E.M., appellant, v. Nebraska Department of Health and Human Services et al., appellees. Kevin Vasquez Perez, appellant, v. Nebraska Department of Health and Human Services et al., appellees. Walter Hernandez Marroquin, appellant, v. Nebraska Department of Health and Human Services et al., appellees.
Nos. S-18-1146 through S-18-1148
Nebraska Supreme Court
June 5, 2020
306 Neb. 1
Administrative Law: Judgments: Appeal and Error. A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record. - ____: ____: ____. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
- Administrative Law: Judgments. Whether an agency decision conforms to the law is by definition a question of law.
- Administrative Law: Statutes: Appeal and Error. The meaning and interpretation of statutes and regulations are questions of law for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.
- Administrative Law: Appeal and Error. An issue that has not been presented in the petition for judicial review has not been properly preserved for consideration by the district court.
- Appeal and Error. An appellate court will not consider an issue on appeal that was not passed upon by the trial court.
Statutes: Legislature: Presumptions: Judicial Construction. In determining the meaning of a statute, the applicable rule is that when the Legislature enacts a law affecting an area which is already the subject of other statutes, it is presumed that it did so with full knowledge of the preexisting legislation and the decisions of the Nebraska Supreme Court construing and applying that legislation. - Statutes. Statutory language is to be given its plain and ordinary meaning.
- Public Assistance: Words and Phrases. For the purposes of state or local public benefits eligibility under
Neb. Rev. Stat. § 4-108 (Reissue 2012), “lawfully present” means the alien classifications under8 U.S.C. § 1621(a)(1) , (2), and (3) (2012). - Public Assistance: Legislature. In order to affirmatively provide a state public benefit to aliens not lawfully present in the United States, as authorized by
8 U.S.C. § 1621(d) (2012), the Legislature must make a positive or express statement extending eligibility by reference to immigration status. - Constitutional Law: Federal Acts: States. Under the Supremacy Clause of the U.S. Constitution, state law that conflicts with federal law is invalid.
- Statutes: Words and Phrases. It is not for the courts to supply missing words or sentences to a statute to supply that which is not there.
- Statutes: Appeal and Error. The rules of statutory interpretation require an appellate court to give effect to the entire language of a statute, and to reconcile different provisions of the statutes so they are consistent, harmonious, and sensible.
- ____: ____. An appellate court gives effect to all parts of a statute and avoids rejecting as superfluous or meaningless any word, clause, or sentence.
- Administrative Law: Statutes. For purposes of construction, a rule or regulation of an administrative agency is generally treated like a statute.
- ____: ____. Properly adopted and filed regulations have the effect of statutory law.
- Constitutional Law. Nebraska‘s separation of powers clause prohibits the three governmental branches from exercising the duties and prerogatives of another branch.
- ___. The separation of powers clause prevents a branch from delegating its own duties or prerogatives except as the constitution directs or permits.
Appeals from the District Court for Lancaster County: KEVIN R. MCMANAMAN, Judge. Affirmed.
Douglas J. Peterson, Attorney General, and Ryan C. Gilbride for appellees.
HEAVICAN, C.J., MILLER-LERMAN, CASSEL, STACY, FUNKE, PAPIK, and FREUDENBERG, JJ.
CASSEL, J.
I. INTRODUCTION
A federal statute1 and its Nebraska counterpart2 make noncitizens, who are not “lawfully present,”3 ineligible for state public benefits unless the State “affirmatively provides”4 for eligibility. In these consolidated Administrative Procedure Act5 appeals, we determine whether the language of the Young Adult Bridge to Independence Act (YABI)6 sufficiently made several noncitizen applicants eligible for all public benefits of the Bridge to Independence program (B2I). A state agency ruled them ineligible, and on appeal, the district court affirmed. On appeal to this court, we affirm. We also reject their constitutional challenge to an agency regulation.7
II. BACKGROUND
Before we summarize the proceedings, a brief introduction to YABI and B2I will be helpful.
YABI was enacted in 20138 in response to the federal Fostering Connections to Success and Increasing Adoptions Act of 2008.9 The purpose of YABI is to “support former state wards in transitioning to adulthood, becoming self-sufficient, and creating permanent relationships.”10 YABI, in turn, created B2I, Nebraska‘s extended foster care program.11 The program is available to a young adult who is at least 19 years old, who was adjudicated to be a juvenile under
2. AGENCY PROCEEDINGS
E.M., Kevin Vasquez Perez, and Walter Hernandez Marroquin (applicants) are Guatemalan citizens, who fled to Nebraska as minors. Each was adjudicated by the juvenile court, pursuant to
Before each applicant turned 19 years of age, he applied to the Nebraska Department of Health and Human Services (DHHS) for B2I. At the time of each application, the applicant had already received special immigrant juvenile (SIJ) status from the U.S. Citizenship and Immigration Services. DHHS denied each of the applications, because each applicant failed to meet the “citizenship/lawful presence requirements.”
