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Brief, Amici Curiae, National Immigration Law Center — Oakley et al. v. DeVos (Document 29-1)

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Brief of National Immigration Law Center as amicus curiae in support of Plaintiffs' Motion for Preliminary Injunction in Eloy Ortiz Oakley, in his official capacity as Chancellor of California Community Colleges, et al. v. Betsy DeVos, in her official capacity as the United States Secretary of Education, and the U.S. Department of Education, Case No. 20-cv-03215-YGR, U.S. District Court, Northern District of California, Oakland Division, Document 29-1, filed 06/01/20. The table of contents lists arguments that Congress established HEERF to equip higher education institutions to address their educational communities' needs and that neither PRWORA nor Title IV apply to HEERF funds. The conclusion asks the Court to grant Plaintiffs' Motion. It is dated June 1, 2020 and bears /s/ Nicholas Espíritu.

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“Brief, Amici Curiae, National Immigration Law Center — Oakley et al. v. DeVos (Document 29-1).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/document-oakley-et-al-v-devos-no-4-20-cv-03215-n-d-cal-doc-29-1-june-1-5689f3a690/, SHA-256 69f61fb50866486dc4dbddac3b1d75b9277a15753f1819f359306fda4450f29b.

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     Case 4:20-cv-03215-YGR Document 29-1 Filed 06/01/20 Page 1 of 20


 1
     Nicholas Espíritu (SBN 237665)                         Kevin Herrera*
 2   Sarah Kim Pak (SBN 324674)                             NATIONAL IMMIGRATION LAW
     NATIONAL IMMIGRATION LAW                               CENTER
 3
     CENTER                                                 P.O. Box 32358
 4   3450 Wilshire Boulevard, #108-62                       Chicago, IL 60632-0358
     Los Angeles, CA 90010                                  Telephone: 213-770-1325
 5   Telephone: 213-639-3900                                Email: herrera@nilc.org
     Email: espiritu@nilc.org
 6   Email: kimpak@nilc.org
 7
     Tanya Broder (SBN 136141)
 8   NATIONAL IMMIGRATION LAW CENTER
     2030 Addison Street, Suite 420
 9   Berkeley, CA 94704
     (510) 663-8282
10   Email: broder@nilc.org
11
     Attorneys for Amici Curiae
12   *Admitted to practice in Illinois, Tennessee, and New York

13
                                    UNITED STATES DISTRICT COURT
14                                NORTHERN DISTRICT OF CALIFORNIA
15                                       OAKLAND DIVISION

16   ELOY ORTIZ OAKLEY, in his official                        Case No. 20-cv-03215-YGR
     capacity as Chancellor of California
17   Community Colleges et al.,                            BRIEF OF NATIONAL IMMIGRATION
                                                           LAW CENTER AS AMICUS CURIAE IN
18
                    Plaintiffs,                            SUPPORT OF PLAINTIFFS’ MOTION
19                                                         FOR PRELIMINARY INJUNCTION
            v.
20                                                         Date:         June 23, 2020
     BETSY DEVOS, in her official capacity as              Time:         2:00 p.m.
21   the United States Secretary of Education;             Dept:         Courtroom 1
     U.S. DEPARTMENT OF EDUCATION,                         Judge:        The Honorable Yvonne Gonzalez
22
                                                                         Rogers
23                  Defendants.                            Trial Date:   None Set
                                                           Action Filed: May 11, 2020
24
25
26
27
28


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 1                                          TABLE OF CONTENTS
 2
 3
       TABLE OF AUTHORITIES --------------------------------------------------------------------------- ii
 4
       INTEREST OF AMICI ----------------------------------------------------------------------------------1
 5
       SUMMARY OF ARGUMENT -------------------------------------------------------------------------1
 6
       ARGUMENT ---------------------------------------------------------------------------------------------2
 7
                CONGRESS ESTABLISHED HEERF TO EQUIP HIGHER EDUCATION INSTITUTIONS TO
 8              ADDRESS THEIR EDUCATIONAL COMMUNITIES’ NEEDS DURING THE PANDEMIC ------2
 9              A. Congress Intended to Provide Educational Institutions Flexibility to Meet the
                   Needs of Their Communities-------------------------------------------------------------3
10              B. Congress Intended the HEERF Program to be Available to the Entire
11                 Educational Community ------------------------------------------------------------------6
         II.    NEITHER PRWORA NOR TITLE IV APPLY TO HEERF FUNDS ---------------------------7
12
                A. Congress Did Not Anticipate the Application of Title IV Eligibility Restrictions
13                 to CARES and Associated HEERF Funds ---------------------------------------------8
14              B. Congress Did Not Intend to Apply Immigrant Eligibility Restrictions to HEERF
                   Funds ----------------------------------------------------------------------------------------9
15              C. Funds Available to Community Colleges Through HEERF are Different from
16                 the Specific “Federal Public Benefits” Restricted By PRWORA ----------------- 10
                         1. The Term “Federal Public Benefit” Is Limited by Statute and
17                          Longstanding Agency Interpretation ----------------------------------------- 10
18                       2. Block Grant Funds Generally Have Been Deemed not to Be “Federal
                            Public Benefits” under PRWORA ------------------------------------------- 12
19
                         3. HEERF Funds, Like Other Block Grants, are Not Federal Public Benefits
20                          Under PRWORA --------------------------------------------------------------- 13
21              D. Imposition of an Earlier Law’s Restrictions Should Not Undermine the Critical
                   Purposes of a Later Enacted and More Specific Statute-----------------------------14
22
       CONCLUSION ----------------------------------------------------------------------------------------- 15
23
24
25
26
27
28

