EEOC Files Gender Identity Lawsuit in SDNY

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Katherine Bromberg_senior staff attorney_employment law projectMariah Vitali_NYLAG_Legal Intern

Every June, we commemorate the 1969 Stonewall Riots and subsequent steps toward equality for the LGBTQ community. Pride Month is a recognition and celebration of the incredible strides that have been made in recognizing the rights of LGBTQ individuals. It is also a reminder that there remains significant work to be done on the path to equal treatment for all. One area in which discrimination still pervades is in the workplace, and, even in a liberal bastion like New York, transgender individuals continue to face some of the more blatant mistreatment.

The 2015 U.S. Transgender Survey, which included 27,715 transgender individuals from the United States and its territories, revealed that “30% of respondents who had a job in the past year reported being fired, denied a promotion, or experiencing some other form of mistreatment related to their gender identity or expression.” Additionally, “77% of respondents who had a job in the past year took steps to avoid mistreatment in the workplace, such as hiding or delaying their gender transition or quitting their job.”

Earlier this month, the U.S. Equal Employment Opportunity Commission (EEOC)—the federal agency charged with enforcing federal employment discrimination law—sued Apple Metro Inc., which operates dozens of Applebee’s Neighborhood Bar & Grill franchises in the New York City area, alleging violations of federal civil rights law.

Danielle Feola, a transgender woman, was repeatedly harassed and subjected to derogatory comments about her gender identity while working just two weeks at an Applebee’s in Hawthorne, New York. She was relentlessly teased. Employees called her “he,” “him,” “Daniel,” “Caitlyn” (in reference to Caitlyn Jenner), and “tranny,” among other offensive terms. They made distasteful comments about her genitalia. Despite her complaints, the General Manager refused to take any action, and she was ultimately fired in retaliation for her complaints and because of her gender identity.

We filed a complaint with the EEOC, which ultimately chose to litigate the matter. In bringing this case, the EEOC continues its pattern of promoting workplace equality for all gender identities in keeping with its interpretation of federal antidiscrimination law.

Since the Civil Rights Movement gained force in the mid-twentieth century, many groups have been granted protection from employment discrimination under federal law. Most notably, Title VII of the Civil Rights Act of 1964 is the federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. In the years following its enactment, legal protections in this area have expanded. For example, Title VII was amended by the Pregnancy Discrimination Act of 1978, granting expectant mothers explicit protection from workplace discrimination.

Katherine Bromberg and Mariah Vitali

Katherine Bromberg and Mariah Vitali work on the case of Danielle Feola, a transgender woman who faced discrimination at her workplace

Absent from Title VII are explicit protections from workplace discrimination based on sexual orientation or—as in Ms. Feola’s case—gender identity. However, since 2012, the EEOC has pushed to expand the interpretation of Title VII’s prohibition against discrimination on the basis of “sex” to protect LGBTQ individuals. Many courts have also reasoned that discrimination against transgender employees for not conforming to the gender they were assigned at birth inherently takes gender (and therefore sex) into account. While this interpretation is not universally accepted, courts are increasingly agreeing with the EEOC’s rationale. Meanwhile, state and local governments are moving towards providing more explicit protections; for example, under the New York City Human Rights Law, gender discrimination encompasses discrimination on the basis of gender identity, gender expression, and transgender status, and prohibits such discrimination in employment.

Ms. Feola’s case against Applebee’s is significant because it may present the influential Southern District of New York, which adjudicates cases that impact about a quarter of the state’s population, with the chance to adopt the EEOC’s interpretation of Title VII as protecting transgender and gender non-conforming individuals from employer discrimination. Unless and until Title VII’s language is modified to explicitly prohibit discrimination on the basis of gender identity, cases such as Ms. Feola’s are of the utmost importance in potentially setting precedent for future cases and expanding the rights of LGBTQ individuals nationwide.

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Migrant Rights Are Human Rights

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NYLAG-Elizabeth-Gibson-staff-attorney-immigrant-protection-justice-core-fellowMigrants are more than their immigration status. While politicians are talking about who can legally cross a border, migrants are wondering: Will the boss underpay me again? Is it safe to call 911 if grandma falls? Who will look after my children if I am deported? Will the color of my skin affect my chances in court? Will they let me out of detention in time for my ninth birthday?

Earlier this month delegates from countries around the world met at the United Nations in Geneva, Switzerland, to begin a long process toward negotiating a Global Compact on Migration. Countries are hoping that in 2018 they will have the first United Nations agreement covering all dimensions of international migration in a holistic and comprehensive manner. This is an ambitious undertaking at any time, but especially in an age when migration policies and xenophobia are becoming increasingly contentious.

As a representative of the International Migrants Bill of Rights Initiative, I had the honor of speaking at these meetings. I reminded national delegates that while the Global Compact is an opportunity to more clearly formalize migrants’ rights, many of those rights already exist in treaties and other sources of international law that are not specifically about migrants.

NYLAG-Blog-Migrants-Rights-Family-PhotoI want to explain that I am using the term “migrant” because it refers to all people living outside the country where they are a citizen or national, or where they were born or a habitual resident in the case of people without any citizenship or nationality. This captures people coming, going, and in transit as opposed to the word immigrant, which only refers to people coming to a country to live there permanently.

