The First Department Hands Elderly and Disabled Refugees a Welcome Victory

February 1, 2008

Author: Barbara Weiner

A better birthday surprise can hardly be imagined for an elderly refugee who fled anti-Semitism in Russia in the late 1990's and recently celebrated his 101st birthday than a ruling from the First Department that he and all other 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 by New York State at the SSI related standard of need set out in Social Services Law §209.2, rather than assistance at the significantly lower welfare standard. That is exactly the surprise Mr. Khrapunskiy and the members of plaintiff class recently received.  Khrahpunskiy v. Doar, 2008 NY Slip Op 351; 2008 N.Y. App.Div. LEXIS 316 (January 17, 2008).
 
On January 17, 2008 the 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 § 209(2) as ‘the standard of monthly need’ or minimum levels deemed necessary by the Legislature for their adequate support.”  This is the plaintiffs’ second victory, the first having been Judge Jane Solomon’s decision in August of 2005 in the court below.  See Khranpuskiy v. Doar, 9 Misc.3d 1109, 806 N.Y.S.2d 445 (Sup.Ct., 2005). Both rulings confirm that New York cannot justify its use of a lower standard of need to determine the amount of assistance it will provide to elderly, blind and disabled immigrants than the standard it applies to elderly, blind and disabled citizens whose citizenship status makes them eligible for SSI.  Although SSI is a federal program, the standard of need is set by New York, which, like many other states, supplements the federal SSI benefit.
 
Some of the members of the Khrapunskiy plaintiff class are refugees and asylees who have lost their SSI benefits because they reached the 7 year federal time limit for receiving such benefits.  Others are lawfully residing immigrants who, because of the restrictions enacted in the 1996 federal welfare reform legislation, 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 is limited to 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 the end of those seven years, 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.  (See the related article in this issue of the LSJ, “USCIS to Expedite the Naturalization and Adjustment Applications of SSI Recipients” on page 3.)
 
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.  In some states, state replacement programs have been enacted. Over the past several years, Federal legislative proposals for the extension of the SSI eligibility of humanitarian based immigrants from seven to nine years have regularly been introduced.  However, to date, these proposals, in spite of substantial bi-partisan support, have been continuously held hostage to a few rabidly anti-immigrant Congress members.  In New York, in addition to supporting legislative solutions, advocates brought the Khrapunskiy lawsuit.
 
New York’s lawfully residing elderly, blind and disabled immigrants, though excluded from the federal SSI program, are eligible for public assistance.  However, the welfare benefit standards (SSL § 131-a) are substantially below what an SSI recipient would receive through the federal benefit grant and the State supplement.  New York’s supplementation of the SSI grant is designed to achieve a benefit level minimally adequate for the support of the elderly, blind or disabled.  The New York Legislature adjusts the monthly standard of need for SSI recipients on an annual basis, usually to pass on the federal SSI cost of living adjustment to SSI recipients but sometimes to increase its own contribution by increasing the State supplement itself.  Relying on this separate standard of need for aged, blind and disabled persons in SSL §209.2, the Khrapusnskiy lawsuit argues that the State must provide assistance at that standard to lawful aged, blind and disabled immigrants who are receiving Safety Net assistance and not 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 which 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. 
 
The New York State Office of Temporary and Disability Assistance has until March 3rd to file a notice of appeal.  It is more than likely that it will do so, although at the time of publication, plaintiffs’ counsel had not yet received notice.  Under CPLR §5519(a)(1), the State is entitled to an automatic stay of the First Department’s decision pending a determination by the New York State Court of Appeals.  Counsel for plaintiffs were successful in the First Department in obtaining a partial exemption from the stay for elderly, blind and disabled immigrants facing eviction or a cut-off in utility benefits as a result of their loss of SSI benefits, if such loss was due solely because of their immigration status.  Should New York file an appeal and thereby stay the decision under which the public assistance grants of the Khrapunskiy class would have to be supplemented, plaintiffs’ counsel also plan to move for a lifting of the stay in the Court of Appeals. 
 
Advocates with clients who have lost or about to lose their SSI benefits because of their immigration status and who are thus facing eviction or a utility cut-off should contact plaintiffs’ counsel. 
 
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 by phone at (518) 462-6831, ex. 14, or by e-mail at bweiner@empirejustice.org.  The Khrapunkskiy decisions, briefs and pleadings can be found in Benefits Law Database by logging onto the Online Resource Center at http://onlineresources.wnylc.net/welcome.asp?index=Welcome.