June 20, 2019

Submitted via www.regulations.gov

The Office of the General Counsel

Rules Docket Clerk
Department of Housing and Urban Development
451 Seventh Street SW, Room 10276
Washington, DC 20410-0001

Re: HUD Docket No. FR-6124-P-01; Comments in Response to Proposed

Rule Making of Housing & Community Development Act of 1980
Verification of Eligible Status

Dear Sir/Madam:

We write, on behalf of LatinoJustice PRLDEF, a national civil rights organization

protecting the rights of immigrants and Latinx communities, to strongly oppose the Department’s
(“HUD”) proposed rule Agency/Docket No. FR-6124-P-01, excluding mixed status households
from housing programs covered under section 214 as defined by the rule.

First, HUD’s proposed rule impermissibly impairs the constitutional right of mixed
households to family integrity by intruding on their choices concerning their living
arrangements, by threatening to separate children from their parents, and by trampling on their
associational rights. Second, the proposed rule undermines Congressional prerogative to preserve
families. Moreover, the rule is antithetical to this Nation’s values of family unity, community
safety and historical concern for its most vulnerable populations. Third, in New York State
alone, nearly 10,000 people in mixed status households risk eviction and homelessness. Fourth,
the rule will likely disproportionately discriminate on the basis of race and national origin against
Latinx households. It also vitiates HUD’s duty, under the Fair Housing Act, to affirmatively
further fair housing and to not discriminate against families with children. Fifth, HUD’s
proposed rule fails to conserve scarce housing resources. Instead, HUD’s own economic analysis
demonstrates the wastefulness of this misguided rule. We urge HUD to rescind the proposed
regulation.

Founded in 1972 as the Puerto Rico Legal Defense and Education Fund, LatinoJustice
PRLDEF champions an equitable society by protecting, defending and advancing the rights of
the greater pan-Latinx communities in the United States. LatinoJustice PRLDEF has long
worked to advance the constitutional and human rights of immigrants, especially under the
current administration, which has consistently vilified them and made even those who have
become citizens fearful, feel unwelcomed and unsafe.

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Background on HUD’s Proposed Rule

Beginning in 1937, the Housing Act sought to address the housing needs of low-income
people by providing public housing.1 About thirty years later, HUD was created to manage the
goal of providing decent and affordable housing. In addition to public housing, programs
leveraging private investments, under sections 235 and 236 of the Housing Act, were also
instituted to make affordable housing available to low-income people.2 Project and tenant-based
rental assistance programs were also created to expand housing opportunities.3 In the 1980s,
Congress, for the first time, limited assistance under the aforementioned housing programs
(hereinafter “section 214 housing” or “federally assisted housing”) to certain categories of
eligible immigrants.4 However, under the statute, Congress made clear that where “the eligibility
for financial assistance of at least one member of a family has been affirmatively established …
and the ineligibility of one or more family members has not… any financial assistance made
available to that family shall be prorated.”5 The statute also provides for the preservation of
mixed status households.6

HUD’s proposed rule would now require that any household whose leaseholder is not an
eligible immigrant, regardless of the proration of rent or presence of eligible U.S. citizens or
immigrants in the household, will no longer receive housing assistance. The rule also requires the
verification of eligible immigration status for all recipients. Under the proposed rule, nationwide,
25,000 mixed status households paying rent in federally assisted housing could lose their
homes.7 Of 109,000 people in these households, more than half are children, most of whom are
U.S. citizens, and about 70% of mixed households contain low-income U.S. citizens whose
housing assistance will be eliminated.8 The proposed rule’s verification requirement will impact
nearly 9 million individuals. HUD’s proposed rule will impair the right of mixed immigration
status households to familial integrity, tear them apart, and will cause them to become homeless
while wasting scarce resources pursuing their eviction.

1) HUD’s Proposed Rule Impermissibly Infringes the Constitutional Right to Familial

Integrity.

