On September 20, 2022, the DC Council approved the “Migrant Services and Supports Emergency Amendment Act of 2022.” The emergency legislation creates an Office of Migrant Services to provide temporary support and services to migrants being bused from the southern border to the District by GOP governors. However, it also makes deeply problematic changes to DC homeless law that could prevent immigrants (not just recent migrants) from getting help from the District when they fall into homelessness or face a housing crisis. While the emergency legislation will be in effect for 90 days following the Mayor’s signature, the Council is also considering similar permanent legislation, and it is crucial that Councilmembers fix the problems with both bills as soon as possible. A public hearing on the permanent bill is scheduled for October 20, 2022.
Without question, it is critical that the District provide much-needed temporary support and services to vulnerable individuals and families who are living through a humanitarian crisis. Per the enacted emergency bill, OMS would provide “time-limited” services to “recent immigrants to the United States” including food, clothing, temporary shelter, medical services, relocation services, cash assistance for certain necessities, and social and legal services and referrals.
However, the emergency bill’s language will also cause several unacceptable consequences:
Many DC residents, including long-time residents, will lose eligibility for District homeless services programming simply because they are applying for changes to their immigration status – such as citizenship via the naturalization process – or participating in immigration proceedings.
DC Department of Human Services employees will be tasked with enforcing a law that excludes a large group of immigrant DC residents. At the very least, this could cause confusion and inconsistent decision-making, as staff grapple with making eligibility decisions based on where people are in any one of a variety of immigration processes. Worse, it may cause widespread discrimination in violation of the DC Human Rights Act, with chilling effects among immigrants in housing crises who might be scared to seek help from the DC Government.
It will be harder for recently-arrived refugees, asylees, and immigrants fleeing domestic violence or human trafficking to access the full range of homeless services because they will be required to furnish documentation of DC residency.
The following are a few examples of problematic outcomes that could flow from these consequences:
A long-time DC resident who has had a green card for a decade (and is allowed to live and work in the U.S. as a Lawful Permanent Resident) would suddenly become ineligible for homeless services if they applied for U.S. citizenship, because they would be “waiting to report” for a citizenship “interview” at a USCIS office.
Similarly, a long-time immigrant DC resident who suffered domestic violence at the hands of a US citizen spouse would abruptly become ineligible for homeless services if they were waiting for a green card interview after being granted legal status under immigration relief provided by the Violence Against Women Act.
If an immigrant mother recently came to the U.S. with her child to join her husband in DC, and the husband became abusive, the mother would be obligated to provide proof of DC residency so that she and her child could access most homeless services – including family shelter – if she ran away from her abusive husband.
In a statement, Mayor Bowser explained that the emergency bill “creat[es] a framework for providing support to individuals and families while ensuring our homeless services systems continue to support our DC residents.” The first part of the legislation does indeed establish OMS, granting the Mayor broad authority to set eligibility and service standards. Meanwhile, the second portion appears aimed to prevent certain groups of immigrants from accessing homeless services under the Homeless Services Reform Act.
The HSRA governs homeless services – provided by the Department of Human Services and service provider organizations – for DC residents who are experiencing homelessness or are at risk of experiencing homelessness. Homeless services under the HSRA comprise a “continuum of care,” that includes a variety of programs serving DC residents dealing with housing crises: eviction prevention programming like the Emergency Rental Assistance Program (ERAP), emergency shelter, limited housing supports like Rapid Rehousing and DC Flex, and permanent voucher programs targeted to homeless individuals and families (Targeted Affordable Housing and Permanent Supportive Housing). The HSRA additionally provides certain due process rights, such as notices of major agency and provider decisions and the right to appeal denials or terminations of service.
The Emergency Bill Excludes OMS Services Recipients From HSRA Protections
In addition to creating the OMS, the emergency bill creates a wall between the OMS and HSRA services. Section 103 explicitly states that HSRA services and protections will not apply to OMS services by stating that “[s]ervices and supports provided under [the bill] shall not be considered Continuum of Care services under the Homeless services Reform Act . . .” As we highlighted in a prior post, this creates a two-tiered system, because migrants receiving OMS services will not receive the same statutory protections guaranteed under the HSRA. We believe that any unhoused person in our sanctuary city should be able to access the services they need to address their homelessness, regardless of whether they were bused here in an act of political theater. Further, all unhoused people deserve the same level of legal protections in their interactions with the DC Government and service providers.
The Emergency Bill Amends the HSRA To Exclude Broad Categories of Immigrants, Beyond Recent Migrants
Beyond creating this two-tiered system, the second part of the emergency bill amends DC Code § 4-751.01, a section of the HRSA that defines terms that the DC Government uses to determine whether or not someone is eligible for homeless services. By making a variety of changes to language stating who qualifies as a “Resident of the District” for homeless services purposes and how they prove it, the emergency bill works to exclude many immigrant DC residents (not just recent migrants) from many homeless services programs (limited homeless service programs, such as “low-barrier” emergency shelter for single individuals and severe weather shelters operating as low-barrier shelters may, but are not required to, screen applicants for residency).
First, it prevents participants in the DC Healthcare Alliance Program (a locally funded healthcare coverage program that serves more than 24,000 people living in DC) from using their enrollment as proof of residency for the purpose of qualifying for homeless services. The Alliance serves DC residents who do not qualify for Medicaid due to immigration-related restrictions, and is the only public benefit available to undocumented immigrants. Preventing Alliance participants from proving eligibility by showing that they are enrolled in the program needlessly makes it harder for immigrants who make use of the program to access homeless services. This is especially unnecessary because Alliance participants (who include people who have lived in DC for many years) must be DC residents to get Alliance coverage. This change simply singles out people in a safety net program known to serve immigrants for additional scrutiny.
