Homeland Security’s Public Charge Rule Implementation Stopped!

On July 29, 2020, Judge George B. Daniels of the U.S District Court for the Southern District of New York issued a preliminary injunction and temporary stay of the U.S. Department of Homeland Security’s (DHS) Public Charge rule. Judge Daniels’ order provides that DHS and U.S. Citizenship & Immigration Services (USCIS) can not enforce, apply, implement, or treat as effective the Public Charge rule as long as “there is a declared national health emergency in response to the COVID-19 outbreak.”

The preliminary injunction and temporary stay applies nationwide as Judge Daniels wrote, “Each infected individual that travels to Governmental Plaintiffs’ jurisdiction [States of New York, Connecticut, and Vermont; and City of New York] risks undoing crucial progress made in combating this disease. Discouraging noncitizens nationwide from obtaining necessary treatment and care certainly undermines those efforts. Issuing geographically limited relief would not meaningfully abate the public health risk, especially when applied to a population that represents a significant portion of essential workers who continue to work outside of their homes ans interact with the public at large.”

The Public Charge rule, that defined public charge to include individuals receiving federal housing benefits, took effect February 24, 2020; after previous injunctions and stays were lifted by the U.S. Supreme Court. It is anticipated that Judge Daniels’ preliminary injunction and temporary stay order will also be appealed to the U.S. Supreme Court.

The July 29, 2020 order can be view here. NAHRO’s Public Charge One-Pager provides additional information on the DHS Public Charge rule. NAHRO will continue to follow the implementation of DHS’s Public Charge rule and share additional information as we receive it.

Public Charge Rule Implementation Begins February 24, 2020

Except for in the State of Illinois, the U.S. Citizenship and Immigration Services (USCIS) will begin applying the Public Charge Final Rule to immigration applications and petitions postmarked or submitted electronically on or after February 24, 2020.

As a reminder the Public Charge Final Rule primarily applies to individuals that are applying for entry into the United States and to individuals that are temporarily in the United States and are applying for permanent residency in the United States. NAHRO has also issued an informational one-pager on the Public Charge Final Rule to provide PHAs an overview of the rule. 

USCIS as issued a press release, Question and Answer Legal Resource, and updated the USCIS Policy Manual to provide additional information on the implementation of the Public Charge Final Rule. USCIS will provide additional information on implementation in Illinois if the injunction is lifted.

Federal Judge Dismisses AFFH Suit

In an opinion published on Friday, a federal judge dismissed a suit brought by several fair housing organizations. The fair housing groups wanted HUD to reinstate the local government assessment tool as part of the Affirmatively Furthering Fair Housing (AFFH) process. The court found that the groups did not meet the requirements to sue and that even if they did, HUD should not be required to reinstate the local government tool.

After providing background information and describing the relevant law, the opinion discussed three issues. First, whether the fair housing groups had standing (i.e., met the legal requirements to sue); second, whether the fair housing groups were entitled to a preliminary injunction reinstating the assessment tool for local governments; and third, whether New York State could join the suit. The court found that the fair groups lacked standing (i.e., did not meet the legal requirements to bring suit); that even if they had standing, they were not entitled to a preliminary injunction ordering that the local government tool be reinstated; and that New York State could not join the suit.

Fair Housing Groups Lack Standing

The court found that the fair housing groups lacked standing and could not bring a suit. Although the court found multiple reasons why the fair housing groups lacked standing, the court focused most of its analysis on how there was a lack of injury to the fair housing groups by the withdrawal of the local government tool. The court found that the withdrawal of the local government tool did not impair the mission of the fair housing groups because many aspects of the AFFH rule remain in place, including the new community participation requirements, which give the fair housing groups continuing opportunities to participate in a more robust Analysis of Impediments (AI) process. The court also found that withdrawal of the local government tool did not cause a drain of the fair housing groups’ resources because they are engaged in the same types of activities that they were undertaking before the withdrawal of the local government tool and because withdrawal of the tool does not require that the groups spend more on operational costs. Finally, the court also found that the fair housing groups lacked the other elements of standing–causation and redressability.

Fair Housing Groups Not Entitled to a Preliminary Injunction

The court found that even if the fair housing groups had standing, they were not entitled to a preliminary injunction. Again, although there were several reasons why they were not entitled to a preliminary injunction, the court focused its analysis on showing why the fair housing groups were unlikely to succeed on the merits of the case. First, the court noted that withdrawal of the local government tool did not require notice-and-comment procedures (these are the procedures used in the informal rulemaking process when an agency is creating a regulation) because the local government tool is properly characterized as an “information collection” and not subject to notice-and-comment procedures. Second, the court found that the withdrawal of the tool was not arbitrary or capricious because HUD provided adequate reasoning for its decision to withdraw the local government tool (HUD noted the high failure rate of program participants to submit acceptable first-time submissions and the high costs of scaling up technical assistance for future submissions). The court also did not find the other factors needed for a preliminary injunction including a risk of irreparable harm, a balance of equities in favor of the fair housing groups, or an accord with the public interest.

New York State May Not Join the Suit

The court found that New York State may not join the suit because, like the fair housing groups, it lacked standing because of a lack of injury.

The full opinion can be found here.