The proposed rule’s requirement that a leaseholder—typically a parent—without eligible

immigration status in a mixed status family move out of federally assisted housing intrudes on
the household’s constitutional right to determine their living arrangement and threatens to
separate eligible U.S. citizen children from their parents. “A host of cases, tracing their lineage to
Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of Sisters, 268 U.S. 510 (1925)
1
42 U.S.C. § 1437; 12 U.S.C. § 1701.
2
Sections 235 and 236 of the National Housing Act, 12 U.S.C. § §1715z, 1715z-1.
3
42 U.S.C. § 1437f
4
42 U.S.C. § 1436a(a).
5
42 U.S.C. § 1436a(b)(2).
6
42 U.S.C. § 1436a(c).
7
See Pam Fessler, Proposed Rule Could Evict 55,000 Children From Subsidized Housing, NPR (May 10, 2019)
available at https://www.npr.org/2019/05/10/722173775/proposed-rule-could-evict-55-000-children-from-
subsidized-housing (last visited June 10, 2019).
8
See National Housing Law Project, et al., HUD’s Proposed Rule on Mixed Status Families, 26 (June 5, 2019)
available at https://www.nhlp.org/wp-content/uploads/KeepFamiliesTogether-Webinar-06052019.pdf (last visited
June 17, 2019).

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have consistently acknowledged a private realm of family life which the state cannot enter.”
Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977). In Moore, the U.S.S.C. considered a
city ordinance limiting occupancy of a dwelling unit essentially to members of a nuclear family.
Under the ordinance, Ms. Moore was convicted, jailed and fined for living with a grandson who
was related to another grandson not as siblings as the ordinance required but as cousins. In
striking down the ordinance, the Court observed that “[w]hen the government intrudes on
choices concerning family living arrangements … the importance of the governmental interests
advanced and the extent to which they are served by the challenged regulations” must be
carefully scrutinized. Id. at 499. The Court determined that the city’s professed justification,
including avoiding financial burden, failed to pass constitutional muster. Id. at 500.

Since Moore, courts have consistently upheld the constitutional right to familial integrity.
See Halet v. Wend Invs. Co., 672 F.2d 1305, 1311 (9th Cir. 1982) (“Family life, in particular the
right of family members to live together is part of the fundamental right of privacy.”); J.S.R. by
and through J.S.G. v. Sessions, 330 F.Supp.3d 731, 741 (D. Conn. 2018) (“[A] constitutional
violation occurred when the Government separated children from their parents—both on the
basis of substantive due process … as the separation deprived the children of their right to family
integrity.”); Nicholson v. Williams, 203 F.Supp.2d 153, 235 (E.D.N.Y. 2002) (“The right in not
being forcibly separated by the state is shared by parents and children. This right to the
preservation of family integrity encompasses the reciprocal rights of both parent and children. It
is the interest in the companionship, care, custody and management of his or her children and of
the children in not being dislocated from the emotional attachments that derive from the intimacy
of daily association with the parent.”)

Because HUD’s proposed rule disregards the constitutional right of mixed status families
to live together, threatens to dislodge children from the care and custody of their parents and
infringes on the associational rights of these families, the proposed rule should be retracted.
Moore, 431 U.S. at 506.

2) HUD’s Proposed Rule Undermines Congressional Intent to Preserve Mixed Status

Households.

HUD claims that the proposed rule will result in “greater alignment with the wording and
purpose of Section 214,” namely by barring mixed-status families from receiving assistance. To
support its claim, HUD insists that federally assisted housing covered under Section 214
prohibits the indefinite receipt of prorated assistance by mixed-status families, but it cannot point
to any statutory language containing such an edict. In fact, Section 214 clearly conveys that
Congress intended to ensure that individuals with eligible immigration status would receive
assistance while keeping mixed status families together in the same home.
The plain language of the statute conveys this intent. 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

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law explicitly permits housing authorities to choose not to affirmatively establish ineligibility.9
Congress did not mince words: “shall be prorated” does not mean “may be prorated for some
period of time.” In mixed status families, HUD must provide prorated assistance.
The legislative history also bolsters the straightforward reading of the statute. 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.10 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 1996.11 Congress has been
consistent in attempting to guarantee that scarce federal subsidy would be provided for eligible
immigrants and citizens while preserving the integrity of mixed-immigration status families.
HUD’s interpretation requires ignoring the plain language and the history of the statute. HUD
should withdraw its rule because it is in direct conflict with the congressional mandate of Section
214 to provide prorated assistance to mixed status families.
3) HUD’s Proposed Rule, in New York State Alone, Places Thousands of Mixed Status
Households At Risk of Homelessness.

