July 8, 2019
Office of General Counsel, Rules Docket Clerk
Department of Housing and Urban Development
451 7th Street SW, Room 10276
Washington, DC 20410-0500
Re: HUD Docket No. FR-6124-P-01, RIN 2501-AD89 Comments in Response to Proposed Rulemaking: Housing and Community Development Act of 1980: Verification of Eligible Status
On behalf of ADL (the Anti-Defamation League), we are writing to express our strong opposition to the above-referenced proposed rule change and to urge that it be immediately withdrawn. By preventing tens of thousands of mixed-immigration status families from receiving public housing assistance, this proposed rule change is not only contrary to Section 214 of the Housing and Community Development Act, but also to our core values as a nation.
ADL, founded in 1913 to stop the defamation of the Jewish people and to secure justice and fair treatment for all, represents a community that has experienced the plight of living as refugees throughout its history. ADL has therefore been a fierce advocate for the fair and humane treatment of immigrants and refugees since its founding, and we have also served as a leader in exposing anti-immigrant and anti-refugee hatred and extremism that has poisoned our nation’s debate. In light of our longstanding mission and our work, ADL opposes the proposed rule change in its entirety and urges that the Department of Housing and Urban Development (HUD) instead keep families together.
The proposal will directly impact thousands of immigrant families’, including children’s, access to housing and will have a chilling effect that puts thousands more at risk of losing housing. Under existing regulations, families of mixed-immigration status are only eligible to live in subsidized housing if at least one member of the household is eligible to receive assistance. When a family of mixed-immigration status receives housing assistance, the family’s subsidy is simply pro-rated to account only for those residents eligible for benefits. Other members of the household, including those who have a legal right to be present in the U.S., whether pursuant to an employment visa, a student visa, or a U-visa, can remain in a household, but do not receive any federal subsidy., The proposed rule change would alter this structure in two ways. First, it would require verification of immigrant status for everyone in a household under the age of 62, and second, it would require that the leaseholder of each household be of eligible immigration status.
Although HUD contends that the proposed rule change will address the waitlist crisis faced by a majority of Public Housing Authorities nationwide, targeting struggling immigrant families in this manner will not fix this problem. In fact, HUD’s own analysis of the proposed rule concludes that fewer, not more, families are likely to receive assistance as a result of the rule. And while HUD also claims to be bringing its regulations “into greater alignment with the wording and purpose of Section 214,” HUD’s interpretation ignores the plain language and the history of this section, which has consistently guaranteed this subsidy to eligible immigrants and citizens while also preserving the integrity of mixed-immigration status families.
This proposed rule change will instead force tens of thousands of immigrant families to make an impossible choice—either separate to allow eligible family members to continue receiving assistance or forgo the subsidies so that the families can stay together. Neither option is acceptable, as both will have lasting impacts on the health and welfare of the family. Families who are evicted are more likely to experience homelessness or move into substandard or overcrowded housing, resulting in a sequence of adverse physical and mental health outcomes. The alternative, family separation, is a traumatizing experience for children which can have lifelong consequences, including toxic stress, trauma, and attachment issues.
By denying mixed status families one of the most basic of human rights—a safe place to call home—HUD has undermined this statutory purpose and ignored less costly alternatives, compromising the safety and security of immigrant families in our nation. We urge HUD to immediately withdraw this proposed rule in its entirety.
- Impact on Immigrant Families, Including Families with Citizen Children.
First and foremost, this proposed rule change threatens to place tens of thousands of mixed-immigrant status families at risk of homelessness. Because 70% of mixed status families currently receiving HUD assistance are composed of eligible children and at least one ineligible parent, it is likely that these families will forgo the subsidies to avoid family separation. In fact, HUD is counting on families choosing to forgo assistance, noting in its regulatory impact analysis that “HUD expects that fear of the family being separated would lead to prompt evacuation by most mixed households, whether that fear is justified.” In effect, this rule will therefore evict as many as 108,000 individuals in mixed status families (in which nearly 3 out of 4 are eligible for assistance) from public housing, Section 8, and other programs covered by the proposed rule. It will also likely have a chilling effect on eligible family members who may otherwise qualify for this federal subsidy, but are too frightened to seek assistance in the first instance. These mass evictions and departures from housing assistance will cause increased rates of homelessness and unstable housing among an already vulnerable population.