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 1                                          TABLE OF AUTHORITIES
 2
     CASES
 3
     Abramski v. United States,
 4     573 U.S. 169 (2014) ---------------------------------------------------------------------------------------3

 5   Acosta v. Gonzales,
       439 F.3d 550 (9th Cir. 2006 ---------------------------------------------------------------------------- 14
 6
 7   FCC v. Fox Television Stations, Inc.,
       556 U.S. 502 (2009) ------------------------------------------------------------------------------------- 12
 8
     Kucana v. Holder,
 9     558 U.S. 233 (2010) ---------------------------------------------------------------------------------------9
10   Morales-Izquierdo v. Gonzales,
11    486 F.3d 484 (9th Cir. 2007) --------------------------------------------------------------------------- 12

12   Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
       545 U.S. 967 (2005) ------------------------------------------------------------------------------------- 12
13
     Nken v. Holder,
14     556 U.S. 418 (2009) ---------------------------------------------------------------------------------------9
15
     Rural Alaska Cmty. Action Program v. Smith,
16     847 F.2d 535 (9th Cir. 1988) -----------------------------------------------------------------------------4

17   U.S. v. Juvenile Male,
       670 F.3d 999 (9th Cir. 2012) --------------------------------------------------------------------------- 14
18
19   STATUTES
     20 U.S.C. § 1091 ----------------------------------------------------------------------------------------------8
20
21   26 U.S.C. § 6428 ----------------------------------------------------------------------------------------------9

22   42 U.S.C. § 701 ---------------------------------------------------------------------------------------------- 12

23   42 U.S.C. § 5103 -------------------------------------------------------------------------------------------- 12
24   42 U.S.C. § 6861 -------------------------------------------------------------------------------------------- 12
25
     8 U.S.C. § 1611 ------------------------------------------------------------------------------------------ 10-12
26
     8 U.S.C. § 1642 ------------------------------------------------------------------------------------------10, 11
27
     Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134
28     Stat. 281 (2020)-------------------------------------------------------------------------------------- passim

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 1
     Higher Education Emergency Relief Fund,
 2     134 Stat. § 18004 (2020) --------------------------------------------------------------------------- passim
 3
 4   REGULATIONS
     62 Fed. Reg. 61344 (Nov. 17, 1997) -----------------------------------------------------------------12, 13
 5

 6   63 Fed. Reg 41,658 (Aug. 4, 1998) ------------------------------------------------------------------- 10-13

 7
     OTHER AUTHORITIES
 8   166 Cong. Rec. (Mar. 27, 2020)---------------------------------------------------------------------- passim
 9
     Peter Barbatis, Underprepared, Ethnically Diverse Community College Students: Factors
10     Contributing to Persistence, 33 J. DEV. EDUC. 16 (2010)------------------------------------------5, 6

11   Muzaffar Chishti & Jessica Bolter, Vulnerable to COVID-19 and in Frontline Jobs, Immigrants
      Are Mostly Shut Out of U.S. Relief, MIGRATION POLICY INST. (Apr. 24, 2020), ------------------9
12
13   Melinda M. Karp et al., An Exploration of Tinto’s Integration Framework for Community
      College Students, (Columbia Univ. Cmty. College Research Ctr., Working Paper No. 12,
14    2008) ---------------------------------------------------------------------------------------------------------6
15   Kevin M. Lewis, Eligibility Requirements for Emergency Financial Aid Grants to Students
       Under Section 18004 of the CARES Act, Cong. Research Serv. (May 20, 2020) ------------------3
16
17   Office of Community Services, U.S. Dep’t of Health & Human Serv. LIHEAP IM 1999-10 on
       Federal Public Benefits Under the Welfare Reform Law – Revised Guidance (1999),
18     https://www.acf.hhs.gov/ocs/resource/federal-public-benefits-under-the-welfare-reform-law-
       revised-guidance ----------------------------------------------------------------------------------------- 12
19

20   Dick Startz, Coronavirus Poses Serious Financial Risks to US Universities, Brookings Brown
       Center Chalkboard (Apr. 21, 2020) ----------------------------------------------------------------------5
21
     U.S. Dep’t of Justice et al., Joint Letter on Immigrant Access to Housing and Services (Aug. 5,
22     2016), https://www.hhs.gov/sites/default/files/Joint-Letter-August-2016.pdf. ------------------ 15
23   WITT ET AL., AMERICA’S COMMUNITY COLLEGES: THE FIRST CENTURY (1994) ----------------------5
24
25
26
27
28