In New York State alone, the proposed rule threatens to undermine the well-being of
nearly 10,000 low-income U.S. citizens and immigrants in mixed status households.12 The rule
would force these families to make an impossible decision—either break up to allow eligible
family members to continue receiving assistance or forgo the subsidies so that the families can
stay together. Family separations undermine family stability, and leads to toxic stress, trauma,
and attachment issues in children. 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.13
HUD’s own impact analysis indicate that about 70% of people living in mixed status
families—mostly children living with their parents—are eligible for federally assisted housing.14
HUD’s rule will likely cause these families to forgo the subsidies to avoid separation. In fact,
HUD is banking on this, 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.”15 This rule, therefore, would predictably evict as many as 10,000 people in
mixed status families (in which nearly 3 out of 4 are eligible for assistance) from public housing,

9
42 U.S.C. § 1436a(i)(2)(A).
10
Housing and Community Development Act of 1987, Pub. L. No. 100-242, § 164, 101 Stat. 1815.
11
Use of Assisted Housing by Aliens Act of 1996, Pub. L. No. 104-208, § 572, 110 Stat. 3009.
12
Analysis of HUD state data, available on file with authors.
13
See 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 PEDIATRICS OPEN (2018),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6173255/.
14
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 2 (Apr. 15, 2019).
15
Id. at 7.

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Section 8, and other programs covered by the proposed rule.16 Indeed, the rule would also likely
have a chilling effect on the 80,000 individuals living in households with noncitizens even
though they are all eligible for assisted housing. The mass evictions, shock waves and departures
from housing assistance the rule will engender will cause increased rates of homelessness and
unstable housing among an already vulnerable population.17
By almost every measure, immigrant tenants face housing problems to a degree much
greater than native-born New Yorkers. They earn less than native born-headed households; they
pay higher portions of their income for rent; and they are three times more likely to live in
overcrowded and illegally converted spaced.18 The housing instability that the proposed rule will
cause will not only hurt families as they struggle to find housing in inhospitable markets but can
lead to increased health problems for these families in the long run. Studies have shown that
unstable housing situations can cause individuals to experience increased hospital visits, loss of
employment, and are associated with increased likelihood of mental health problems in
children,19 and can dramatically increase the risk of an acute episode of a behavioral health
condition, including relapse of addiction in adults.

Having safe and stable housing is crucial to a person’s good health, sustaining
employment, and overall self-sufficiency. These effects will be particularly prominent in the
children, nearly all of whom are U.S. citizens, in these mixed status families. Research has
shown that economic and housing instability impedes children’s cognitive development, leading
to poorer life outcomes as adults.20 Housing instability is directly correlated to decreases in
student retention rates and contributes to homeless students’ high suspension rates, school
turnover, truancy, and expulsions, limiting students’ opportunity to obtain the education they
need to succeed later in life.21

Furthermore, by eliminating the ability of mixed status families to receive prorated

assistance on a permanent basis, the proposed rule robs eligible children of housing subsidies
because they have parents with ineligible status. Nearly all of the children in mixed status
families who are receiving federally assisted housing covered by Section 214, as previously
16
Id. at 8.
17
See PRATT CTR. FOR CMTY. DEV., CONFRONTING THE HOUSING SQUEEZE: CHALLENGES FACING IMMIGRANT
TENANTS, AND WHAT NEW YORK CAN DO (2008), https://prattcenter.net/research/confronting-housing-squeeze-
challenges-facing-immigrant-tenants-and-what-new-york-can-do. (last visited June 11, 2019).
18
Id. at 14, 20, 25.
19
See Will Fischer, Research Shows Housing Vouchers Reduce Hardship and Provide Platform for Long-Term
Gains Among Children, CENTER ON BUDGET AND POLICY PRIORITIES (October 7, 2015),
https://www.cbpp.org/research/research-shows-housing-vouchers-reduce-hardship-and-provide-platform-for-
longterm; see also Linda Giannarelli et al., Reducing Child Poverty in the US: Costs and Impacts of Policies
Proposed by the Children’s Defense Fund (Jan. 2015),
http://www.urban.org/sites/default/files/publication/39141/2000086-Reducing-Child-Poverty-in-the-US.pdf.
20
See 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.
21
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 https;//pqdtopen.proquesst.com/doc/1620832476.html?FMT=AI.