3. DISTRICT COURT APPEAL
Applicants filed timely petitions for review to the district court for Lancaster County. The parties stipulated to joinder of applicants’ petitions for review. Applicants made two arguments. First, they asserted that the omission of a citizenship requirement and the inclusion of a case management service that offers immigration assistance showed a clear intent to extend public benefits to those not “lawfully present.” Second, because DHHS promulgated a regulation that they claimed added an eligibility requirement not provided in YABI, they asserted that it violated the separation of powers clause of the Nebraska Constitution.14
The district court began its analysis by discussing the relevant federal statutes. The court observed that under
The court reasoned that because there was no affirmative language in YABI to include those not “lawfully present” to receive public benefits, applicants were not eligible for B2I. It explained that applicants’ argument-that the inclusion of an immigration assistance service in the program provided eligibility to those with SIJ status-“require[d] an inference not warranted by the statutory language or scheme.” It stated that providing the immigration assistance service to those
The court analyzed applicants’ argument regarding the additional eligibility regulation. It stated:
In other words, that regulation explains that if a person does not meet the citizenship/lawful presence requirement, the Department may nevertheless assist the young adult in obtaining the necessary state court findings for status adjustment application (after which that the young adult may achieve an appropriate status under
§ 1621(a) to receive public benefits).
It concluded that the regulation did not change the language or meaning of the program. It affirmed DHHS’ denial of applicants’ participation in B2I.
Each of the applicants filed a timely appeal, which, pursuant to the parties’ stipulation, the Nebraska Court of Appeals consolidated for briefing and disposition. Later, we granted applicants’ petition to bypass the Court of Appeals.16
III. ASSIGNMENTS OF ERROR
Applicants assign, restated, that the district court erred in (1) determining that citizenship or immigration status is relevant to eligibility for B2I; (2) affirming DHHS’ determination that because each applicant was not a citizen or qualified alien, he was not eligible; and (3) failing to strike down the eligibility regulation on the basis that it violated the separation of powers clause of the Nebraska Constitution.
IV. STANDARD OF REVIEW
[1-3] A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate
[4] The meaning and interpretation of statutes and regulations are questions of law for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.20
V. ANALYSIS
The federal Immigration and Nationality Act (INA)21 defines many terms, including “alien”22 and “national of the United States.”23 Federal statutes also use lengthy terms, such as “an alien who is not lawfully present,”24 to describe the status of particular individuals. Following the lead of the California Supreme Court and purely for the sake of brevity, we refer to such individuals as “unlawful aliens.”25
The overarching question that we must answer is whether applicants were eligible for B2I.
On appeal to this court, applicants make several arguments—two of which DHHS challenges as being outside the scope of applicants’ petitions for review filed in the district court. DHHS first challenges the argument that because
[5] As DHHS correctly notes, an Administrative Procedure Act statute dictates that a petition for review must set forth the “petitioner‘s reasons for believing that relief should be granted.”26 Thus, we have said that an issue that has not been presented in the petition for judicial review has not been properly preserved for consideration by the district court.27
We agree that neither argument was raised in the amended petitions for review filed in the district court. Each broadly stated that “[DHHS has] incorrectly and unlawfully determined that [applicants are] not eligible for extended foster care benefits . . . .” We agree with DHHS that this broad assertion did not properly preserve the challenged arguments for review.
[6] This, in turn, dictates that we should not consider either argument. An appellate court will not consider an issue on appeal that was not passed upon by the trial court.28 Therefore, we will not address them.