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 1                                            INTEREST OF AMICI
 2          The National Immigration Law Center (“NILC”) is the primary national organization in
 3   the United States exclusively dedicated to defending and advancing the rights and opportunities of
 4   low-income immigrants and their families. Over the past 35 years, NILC has won landmark legal
 5   decisions protecting fundamental rights, and has advanced policies that reinforce the nation’s
 6   values of equality, opportunity, and justice. We focus on issues that affect the well-being and
 7   economic security of immigrant communities: health care and safety net programs; education and
 8   training; workers’ rights; and other federal and state policies affecting immigrants. NILC is
 9   recognized for its expertise in public benefits laws and policies affecting low-income immigrants,
10   including the implementation of the Personal Responsibility and Work Opportunity Reconciliation
11   Act of 1996 (PRWORA). Defendants’ misapplication of the laws governing restrictions of federal
12   funds on the basis of immigration status will undermine the ability of educational institutions to
13   fulfill their missions during this unprecedented health crisis and will increase the risks to public
14   health and safety.
15                                        SUMMARY OF ARGUMENT
16          This case involves Betsy DeVos and the United States Department of Education’s
17   (“Defendants’”) attempts to impose restrictions on emergency funds that Congress did not intend.
18   Through the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No. 116-
19   136, 134 Stat. 281 (2020), Congress appropriated $12.56 billion to create the Higher Education
20   Emergency Relief Fund (HEERF), so that institutions of higher education (hereinafter
21   “institutions”) could “prevent, prepare for, and respond to coronavirus.” 134 Stat. § 18004 (a), (c)
22   at 567-68. Congress, in establishing the HEERF funds, did not incorporate any limitations on the
23   use of these funds based on immigration status. Contrary to the specific goals of the 2020
24   legislation, Defendants improperly attempt to import the limited restrictions imposed on certain
25   federal public benefits by a more general 1996 law. As detailed below, Congress intended to grant
26   broad discretion and flexibility to institutions to address disruptions to their campus operations and
27   their educational communities due to this pandemic. Defendants’ subsequent actions undermine
28   these goals as well as the educational mission of these institutions. The Secretary and Department


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 1   of Education’s (DoE’s) actions were ultra vires and in violation of congressional intent. See Pl.
 2   Mem. at 12–14 [ECF 16].
 3                                                   ARGUMENT
 4         CONGRESS ESTABLISHED HEERF TO EQUIP HIGHER EDUCATION INSTITUTIONS TO
           ADDRESS THEIR EDUCATIONAL COMMUNITIES’ NEEDS DURING THE PANDEMIC
 5
               On March 27, 2020, Congress enacted the bipartisan CARES Act. 134 Stat. 281. Of the
 6
 7   $30.75 billion appropriated to the DoE, Section 18004 of the CARES Act allocates $12.56 billion

 8   to create the HEERF program to help educational institutions “prevent, prepare for, and respond
 9   to coronavirus.” CARES Act, 134 Stat. §§ 18001, (a), (b)(3); §18004(1) at 567.
10
               Despite Congress’ intent to provide educational institutions flexibility to meet the needs of
11
     their entire educational community, on April 21, 2020, Defendants issued guidance that imposed
12
     new exclusions1 limiting the students who are eligible to receive emergency assistance under the
13
14   HEERF funding. See Pl. Request for Judicial Notice (“RJN”) Ex. G at 4 [ECF 16-2] (“Only

15   students who are or could be eligible to participate in programs under Section 484 in Title IV of

16   the Higher Education Act . . . may receive emergency financial aid grants.”).2 Defendants’ briefing
17   also announces a new position by DoE—which was never expressed prior to the filing of this
18
     litigation—that PRWORA’s restrictions on immigrant access to “federal public benefits” applies
19
     to all HEERF funds distributed to educational institutions under the CARES Act. See Defs. Opp’n
20
     Mem. at 13–16 [ECF 20].
21
22   ///

23   ///

24   ///
25
     1
26     DoE’s current position contradicts their April 9, 2020 notice to recipients that the funds were not
     restricted based on a student’s immigration status, see Pl. Request for Judicial Notice (“RJN”) Exs.
27   A, C.
     2
       The statute does not delegate to the DoE any authority to limit eligibility, but instead gives it a
28   more limited role related to distribution of these funds to recipient institutions. 134 Stat. §
     18004(b), at 568.
                                                                2
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 1                  A. Congress Intended to Provide Educational Institutions Flexibility to Meet
                       the Needs of Their Communities
 2
            Congress’ intent to grant broad discretion to educational institutions to address disruptions
 3
 4   to their campus operations and their educational communities is evidenced by the plain text of the

 5   CARES Act. In Section 18004(c), Congress expressly allows educational institutions to use the
 6   HEERF assistance “to cover any costs associated with significant changes to the delivery of
 7
     instruction due to the coronavirus” subject to only two requirements. 134 Stat. at 568 (emphasis
 8
     added); see also Pl. Mem. at 5. First, institutions must not use HEERF funds to make “payment to
 9
     contractors for the provision of pre-enrollment recruitment activities; endowments; or capital
10
11   outlays associated with facilities related to athletics, sectarian instruction, or religious worship.”

12   134 Stat. at 568. Second, institutions must distribute at least half of their HEERF allocated funds

13   directly to students to help cover expenses related to the disruption of campus operations due to
14   coronavirus. Id. Beyond these two requirements, Section 18004 does not place any other
15
     restrictions on the institutions’ use of funds. See Pl. RJN ex. D (indicating that the Secretary once
16
     held the view that regarding the use of funds, “[t]he only statutory requirement is that the funds be
17
     used to cover expenses related to the disruption of campus operations due to coronavirus”). The
18
19   requirements in Section 18004(c) govern only how HEERF funds may be used, not which students

20   an institution may assist. See Kevin M. Lewis, Eligibility Requirements for Emergency Financial

21   Aid Grants to Students Under Section 18004 of the CARES Act, Cong. Research Serv. 4 (May 20,
22
     2020), https://hechingerreport.org/wp-content/uploads/2020/05/CRS-MEMORANDUM.pdf.
23
            The legislative record of the CARES Act confirms Congress’ intent to grant broad
24
     discretion and flexibility to educational institutions. See Abramski v. United States, 573 U.S. 169,
25
     179, (2014) (explaining that when interpreting a statute, for which there are conflicting textual
26
27   interpretations, the court must “interpret the relevant words not in a vacuum, but with reference to

28   the statutory context, ‘structure, history, and purpose.’”). On March 22, as Senator Lamar