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indicated, are U.S. citizens and lawful permanent residents (LPR) who live with parents or other
adults who do not have eligible immigration status.22 Since these children lack the legal capacity
to sign leases themselves, the adult heads of household, including those who do not receive
assistance, must sign these contracts on behalf of their family. However, by prohibiting the
ineligible adults from living in subsidized units, the proposed rule forecloses the possibility of
these U.S. citizen and LPR children from receiving any housing assistance under the covered
housing programs inevitably ensuring that these children would face homelessness—an outcome
that is wholly preventable if HUD withdraws the proposed rule.
4) HUD’s Proposed Rule Will Likely Disproportionately Discriminate Against Latino
Households on the Basis of National Origin, Race and Familial Status.

About 85% of those in mixed status households are Latinos.23 Of foreign-born

Latinxs in New York State, the Dominican Republic has the largest national origin.24 In
light of the data, Latinx households will clearly be disproportionately burdened by
HUD’s proposed discriminatory rule. The Fair Housing Act, 42 U.S.C. § 3601 et seq,
which HUD is obligated to follow, proscribes such a result. The Act prohibits the denial
of or otherwise making housing unavailable on the basis of race, color, national origin or
familial status.25 The Supreme Court has determined that a facially neutral policy or
practice that adversely disparately impacts members of a protected category is actionable
under the Act. See Texas Dept. of Housing and Community Affairs v. Inclusive
Communities Project, Inc., 135 S.Ct. 2507, 2525 (2015) (“[D]isparate impact claims are
cognizable under the Fair Housing Act upon considering its resulted-oriented
language.”). HUD’s proposed rule, which will fall harshly on Latinxs mixed status
households, and disproportionately burden those of Dominican Republic national origin,
likely contravenes the Fair Housing Act and should be retracted.

Moreover, adoption of the proposed rule directly violates HUD’s other obligation to
affirmatively further fair housing. Besides banning discrimination, the Fair Housing Act
mandates that HUD shall “administer the programs and activities relating to housing and urban
development in a manner affirmatively to further the policies of” the FHA.26 HUD’s regulation
defined this duty to mean “taking meaningful actions, in addition to combating discrimination,
that overcome patterns of segregation and foster inclusive communities free from barriers that
restrict access to opportunity based on protected characteristics.”27 The affirmatively furthering
fair housing obligation also includes “fostering and maintaining compliance with civil rights and
fair housing laws.”

22
See supra note 14, at 6-8. (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).
23
See supra note 8, at 27.
24
See Pew Research Center, Latinos in California, Texas, New York, Florida and New Jersey, March 19, 2004. We
use the terms Latinx, Latinos and Hispanics interchangeably.
25
42 U.S.C. § 3604(a).
26
42 U.S.C.A. § 3608(e)(5).
27
24 C.F.R. § 5.152 (definition of “Affirmatively furthering fair housing”).

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 The proposed rule does nothing to advance fair housing aims, or compliance with other
civil rights laws. Instead, it seeks to do the exact opposite by denying housing opportunities to
thousands of immigrant families, using eligible immigration status as a pretext for discriminating
against individuals based on their race and national origin as previously stated. Additionally,
given that 70 percent of the households negatively impacted by this proposed rule are families
with eligible children—they comprise the vast majority of eligible occupants of mixed status
households—the proposed rule would also have a disproportionate and devastating impact on
families with children. This clearly discriminatory policy is wholly inconsistent with HUD’s
obligation to combat housing discrimination and segregation. Accordingly, the proposed rule
should be withdrawn.

5) HUD’s Economic Analysis Demonstrates that the Rule Is Fiscally Unsound.

