By Veronica Shafik | Articles Editor

December 7, 2023

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Is housing a fundamental right? What about for mixed status families? Is there a gap in federal law regarding housing rights and protections for mixed status families? How has New York addressed immigration-sensitive housing issues? And can Vermont learn from New York?

These are all questions left unanswered by the current housing legal framework, such as the Fair Housing Act (FHA) and related civil rights laws. Housing exclusions multiply for low-income families that have members who lack immigrant status and depend on public assistance to pay for housing. Even with more housing assistance available, many families remain left out.

What does it mean to be a “mixed status family” in the United States (U.S.)? The term mixed status family refers to “families in which one or more family members are U.S. citizens or lawful permanent residents (green card holders) and some are undocumented without legal immigration status.”[1] This family makeup is more prevalent than ever. Approximately 16.2 million people in the United States live in a mixed status family.[2]

But, mixed status families are often forced to separate because federal law does not guarantee the right to fair housing for this suspect class.[3] FHA bans discrimination on the basis of national origin. But FHA does not ban discrimination on the basis of immigration status. [4] Read the previous sentence again the FHA allows discrimination based on immigration status!

This means that the housing assistance regulations, which create subsidy programs, permit excluding people from assistance programs on the basis of immigration status. Approximately two-thirds of people in mixed status families are already U.S. citizens, and over half of them are children.[5] Therefore, categories such as citizens and lawful permanent residents are eligible to receive some housing assistance.[6] However, if they live in a household with a family member that is an “ineligible” immigrant (that may not be an undocumented immigrant),[7] then the eligibility to subsidized housing forces these families to separate in order to receive housing benefits. Mixed status families are prevented from receiving housing benefits by the very essence of their classification.

New York’s approach addresses many housing issues, even when those challenges account for situations outside of the traditional housing accessibility sphere. To start, one of the biggest challenges for mixed status families is having valid identification. Identification helps with getting housing, holding a job to maintain housing, and applying for government programs for housing assistance. Thus, New York established “IDNYC.”[8] IDNYC is a free, municipal identification card for all New Yorkers from all backgrounds and from all five boroughs.[9] Immigration status does not matter, and anyone that is a New York resident, ten years of age or older, can apply to receive one.[10] IDNYC cardholders receive access to an array of benefits which includes discounts for education, health, housing, and many other institutions.[11] Regarding application necessities, IDNYC is accepted for apartment applications, health insurance, entry into public buildings, for taking the high school equivalency exam in New York City, and by employers.[12] This identification card system resolves many issues for mixed status families because undocumented members can obtain a form of identification that helps in the housing searching and maintaining process.

Another challenge when seeking housing is knowing the resources available. Recently, New York expanded its resources while consolidating the different points of contact to all be within two main programs. New York has the following two programs: (1) The City Family Eviction Prevention Supplement Program and the City Family Exit Plan Supplement Program (collectively, the “CityFHEPS Programs”) and (2) Family Homelessness & Eviction Prevention Supplement (FHEPS). CityFHEPS is a city rental assistance program that can help residents find and keep affordable housing.[13] FHEPS provides rental payments for tenants in various ways depending on the family and its needs. Landlords receive rent payments directly from the New York City Human Resources Administration.[14] This means that part of the rent will be covered by the FHEPS supplement, and the other part comes from the tenant’s Cash Assistance shelter allowance or from the tenant’s income.[15] Collectively, programs such as CityFHEPS and FHEPS, along with other supplementary resources such as IDNYC, come together to open doors for mixed families in New York.

Unlike New York, Vermont’s approach does not consider factors outside of the rental-landlord sphere. Nor does Vermont consider the different issues families face when living in different parts of the state. Infrastructure, financial, and social barriers link back to housing issues and cause exclusion for mixed status families in Vermont.[16] This leaves mixed status families in a cycle of despair that is close to impossible to break out of. Addressing issues such as housing shortages, lack of access to resources, and establishing strong communities with open communication can improve living conditions for all Vermont residents.