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 1   Alexander (R-TN) underscored the critical need for the legislation, he explained that the bill
 2   included “money for block grants . . . for higher education . . . which will provide immediate
 3
     assistance.” 166 Cong. Rec. S1895. On March 25, Senator Susan Collins (R-ME), emphasized that
 4
     “direct aid to colleges and universities is needed to help these institutions offset these sudden
 5
     revenue losses and unexpected costs.” Id. at S2057. On March 27, after describing that schools in
 6
 7   her district “need[ed] funding flexibility due to disruption in the academic year from COVID–19,”

 8   Congresswoman Lauren Underwood (D-IL) remarked that she is “pleased that the CARES Act

 9   begins to deliver.” Id. at H1856. Congress structured the HEERF program similar to that of a block
10   grant, see Pl. Mem. at 16, to give educational institutions the flexibility and decision-making
11
     authority, without federal intervention, to address COVID-19’s disruptions to their campus
12
     operations, activities, and communities. See Rural Alaska Cmty. Action Program v. Smith, 847
13
     F.2d 535, 536 (9th Cir. 1988) (“the block grant system . . . permits [federal fund grantees] to
14
15   administer the program[] with minimal federal involvement and few federal procedural

16   requirements.”).

17          Congress understood that local institutions, communities, and state and local governments
18
     occupy a key role in combatting the pandemic on the front lines, and that they require flexibility
19
     to achieve these goals. For example, on March 25, Senator Tom Cotton (R-AR), pointed to the
20
     expertise of local authorities with regard to stay-at-home orders, and argued that “decisions must
21
     be based on local conditions” and not by “arbitrary” nationally mandated timelines. 166 Cong.
22
23   Rec. at S2033. During the House floor debate on March 27, Congressman Anthony Gonzalez (R-

24   OH) voted in support because the CARES Act “provides critical resources for those who need it
25   most: . . . our local leaders who are fighting this virus on the front lines.” Id. at H1832.
26
     Congressman Steny Hoyer (D-MD) agreed and pointing to Section 5001’s Coronavirus Relief
27
     Fund, commented on “the importance of providing this funding to states quickly, flexibly, and
28
     with a minimum of paperwork.” Id. at H1849.

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 1             Understanding this, Congress directed the HEERF funds to flow directly to educational
 2   institutions, § 18004(a)-(b), 134 Stat. at 567-68, to enable them to fulfill their educational mission,
 3
     while protecting the health and safety of their student community. In a speech submitted on March
 4
     27, Congressman Peter DeFazio (D-OR) explained that emergency relief is provided to educational
 5
     institutions “to help defray costs, such as lost revenue, to support social distancing and distance
 6
 7   education, and to issue emergency grants to impacted students for food, housing, course materials,

 8   tech, and healthcare and childcare.” 166 Cong. Rec. E345. Congresswoman Pramila Jayapal (D-

 9   WA) also submitted a speech in which she clarified that the CARES Act “invests . . . [in]
10   institutions of higher education to help alleviate the challenges educators, students, and families
11
     are struggling with in light of school and childcare center closures.” Id. at E340.
12
               Congress created the HEERF funding to serve as a community benefit, recognizing that
13
     colleges and universities would be best situated to understand and respond to the complex and
14
15   localized needs of their educational communities. These needs include limiting financial losses as

16   a result of student disenrollment. See Dick Startz, Coronavirus Poses Serious Financial Risks to

17   US        Universities,    Brookings       Brown       Center      Chalkboard       (Apr.     21,     2020),
18
     https://www.brookings.edu/blog/brown-center-chalkboard/2020/04/21/coronavirus-poses-
19
     serious-financial-risks-to-us-universities/. Universities are also tasked with limiting harms related
20
     to the disenrollment of students who can no longer afford to attend. For community colleges, which
21
     have been dubbed “the most important higher education innovation of the twentieth century,”3
22
23   attrition of these students causes serious disruptions to the social fabric of an institution and the

24   entire community of learners. Studies demonstrate that feelings of integration in a stable
25   community of learners is one critical aspect of student well-being. See, e.g. Peter Barbatis,
26
     Underprepared, Ethnically Diverse Community College Students: Factors Contributing to
27
28
          3
              WITT ET AL., AMERICA’S COMMUNITY COLLEGES: THE FIRST CENTURY, 1 (1994)
                                                               5
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 1   Persistence, 33 J. DEV. EDUC. 16, 24 (2010) (describing challenges experienced by students
 2   experiencing changes to social environments); Melinda M. Karp et al., An Exploration of Tinto’s
 3
     Integration Framework for Community College Students, (Columbia Univ. Cmty. College
 4
     Research Ctr., Working Paper No. 12, 2008) (explaining higher likelihood of multi-year
 5
     persistence among community college students who were more integrated into college through
 6
 7   networks). Constraining educational institutions’ ability to address these concerns flexibly is

 8   incompatible with Congress’ understanding that they are best positioned to decide how to help

 9   their academic community survive this pandemic.
10                   B. Congress Intended the HEERF Program to be Available to the Entire
11                      Educational Community

12           Section 18004(c) provides that institutions must use at least half of their HEERF allocated

13   funds “to provide emergency financial aid grants to students,” without qualifying or otherwise
14   expressly limiting who would be eligible. 134 Stat. at 568 (emphasis added).
15
             Indeed, in Section 18004(a)(1), Congress sets out a funding formula that accounts for all
16
     students who are not exclusively enrolled in distance education courses prior to the coronavirus
17
     emergency. Under the HEERF funding formula, Congress requires the Secretary to allocate 90%
18
19   of the HEERF funds to educational institutions; of this 90% amount, the Secretary must apportion