Migrants are entitled to human rights by virtue of their humanity, and they do not become any less human when they step across a border. However, these rights are currently codified in a scattered patchwork of treaty and customary international law, which does not establish the rights for individuals crossing borders with sufficient clarity—nor is this law consistently respected by countries. The International Migrants Bill of Rights and the associated legal commentaries provide a guide on how international law applies to migrants, serving as a resource for countries, international organizations, advocates and migrants. The International Migrants Bill of Rights Initiative seeks to ensure that, in their efforts to find compromise, nations do not backtrack from existing human rights law.

It is promising that the preparatory processes for the Global Compact started with two days of discussions focused on the human rights of all migrants, recognizing that migrants’ rights should always be part of the conversation when talking about how to handle the flow of people across borders.

While talking about the human rights of migrants can feel abstract, the violation of these rights is a struggle that real families living in the United States and around the world deal with every day.

At the New York Legal Assistance Group, it is not uncommon for a domestic violence survivor without legal immigration status to ask if it is safe to call the police or go to court to seek protection from a violently abusive husband or to fight for custody of her own children because she is afraid that immigration officials might show up at court. The same holds true for a hyperventilating mother asking if she should sleep with her toddler on a park bench instead of in a domestic violence shelter on a winter night because she is terrified immigration officials will find her and separate her from her U.S. citizen child.

In the immigration advocacy community, these are difficult questions to answer right now. Although there are protections that exist for immigrant survivors of domestic violence in the United States and advocates have not seen signs of widespread immigration enforcement against men and women in these situations, there are no definitive answers in the current political climate.

However, there is no question that fear of the very police, courts, and service providers meant to protect migrants is a sign that we are failing to protect the human rights of migrant victims of crime and vulnerable migrants in critical ways.

At the meetings, countries affirmed their commitment to the human rights of migrants. However, as Ben Lewis of the International Detention Coalition noted, national delegates’ remarks tended to fall into two categories: “Migrants have human rights, and…” and “Migrants have human rights, but…” The “but” comments largely focused on countries’ rights, especially the right to decide who can cross a border, while the “and” comments recognized that nations can regulate their borders while also respecting the rule of law and protecting human dignity.

Although it will be difficult for countries to overcome their differences, the very existence of these meetings should be beneficial for migrants. Several speakers noted that it was hard to imagine a frank conversation about migrants’ human rights at the United Nations even just ten years ago. Over time, the process through which civil society and migrants raise concerns and nations share best practices slowly advances progressive developments in human rights law.

As countries pursue this historic agreement, it is important that the Global Compact not fall below the baseline human rights that already exist in international law. Migrants and advocates need to keep reminding nations that both regular and irregular migration have existed throughout history—and this is unlikely to change. Given this reality, it is essential to remember that no matter why or how they crossed a border, migrants’ rights are human rights.

For more information on how international human rights law applies to migrants, see the International Migrants Bill of Rights legal commentaries.

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Consumers Lose with a Weak Consumer Financial Protection Bureau

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NYLAG-Jessica-Scholes-Staff-Attorney-Foreclosure-Prevention-ProjectNYLAG-Sarah-Rosenthal-Staff-Attorney-Consumer-Protection-Unit

John remembers all too clearly the day the pre-paid debit card he used to pay his monthly bills, including his rent, stopped working. John could not access a balance of nearly $2000, including his paychecks, which he regularly deposited to the card. John called the pre-paid card company many times; on the rare occasions when he reached the company, he was told that there was nothing they could do to help him and that it could not explain why there was a hold on his card. John then turned to NYLAG’s Consumer Protection Unit, which provides free legal assistance to New Yorkers facing financial distress, including debt collection, foreclosure, and other economic issues. NYLAG advocated strongly on John’s behalf, but the company still refused to provide any information or give him access to his money. NYLAG filed a complaint with the Consumer Financial Protection Bureau (CFPB) on John’s behalf. Within 24 hours, the CFPB had contacted the pre-paid card company, which promptly released the hold on John’s card. Without intervention by the CFPB and legal support from NYLAG, John would not have been able to get to his own money to pay his rent and other expenses—with no explanation offered.

The CFPB, an independent federal agency, serves as a watchdog for American consumers. Created in 2010 as part of the Dodd-Frank Act, the CFPB monitors financial institutions, including banks, credit card companies, auto lenders, and debt collectors, and protects American consumers from the mishandling that preceded the 2008 financial crisis. The CFPB provides the legal framework, tools, and resources that NYLAG’s Consumer Protection Unit uses to ensure that our clients achieve financial stability. Recent legislation proposes to overhaul the Dodd-Frank Act and to restructure the CFPB fundamentally. These changes would hurt vulnerable consumers and significantly constrain the efforts of advocates like NYLAG.

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Enforcement with Muscle

The CFPB promotes transparency within our financial system and protects consumers from abusive financial services practices. In the past six years, the CFPB has provided nearly $12 billion of relief to 29 million consumers and has collected $589 million in civil penalties. The agency’s enforcement actions include a $100 million fine to Wells Fargo for opening unauthorized accounts in customers’ names; a $20 million fine and $727 million returned to Bank of America customers for deceptive marketing; a $35 million fine and $700 million returned to Citibank customers for deceptive marketing and unfair billing of credit card add-on products and services; and $23 million returned to victims of false debt collection promises by Navy Federal Credit Union. Most recently, the CFPB sued Ocwen for numerous errors that have cost homeowners both money and homes, noting that Ocwen has been “failing borrowers at every stage of the mortgage servicing process.”