These effects will be particularly salient for the children in mixed status families, the overwhelming majority of whom are U.S. citizens. Since these children lack the legal capacity to sign leases themselves, the new rule would foreclose the possibility of these U.S. citizen children receiving any housing assistance under the covered housing programs. Unstable housing means that kids are more likely to have behavioral problems and to struggle in school, limiting students’ opportunity to obtain the education they need to succeed later in life. In fact, homelessness is associated with an 87% greater likelihood of a child dropping out of school. Housing instability also impedes cognitive development and can lead to health problems like depression, anxiety, and high blood pressure. The younger and longer a child experiences homelessness, the greater the cumulative toll of these negative health outcomes.
Any public policy that threatens one of the most basic human rights of so many children should be adopted only as a last resort. By HUD’s own admission, however, that is not the case. HUD’s regulatory impact analysis states, “There are less costly alternatives that would achieve a similar objective to this proposed rule” and would “limit the adverse impact of the transition on eligible children.” HUD has instead chosen to implement the most draconian of the possible options, in contradiction to HUD’s stated mission: to “build inclusive and sustainable communities free from discrimination.”
Evicting families or forcing them to separate will not only harm children’s health today, but well into the future. We need policies that expand, not reduce, access to stable homes for families with children in order to ensure all children have opportunities to be healthy and reach their highest potential. The proposed rule should be withdrawn on this basis alone.
- Impact on U.S. Citizens.
In addition to mixed status families, the proposed rule creates red tape that threatens housing security for 9.5 million U.S. citizens currently receiving HUD assistance, as well as all future U.S. citizens seeking these benefits. This is because the rule would require that all who declare they are U.S. citizens to also provide evidence of their citizenship, a practice that has proven to be burdensome, costly and unnecessary to protect program integrity.
Obtaining citizenship documentation can be particularly difficult for U.S. citizens over the age of 50, citizens of color, citizens with disabilities, and citizens with low incomes. Older individuals, for example, often have difficulty traveling to government offices to replace lost records and/or coming up with the funds to replace these records; some may have never been issued a birth certificate in the first place. People with disabilities often face similar barriers to accessing proof of citizenship and identity. For example, some people with disabilities do not drive and are less likely to have state-issued identification; in 2012, for example, 7.5 percent of people with disabilities lacked a valid ID compared to less than 5 percent of people without disabilities.,
The anticipated impact of the proposed citizenship documentation requirement on otherwise eligible citizens is not merely hypothetical. After Medicaid began implementing a citizenship documentation requirement, there was a sharp decline in Medicaid enrollment. Half of the 44 states responding to a Government Accountability Office (GAO) survey indicated that Medicaid enrollment fell because of the citizenship documentation requirement. The GAO also found that states reported increased administrative costs and needing to spend more time providing help to applicants and beneficiaries, increasing their time spent on applications and redeterminations of eligibility.
HUD has failed to take these added costs and burdens of these new documentation requirements into account, and should complete an analysis of these costs before taking any action to change existing regulations.
- Impact on Other Marginalized Populations.
In addition to having a disproportionate (and devastating) impact on U.S. citizen children of immigrant parents and on otherwise eligible U.S. citizens who may have difficulty satisfying the citizenship documentation requirement, the proposed rule will also disproportionately impact non-citizens in our country who may have documented status, but are otherwise ineligible for this federal subsidy. This includes our nation’s aging population, communities of color, individuals with disabilities, survivors of gender-based violence, and the LGBTQ community, among others.
First, this proposed rule will disproportionately impact our nation’s aging population, particularly those who will be put in harm’s way if they are no longer able to pool limited resources in mixed status, intergenerational homes. The rule also ignores the critical role that many grandparents play in caring for their grandchildren and other family members, as well as the role that adult children play in caring for their aging parents and relatives. In addition, noncitizen seniors will struggle in the same way as citizen seniors to produce documentation of immigration status under the new rule. HUD has not accounted for these concerns.
Second, the proposed rule threatens to take away critical public or other subsidized housing support from families of mixed immigration status in our nation’s Asian American Pacific Islander (AAPI) and Latinx communities. Today, the AAPI community is the fastest growing racial group, and one of the fastest growing poverty populations, in the United States. In addition, many AAPI families live in multigenerational households that include a mix of immigrants and U.S. citizens. The impact of HUD’s proposed rule, if implemented, has the potential to be devastating for this community—the presence of a single ineligible member of a household could lead to disqualification of the entire household, including citizens, children, and the elderly who are eligible for public housing and Section 8 programs. Similarly, the U.S. Latinx population today stands at more than 55 million, comprising 18% of the total U.S. population, and approximately one in five Latinos are non-citizens. Despite hard work and many contributions by Latinos to the economy, Latinos continue to face prejudice and discrimination throughout the United States, and many continue to struggle to meet basic needs, including finding a home they can afford. While research suggests that Latinos remain underrepresented in federal housing assistance programs, the proposed rule would likely deter many eligible Latinos from participating in critical public or subsidized housing programs, increasing housing insecurity for Latino families as a whole.
