E.M. v. Nebraska Dept. of Health & Human Servs.
944 N.W.2d 252
Neb.2020Background
- Nebraska enacted the Young Adult Bridge to Independence Act (YABI) creating the Bridge to Independence (B2I) extended foster-care program for former juvenile wards up to age 21, providing services including medical care, case management, and foster care maintenance.
- Three Guatemalan nationals (E.M., Perez, Marroquin) were adjudicated juvenile wards, placed in foster care, and received Special Immigrant Juvenile (SIJ) findings; each applied to B2I before turning 19.
- DHHS denied their B2I applications for failing to meet citizenship/lawful-presence requirements; applicants requested fair hearings and lost.
- The Lancaster County District Court affirmed DHHS, concluding YABI did not “affirmatively provide” eligibility to aliens not lawfully present and that an agency regulation requiring lawful presence merely codified federal limits.
- The Nebraska Supreme Court granted bypass, considered preserved issues, and affirmed: applicants were not “lawfully present” under 8 U.S.C. § 1621(a), and the Legislature had not affirmatively extended B2I to unlawfully present aliens; a regulation requiring lawful presence did not violate separation of powers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applicants (not "lawfully present") are eligible for all B2I benefits | YABI’s omission of a lawful-presence clause and inclusion of immigration-assistance services shows legislative intent to include unlawfully present persons | Federal law (PRWORA/§1621) and Nebraska law bar benefits to aliens not lawfully present unless the state "affirmatively provides" eligibility; YABI contains no such affirmative provision | Held: Applicants are not eligible; they are not "lawfully present" under §1621(a) and YABI did not affirmatively extend eligibility |
| Whether YABI’s language (including §43-4505(3)(h) immigration-assistance) "affirmatively provides" eligibility under §1621(d) | The immigration-assistance provision demonstrates an express legislative intent to include unlawful aliens | The immigration-assistance clause describes a service, not a class of eligible recipients; affirmative provision must expressly extend eligibility by reference to immigration status | Held: Inclusion of assistance services is not an affirmative statutory extension of eligibility; Legislature must make a positive or express statement by reference to immigration status |
| Whether DHHS regulation §003.02 (requiring citizenship/lawful presence) violated Nebraska separation of powers by adding eligibility requirements | Regulation improperly adds eligibility criteria not found in YABI | Regulation merely codifies federal limits (PRWORA/§1621) and implements YABI consistent with federal law; DHHS may adopt reasonable regulations to carry out statute | Held: Regulation is valid; it implements federal-law limitations and does not impermissibly usurp legislative power |
Key Cases Cited
- Martinez v. Regents of the University of California, 50 Cal.4th 1277 (Cal. 2010) (state statute satisfied §1621(d) where it expressly referred to persons without lawful immigration status)
- Kaider v. Hamos, 975 N.E.2d 667 (Ill. App. Ct. 2012) (§1621(d) satisfied by a state law that positively conveys legislative intent to opt out of §1621(a))
- Arizona ex rel. Brnovich v. Maricopa County Community College Dist., 243 Ariz. 539 (Ariz. 2018) (interpreting “not lawfully present” as coextensive with those ineligible under §1621(a))
- Arizona v. United States, 567 U.S. 387 (2012) (federal government has broad, preeminent authority over immigration)
- McManus Enterprises v. Nebraska Liquor Control Commission, 303 Neb. 56 (Neb. 2019) (administrative-review standards and treatment of agency rules for statutory-construction purposes)