The CFPB’s complaint database, which began accepting complaints in July 2011, has handled over 1 million consumer complaints. Over 758,000 complaints to more than 3,000 companies and the companies’ responses are published on the CFPB’s website. The most popular topics for complaints are debt collection, credit reporting, and mortgages. Between December 2011 and January 2017, New York City residents alone have made over 23,700 complaints to the database; this number has increased steadily each year.

Mary, a senior homeowner in Nassau County, came to NYLAG for assistance with her foreclosure case. Mary’s bank, CitiMortgage, lied to her about the terms of her mortgage and the fees. Mary made large upfront payments on the loan in exchange for a lower interest rate, but she never got the rate she was promised. Mary contacted CitiMortgage repeatedly over the course of multiple years, but received no response. NYLAG got involved when a new loan servicer, Rushmore, started a foreclosure case against Mary. Despite the oversight of the court, numerous requests to both the bank’s attorneys and also through higher level contacts at Rushmore, NYLAG was unable to obtain the necessary information about what happened with Mary’s original loan.NYLAG-Consumer-Financial-Protection-Bureau-Financial-Counseling

After NYLAG submitted a complaint to the CFPB’s consumer complaints database, Rushmore responded to the official complaint and provided most of the documents we needed to help Mary negotiate a settlement with her bank that will soon bring an end to her foreclosure case.

The CFBP’s broader enforcement actions also help prevent widespread abusive behaviors. NYLAG regularly represents individual debtors in cases brought by the law firm Pressler & Pressler, LLP, which is notorious for filing paperwork based on flimsy or nonexistent evidence, counting on the fact that most defendants do not have the benefit of legal counsel that would allow them to point out these inadequacies. In 2016, the CFPB brought an enforcement action against Pressler & Pressler that required the firm to reform its practices and pay a civil penalty. Similar enforcement action will discourage such practices in the future and protect many consumers.

Legislative Proposals to Weaken or Eliminate the CFPB

While the CFPB has helped John, Mary, and many other NYLAG clients, pending legislation may severely limit or eliminate the CFBP’s ability to push for financial transparency and safeguard consumers’ interests. The recently-introduced and wide-ranging Financial CHOICE Act would remove the CFPB’s supervisory and enforcement functions for large banks, as well as its authority to impose fines against financial institutions for “unfair” or “deceptive” practices or to make consumer complaints public. It would also change the CFPB’s leadership and restrict its funding stream, therefore ending the agency’s independence. Other bills being proposed would abolish the CFPB entirely and drastically restrict funding. Without the ability to conduct enforcement actions or impose fines, the CFPB would be prevented from effectively regulating the financial institutions and debt collectors that have repeatedly taken advantage of American consumers. By gutting Dodd-Frank and weakening the CPFB, lawmakers are sending the message that they serve the banks, not the American people.

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Could Sexual Abuse or Trafficking Become a Pre-existing Condition?

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Margarita-Guidos-NYLAG-attorney-blogWhen Jenny walked into my office, her stomach was so swollen that I thought she was pregnant. The social worker at her side gestured to her: “Show Margarita what happened.” Jenny got up and lifted her shirt. She wasn’t pregnant – her skin was blackened and purple, distended off her skinny frame by necrosis and infection. I nearly called for an ambulance. But Jenny had already been to the hospital, where doctors had stabilized her condition with antibiotics and skin treatment. Since Jenny was undocumented and lacked health insurance, the doctors couldn’t do anything more than a patch job. Without extensive surgery and specialist treatment, Jenny was going to die.

Fifteen years earlier, Jenny had been trafficked into the United States against her will and forced to work in a brothel. Among the many tortures her traffickers inflicted was something called “free silicone injection.” This form of cosmetic surgery, meant to plump up the breasts and buttocks, was banned by the FDA in 1992, but black marketeers even today will perform it without anesthesia, antiseptic, or medical-grade silicone. Jenny’s traffickers thought that a more “Barbie” body would allow them to charge more for her services. The worst harm often comes many years after the injections, when the silicone (often from automotive suppliers) migrates to different parts of the body, causing excruciating pain and disfiguration. In the worst cases, the silicone can break free and cause a deadly embolism in the heart, lungs, or brain; or infection can set in, like it did for Jenny, causing the flesh to blacken and rot from the inside.

NYLAG-Sexual-Abuse-Human-Trafficking-blogOver the years I have served more than a hundred immigrant victims of trafficking and domestic violence. Every one of them bears scars from their experiences. Some are visible, from beatings and tortures like Jenny’s, or from chronic diseases like HIV, syphilis and hepatitis, but others are harder to see. Overwhelming rates of post-traumatic stress disorder, depression and anxiety afflict these victims for years and sometimes forever.

Last week the House of Representatives passed the American Health Care Act (AHCA), which if it were to become law could force these victims to face yet another horror – the inability to get health insurance and the treatment they need.