20   the 75% to educational institutions based on the each institution’s relative share of enrolled

21   students who were Federal Pell Grant recipients under Title IV of the Higher Education Act, and
22
     25% to institutions based on each institution’s relative share of all “students who were not Federal
23
     Pell Grant Recipients.” Id. § 18004(a)(1), 134 Stat. at 567.4 The basis of allocation depends on two
24
25   4
       Section 18004(a)(1) of the CARES Act, provides that the Secretary shall allocate the HEERF
26   funding as follows:
             90 percent to each institution of higher education to prevent, prepare for, and respond to
27           coronavirus, by apportioning it—(A) 75 percent according to the relative share of full-time
             equivalent enrollment of Federal Pell Grant recipients who are not exclusively enrolled in
28           distance education courses prior to the coronavirus emergency; and (B) 25 percent

                                                              6
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 1   categories: students who are Federal Pell Grant recipients (i.e. students who are eligible for federal
 2   financial aid under Title IV), and those who are not (i.e. all other students). Congress’ accounting
 3
     for students who are ineligible for federal financial aid under Title IV, into the HEERF funding
 4
     formula is a striking indication that Congress had all students whose education was disrupted by
 5
     the crisis in mind when it set up the HEERF program. See 166 Cong. Rec. H1856 (daily ed. Mar.
 6
 7   27, 2020) (statement of Rep. Underwood) (remarking that the grants would “support[] college

 8   students whose semesters were disrupted due to COVID-19”); id. at H1823 (daily ed. Mar. 27,

 9   2020) (statement of Rep. Scott) (stating that the grants would go to students “displaced” by the
10   COVID-19 crisis). It would make no sense to include students for funding formula and allocation
11
     purposes, but to categorically exclude them from the relief that the program was intended to
12
     provide.
13
           NEITHER PRWORA NOR TITLE IV APPLY TO HEERF FUNDS
14
15             The CARES Act does not impose any immigration-based limits on the use of HEERF by

16   recipient institutions. Where Congress has intended to limit grants awarded to institutions based

17   on immigration status, it has done so explicitly, including in other sections of the CARES Act. The
18
     formal agency action defining the contours of PRWORA’s restrictions requires a nuanced and
19
     careful analysis of the program and should not be applied in an ad hoc manner, as Defendants have
20
     done. Defendants’ position would frustrate the specific purpose for which HEERF funds were
21
     allocated through the CARES Act, subverting this Congress’ intent to enable educational
22
23   institutions to respond effectively to a disaster.

24   ///
25   ///
26
     ///
27
               according to the relative share of full-time equivalent enrollment of students who were not
28             Federal Pell Grant recipients who are not exclusively enrolled in distance education courses
               prior to the coronavirus emergency.
                                                                7
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 1                   A. Congress Did Not Anticipate the Application of Title IV Eligibility
                        Restrictions to CARES and Associated HEERF Funds
 2
             Student “emergency financial aid grants” under the HEERF program, created in Section
 3
 4   18004(c), do not constitute federal financial aid under Title IV of the Higher Education Act and

 5   therefore are not subject to the eligibility criteria under Title IV at 20 U.S.C. § 1091.5 See Pl. Mem.

 6   at 12–13. Defendants contend, however, that Section 18004 contains “numerous indicia” and
 7
     suggestions referencing the existing Title IV framework’s applicability to the HEERF program,
 8
     such as the phrase “emergency financial aid grants” which appears in both Sections 18004(c) and
 9
     3504. See Defs. Opp’n Mem. at 18 [ECF 20]. But Section 18004(c) does not expressly create, or
10
     otherwise refer to the Title IV program, the Higher Education Act, or any other eligibility
11
12   criteria6—such as an age, income, or resource threshold—to serve as a basis in determining who

13   qualifies for HEERF assistance. 134 Stat. at 567. And the CARES Act does not prohibit
14   educational institutions from awarding HEERF funds to Title-IV ineligible students.7 Section 3504
15
     of the CARES Act allows for “emergency financial aid grants” to be disbursed by educational
16
     institutions from existing federal fund allocations under Title IV of the Higher Education Act. 134
17
     Stat. at 396-97. Section 3504 of the CARES Act applies the definition of “emergency financial aid
18
19   grants” — and the Title IV constraints that are attached thereto— “under this section” only. See §

20   3504(b)-(c) 134 Stat. at 396-97 (emphasis added). This selective inclusion demonstrates that

21   Congress acted intentionally to exclude any Title IV-based restrictions from the HEERF program.
22   See Pl. Mem at 12–14.
23
24   5
       The Secretary of Education acknowledged as much in the Recipient’s Funding Certification and
     Agreement that educational institutions executed to accept funds. See Pl. RJN ex. E (“The
25
     Secretary does not consider these individual emergency financial aid grants to constitute Federal
26   financial aid under Title IV of the HEA”).
     6
       See Section I.B, supra (discussing how the text of Sections 18004(a) and (c) accounted for all
27   students in the broadest sense).
     7
       See Section I.A, supra (discussing how Section 18004(c) only restricts how the funds should be
28   used, rather than which students an institution, in its broad grant of discretion, can assist through
     the HEERF program).
                                                              8
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 1                   B. Congress Did Not Intend to Apply Immigrant Eligibility Restrictions to
                        HEERF Funds
 2
             While Congress did not impose immigration status eligibility restrictions on HEERF
 3
 4   assistance, it did restrict other assistance provided under the CARES Act. Where one section of a

 5   statute explicitly states parameters for its application, but another section is silent, those parameters
 6   should be presumed to not apply to the latter. See Pl. Mem. at 13–14; see also Kucana v. Holder,
 7
     558 U.S. 233, 249 (2010) (“[W]here Congress includes particular language in one section of a
 8
     statute but omits it in another section of the same Act, it is generally presumed that Congress acts
 9
     intentionally and purposely in the disparate inclusion or exclusion.”) (quoting Nken v. Holder, 556
10
11   U.S. 418, 430 (2009)).