Third, many immigrant survivors of gender-based violence such as human trafficking, sexual assault, and domestic violence will also be severely and disproportionately harmed by HUD’s proposed rule. If the proposed rule goes into effect, ineligible survivors and their eligible children who are trying to escape violent living situations will be trapped in a false “choice”—homelessness, or returning to an abusive home. Financial security, and affordable housing in particular, are therefore critical to increasing survivors’ chances of escape, recovery, and prevention of future abuse. In addition, without adequate housing, survivors, including those who have been recently released from immigration detention, will have tremendous difficulty maintaining regular, meaningful communication with service providers. Notifications of critical appointments and court hearings may never reach them, and they may struggle to access evidence needed for legal matters involving immigration, child custody, or protection orders.
Fourth, the proposed rule change is likely to have a profound impact on the LGBTQ community, including thousands of bi-national same-sex couples. Nearly one-third of LGBTQ immigrants are undocumented, indicating that a significant number of LGBTQ bi-national couples could be negatively impacted by this proposed rule. LGBTQ people are 2.5 times more likely to receive public housing assistance than their non-LGBTQ peers. The need for these programs is especially acute for transgender people, LGBTQ people with disabilities, and LGBTQ people of color.
Finally, people with disabilities comprise a large percentage of the individuals served by HUD programs. Termination of assistance under the proposed rule could put people with limited housing options and limited resources further at risk, with tremendous cost to their health, earning potential, and wellbeing.
- Impact on the U.S. Economy.
There is no question that immigrants are essential to our nation’s healthy and growing economy. Currently, there are more than 27 million foreign-born workers in the U.S. labor market, accounting for about 17% of the total U.S. workforce and, overall, studies show that immigration into the United States is a long-term fiscal net positive.
Immigrant workers, of course, rely on stable housing in order to maintain their employment, contribute to local economies, and help their communities thrive. By increasing housing instability, particularly for immigrant workers in areas with high rents, the proposed rule has the potential to significantly and detrimentally impact our economy. The proposed rule does not adequately consider these repercussions, and HUD should study the extended impact the rule will have on the U.S. economy before taking any action.
As stated above, HUD’s proposed rule change does not advance federal fair housing aims, nor does it further the purpose or intent of Section 214. Instead, it would cruelly deny housing opportunities to thousands of mixed status families, 70% of which are families with eligible children, resulting in an increase in homelessness and a decrease in the quality and quantity of housing available overall. It will continue to spread fear and chaos among immigrants and their families, causing thousands of eligible families to forgo housing assistance and face homelessness to keep their families together. We urge HUD to immediately withdraw its current proposal and dedicate its efforts to advancing policies that reflect our nation’s values, treat immigrants with the dignity and respect they deserve, and keep families together.
Vice President, Government Relations, Advocacy, and Community Engagement
 Grace Huang, How Do Recent HUD Proposed Rules About Verification of Immigration Status Impact Survivors of Domestic Violence & Sexual Assault? (May 2019), https://docs.wixstatic.com/ugd/d97bc4_1927426097e04b00a82e573f8cb18fb1.pdf.
 Tracy Jan, Trump Proposal Would Evict Undocumented Immigrants from Public Housing, Wash. Post (Apr. 18, 2019), https://www.washingtonpost.com/business/2019/04/18/trump-proposal-would-evict-undocumented-immigrants-public-housing/?utm_term=.c6fd40565b83.
 HUD, Regulatory Impact Analysis, Amendments to Further Implement Provisions of the Housing and Community Development Act of 1980, Docket No. FR-6124-P-01 (Apr. 15, 2019).
 For example, 42 U.S.C. § 1436a(b)(2) states, “If the eligibility for financial assistance of at least one member of a family has been affirmatively established under this section, and the ineligibility of one or more family members has not been affirmatively established under this section, any financial assistance made available to that family by the applicable Secretary shall be prorated…” (emphasis added). The law explicitly permits housing authorities to choose not to affirmatively establish ineligibility. 42 U.S.C. § 1436a(i)(2)(A).