I was able to help Jenny secure state-funded Medicaid. She was eligible under special rules allowing individual states to expand health care coverage to categories of low-income residents using local tax dollars, even if those residents (often immigrants, including people with valid immigration status) were ineligible for federal benefits.

Under the AHCA, both poor people like Jenny who rely on Medicaid, and the middle class who have finally become insured through subsidized private plans on the Marketplace, would suffer.

Gutting Health Care Protections for Vulnerable People

As has been widely reported, the AHCA would allow states to waive protections introduced under the ACA, like coverage for people with pre-existing conditions (PECs) and eliminating minimum level of coverage requirements. For a typical applicant, exclusion of PECs can lead to lack of treatment for things like diabetes and prenatal care. But for a survivor of sexual assault or trafficking, the harm can be even broader, preventing treatment for mental health, sexually transmitted infections, and physical injury. To make matters worse, the AHCA would implement per capita funding caps and roll back the Medicaid expansion, another welcome provision under the ACA. This would endanger the health of people like my clients, but also for a spectrum of other vulnerable populations including the poor, the elderly, those with disabilities and children with special needs.

New York has historically worked to protect its most vulnerable residents, but federal funding still accounts for an enormous amount of the state’s Medicaid spending. Passage of the AHCA would slash Medicaid funding across the board, and put states that do not apply for waivers on the hook to pay for individuals who require more care than “average.” That would create the most harm for people like Jenny, with chronic pre-existing conditions and disabilities.

New York State would not be able to pay for this sudden sinkhole on its own, and would be forced to cut benefits and tighten eligibility requirements just when vulnerable New Yorkers needed help the most. Additionally, the state will likely be forced to cut the premiums it pays to the insurance plans that manage the Medicaid services for over four million New Yorkers. The companies that run these insurance plans – both for-profit and non-profit – that provide medical services for poor New Yorkers would be under pressure to reduce or deny care altogether. Cruelly, if victims like Jenny manage to overcome their horrible experiences, recover and get back to work, they are in an even more dangerous position. Like everyone else, they would be subject to the loss of health care in the private marketplace or in employer-sponsored coverage.

Without health insurance, Jenny’s life was in danger. It was only with the help of Medicaid (thanks in part to the ACA) that she was able to access the care she needed. In a post-AHCA world, I don’t know that she would be able to.

The State Assembly has the power to protect New Yorkers with legislation that could mitigate the worst of the collateral damage if Congress is irresponsible enough to make the AHCA the law of the land. But the reality of losing billions in federal funds will tie their hands. Let’s hope it doesn’t come to that. The AHCA targets people who have already been victimized by the worst of humanity. We don’t need to add Congress to the list of people who hurt them.

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SCOTUS Decision a Victory for Students with Disabilities

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Ashley Sizemore blog cardLast month, the U.S. Supreme Court unanimously found that a student with disabilities who makes merely “more than de minimis” educational progress has not received an appropriate education under federal law.  In the case, Endrew F. v. Douglas County School District, the Supreme Court evaluated the level of educational progress guaranteed by the Individuals with Disabilities Education Act (IDEA), clarifying and increasing protections for students with disabilities across the country.

Over 13 percent of students nationwide, and 19 percent of students attending New York City Public Schools, experience some form of disability that negatively impacts their participation within the classroom.  These disabilities affect students in variety of ways, and may be academic (such as a learning disability), emotional (such as depression), or behavioral (such as a conduct disorder).  As a result, students with disabilities require a wide variety of educational supports—which frequently differ from traditional educational models.

The IDEA provides critical protections for students with disabilities, including the right to a “free appropriate public education” (FAPE) from the ages of three to 21.  Over the past three decades, federal district and appellate courts have struggled to define what a “free appropriate public education” means for students with disabilities—a student population with a wide variety of educational needs that require uniquely tailored educational programs.  For example, some courts previously found that a student with a disability receives a free appropriate public education when that student makes “more than de minimis” educational progress, while other courts have rejected this argument, and found that students are entitled to a more substantial level of progress.

In Endrew F., the Supreme Court evaluated the level of educational progress made by an elementary school student diagnosed with autism.  The Court explained that despite Endrew’s “sweet disposition,” he suffered from serious behavioral challenges that negatively impacted his ability to learn within the classroom.  For example, “Endrew would scream in class, climb over furniture and other students, and occasionally run away from school,” behaviors that were complicated by “severe fears of commonplace things like flies, spills, and public restrooms.”

Entrance of the US Supreme Court.

 

Endrew’s parents, increasingly concerned about their son’s educational development, turned to the school district for guidance.  They felt that their son could not make academic or behavioral progress under his current educational program, which the district agreed to review.   The district provided Endrew’s parents with an updated program, which was nearly identical to previous programs that failed to meet their son’s educational needs.  Concerned about Endrew’s development, his parents enrolled him in a specialized private school for students with autism.  There, Endrew received critical educational supports, and made significant academic and social-emotional progress.

Like Endrew, many students with disabilities are unable to make academic or social-emotional progress without specialized supports.  In New York City, the Department of Education offers these students a “continuum” of special education services to meet students’ educational, emotional, and behavioral needs.  Unfortunately, this “continuum” is often unable to effectively educate students with disabilities.  If, after cooperating with the public school district, a parent finds that the district is unable to meet their child’s needs, they may enroll their child in a specialized private school and request tuition from the public school system.