Going a step further, the emergency bill excludes several categories of immigrants from HSRA services by making them non-DC residents under the HSRA. The emergency bill states that “[a]n individual or family shall be deemed to be in the District temporarily and shall not be considered a resident” for purposes of qualifying for HSRA services if they (1) “are en route to a family member or sponsor or an intended destination outside the District”; (2) are “waiting to report” to “an immigration interview or other immigration proceeding that is scheduled to be held by an office or court, or other tribunal or fact-finder located outside the District”; (3) “were paroled into the U.S. after January 1, 2022” with some exceptions; or (4) were “issued, after January 1, 2022, a notice to appear” (i.e., summoned to an immigration proceeding).1 The emergency bill’s broad wording could mean that this exclusion could apply to any individual with a family member who falls under any of these four categories.
In Its Current Form the Emergency Bill Will Lead to Several Negative Consequences
The current language of the emergency bill excluding “an individual or family” waiting for an “immigration interview or other immigration proceeding” from HSRA services purports to be limited to those whose interviews or proceedings will be held by offices or courts “located outside the District.” But there is not a single immigration court or office located inside DC.2 All DC residents who need to attend immigration proceedings or interviews get summoned to offices and courts located in Virginia or Maryland. Thus, anyone waiting to attend an immigration proceeding or interview would be disqualified from most HSRA services. This means that families and individuals, including long-time DC residents, would get excluded from many vital HSRA services just because they applied for a certain immigration benefit (see examples 1 and 2 above).
Moreover, the exclusion would not be limited to recent arrivals, because it often takes years to get certain immigration court dates or interviews. Asylum interviews, in particular, often have notoriously long wait times (As of March 2020, there was a 1.7 million administrative case backlog for asylum). Under the emergency bill, DC residents who have been stuck waiting for years for an immigration court date or interview are excluded from HSRA service eligibility even if they entered the country and started residing in DC several years ago.
In addition, on-the-ground enforcement of the emergency bill means that, in making eligibility decisions, the DC Government will have to assess applicants’ immigration status and the nature of their interactions with federal immigration offices – in particular, whether applicants are “waiting to participate in an immigration interview or other immigration proceeding.” This would require substantive knowledge of immigration proceedings. As councilmember Brianne Nadeau pointed out while explaining her overall support for the bill on WAMU’s Politics Hour, ‘“…If you are a case worker at DHS, your job is to serve homeless families, you probably know nothing about the humanitarian parole system or asylum.”’ While this is an understandable reason for supporting the creation of OMS, the HSRA eligibility changes in the emergency bill would put precisely this type of impractical burden on homeless services system workers by requiring them to enforce eligibility criteria tied to a highly specialized area of law.
The situation could potentially lead to tragic and wide-spread racial-profiling, discrimination, and chilling effects. Eligibility workers who cannot determine immigration-based eligibility might turn people away just because they suspect – based on appearance and language ability – that those seeking services are temporary migrants. This would violate the DC Human Rights Act which, according to DHS’s own FAQs, provides that “the District of Columbia does not discriminate on the basis of actual or perceived: race, color, religion, national origin . . .”
Immigrant individuals and families who are otherwise eligible for HSRA services might be chilled from accessing them due to fear and misunderstanding of the law – a common issue in the immigrant community. Even now, many immigrants are currently afraid of accessing public benefits that they are eligible for due to former Trump-era public charge rules that have been modified but persist in causing fear and confusion. This bill could cause similar problems for vulnerable immigrant DC residents and families who need homeless services.
Finally, the emergency bill would make it harder for recently arrived refugees, asylees, and immigrants fleeing domestic violence or human trafficking to access the full range of HSRA services. Prior to being amended by the emergency bill, DC Code § 4-753.01(c)(3)(B) provided an important exception to the HSRA’s residency requirement for survivors of domestic violence and human trafficking, refugees, and asylees. These categories of people are able to receive the full range of HSRA services without having to demonstrate DC residency out of a recognition that people fleeing violence and persecution may not have residency documentation.
However, the emergency bill amends this provision, such that anyone who falls under these categories but is eligible to receive OMS services can no longer make use of this exception (see example 3 above). What makes this provision even more troubling is that the emergency bill also gives the Mayor broad discretion to determine OMS eligibility, and fails to provide any specifics as to eligibility criteria.
Even Without the Emergency Bill’s Amendments, the HSRA’s Residency Requirements Already Exclude Temporary Migrants
It is important to recognize that none of these residency amendments are necessary if the Council’s objective is to exclude solely temporary migrants from HSRA services. Prior to the emergency bill, DC Code § 4-751.01(32) already defined residents of the District to be “living in the District voluntarily and not for a temporary purpose” (emphasis added). If the goal of the emergency bill was to bar migrants for whom the District is not a permanent destination, the HSRA’s language already limited eligibility for this group (as well as un-housed non-immigrants who do not intend on staying in the District). Further, the HSRA’s residency requirement lists several categories of documents that people must use to prove residency. The temporary migrants being bused from the border would not possess these documents upon their arrival in the District and would not be in a position to obtain them without establishing connections to the District.
This raises an important question: If the HSRA’s original restrictions were sufficient to exclude temporary migrants from accessing HSRA services, why then, is the Council passing legislation that excludes even broader categories of DC’s immigrants?
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In sum, we hope that OMS services will offer similar services and protections offered by HSRA, so that we are not creating second-class services for temporary migrants in DC. Further, we hope that the permanent version of this bill will be amended so that we are not excluding DC’s immigrant residents from vital services, eroding the existing laws of our sanctuary city, or compromising the District’s progressive values.