest; dmestic vilence; sexual assault; stalking; prstitutin; female genital mutilatin; invluntary servitude; slave trade; being held hstage; kidnapping, abductin; penage, false imprisnment; blackmail; extrtin; manslaughter; murder; felnius assault; witness tampering; bstructin f justice; perjury, attempt, slicitatin, r cnspiracy t cmmit any f these r similar crimes. 8 U.S.C. 1101(a)(15)(U). 8 C.F.R (a)(9) (2008). 15 See Vilence Against Wmen and Department f Justice Reauthrizatin Act f 2005, Pub. L (2006); Letter frm Helaine M. Barnet, President, Legal Servs. Crp., t All LSC Prgram Directrs (Feb. 12, 2006), available at 16 Emergency Medicaid is exempt frm immigrant restrictins under PRWORA 401(b)(1), 8 U.S.C. 1611(b)(1) U.S.C. 1611(b)(1)(D) (2011). See als Final Specificatin, supra nte Fr the lcatin f HHS funded health care prgrams pen t all persns withut regard t immigratin status, see Find a Health Center, U.S. DEP T OF HEALTH AND HUMAN SERVS. HEALTH RES. AND SERVICES ADMIN., (last visited Mar. 27, 2013). 19 Immunizatin and treatment f cmmunicable diseases is exempt frm immigrant restrictins. PRWORA 401(b)(3), 8 U.S.C. 1611(b)(1)(C) (2011). This includes diseases such as tuberculsis, HIV, leprsy, and ther sexually transmitted diseases. See Immunizatins, CTRS. FOR MEDICAID AND MEDICARE SVCS. (Jun. 15, 2012), available at (last visited Mar. 27, 2013). American University, Washingtn Cllege f Law 2

3 Educatin Public elementary and secndary educatin 20 Child Care and Develpment Fund (CCDF) 21 Safety Services Required Thse relating t child prtectin, adult prtective services, vilence and abuse preventin, and prtectins fr victims f dmestic vilence 22 Victims f Crime (VOCA) Victim Cmpensatin Funds 23 Fr What Additinal Public Benefits D Dmestic Vilence Victims Wh are Lawfully Present Qualify? 24 There are fur different categries f immigrants wh qualify t receive federal and/r state public benefits. Persns Residing Under Cver f Law (PRUCOL) Can access certain state funded benefits in sme states Immigrants wh are lawfully present Fr health care access purpses f the Patient Prtectin and Affrdable Care Act f 2009 including access t health care fr children and pregnant wmen 25 Qualified immigrants 26 wh entered the cuntry befre August 22, 1996 can access Federal public benefits, 27 State public benefits, and Federal means-tested public benefits Qualified immigrants wh entered the cuntry n r after August 22, 1996 can access Federal public benefits, 20 See Plyler v. De, 457 U.S. 202, 222 (1982). 21 If undcumented parents have children wh are U.S. citizens, lawful permanent residents r qualified immigrants, Child Care Develpment Fund child care is available t such children withut regard t the immigrant parent s immigratin status. See U.S. DEP T OF HEALTH AND HUMAN SERVS. ADMIN. FOR CHILDREN AND FAMILIES; CHILD CARE BUREAU, Clarificatin f Interpretatin f "Federal Public Benefit" Regarding CCDF Services Prgram Instructin (ACYF-PI-CC-98-08) (Nv. 25, 1998), available at 20Develpment%20Fund%20Services.pdf/view (last visited April 11, 2013) U.S.C. 1611(b)(1)(D) (2011). See als Final Specificatin, supra nte Only tw states place immigrant restrictins n access t VOCA victim assistance (Alabama and Nevada), in bth states trafficking victims with ORR certificatin r eligibility letters r T-visas shuld be able t receive VOCA victim assistance t the same extent as refugees. Fr state by state details n access t VOCA assistance fr immigrant survivrs, see Pst-Assault Healthcare and Crime Victim Cmpensatin fr Immigrant Victims f Vilence, NIWAP, LEGAL MOMENTUM, & MORGAN LEWIS LLC (Sep. 17, 2007), available at (last visited Apr. 10, 2013). 24 This Bench Card summarizes benefits pen t abused immigrants. Fr a detailed analysis, by immigratin status, f whether an immigrant can be cnsidered lawfully present r a qualified immigrant See Immigratin Status: Wrk Authrizatin, Public Benefits and Ability t Spnsr Children available at benefits-and-sevices-by-immigratin-relief-fr-immigrant-crime-victims/immigratin%20status-%20wrk%20authrizatin- %20Public%20Benefits%20and%20the%20Ability%20t%20Spnsr%20Children% xlsx/view 25 Patient Prtectin and Affrdable Care Act f 2009, Pub. L , 124 Stat (2009). 