However, parents, advocates, and educators have struggled to evaluate whether a program is “appropriate” under the IDEA.  This lack of clarity regarding the FAPE standard has put parents in an emotionally and financially challenging situation, as they struggle to identify which services will (1) allow their child to make educational progress and (2) constitute a FAPE under federal law.

The March 22 decision by the Supreme Court purposefully declines to provide a definitive answer regarding the requisite amount of progress, but it does clarify that students’ progress must be  “markedly more demanding than the ‘merely de minimis’ test applied by [many courts].”  As a result, school districts cannot look to minimal progress and argue that a student with a disability has received a FAPE under the IDEA.

Although the Supreme Court chose not to articulate a specific level of educational benefit owed to students with disabilities, its decision is a substantial victory for students and families.  And while more must be done to protect students with disabilities and ensure access to educational programs that are as effective as those for students without disabilities, the Court’s most recent decision is a significant step in the right direction.

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Funding Cuts Pose Triple Threat to Survivors of Domestic Violence

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A confluence of budget cuts proposed by President Kim SusserTrump will be deadly for vulnerable, low-income survivors of domestic violence. Plans to eliminate funding for Legal Services Corporation (LSC), and funding under the Violence Against Women Act (VAWA) and Victims of Crime Act (VOCA) will decimate legal services currently available for survivors of domestic violence and sexual assault.

LSC is a federal nonprofit that funds free civil legal assistance for low-income Americans. More than 70 percent of clients of LSC-funded programs are women, and almost a third of their cases involve family law. Funding under VAWA provides funding for critical legal services for survivors of domestic violence and sexual assault.  VOCA is the Federal government’s principle means of providing support for programs that serve victims of all types of crime.

The devastating impact of domestic violence on families and children is well documented. Children suffer negative impacts of domestic violence from the womb through adulthood. Numerous studies indicate that exposure to domestic violence has significant negative effects on children’s behavioral, emotional, social, and cognitive development. Affected children may exhibit aggression, phobias, insomnia, low self-esteem, and depression. They may demonstrate poor academic performance and problem-solving skills, and low levels of empathy. In extreme cases, these children suffer post-traumatic stress disorder. The impact frequently endures into adulthood, causing some to exercise violence in their own homes or to engage in other criminal behavior.

Lack of economic resources hinders these survivors’ ability to access legal help. Yet, studies have found that access to a lawyer can have a profound effect on reducing domestic violence. As a practical matter, victims who have an attorney when applying for a protective order are more likely to be granted one, and experience less violence as a result. Orders of protection work. According to one study conducted by economists, access to legal services, more than to shelters, hotlines, or counseling, was the most significant cause of a dramatic decrease in domestic violence in the 1990’s. When victims have lawyers they can get tangible help – like an order of protection, child support, safe custody or visitation arrangements for their children and ultimately a divorce — while also accessing social services.

Eliminating legal services for victims of domestic violence is also not smart economic policy. The Centers for Disease Control and Prevention estimates that domestic violence costs the U.S. at least $9.05 billion each year. Costs calculated range from loss of income when women miss work to medical costs. Providing legal services to low-income families can lower the societal costs of domestic violence and generate substantial economic benefits.

A 2015 report from the NYU Institute on Policy Integrity, confirmed that civil legal assistance is cost-benefit justified. This includes direct benefits to survivors, such as decreased health care costs and the ability to work and earn an income, and benefits to society, including saving large amounts of public money otherwise spent on the criminal justice system, social services and services for the homeless.

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Legal services enable women and children to stay safe and secure financial support to help them build new, stable lives for themselves. Legal representation was the second most commonly requested service that domestic violence organizations were not able to provide in 2015, according to an annual census conducted by the National Network to End Domestic Violence. (The first was housing.)

Although NYLAG does not receive LSC funding, it provides similar critical services to clients, as well as divorce and enhanced criminal advocacy. NYLAG is a recipient of both VOCA and VAWA funding which, if cut off, will directly impact the number of people we can serve. This funding supports the provision of legal services to over 2,000 survivors and their children throughout New York City annually. Partnering on these grants with New York State Alliance Against Sex Assault, Violence Intervention Program, Womankind, Sanctuary for Families, SAKHI for South Asian Women, and the New York City Family Justice Centers, NYLAG reaches the most vulnerable underserved population, including LGBTQ and immigrant communities.

NYLAG offers free legal services to survivors to help them shift the power dynamic that is central to an abusive relationship. By obtaining tangible legal relief, our clients can break the cycle of violence and build a safe future for themselves and their children. The combination of cuts to VAWA and VOCA and the dismantling of LSC pose a triple threat to survivors of domestic violence and their children.

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Aggressive Immigration Enforcement: We All Lose

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Since the Presidential election in November, undocumented immigrants in New York City have been alarmed by the amplified immigration enforcement tactics now being employed by the federal government. While reports of Immigration and Customs Enforcement (ICE) raids and detainments may be exaggerated, there is no question that enforcement has intensified due to the focus of the new Administration on deporting undocumented immigrants.