HUD claims that the proposed rule is intended to address the waitlist crisis for subsidized
housing faced by most Public Housing Authorities nationwide.28 Indeed, there’s a public housing
and Section 8 waitlist crisis across the country.29 The New York City Housing Authority
(NYCHA), for example, has 138,045 applicant families on its Section 8 waiting lists as of May
1, 2019, many of whom have been waiting for over 12 years.30 NYCHA’s public housing waiting
lists have 175,451 applicant families.31 Pointedly, however, only 3,162 mixed status households
are in assisted housing in the entire State. Clearly, the proposed rule would not alleviate, but
would, instead, worsen this crisis.
Moreover, by HUD’s own assessment, the proposed rule will likely lead to a decrease in
the number of assisted families. According to HUD, if the agency were to replace all mixed
status families currently receiving HUD assistance with households comprising of members who
are all eligible, this transition would cost HUD from $372 million to $437 million annually.32 To
pay for these new costs of the proposed rule,33 HUD has surmised that the likeliest scenario
would be that it would have to reduce the quantity and quality of assisted housing in response to
higher costs. In this case, the transfer would be from assisted households who experience a
decline in assistance (in whole or in part) to the replacement households. With part of the budget
being redirected to cover the increase in subsidy, there could be fewer households served under
the housing choice vouchers program.34

28
See 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=.f68fec836d53.
29
There are currently 3 million individuals on voucher waitlists around the country, with an additional 6 million that
would like to be on these waitlists See Alicia Mazzara, CBPP, Housing Vouchers Work: Huge Demand, Insufficient
Funding for Housing Vouchers Means Long Waits (Apr. 19, 2017), https://www.cbpp.org/blog/housing-vouchers-
work-huge-demand-insufficient-funding-for-housing-vouchers-means-long-waits.
30
Legal Aid Society NYC, data obtained in response to a request to NYCHA on or about June 10, 2019.
31
Id.
32
See, supra note 14, at 11.
33
See Brakkton Booker, White House Budget Calls for Deep Cuts to HUD, NPR (Feb. 13, 2018),
https://www.npr.org/2018/02/13/585255697/white-house-budget-calls-for-deep-cuts-to-hud.
34
See, supra note 14, at 3.

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 HUD’s own economic analysis shows that the proposed rule will not only fail to achieve
its stated goals of addressing the subsidized housing waitlist crisis, but will in fact exacerbate this
very issue. The Regulatory Impact Analysis released by HUD makes it clear that the proposed
rule will not further HUD’s mission to “create strong, sustainable, inclusive communities and
quality affordable homes for all.”35 In fact, the proposed rule will do the exact opposite, reducing
the quantity of affordable homes on the market.
Lastly, HUD’s portfolio contains housing that are in deplorable conditions. Instead of
fixing this housing stock, HUD is taking the wasteful step of incurring new costs. In its impact
analysis, HUD acknowledged that the proposed rule could create about $200 million in new
costs and hurt public housing by reducing the “maintenance of units and possibly [leading to]
deterioration of the units that could lead to vacancy.”36 Rather than incur new costs resulting
from eviction of mixed status households, HUD should spend scarce federal resources on fixing
and maintaining decrepit housing making those available to needy families on long waiting lists.
In light of the negative consequences of the proposed rule, it is hard to see what legitimate
purpose the rule serves. Consequently, we urge HUD to rescind this needless rule.
Conclusion

In conclusion, given the discriminatory and devastating impacts of HUD’s proposed rule,
we respectfully request that the agency withdraw the rule.

Should you have any questions, please do not hesitate to contact us at 212-219-3360.
Thank you for your consideration of our comments.

Respectfully submitted,

/s/ Francisca D. Fajana

Francisca D. Fajana*, Senior Counsel
Natasha Lycia Ora Bannan, Associate Counsel
Jose Perez, Deputy General Counsel
LatinoJustice PRLDEF
475 Riverside Drive, Suite 1901
New York, NY 10115

* We acknowledge the research assistance of interns Krystlen Lata and Bernardo Caceres,
and the National Housing Law Project, et al. model comments.

35
HUD, ABOUT HUD, MISSION (last visited May 20, 2019), https://www.hud.gov/about/mission.
36
See supra note 14, at 3.

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