2. FEDERAL AND STATE STATUTORY LIMITATIONS
Before we can determine if applicants are eligible for B2I, we must determine whether the federal and state statutory
(a) PRWORA
In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA).29 PRWORA prohibited an alien who is not a “qualified alien (as defined in [8 U.S.C. § 1641])” from receiving any “Federal public benefit.”30 It did so “[n]otwithstanding any other provision of law”31 but with certain exceptions.32
Pertinent to the appeal before us, PRWORA also declared certain individuals to be ineligible for any state or local public benefit.33 It provided that an alien who is not (1) a qualified alien (as defined by
Applicants concede that they are “not considered qualified aliens for the purposes of PRWORA.”37 They also concede that they are “not specifically listed under PRWORA as qualified to receive those benefits meeting the definition of state or local public benefits.”38
A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) of this section only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.39
In this exception, the key terms are “alien who is not lawfully present in the United States” and “affirmatively provides.”40
(b) L.B. 403
In 2009, the Nebraska Legislature enacted the state law equivalent of PRWORA as part of L.B. 403.41 It provided that “[n]otwithstanding any other provisions of law, . . . no state agency or political subdivision of the State of Nebraska shall provide public benefits to a person not lawfully present in the United States.”42 In order to verify lawful presence, an applicant for public benefits must attest that he or she is a U.S. citizen or that he or she is a qualified alien and lawfully present.43
(c) Interpreting YABI
[7] We must interpret YABI consistently with PRWORA and its Nebraska counterpart. In determining the meaning of a statute, the applicable rule is that when the Legislature enacts a law affecting an area which is already the subject of other statutes, it is presumed that it did so with full knowledge of
[8] We do so using our well-settled principle: Statutory language is to be given its plain and ordinary meaning.46 Both
(d) “Lawfully Present”
Because YABI is subject to
The Nebraska act does not define “lawfully present.” But one section requires an applicant to verify lawful presence by attesting that he or she is either (1) a U.S. citizen or (2) a qualified alien and is lawfully present.47 This requirement makes it clear that “lawfully present” refers to an individual‘s citizenship or alien immigration status. Because the federal government has broad, undoubted power over immigration and the status of aliens,48 we turn to PRWORA for guidance.
In Arizona ex rel. Brnovich v. Maricopa CCCDB, 243 Ariz. 539, 416 P.3d 803 (2018),49 the Arizona Supreme Court interpreted
[9] We agree with the reasoning of the Arizona Supreme Court. The context of
Applicants have not presented evidence that they qualify as “lawfully present” aliens under
Where an alien is not “lawfully present,” state public benefits can be provided only through the enactment of a state law which “affirmatively provides” for eligibility.51 Because we have not determined what those words require, we first examine decisions from other states and then settle the meaning of the phrase.
(i) Decisions From Other States
In Kaider v. Hamos, 2012 IL App (1st) 111109, 975 N.E.2d 667, 363 Ill. Dec. 641 (2012),52 an Illinois court determined the plain meaning of the phrase by using a dictionary definition. There, both parties did likewise. One side contended that “affirmatively” required specific or express reference to unlawful aliens; the other urged that it only required an unambiguous and positive expression of legislative intent to opt out of
After the court determined that the statute did not violate
(ii) Statutory Interpretation
We agree with the analysis of the California and Illinois courts. Both courts rejected the notion that to “affirmatively provide[]” means to include one universal alien status or to expressly reference
[10] The plain language of
3. APPLICATION TO YABI
Having settled the meaning of
Applicants argue that for two reasons, YABI “affirmatively provides” for unlawful aliens. Neither is persuasive.
First, they contend that the omission of a lawful presence requirement evidenced the Legislature‘s intent to include unlawful aliens. They cite our familiar proposition that the intent of the Legislature is expressed by omission as well as by inclusion.60 And, they argue, the Legislature did not “include any deference to the limitations within PRWORA or L.B. 403 within its eligibility requirements.”61
[11] But as we have already explained, PRWORA and L.B. 403 apply to YABI. Section 1621(d) dictates that to provide eligibility for a state public benefit to an unlawful alien, the state must “affirmatively provide[]” for such eligibility. Section 1621(a) denies eligibility “[n]otwithstanding any other provision of law,” subject to the exception of
[12] This provision describes a service, not an eligible recipient. It is not for the courts to supply missing words or sentences to a statute to supply that which is not there.65 There is no positive or express statement using words which describe individuals. We cannot supply what the Legislature omitted. In Kaider, the statute provided for “‘noncitizens,‘”66 and in Martinez, the statute provided for “‘a person without lawful immigration status.‘”67 Nothing like that appears in
Moreover, the Legislature has demonstrated that it knows how to affirmatively provide for unlawful aliens to receive public benefits. In
As part of this argument, applicants also contend that if unlawful aliens are not eligible for B2I, then
[13,14] Of course, we recognize that some effect must be given to
[15,16] In order to reconcile
Because the federal regulation provides for SIJ eligibility until the alien is 21 years old, the most sensible reading of
4. CHALLENGE TO REGULATION
Applicants argue that DHHS violated
[17,18] We agree that Nebraska‘s separation of powers clause prohibits the three governmental branches from exercising the duties and prerogatives of another branch.78 The separation of powers clause prevents a branch from delegating its own duties or prerogatives except as the constitution directs or permits.79
But we have already recognized that applicants’ interpretation of YABI would conflict with federal law, in violation of
VI. CONCLUSION
We conclude that the district court did not err in determining that applicants were not eligible for B2I. Because applicants were not “lawfully present” and the Legislature did not “affirmatively provide[]” for unlawful aliens to be eligible under YABI, applicants were ineligible for B2I. We affirm the judgment of the district court.
AFFIRMED.