HUD to Reopen AFFH Rule

Earlier today, HUD published a press release announcing that it published a notice inviting public comment on amendments to its Affirmatively Furthering Fair Housing (AFFH) regulation.

[8/16/18 Edit – the notice has been published in the Federal Register. It can be found here. The comment due date is October 15, 2018.]

The Department wishes to receive comments on amending the rule so that it does the following:

  1. minimizes regulatory burden while more effectively aiding program participants to meet their statutory obligations;
  2. creates a process focused primarily on accomplishing positive results, rather than on analysis;
  3. provides for greater local control and innovation;
  4. seeks to encourage actions that increase housing choice, including through greater housing supply; and
  5. more efficiently utilizes HUD resources.

Currently, HUD has suspended the obligation of local governments to file Assessments of Fair Housing (AFHs) using the local government tool. The Department believed that the tool was “confusing, difficult to use, contained errors, and frequently produced unacceptable assessments, and otherwise required an unsustainable level of technical assistance.” There is currently a lawsuit brought by three civil rights groups filed against HUD on its action suspending requirements of the rule.

NAHRO will provide additional information to our members as we continue to read through the notice and as additional information becomes available.

The Department’s press release can be found here.

A pre-publication copy of the Advance Notice of Proposed Rulemaking can be found here.

[8/16/18 Edit – the published copy can be found here.]

Groups sue HUD over AFFH

Earlier today, three groups (the National Fair Housing Alliance [NFHA], the Texas Low Income Housing Information Service, and Texas Appleseed) filed a complaint in Federal Court (the United States District Court for the District of Columbia) against HUD regarding its recent actions to extend the deadline for local governments to submit their Assessments of Fair Housing (AFHs).

The complaint states that HUD “published a three-page notice . . . suspending the key requirements of the [Affirmatively Furthering Fair Housing (AFFH)] rule” (HUD characterizes this action as an “Extension of Deadline for Submission of Assessment of Fair Housing for Consolidated Plan Participants“). The action caused “irreparable and ongoing injury” for the three groups suing. As a result of HUD’s action, Texas Appleseed and the Texas Low Income Housing Information Service will have to “divert [mission-critical] resources” to “remedying the effects of [HUD’s] actions.” Additionally, NFHA will have to “divert resources to assisting its members around the country . . . to combat the effects of [HUD’s] actions.”

The groups believe that HUD erred in three ways. First, “[b]y failing to engage in notice-and-comment rulemaking before delaying and altering the AFFH Rule, HUD failed to observe procedures required by law, in contravention of the [Administrative Procedure Act].” Second, “HUD’s delay of the Rule is arbitrary, capricious, or an abuse of discretion, in contravention of the [Administrative Procedure Act]” because HUD’s rationale for extending the deadline (inadequate technical assistance among other reasons) does not explain why HUD cannot improve its technical assistance or why it is acceptable to go back to the previous regulatory framework (i.e., the Analysis of Impediments). Third, “HUD’s effective suspension of the AFFH Rule violates the Fair Housing Act, in contravention of the [Administrative Procedure Act].” Here, the complaint states that HUD is violating its own “affirmative obligation under the Fair Housing Act to ensure that federal housing programs are administered, and federal housing funds spent, in a manner that furthers fair housing.”

The complaint asks that the Court do five things. First, enter a declaratory judgment that HUD’s action is “arbitrary, capricious, an abuse of discretion or contrary to law, and without observance of procedure required by law.” Second, issue preliminary and permanent injunctions requiring HUD to suspend its notice extending the deadline for submission of AFHs for local governments and implement and enforce the requirements of the AFFH rule moving forward. Third, direct HUD to take affirmative steps to remedy the harms caused by the extension. Fourth, award the groups attorney’s fees and costs. Fifth, award any other relief that may be “just and equitable.”

The full complaint can be found here.

HUD Permanently Sets Aside Small Area FMR Suspension

In a stipulated judgment filed on February 16, HUD has permanently set aside the Small Area Fair Market Rent (FMR) suspension. Last summer, using authority in the Small Area FMR regulation, HUD suspended the mandatory implementation of Small Area FMRs for 23 of 24 designated areas. Recently, a federal court found that HUD did not appropriately use its regulatory authority to suspend the mandatory components of the rule. In this document, HUD agrees to permanently set aside the suspension and continue implementing the Small Area FMR program on an expedited basis.

The full stipulated judgment and order can be found here.

2012 Offset Litigation Update

This update is for the plaintiffs of the 2017 judgment on the 2012 public housing offset litigation (the first round of litigation.)

The Department of Justice (DOJ) sent a request to the Judgment Fund for the payment of damages on December 21, 2017, for all but 23 of the plaintiffs. The reason a payment request was not sent for the other 23 is that the plaintiff’s attorneys did not have the banking information when they originally sent the information for the other plaintiffs to DOJ. The attorneys now have the banking information for 18 of the 23 and will send it to DOJ in the near future. If you are one of the five remaining plaintiffs that have not submitted your banking information, submit your banking information as soon as possible to the plaintiff’s attorneys.

Assuming there aren’t any problems with the information that DOJ sent to the Judgment Fund, the awardee plaintiffs should receive the damages to which you are entitled in a few weeks. Please note that the Judgment Fund will not notify you when it wires your payments to you. Therefore, you will have to monitor the bank account into which you requested that the funds be wired to determine when you receive your payment.