E.M. v. Nebraska Dept. of Health & Human Servs.
306 Neb. 1
| Neb. | 2020Background:
- Three Guatemalan nationals (E.M., Perez, Marroquin), brought to Nebraska as minors, were adjudicated juvenile wards and placed in foster care; each later obtained Special Immigrant Juvenile (SIJ) findings.
- Each applied to Nebraska’s Bridge to Independence (B2I) program under the Young Adult Bridge to Independence Act (YABI) before age 19; DHHS denied enrollment for failing the citizenship/“lawfully present” requirement.
- Applicants sought fair hearings and then judicial review; district court affirmed DHHS; appeal to Nebraska Supreme Court followed (bypass granted).
- Central legal question: whether YABI “affirmatively provides” eligibility to aliens not “lawfully present” under 8 U.S.C. § 1621(d) and Nebraska’s L.B. 403 (§ 4-108), despite YABI’s omission of an explicit immigration-status grant and its inclusion of an immigration-assistance case-management service.
- Applicants also challenged DHHS regulation § 003.02 (requiring citizenship or lawful presence to participate) as violating Nebraska’s separation of powers clause.
- Holding preview: Court affirmed — applicants were not “lawfully present” under § 1621(a) categories; Legislature did not “affirmatively provide” eligibility for unlawful aliens in YABI; DHHS regulation upheld as consistent with federal law and agency authority.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applicants not “lawfully present” are eligible for B2I under YABI despite PRWORA/L.B.403 | YABI’s omission of a lawful-presence restriction and program design shows intent to include them | Federal law (PRWORA/§1621) and Neb. §4-108 bar benefits to those not lawfully present unless state law affirmatively provides eligibility | Held: Applicants are not “lawfully present” (only §1621(a) classes qualify); Legislature did not affirmatively provide; applicants ineligible |
| Whether omission of a citizenship/lawful-presence clause in YABI constitutes an “affirmative” provision under §1621(d) | Omission signals legislative intent to include non-lawfully-present individuals | Omission cannot substitute for the express/positive legislative statement §1621(d) requires; federal law controls | Held: Omission insufficient; Supremacy Clause forbids construing silence as affirmative provision |
| Whether YABI’s provision of immigration-assistance case management constitutes an affirmative eligibility grant | Inclusion of immigration-assistance services (e.g., helping obtain SIJ findings) shows legislative intent to include unlawful aliens | That clause describes a service (who may be assisted), not a statement of who is eligible for program benefits; not an express eligibility grant | Held: The assistance provision is not an affirmative eligibility provision; agency regulation sensibly limits the assistance as a narrow exception to help obtain SIJ or relief (consistent with federal SIJ rules) |
| Whether DHHS regulation §003.02 unlawfully added an eligibility requirement in violation of Nebraska’s separation of powers clause | Agency improperly altered statutory eligibility by requiring citizenship or lawful presence | Regulation implements federal limits and YABI in a manner consistent with federal law and agency rulemaking authority | Held: Regulation valid; agency did not violate separation of powers given federal constraints and statutory scheme |
Key Cases Cited
- Martinez v. Regents of University of Cal., 50 Cal. 4th 1277 (2010) (state statute expressly referencing persons without lawful immigration status satisfied §1621(d) requirement)
- Kaider v. Hamos, 975 N.E.2d 667 (Ill. App. 2012) (a positive legislative expression of intent can satisfy §1621(d) without quoting the federal statute verbatim)
- Arizona ex rel. Brnovich v. Maricopa County Community College Dist., 243 Ariz. 539 (2018) (interpreted “not lawfully present” as corresponding to §1621(a) ineligibility categories)
- Arizona v. United States, 567 U.S. 387 (2012) (federal government has primary authority over immigration; federal law preempts conflicting state law)
- McManus Enters. v. Nebraska Liquor Control Comm., 303 Neb. 56 (2019) (standard of review for Administrative Procedure Act appeals)