NYLAG’s attorneys are on the ground in dozens of community-based organizations, hospitals, libraries, and other local agencies, where we have seen firsthand the chilling effect this has had on immigrants’ willingness to seek and secure their rights under the law, whether applying for necessary health insurance and medical benefits, failing to appear in immigration court, or avoiding the justice system despite the fact that they have been the victim of a crime.

NYLAG works with NYC Health + Hospitals, thanks to funding from the New York City Council, to provide legal assistance to immigrants with chronic and serious healthcare needs, helping them obtain immigration status and acquire health insurance they need. We have seen a dramatic increase in calls from healthcare professionals concerned about their patients and from patients themselves who have shown deep reluctance to sign up for Medicaid or other potentially life-saving healthcare programs for which they are qualified for fear that this will be used against them in a deportation case. Even immigrants who have insurance have expressed concerns about receiving care to address chronic and serious conditions such as cancer. The ramifications could be a public health crisis in the making as chronically and critically ill immigrants wait to seek medical treatment for serious health conditions until  later stages, when they are more difficult to treat – and more costly for taxpayers.

NYLAG conducts Know Your Rights legal clinics for immigrants held across the City (over 50 since the election), including Key to the City events, large-scale monthly clinics for immigrants also sponsored by the City Council. While immigrants have continued to turn out in large numbers we have seen a change in the atmosphere, and in the kinds of questions being asked by the immigrants we meet.  While appointments used to focus exclusively on the types of relief for which people may be eligible, there is now a much stronger emphasis on safety planning for U.S. citizen children in cases where a parent is at risk of being deported. Immigrant parents have real fears that their families will be separated by new enforcement tactics. These feelings of desperation are also driving immigrants to seek the assistance of people not qualified to assist in immigration matters, who only want to take their money and provide no real services.  “Notarios” and other fraudulent providers can cause substantial harm to those who trust them, often leading their clients into deportation if a real attorney does not step in on time.

We have also seen a substantial increase in the number of NYLAG clients whose cases are pending in immigration court, but are afraid to go to ICE for required check-ins. We recently met a father and his 12-year-old daughter at a clinic at Council Member Carlos Menchaca’s office in Sunset Park who had fled violence in their home country of Honduras. They were apprehended at the border, released after they successfully passed a credible fear interview, and are now under supervision by the court. NYLAG assessed the family and determined that they have a strong asylum claim, but the father decided to skip several check-in appointments out of fear of being detained.

We have seen several domestic violence survivors who no longer wish to pursue orders of protection in criminal court because their abusive partners have threatened to expose their undocumented status if they attempt to access the justice system. Others who are eligible for immigration relief based on their status as victims of violent crimes, including domestic violence, do not want to move ahead with their applications because they will be making themselves known to the government. The implications could be far reaching: intimate partner violence is already a highly underreported crime, and we will see the number of reports decrease drastically if survivors are even less inclined to report; immigrant survivors of domestic violence will continue to be at risk, will not obtain lawful status and the ability to access benefits, obtain valid work authorization and lift their families out of poverty – while our communities will be less safe as criminals remain at large instead of being brought to justice.

The changes to our nation’s immigration policies are already having a profound effect on the lives of immigrants and their families, even in a City that has pledged to protect our immigrant neighbors and friends. The fear and trauma that immigrant families are experiencing, no matter what their legal options, will have repercussions – not just for them, but for all of us as our government’s actions betray the values of justice, compassion, and respect that we hold dear.

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NYLAG is distributing Know Your Rights resources for immigrants in English, Spanish and Chinese, with more languages to follow. Download the materials on our website.

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Thoughts on the Repeal of the Affordable Care Act

Valerie Bogart, Director, EFLRPThere is much we do not know – and won’t know for months – about what comes next now that Congress has taken initial steps toward the apparent repeal of the Affordable Care Act (ACA). What we do know is that the ACA has improved the lives of millions of Americans, and its repeal – along with proposals to block grant Medicaid — will affect vulnerable Americans from all age groups and populations.

It is estimated that 18 million people could lose insurance in the first year after repeal of the law, and the number will increase to 27 million the following year. Those affected would include low- and middle-income people enrolled in private plans through the ACA’s online insurance marketplaces as well as those who have taken advantage of expanded access to Medicaid. The repeal would also mean higher costs and fewer protections for people who receive insurance through their employer, or are covered under Medicare.

Since the ACA took effect 16 million Americans have gained coverage through expanded access to Medicaid. A recent report by the Department of Health and Human Services looks at the impact of Medicaid expansion under the ACA in the 31 states that have adopted it. Their findings show that the expansion states have seen a reduction of 9.2 per cent in the number of uninsured adults. There has been increased access to primary care and a greater increase in the use of preventive services. What is more, expanded Medicaid coverage has improved the financial stability for enrollees, who have a reduced likelihood of bankruptcy and a 10.5 per cent decrease in the number of people having trouble paying medical bills. No, the ACA is not perfect. Like all huge programs improvements are needed. But wholesale elimination without a comparable replacement will be catastrophic.