12           In Section 2201 of the CARES Act, Congress provided for the issuance of an advanced

13   recovery rebate, in the amount of $1,200 for an eligible individual and $2,400 for married eligible
14   individuals who filed a joint tax return, to help taxpayers recover from the impacts of the
15
     coronavirus. CARES Act, 134 Stat. § 2201(a), at 335. In setting up the recovery rebate’s
16
     parameters, Congress explicitly denied credits to any eligible individual (and spouse if filing
17
     jointly) who does not file taxes with a social security number. Id. at 337 (codifying these changes
18
19   in 26 U.S.C. § 6428(g)).8 Thus, Section 2201 demonstrates that Congress knew how to—and in

20   fact did—restrict eligibility on the basis of immigration status for some assistance under the

21   CARES Act but did not do so with respect to HEERF assistance. No restrictions based on
22
     immigration status or Social Security Numbers, or mention of Title IV or PRWORA is included
23
     in the statutory text establishing the HEERF Program. See, 134 Stat. § 18004 at 567. Congress’
24
     inclusion of eligibility criteria related to immigration status in Section 2201 of the CARES Act but
25
26
     8
       The social security number requirement excludes the vast majority of undocumented immigrants
27   in this country, roughly estimated to be around 9.9 million individuals. See Muzaffar Chishti &
     Jessica Bolter, Vulnerable to COVID-19 and in Frontline Jobs, Immigrants Are Mostly Shut Out
28   of      U.S.     Relief,         MIGRATION       POLICY       INST.     (Apr.    24,     2020),
     https://www.migrationpolicy.org/article/covid19-immigrants-shut-out-federal-relief.
                                                              9
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 1   omission of any such criteria in Section 18004, provides further proof that Congress acted
 2   intentionally to exclude immigration status-based restrictions from the HEERF program.
 3
                     C. Funds Available to Community Colleges Through HEERF are Different
 4                      from the Specific “Federal Public Benefits” Restricted By PRWORA

 5           Funds made available to educational institutions through HEERF were not intended to be
 6   restricted based on immigration status, whether they are used to address disruptions in instruction,
 7
     or distributed to members of the academic community. Given the longstanding agency
 8
     interpretation described below, Congress would have no reason to assume that a program like
 9
     HEERF would be restricted. The emergency community benefits flowing from HEERF funds —
10
11   structured as a block grant—place those funds outside of the parameters of the “federal public

12   benefits” restricted under PRWORA.

13                                   1. The Term “Federal Public Benefit” Is Limited by Statute and
                                        Longstanding Agency Interpretation
14
15           PRWORA restricts immigrants’ eligibility for certain “federal public benefits,” which are

16   defined in general terms by the statute. See 8 U.S.C. § 1611(c) (listing categories of benefits

17   “provided to an individual, household, or family eligibility unit by an agency of the United States
18
     or by appropriated funds of the United States”). The definition does not include all federal
19
     programs and includes several exceptions to the meaning of federal public benefit. Id. at § 1611
20
     (b), (c)(2). And, “nonprofit charitable organizations,” are exempted from the requirement of
21
     determining, verifying or requiring proof of an immigrant’s eligibility for federal public benefits.
22
23   Id. at § 1642(d).

24           The limited scope of PRWORA’s restrictions on immigrants’ eligibility was clarified
25   shortly after its passage, through formal agency action by the U.S. Department of Health and
26
     Human Services (“HHS”).9 See Office of the Sec’y, HHS, Personal Responsibility and Work
27
28   9
       PRWORA designated HHS as the agency responsible for assisting the Attorney General in
     promulgating its implementing regulations, see 8 U.S.C. §1642(a)(1)–(2).
                                                             10
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 1   Opportunity Reconciliation Act of 1996 (PRWORA): Interpretation of “Federal Public Benefit”,
 2   63 Fed. Reg. 41,658 (Aug. 4, 1998). Its interpretation of “federal public benefit” was based in part
 3
     on its conclusion that “PRWORA does not identify the specific benefits that are ‘Federal public
 4
     benefits,’ and the definition in section 401(c), standing alone, does not provide sufficient guidance
 5
     for benefit providers to make that determination.” Id. at 41,659.10 Critically, HHS noted that
 6
 7   “[a]lthough the litany of categories in 401(c)(1)(B) is broad, it is not comprehensive . . . .” Id.

