New York's First Department Hands Refugees a Victory

March 1, 2008

Author: Barbara Weiner| Catherine M. Callery (Kate)| Louise M. Tarantino

On January 17, 2008 the New York Appellate Division, First Department, in a split decision of three to two, held that New York residents who are lawfully residing in the United States and who are elderly, blind or disabled, “...are entitled to receive public assistance in the amounts defined in Social Services Law (SSL) §209.2  as ‘the standard of monthly need’ or minimum levels deemed necessary by the Legislature for their adequate support.”  This ruling means that these elderly and disabled, lawfully residing immigrants who are ineligible for Supplemental Security Income (SSI) solely because of their immigration status must be provided with public assistance at the SSI related standard of need, rather than assistance at the significantly lower welfare standard.  Khrahpunskiy v. Doar, 2008 NY Slip Op 351; 2008 N.Y. App.Div. LEXIS 316.

The Appellate Division affirmed Judge Jane Solomon’s August 2005 lower court decision.  Khranpuskiy v. Doar, 9 Misc.3d 1109, 806 N.Y.S.2d 445 (Sup.Ct., 2005).  Both rulings confirm that New York cannot rely on the exclusion of elderly, blind and disabled immigrants from benefits under the SSI program to deny them higher public assistance benefits  that are otherwise available to similarly aged or disabled U.S. citizens.

The facts of the Khrapunskiy case were never in dispute.  The members of the plaintiff class are refugees and asylees who lost their SSI benefits because they reached the seven year federal time limit for receiving such benefits.  The class also included lawfully residing immigrants who were never eligible for SSI because of their immigration status.  Plaintiffs are all elderly, blind or disabled. Under the provisions of the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PROWRA), no immigrant who enters the U.S. on or after August 22, 1996 is eligible for SSI benefits unless (s)he naturalizes, is a lawful permanent resident who can be credited with 40 qualifying quarters in the Social Security system, or is an active duty service members or honorably discharged veterans or their immediate dependents.  The only exceptions to this exclusion from the SSI program are refugees and asylees and other humanitarian based immigrants.  However, their eligibility for SSI only lasts during the first seven years after their entry into the U.S. in a humanitarian based classification.  See 8 U.S.C. §§1612(a)(2)(A)-(H).  If they have not become citizens by that time, they lose their benefits.

Beginning in 2003, thousands of elderly and disabled refugees and asylees who had been unable to complete the lengthy citizenship process began losing their SSI benefits. Advocates have searched, and continue to search, for a variety of solutions to this exclusion of elderly, blind and disabled immigrants from the main federal assistance program otherwise designed to support this particularly vulnerable segment of the low income population.  Some states have enacted state replacement programs.  Federal legislative proposals for the extension of the SSI eligibility of humanitarian based immigrants from seven to nine years have regularly been introduced.  To date however, these proposals have not been successful. 

In New York, in addition to supporting legislative solutions, advocates brought the Khrapunskiy lawsuit. Here, elderly, blind and disabled immigrants lawfully residing in the U.S. but excluded from SSI eligibility are eligible for public assistance.  However, the welfare benefit standards are substantially below what an SSI recipient would receive through the federal benefit grant and the State supplement.  State supplementation of the SSI grant is designed to achieve a benefit level minimally adequate for the support of the elderly, blind or disabled and is based on the State Legislature’s annual adjustment of the “standard of need” set out in SSL §209.2.  Relying on this standard of need for aged, blind and disabled persons, the Khrapusnskiy lawsuit argues that the State must provide assistance at that standard to lawful aged, blind and disabled immigrants who are ineligible for SSI solely because of their immigration status.  Plaintiffs argue that this is required both by New York State’s obligation under Article XVII, Section 1 of the state’s constitution to provide “aid and care to the needy,” and by the state and federal Equal Protection guarantee that prohibits New York from making distinctions in the level of benefits it considers adequate for the support of elderly, blind and disabled people based solely on immigration status. 

New York State has filed a notice of appeal in this case and is entitled to an automatic stay.  However, plaintiffs’ counsel can seek partial vacating of the stay for class members facing eviction or utility cut-off.

In New York City, advocates can contact either Jennifer Baum of the Legal Aid Society at (212) 577-3266 or Jane Stevens of the New York Legal Assistance Group at (212) 613-5031.  Outside of New York City, advocates should contact Barbara Weiner of the Empire Justice Center at (518) 462-6831, ex. 14, or bweiner@empirejustice.org.  Thanks to Barbara Weiner for this excellent summary of this important litigation.