 Section 214 was passed in 1980. In 1988, Congress included a provision by which mixed status families who had been receiving full subsidy prior to the statute’s passage could avoid family breakup. Housing and Community Development Act of 1987, Pub. L. No. 100-242, § 164, 101 Stat. 1815. In its proposed rule, HUD twists that provision, which provides for temporarily grandfathered assistance, to claim that Congress only intended for prorated assistance to be provided for a limited time. However, Congress added the proration provisions in 1996. Use of Assisted Housing by Aliens Act of 1996, Pub. L. No. 104-208, § 572, 110 Stat. 3009.
 Alison Bovell & Megan Sandel, The Hidden Health Crisis of Eviction, Bos. U. Sch. of Pub. Health (2018), http://www.bu.edu/sph/2018/10/05/the-hidden-health-crisis-of-eviction/; Matthew Desmond & Rachel Tolbert Kimbro, Evictions Fallout: Housing, Hardship, and Health, 94 Social Forces 295 (2015).
 Shruti Simha, The Impact of Family Separation on Immigrant and Refugee Families, 80 N C Med J. 95, 96 (2019). Indeed, even a temporary separation has an enormous negative impact on the health and educational attainment of these children later in life, and many parents struggle to restore the parent-child bond once it has been disrupted by a separation. Laura C. N. Wood, Impact of Punitive Immigration Policies, Parent-Child Separation and Child Detention on the Mental Health and Development of Children, 2 BMJ Paediatrics Open (2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6173255/.
 HUD, Regulatory Impact Analysis, Amendments to Further Implement Provisions of the Housing and Community Development Act of 1980, Docket No. FR-6124-P-01, at 7 (Apr. 15, 2019) (emphasis added).
 Id. at 8.
 Indeed, the Department of Homeland Security’s October 2018 notice of a proposed rule altering “public charge” determinations had a profound chilling effect on low-income immigrant families, by discouraging them from applying for and receiving public benefits for which they are eligible, for fear of risking future green card status. Hamutal Bernstein, Dulce Gonzalez, Michael Karpman & Stephen Zuckerman, Urban Institute, One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018 (May 2019), https://www.urban.org/research/publication/one-seven-adults-immigrant-families-reported-avoiding-public-benefit-programs-2018.
 Pratt Ctr. for Cmty. Dev., Confronting the Housing Squeeze: Challenges Facing Immigrant Tenants, and What New York Can Do (2018), https://prattcenter.net/research/confronting-housing-squeeze-challenges-facing-immigrant-tenants-and-what-new-york-can-do.
 See HUD, Regulatory Impact Analysis, Amendments to Further Implement Provisions of the Housing and Community Development Act of 1980, Docket No. FR-6124-P-01, at 6-8 (Apr. 15, 2019) (73% of eligible family members are children and there are a total of 76,141 eligible individuals in the covered programs, for a total of 55,582 eligible children; 70% of households are composed of eligible children with ineligible parents, for a total of 38,907 eligible children in households with ineligible parents).
 Housing Instability is Linked to Adverse Childhood Behavior, How Housing Matters (May 9, 2019), https://howhousingmatters.org/articles/housing-instability-linked-adverse-childhood-behavior/.
 See Mai Abdul Rahman, The Demographic Profile of Black Homeless High School Students Residing in the District of Columbia Shelters and the Factors that Influence their Education 55 (Mar. 2014) (Ph.D. dissertation, Howard University), available at http://gradworks.umi.com/3639463.pdf (citations omitted).
 Erin S. Ingram, John M. Bridgeland, Bruce Reed & Matthew Atwell, Hidden in Plain Sight: Homeless Students in America’s Public Schools (Washington, DC: Civic Enterprises and Hart Research Associates, 2016), http://www.americaspromise.org/report/hidden-plainsight.
 Heather Sandstrom & Sandra Huerta, The Negative Effects of Instability on Child Development: A research Synthesis (2013), https://www.urban.org/sites/default/files/publication/32706/412899-The-Negative-Effects-of-Instability-on-Child-Development-A-Research-Synthesis.PDF.
 Alison Bovell & Megan Sandel, The Hidden Health Crisis of Eviction, Children’s Heath Watch Blog (Oct. 5, 2018), http://childrenshealthwatch.org/the-hidden-health-crisis-of-eviction/.
 Megan Sandel, Richard Sheward & Lisa Sturtevant, Compounding Stress: The Timing and Duration Effects of Homelessness on Children’s Health, Insights from Housing Policy Research (Washington, DC: Center for Housing Policy; Boston: Children’s HealthWatch, 2015), https://www.issuelab.org/resources/21731/21731.pdf.
 HUD, Regulatory Impact Analysis, Amendments to Further Implement Provisions of the Housing and Community Development Act of 1980, Docket No. FR-6124-P-01, at 17 (Apr. 15, 2019).