 8            In interpreting PRWORA’s federal public benefit definition, HHS emphasized that for a

 9   program to qualify as such under § 1611(c)(1)(B), which includes “postsecondary education,” it
10   must be provided to “an individual, household or family eligibility unit.” Id. The agency explained
11
     that this requires both that a benefit be provided to individuals, households, or families and that
12
     the “authorizing statute must be interpreted to mandate ineligibility for individuals, households, or
13
     families that do not meet certain criteria, such as specified income level or a specified age.” Id.
14
15   For this reason, “benefits that are generally targeted to communities or specified sectors of the

16   population (e.g. people with particular physical conditions . . . [or] general age groups such as

17   youth or the elderly)” would not be included. Id.11 HHS established that “unless the authorizing
18
     statutes require that the characteristics . . . form the basis for denial of services or benefits, these
19
     are not benefits that go to ‘eligibility units’” and are thus not “federal public benefits” for the
20
     purpose of PRWORA. Id. at 41,659.12
21
22   10
        The 1998 HHS interpretation of federal public benefits was offered (1) by an agency designated
23   in the authorizing statute; (2) close in time to the passage of the statute; (3) through detailed legal
     analysis of the proper interpretation of the statute; and (4) after offering the public notice and
24   reviewing comments. See 63 Fed. Reg 41,658, 41,659 (Aug. 4, 1998) (detailing canons of statutory
     interpretation used to establish the meaning of “federal public benefit” and assessing its definition
25
     against other comparable terms).
     11
26      Based on these and other considerations, HHS listed 33 HHS programs providing “federal public
     benefits,” but noted that not “all benefits or services provided by these programs are ‘Federal
27   public benefits.’” Id. at 41,660.
     12
        HHS’ limited interpretation of “federal public benefits” under PRWORA illustrates the fallacy
28   of any assumption that PRWORA restricts HEERF funds automatically, without any reasoning or

                                                              11
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 1                                   2. Block Grant Funds Generally Have Been dDemed not to Be
                                        “Federal Public Benefits” under PRWORA
 2
             Several classes of benefits—especially those that are “generally targeted to communities,”
 3
     id. at 41,659—have been determined to fall outside of PRWORA’s federal public benefit
 4
 5   restrictions. For example, the Maternal and Child Health Services Block Grant, see 42 U.S.C. §

 6   701, which makes access to health care services for mothers and children available to low-income

 7   women and families is “a benefit targeted to certain populations based on their characteristics,”
 8   rather than a benefit intended for individual eligibility units, and is therefore “not a ‘Federal public
 9
     benefit.’” 63 Fed. Reg. at 41,660 (emphasis in original). Similarly, funds distributed through the
10
     Low-Income Home Energy Assistance Program (“LIHEAP”) that are used to weatherize structures
11
     that house immigrants of all statuses are a community benefit, with no immigration status
12
13   verification of residents required. 42 U.S.C. §§ 6861 et seq; see also Office of Community

14   Services, U.S. Dep’t of Health & Human Serv. LIHEAP IM 1999-10 on Federal Public Benefits

15   Under       the      Welfare        Reform         Law        –      Revised        Guidance        (1999),
16
     https://www.acf.hhs.gov/ocs/resource/federal-public-benefits-under-the-welfare-reform-law-
17
     revised-guidance. Community Development Block Grant programs administered by HUD, 42
18
     U.S.C. §§ 5103 et seq., also have not been determined to be subject to restrictions under PRWORA.
19
     Each of these programs direct their benefits to communities of recipients, rather than to
20
21
22
23
24   explanation. It does, however, help to explain the DoE’s initial position making HEERF funds
     broadly available in accordance with the plain language of the CARES Act. Reversals of that
25
     position—whether pursuant to Title IV restrictions or any other existing eligibility scheme related
26   to immigration status—are not based in any legitimate legal rationale. See Morales-Izquierdo v.
     Gonzales, 486 F.3d 484, 493 (9th Cir. 2007) (“An ‘[u]nexplained inconsistency is . . . a reason for
27   holding an interpretation to be an arbitrary and capricious change from agency practice under the
     Administrative Procedure Act.’”) (quoting Nat’l Cable & Telecomms. Ass’n v. Brand X Internet
28   Servs., 545 U.S. 967, 981 (2005); FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009)
     (requiring “a reasoned explanation” for disregarding facts underlying an earlier agency position).
                                                             12
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 1   individuals, households, or family units based on particularized eligibility criteria. For this reason,
 2   they are not subject to PRWORA’s immigration status restrictions.13
 3
                                    3. HEERF Funds, Like Other Block Grants, are Not Federal
 4                                      Public Benefits Under PRWORA
              Like other federally allocated block grant monies not subject to PRWORA, HEERF funds
 5
     are intended to benefit educational communities as a whole, allowing colleges and their
 6
 7   populations to “prevent, prepare for, and respond to coronavirus.” See Section 1.A. supra.

 8   Although funds awarded based on non-specific characteristics do not qualify as federal public

 9   benefits, “mixed-benefits” programs, where some federal funds are provided to broad communities
10   and others flow directly to individuals or families, are also not necessarily “federal public
11
     benefits.” See 63 Fed. Reg. at 41,660 (“Programs that are primarily designed to target and provide
12
     services to communities should not be burdened with new verification procedures merely because
13
     they may include some services that flow more directly to the individual, household or family.”)
14
15   Even if some portion of the HEERF funds goes to individuals who are not “qualified” immigrants,

16   those funds would advance the institution’s academic goals and the assistance would not lose its

17   community-oriented nature. The funds therefore would fall outside of the federal public benefits
18
     definition.
19
     //
20
     //
21
     //
22
23   //

24
25
     13
26     This reasoning is consistent with the exemption for “nonprofit charitable organizations” engaged
     in “relief of the poor and distressed or the underprivileged” as a larger social project. See Dep’t of
27   Justice, Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility
     Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996,
28   62 Fed. Reg. 61344, 61345–46 (Nov. 17, 1997) (defining non-profit charitable organization
     exemption).
                                                              13
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 1                  D. Imposition of an Earlier Law’s Restrictions Should Not Undermine the
                        Critical Purposes of a Later Enacted and More Specific Statute
 2            Where a narrow congressional purpose in passing legislation is clear, broader legislation
 3
     enacted earlier in time should not be read to subvert that purpose.14 Here, the CARES Act post-
 4
     dates PRWORA, is grounded in a very specific context, and responds to a very specific moment.
 5
     Congress’ specified goal in allocating HEERF funds to educational institutions is to protect their
 6
 7   communities from the ravages of the COVID-19 pandemic.