One particularly vulnerable population that gained coverage either through the marketplaces or Medicaid expansion are adults age 55 to 64 – an estimated 4.5 million people who would lose coverage nationwide. Before the ACA, these older individuals were caught in a double bind: they were too young to receive Medicare but were barred from Medicaid in most states, no matter how poor, if they were not disabled and if they no longer had young dependent children at home. (New York was one of the few states that provided coverage for this population before the ACA.) With the potential repeal of the law, these “singles and childless couples” under age 65 will lose coverage and have no way to pay for health care while they wait for years, literally, to be determined disabled or until they reach age 65 and become eligible for Medicare. They are also the first who will face pre-existing condition exclusions if those ACA protections are repealed from private health insurance coverage.

The ACA has increased funding for home-care services, allowing more older people and those with disabilities to stay in their homes and age in their communities. If the law is repealed, more people will be forced into nursing homes, while the loss of financial protections for married couples would mean spending more out of pocket to keep their loved one at home.

The ACA has provided a stable safety net for millions of Medicaid recipients by strengthening the partnership in which the federal government shares with participating states the actual costs of the program. If that fiscal partnership falls away and is replaced by a block grant scheme, states will receive a fixed amount of federal funds annually based on past costs instead of a percentage of actual costs incurred. With a cap on federal spending regardless of need, states would be left unprotected if costs were to go up because of a public health crisis (think Zika or the opiod epidemic), the rising costs associated with an aging population, or the impact of a natural or manmade disaster.

The repeal of the ACA without a comparable replacement would put at risk all the gains we’ve made in expanding health coverage to a greater share of people and in strengthening the nation’s health care system. Let us hope that the enormous outpouring of support from around the country for maintaining the provisions of the ACA and the voices of concern raised about the enormous human and economic costs associated with reversing it will be heard in Washington in the days ahead.

For more information on advocacy to preserve Medicaid, please find up-to-the minute analyses from Justice in Aging, Community Catalyst, the Kaiser Family Foundation, the National Health Law Program, and Families USA. On related efforts to preserve Medicare, please visit the websites of the Medicare Rights Center, AARP, and the Center for Medicare Advocacy.

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My Day and Night at JFK

grace kao blog cardWhen President Trump’s Executive Order (EO), Protecting the Nation from Foreign Terrorist Entry, was signed late on Friday, January 27, it was still unclear to many in the legal community how quickly federal agencies would begin implementing the order. Initially, a lot of people believed it could take months for Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) before the order was implemented. However, by Friday night, refugees and other arriving noncitizens flying into airports were stopped and detained. On Saturday morning, immigration advocates all over the country woke up to the news that two Iraqi refugees had been detained at John F. Kennedy International Airport.

On Saturday evening, I went down to JFK with a friend, a criminal defense attorney. We had no idea how we could be helpful, but we knew we had to at least try. We arrived close to 8:30 pm, just in time for news to break that Judge Ann Donnelly in the Eastern District of New York had granted a temporary stay, ordering that refugees, visa holders, lawful permanent residents, and others held at airports could not be sent back to their home countries. Despite the good news, my friend and I knew that there were still people being detained, and wanted to help. The scene at JFK was chaos – when we tried to walk toward the area where the attorneys had set up camp, we were physically blocked and directed outside by New York Port Authority officers. We tried unsuccessfully to reenter the terminal in various ways, wielding our attorney business cards like entry tickets, but after an hour of being shuttled outside to join the general protest, we left for the night.

Diner at Airport maybe JFKWe returned the next day to find the scene was only slightly less chaotic. The attorneys had organized some sort of command center at the Central Diner in Terminal 4, the only 24-hour international arrivals terminal in the airport. People were running around, trying to collect information about detained individuals, speak to family members, field media inquiries, train new volunteers, compile data, and write habeas petitions. I went straight to check-in and identified myself as an immigration attorney. I was quickly dispatched to Terminal 7 with a team of other volunteer attorneys and law students.

At the smaller terminals, we would stand at the exit when international travelers disembarked from the planes with signs offering free legal assistance to anyone who had been detained, or whose family members had been detained. We asked disembarking travelers if they had seen anyone get pulled aside and questioned. We canvassed the area looking for family members waiting for their loved ones.

By Sunday night, no refugees were coming on these flights anymore. Most of the people requiring assistance were lawful permanent residents held for anywhere from 3 to 12 hours for secondary screening and questioning, or valid visa holders such as F1 students, who were facing problems reentering the country.

After a few hours in Terminal 7, I was dispatched to Terminal 1 to relieve the only immigration attorney staffed there. She was coming off a 9-hour shift. At each terminal, attorneys would set up camp at outlet stations near the exits of the terminal gates, and spend most of the night sitting on the floor, working on our laptops or looking for family members who needed assistance. While I was there, every detained passenger we identified and monitored was eventually released after a few hours. So, we focused on doing post-detention intakes to find out if anyone had been subjected to coercive tactics, or interrogated about their political and religious views. Speaking to the detained individuals to inform them of their rights was completely out of the question.

When, after midnight, it became clear that nobody else was coming through Terminal 1, the small group of volunteers who remained went back to headquarters at Terminal 4 to debrief and make sure all of the data we had collected was put in the right hands. By then it was 3:30 am and I had work the next day.