 Housing and Community Development Act of 1980: Verification of Eligible Status, 84 Fed. Reg. 20,589, 20,592 (proposed May 10, 2019) (to be codified at 24 C.F.R. part 5); Donna Cohen Ross, New Medicaid Citizenship Documentation Requirement is Taking a Toll: States Report Enrollment Is Down and Administrative Costs Are Up, CPBB (Mar. 13, 2007), https://www.cbpp.org/research/new-medicaid-citizenship-documentation-requirement-is-taking-a-toll-states-report.
 Ina Jafe, For Older Voters, Getting the Right ID Can Be Especially Tough, NPR: All Things Considered (Sept. 7, 2018), https://www.npr.org/2018/09/07/644648955/for-older-voters-getting-the-right-id-can-be-especially-tough.
 See s.e. smith & Rebecca Cokley, Reforming Elections Without Excluding Disabled Voters, Ctr. for Am. Progress (Mar. 29, 2019), https://www.americanprogress.org/issues/disability/news/2019/03/28/468019/reforming-elections-without-excluding-disabled-voters/.
 One survey from 2006 showed that as many as 7% of citizens did not have citizen documentation readily available. That same survey also suggests that: (a) at least 12% of citizens earning less than $25,000 a year do not have proof of citizenship; (b) many people who do have documentation have birth certificates or IDs that don’t reflect their current name or address, such as people who changed their name; (c) 18% of citizens over the age 65 do not have a photo ID; and (d) 25% of African American citizens lacked a photo ID. The proposed citizenship documentation requirement will make it very difficult for these individuals, who are otherwise eligible for benefits, to quality. Citizens Without Proof: A Survey of Americans’ Possession of Documentary Proof of Citizenship and Photo Identification, Brennan Center for Justice (Nov. 2006), http://www.brennancenter.org/sites/default/files/legacy/d/download_file_39242.pdf.
 U.S. Gov’t Accountability Office, Medicaid: States Reported That Citizenship Documentation Requirement Resulted in Enrollment Declines for Eligible Citizens and Posed Administrative Burdens (June 2007), https://www.gao.gov/new.items/d07889.pdf.
 US Census, 1-Year American Community Survey, 2011-2017.
 U.S. Census Bureau, American FactFinder: Selected Population Profile in the United States: 2017 American Community Survey 1-Year Estimates. Among Latino children, who account for a quarter of all U.S. children, the majority (52%) have at least one immigrant parent. Richard Fry & Jeffrey S. Passel, Latino Children: A Majority Are U.S.-Born Offspring of Immigrants (Washington, DC: Pew Research Center, 2009), https://www.pewhispanic.org/2009/05/28/latino-children-a-majority-are-us-born-offspring-of-immigrants/.
 UnidosUS, Latinos and the Great Recession: 10 Years of Economic Loss and Recovery (Washington, DC: UnidosUS, March 2019), http://publications.unidosus.org/handle/123456789/1932.
 Center for Disease Control and Prevention, Preventing Intimate Partner Violence Across the Lifespan: A Technical Package of Programs, Policies, and Practices (2017), available at https://www.cdc.gov/violenceprevention/pdf/ipv-technicalpackages.pdf.
 Gary J. Gates, LGBT Adult Immigration in the United States, The Williams Institute (Mar. 2013), https://williamsinstitute.law.ucla.edu/research/census-lgbt-demographics-studies/us-lgbt-immigrants-mar-2013/.
 Caitlin Rooney, Charlie Whittington, & Laura E. Durso, Ctr. for Am. Progress, Protecting Basic Living Standards for LGBTQ People 10-11 (Aug. 2018), available at https://cdn.americanprogress.org/content/uploads/2018/08/10095627/LGBT-BenefitCuts-report.pdf.
 See, e.g., Univ. of NH, Institute on Disability/UCED, 2018 Annual Report on People with Disabilities 9 (2019) at https://disabilitycompendium.org/sites/default/files/user-uploads/Annual_Report_2018_Accessible_AdobeReaderFriendly.pdf (“In 2017, the poverty rate of individuals with disabilities (ages 18-64) was 29.6 percent. In contrast, in 2017 the poverty rate of individuals without disabilities was estimated at 13.2 percent.”)
 See Panel on Econ. & Fiscal Consequences of Immigration, The Economic and Fiscal Consequences of Immigration (Francine D. Blau & Christopher Mackie, eds., 2017), https://www.nap.edu/catalog/23550/the-economic-and-fiscal-consequences-of-immigration.