26 A qualified immigrant is defined by 8 U.S.C t include: lawful permanent residents, asylees, refugees, persns parled fr mre than ne year (generally mst available t Cuban immigrants); persns granted withhlding f remval r cnditinal entry, Cuban and Haitian Entrants, VAWA self- petitiners, VAWA cancellatin f remval, VAWA suspensin f deprtatin, battered immigrants with prima facie determinatins r apprved family based visa petitins, and T-visa applicants) U.S.C. 1611(c)(1) (2011) defines federal public benefit as Any grant, cntract, lan, prfessinal r cmmercial license prvided by an agency f the United States r by apprpriated funds f the United States; and any retirement, welfare, health, disability, public r assisted husing, pstsecndary educatin, fd assistance, unemplyment benefit, r any ther similar benefit fr which payments r assistance are prvided t an individual, husehld, r family eligibility unit by the United States r by funds f the United States. American University, Washingtn Cllege f Law 3

4 Must wait until 5 years after receipt f qualified immigrant status t receive federal means-tested public benefits, and May qualify fr state public benefits VAWA immigratin relief applicants 28 with a prima facie determinatins r apprval and their children are qualified immigrants and may als qualify fr health care r state benefits as lawfully present and PRUCOL. The fllwing is a partial list f benefits available fr qualified immigrants : Incme Maintenance 29 TANF - limited t qualified immigrants wh entered befre 8/22/ and thers wh have been qualified immigrants fr mre than 5 years 31 SSI fr thse wh were lawful permanent residents and were receiving SSI n August 22, 1996 r if the immigrant, her spuse, r a parent had, individually r cllectively, wrked fr 40 quarters 32 Husing 33 Husing Chice Vucher Prgram (Sectin 8) Public Husing Heating assistance (LIHEAP) 34 Nutritin Assistance 35 SNAP (Fd Stamps) - limited t qualified immigrants wh entered befre 8/22/ and thers wh have been qualified immigrants fr mre than 5 years Health 37 SCHIP and Medicaid fr lawfully present pregnant wmen and children Includes child and spuse abuse victim VAWA self-petitiners (victims f spuse r child abuse perpetrated by a U.S. citizen r lawful permanent resident spuse, frmer spuse, parent r step-parent) INA 204(a)(1)(A)(iii) and (B)(ii), 8 U.S.C. 1154(a)(1)(A)(iii) and (B)(ii); and VAWA cancellatin f remval r VAWA suspensin f deprtatin applicants wh are victims f spuse r child abuse perpetrated by a U.S. citizen r lawful permanent resident spuse, frmer spuse, parent r step-parent r immigrant parents f children abused by the child s ther parent wh is a citizen r lawful permanent resident. INA 240A(b)(2); 8 U.S.C. 1229b(b)(2) and INA Sectin 244(a)(3) (as in effect prir t March 31, 1997). 29 See DEP T OF HEALTH AND HUMAN SVCS., Health and Human Service Interpretatin f PRWORA Federal Public Benefit, U.S.C (a)(2)(d) (2011) U.S.C. 1612(A)(2)(L), 1613 (2011) U.S.C. 1612(a)(2)(D)(i) (2011) U.S.C. 1641(c) (2011). 34 See DEP T OF HEALTH AND HUMAN SVCS., Health and Human Service Interpretatin f PRWORA Federal Public Benefit, U.S.C. 1612(A)(2)(L), 1613 (2011) U.S.C (a)(2)(d) (2011). 37 Fr a full list f HHS federal public benefits, see DEP T OF HEALTH AND HUMAN SVCS., Health and Human Service Interpretatin f PRWORA Federal Public Benefit, 63 Fed. Reg. 41,658 (Aug. 4, 1998); HHS Funded Prgrams Open t all Immigrants, NIWAP AND LEGAL MOMENTUM (Aug. 4, 2011), available at benefits/unrestricted-benefits/pb_16_appendix_hhsfundedprgsopenallimms-manual- ES.pdf/view?searchterm=HHS%20Funded%20Prgrams%20Open%20t%20all%20Immigrants (last visited Apr. 10, 2013). 38 See CTR. FOR MEDICAID, CHIP, AND SURVEY & CERTIFICATION, Re: Medicaid and CHIP Cverage f Lawfully Residing Children and Pregnant Wmen (Jul. 1, 2010), available at IP%20Cverage%20f%20%E2%80%9CLawfully%20%20Residing%E2%80%9D%20Children%20and%20Pregnant%20Wmen (last visited Apr. 11, 2013); DEP T OF HEALTH AND HUMAN SVCS, State Children's Health Insurance Prgram; Eligibility fr Prenatal Care and Other Health Services fr Unbrn Children, 67 Fed. Reg (Octber 2, 2002). American University, Washingtn Cllege f Law 4