Attorneys at JFK 01 2017There are still many people on the ground working 24 hours a day to provide legal assistance. I was just grateful for the opportunity to do my part to help out. My experience at the airport reminded me strongly of the time I spent as part of a fellowship representing refugee women and children detained at the Texas border. Even though attorneys were working with imperfect information and on extremely short notice, I found that there was a community of people willing to stay all hours of the day just to make sure that nobody would be wrongfully deported and that families would be safely reunited.

I expect that for the next few days there will still be chaos in the airports as we try to address the constantly shifting landscape of immigration law. It remains crucial for attorneys to be present and make their presence felt. Refugees and people with valid visas or green cards will continue to be harmed without the vigilant surveillance of the legal community.

Concerned families should reach out to the volunteers at jfkneedalawyer@gmail.com and nobanjfk@gmail.com to inquire about legal assistance, or call the hotline at 1-844-326-4940.

Governor Cuomo has also set up a hotline to report loved ones who are passengers on incoming flights and believed to be either missing or detained at: 1-888-769-7243. To report people abroad getting turned back from boarding airplanes to the U.S., CBP noncompliance at airports, or any other information about airport intimidation, please send information to airportwatch@mailman.yale.edu.

 

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Guest Blog: Prepare to Dig in to Preserve Legal Aid

GUEST lonnie powers blog card 410We don’t quite know what to expect from the federal government in the weeks and months ahead in terms of support for civil legal aid. For decades, support for the Legal Services Corporation (LSC), the nonprofit that administers federal funding to legal aid programs across the country, has been seen as a smart investment by members of both parties.

In 1964, Congress passed the Economic Opportunity Act, a centerpiece of President Lyndon B. Johnson’s anti-poverty agenda. The law aimed to eliminate poverty by giving poor people access to educational and vocational programs, loans, and other services that would help them achieve greater financial security. It quickly became clear that free legal advice or representation in non-criminal legal matters like child support and custody disputes; home foreclosure or eviction; wrongful termination from a job, and accessing veterans’ services provided stability that was just as vital to fighting poverty as educational and financial supports. Civil legal aid became a key part of the effort to fight poverty in America.

Like Johnson before him, President Richard M. Nixon understood the necessity of civil legal aid for people struggling to escape poverty. In his proposal to create the LSC, which was passed by Congress in 1974, Nixon called local civil legal aid offices the places where “the old, the unemployed, the underprivileged, and the largely forgotten people of our Nation may seek help.” He added, “Perhaps it is an eviction, a marital conflict, repossession of a car, or misunderstanding over a welfare check—each problem may have a legal solution. These are small claims in the Nation’s eye, but they loom large in the hearts and lives of poor Americans.”

Numerous programs have since demonstrated the wisdom of this approach. Civil legal services can help poor people stay in their homes, prevent sudden evictions by allowing tenants to negotiate exits from housing, and ensure smooth transitions to safe, affordable housing. A pilot program launched in 2009 by the Boston Bar Association showed that poor people fighting eviction notices in housing court in Quincy, Massachusetts fared much better when they were represented by attorneys. Two-thirds of those with full representation kept their housing; only one-third of those who went through housing court without an attorney were able to do the same. Similar results have been found in New York City, San Francisco, and San Mateo County, California.

Legal advocacy in the form of large, class-action lawsuits to change laws and governmental policies that adversely ― and overwhelmingly ― affect poor people, has also been effective in ensuring access to justice regardless of income. In 1970, legal aid attorneys successfully argued before the U.S. Supreme Court in Goldberg v. Kelly that state welfare departments cannot terminate benefits without first providing applicants with a fair hearing. In 1973, California Rural Legal Assistance successfully sued to stop large agricultural operators from requiring migrant farm workers to use short-handled hoes while working in fields. (The short-handled hoes forced workers to stay bent over for long periods of time; field managers required their use because if they saw workers standing up, then they knew that they were resting and not working. After these hoes were banned, back injuries among farm workers dropped by more than 30 percent.) More recently, a federal lawsuit by Greater Boston Legal Services resulted in changes in policy by the Massachusetts Department of Transitional Assistance which had improperly denied benefits to people living with disabilities.

Despite these clear successes, state and federal funding for civil legal aid is well below what is needed ― studies show that more than 63 million Americans qualify for LSC-funded civil legal assistance, yet about 80 percent of the serious legal needs of low-income Americans go unmet. Civil legal aid must be deployed more broadly in future efforts to combat poverty, and public resources for legal assistance must be increased greatly in order to maintain progress. President Obama, a strong supporter of civil legal aid, secured modest funding increases during his tenure (though some were rolled back). He also expanded access to legal aid services through initiatives like the White House Legal Aid Interagency Roundtable (LAIR). The Roundtable has made available more grant funding for legal aid, conducted new research, and provided education to federal agency staff about how civil legal aid advances federal priorities, among other activities. But much more is needed, in terms of resources and political will, if we are truly serious about helping low-income Americans establish and maintain independent, financially secure lives.

Any attempts to weaken or dismantle federal civil legal aid must be met with principled advocacy and resistance by the legal community, social justice activists, and civil rights organizations. Civil legal aid is a powerful ― and much needed ― tool that helps people living in poverty build a foundation of stability so they can create a better future for themselves, their families, and our communities.

This blog originally appeared in The Huffington Post on January 3, 2017.

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