However, Vermont is already on the right track. Vermont is one of the few states to offer a driver privilege card.[17] This driver privilege card provides more privileges than what the IDNYC gives New York City residents. Vermont’s driver’s privilege card is available to any Vermont resident and does not require proof of legal presence or U.S. citizenship.[18] The driver privilege card is a Vermont license, but it is not Real ID compliant.[19] This still opens many doors to mixed status families because as explained, having a state related identifications helps with housing opportunities and programs. More resources like the driver privilege card would greatly expand the benefits allowed for mixed status families in its community, work force, and economy.

In conclusion, federal laws address accessibility issues but leave gaps within how those laws limit benefit-related programs for housing. It is up to state laws to fill the gap and provide more resources to address the specific issues for housing, especially for low-income mixed status families. Then, from the state level, comes city and local change. New York demonstrates a prime example of how to adjust to the issues its residents face. Vermont can move towards that model but on a smaller scale to reflect the structure and environment of the state.

 

[1] Fact Sheet: Mixed Status Families and COVID-19 Economic Relief, Nat’l Immigr. F. (Aug. 12, 2020), https://immigrationforum.org/article/mixed-status-families-and-covid-19-economic-relief/#:~:text=Mixed%20status%20families%20are%20families%20in%20which%20one,United%20States%20live%20in%20a%20mixed%20status%20family.

[2] Id.

[3] Although the Supreme Court has concluded immigration status is not a suspect class, immigration status satisfies the Arlington Heights test for disparate impact and therefore qualifies for strict scrutiny. David P. Weber, Restricting the Freedom of Contract: A Fundamental Prohibition, 16 Yale Hum. Rts. & Dev. L. J. 51, 91 (2012). But see generally Graham v. Richardson 403 U.S 365 (1971) (holding that noncitizens are a prime example of a discrete and insular minority for whom such heightened judicial solicitude is appropriate and the power of a state to apply its laws exclusively to its noncitizen residents as a class is very limited).

[4] The Fair Housing Act, 42 U.S.C. §§ 3601–04 (prohibiting discrimination by direct housing providers, such as landlords and real estate companies based on race or color, religion, sex, national origin, familial status, or disability). Familial status and national origin do not include immigration status or mixed status family status.

[5] NLIHC President and CEO Diane Yentel Statement on HUD Withdrawal of Mixed-Status Rule, Nat’l Low Income Hous. Coal. (Apr. 2, 2021), https://nlihc.org/news/nlihc-president-and-ceo-diane-yentel-statement-hud-withdrawal-mixed-status-rule.

[6] Id.

[7] Id.

[8] Benefits, IDNYC, https://www.nyc.gov/site/idnyc/benefits/benefits.page (last visited Dec. 3, 2023).

[9] About IDNYC, IDNYC, https://www.nyc.gov/site/idnyc/about/about.page (last visited Dec. 3, 2023).

[10] Id.

[11] Benefits, supra note 8.

[12] Id.; See Benefits Guide, IDNYC, https://www.nyc.gov/assets/idnyc/downloads/pdf/cardholder-benefits-guide-brc-971-mlf.pdf (last visited Dec. 3, 2023) (full multilingual brochure for IDNYC Benefits Guide).

[13] Rental Assistance, NYC Hum. Res. Admin. Dep’t of Soc. Servs., https://www.nyc.gov/site/hra/help/rental-assistance.page (last visited Dec. 3, 2023).

[14] Id.

[15] Id.

[16] Regin Albin, Housing Barriers for Immigrants and Refugees to Vermont, Vt Hous. Fin. Agency (2020) https://www.vhfa.org/sites/default/files/publications/housing_barriers_for_immigrants_to_vermont_0.pdf.

[17] What is a Driver’s Privilege Card?, Vt Dep’t of Motor Vehicles, https://dmv.vermont.gov/faq/what-is-a-drivers-privilege-card#:~:text=A%20Driver%20Privilege%20Card%20is%20a%20Vermont%20license,require%20proof%20of%20legal%20presence%20or%20US%20citizenship (last visited Dec. 3, 2023).

[18] Id.

[19] Id.