 8            The HEERF funds are critical to educational institutions’ viability during the period of

 9   economic and social instability that has accompanied the COVID-19 pandemic. See 166 Cong.
10   Rec. H1862 (daily ed. Mar. 27, 2020) (statement of Rep. Angie Craig) (explaining that the CARES
11
     Act would “support[] our teachers, paraprofessionals, and school administrators who are working
12
     tirelessly to continue to educate all students in our communities”). Congress allocated these funds
13
     to community colleges and other universities to create an economic safety net that may serve as
14
15   the only resource that keeps colleges afloat during the current and ensuing period of instability. id.

16   at H1823 (daily ed. Mar. 27, 2020) (statement of Rep. Bobby Scott) (emphasizing that “the CARES

17   Act is not a stimulus package; it is a disaster relief effort . . . to ensure that students . . . can survive
18
     this crisis.”); id. at H1856 (daily ed. Mar. 27, 2020) (statement of Rep. Underwood) (“the [CARES
19
     Act] bill offers much-needed temporary relief”). Congress also recognized that educational
20
     institutions are most intimately familiar with their operations, structures, and student bodies and
21
     are therefore best positioned to act on those needs, justifying the flexibility written into the CARES
22
23   Act. See 166 Cong. Rec. S2056 (daily ed. Mar. 25, 2020) (statement of Sen. Susan Collins) (noting

24
25   14
        PRWORA’s restrictions are inapplicable to HEERF funds, based on the limited reach of the
26   term “federal public benefit,” and the statutes therefore do not conflict. Even if they did, the
     CARES Act’s intent should govern the outcome in this case. “Where two statutes conflict, the
27   later-enacted, more specific provision generally governs.” U.S. v. Juvenile Male, 670 F.3d 999,
     1008 (9th Cir. 2012) (citing Acosta v. Gonzales, 439 F.3d 550, 555 (9th Cir. 2006) (declining to
28   apply earlier statutory time bars to later passed immigration benefits where application would
     frustrate congressional intent to prevent the needless separation of loved ones)).
                                                              14
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 1   “the very tough decision[s]” by colleges and universities and the various “steps they were taking
 2   to make sure that their students could still receive a quality education”).
 3
            Applying PRWORA’s restrictions to the HEERF funds made available under the CARES
 4
     Act would defeat their purpose by limiting educational institutions’ ability to preserve their
 5
     academic communities. Given their makeup and students served, community colleges like
 6
 7   Plaintiffs stand to lose significant portions of their academic populations who cannot afford to

 8   continue their education due to economic hardships stemming from COVID-19, causing serious

 9   disruptions to student communities. A corresponding loss of emergency operating funding would
10   severely limit educational institutions’ ability to mitigate deficits in student services and
11
     instruction, further eroding those institutions. Congress established emergency aid such as the
12
     HEERF funds to support institutions in protecting the integrity of their communities during a crisis.
13
     See, e.g. U.S. Dep’t of Justice et al., Joint Letter on Immigrant Access to Housing and Services, at
14
15   2–3   (Aug.    5,   2016),    https://www.hhs.gov/sites/default/files/Joint-Letter-August-2016.pdf.

16   (clarifying the joint position of the U.S. Department of Justice, U.S. Department of Housing and

17   Urban Development, and U.S. Department of Health and Human Services that immigration status
18
     verification requirements under PRWORA do not restrict access to specified short-term measures
19
     which stabilize recipients’ lives “by providing basic needs and safety while they seek to rebuild
20
     their lives”). Allowing Defendants to import PRWORA improperly into the HEERF program at
21
     this late stage would severely compromise that intent.
22
23                                                CONCLUSION

24      For the reasons stated above, this Court should grant Plaintiffs’ Motion for Preliminary

25   Injunction.

26   Dated: June 1, 2020                             Respectfully submitted,

27                                                   /s/ Nicholas Espíritu
28                                                    Attorneys for Amici Curiae

                                                            15
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     Case 4:20-cv-03215-YGR Document 29-1 Filed 06/01/20 Page 20 of 20


 1                                                    Nicholas Espíritu (SBN 237665)
                                                      Sarah Kim Pak (SBN 324674)
 2                                                    NATIONAL IMMIGRATION LAW CENTER
                                                      3450 Wilshire Boulevard, #108-62
 3
                                                      Los Angeles, CA 90010
 4                                                    Telephone: 213-639-3900
                                                      Facsimile: 213-639-3900
 5                                                    Email: espiritu@nilc.org
 6                                                    Tanya Broder (SBN 136141)
 7                                                    NATIONAL IMMIGRATION LAW CENTER
                                                      2030 Addison Street, Suite 420
 8                                                    Berkeley, CA 94704
                                                      Telephone: (510) 663-8282
 9                                                    Email: broder@nilc.org
10                                                    Kevin Herrera*
11                                                    NATIONAL IMMIGRATION LAW CENTER
                                                      P.O. Box 32358
12                                                    Chicago, Illinois 60632-0358
                                                      Telephone: 213-770-1325
13                                                    Facsimile: 213-770-1325
                                                      Email: herrera@nilc.org
14
15
                                                      Attorneys for Amici Curiae
16                                                    *Admitted in Illinois, Tennessee, and New York

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        Brief of National Immigration Law Center as amici curiae - Oakley v. DeVos, Case No. 20-cv-03215-YGR


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