5 Medicaid - limited t qualified immigrants wh entered befre 8/22/ and thers wh have been qualified immigrants fr mre than 5 years 40 Educatin and Children Pst-secndary grants and lans and prgrams f student assistance under titles IV, V, IX, and X f the Higher Educatin Act f States are free t ffer any pstsecndary educatin benefit n the basis f residence within that state 42 Child Care and Develpment Fund (CCDF) 43 TANF Funded Child Care requires TANF eligibility s affected by TANF 5 year bar 44 Adptin assistance 45 Fster care U.S.C (a)(2)(d) (2011) U.S.C. 1612(a)(2)(L), 1613 (2011) U.S.C. 1613(c)(2)(H) (2011). See als Student Aid Eligibility - Eligibility fr Title IV Aid fr Battered Immigrants-Qualified Aliens as prvided fr in the Vilence Against Wmen Act, DEP T OF EDUC. (June 4, 2010), available at %20Dear%20Clleague%20Letters.pdf/view?searchterm=Student%20Aid%20Eligibility%20- %20Eligibility%20fr%20Title%20IV%20Aid%20fr%20%E2%80%9CBattered%20Immigrants- Qualified%20Aliens%E2%80%9D%20as%20prvided%20fr%20in%20the%20Vilence%20Against%20Wmen%20Act, (last visited Apr. 11, 2013) U.S.C.A (2011). 43 See U.S. DEP T OF HEALTH AND HUMAN SERVS. ADMIN. FOR CHILDREN AND FAMILIES, Prgram Instructin CCDF-ACF-PI Verificatin f Citizenship and Immigratin Status by Nn-Prfit Organizatins and Head Start Grantees (May 2, 2008), available at immigrants/verificatin%20f%20citizenship%20and%20immigratin%20status%20by%20nn- Prfit%20Organizatins%20and%20Head%20Start%20Grantees.pdf/view (last visited Apr. 11, 2013). Available t qualified immigrant children based n the child s immigratin status. 44 Available t qualified immigrants based n TANF eligibility f either the child r parent. Fr a state by state analysis f state funded access t access t TANF funded child care,. see Benish Anver and Leslye E. Orlff, Immigrant Crime Victim Child Care Access available at 45 See DEP T OF HEALTH AND HUMAN SERVS., Health and Human Service Interpretatin f PRWORA Federal Public Benefit, See DEP T OF HEALTH AND HUMAN SERVS., Health and Human Service Interpretatin f PRWORA Federal Public Benefit, 63 American University, Washingtn Cllege f Law 5

6 State-Funded Benefits The fllwing list prvides an verview f which states ffer certain state-funded public i benefits. Fr mre infrmatin abut what state funded benefits and health care is available t specific categries f immigrants and immigrant crime victims including prgram limitatins, see: States ffering state-funded assistance t qualified immigrants during the 5 year bar and sme immigrant crime victims, subject t individual state limitatins that may apply; if yur state is nt listed n state funded benefits are available fr immigrants r immigrant crime victims in yur state: TANF state funded including during 5 year bar fr qualified immigrants CA a, IL, IA, ME a, MD, MN a, NV, NJ, NM, NY, OR a, PA a, TN, UT, WA a, WI, WY TANF Funded Child Care CA, CT, IL, IA, ME, MD, MN, NE, NJ, NM, NY, OR, PA, TN, UT, WA, WI, WY Medical Assistance State-Funded AK d, AR b, CA j k, CO v x v, CT p u, DE p, DC f, HI e w, IL b i c v, LA b, ME p, MD p h, MA b v u x j r f, MI b, MN b l v, MT n, NE b p, NJ p f b v u, NM p j f s, NY j r b, NC p, OH z e y, OK b, OR b n, PA p j, RI z b p A, TN b, TX b B, VT p, VA g C D, WA t b c v, WI p b, WY SSI State Funded CA q, HI x, IL d, ME p r, NE p, NH d Cde Key a als fr crime victim applicants as PRUCOL b prenatal care regardless f status, c children regardless f immigratin status, d qualified immigrants" and PRUCOLs can receive chrnic and acute medical assistance if they have a terminal illness, cancer, diabetes, seizure disrders, mental illness, hypertensin, r certain ther medical cnditins. e qualified immigrant children and pregnant wmen, f Any frm f health care fr many r all wh meet qualificatins fr health care g qualified immigrant children h varies by cunty i qualified abused immigrants j qualified immigrants k prenatal care, lng-term care, breast and cervical cancer treatment and certain ther medical services pen t all withut regard t immigratin status, l lawfully present nn-citizens n fr lawfully present children nly lawfully residing pregnant wmen p lawfully residing children and pregnant wmen q Trafficking victims and U visa victims nly r PRUCOLS s PRUCOLs wh entered prir t August 22, 1996 t senirs and persns with disabilities wh are lawfully present u limited access t lng-term care r nursing hme care v sme incme restrictins may apply w residents f Freely Assciated States (Marshall Islands, Micrnesia, Palau) x Asylum applicants and trture victims can get up t 24 mnths f cntinuus cverage (this perid can be extended t 36 mnths fr sme asylum applicants). y Sme individuals under an rder f supervisin z Thse lawfully present prir t August 22, 1996 A Thse wh were residents f the state befre July 1, 1997 B Lawfully residing immigrant children wh entered the U.S. n r after Aug. 22, 1996, are eligible fr services cmparable t CHIP (during the federal 5-year bar). C Qualified immigrants and PRUCOLs wh were receiving lng-term-care services n June 30, 1997 D Children wh are PRUCOLs American University, Washingtn Cllege f Law 6