Five Years After Sandy, Lessons for Today’s Hurricane Victims

Five years ago Superstorm Sandy – the largest Atlantic storm in history – slammed into the New York City region, upending lives and causing billions of dollars in damages to homeowners, renters, businesses and the federal government. To this day, many people in the areas hardest hit by the storm are still struggling to put their lives back together.

The recent hurricanes in Texas, Florida and Puerto Rico killed several hundred people and displaced or otherwise affected many thousands more. They are at the beginning of a long and difficult journey that will require courage, resilience, and the support of an array of government and private disaster relief programs. Among these are nonprofit legal services groups like ours that in the last several years have become recognized as a vital social service in the immediate and long-term aftermath of a natural disaster.

When Sandy hit our shores on October 29, 2012 we had no capacity, and no real understanding of what it would take to build a storm response legal team. But within days we were able to confer with legal services organizations on the Gulf Coast who shared what they had learned after Hurricane Katrina. They advised us on how to gear up to help victims unable to afford an attorney to navigate various relief programs, do battle with insurance companies and begin the long process of making repairs.

Five years later, with the support of a cadre of pro bono lawyers from the private bar, we have assisted clients in New York City and on Long island with more than 13,000 legal matters, a number that continues to rise as people still find themselves dealing with local recovery programs, flood insurance claims, rampant contractor fraud and other storm-related problems. Recently, we had the opportunity to pay forward the invaluable support we received from our legal services colleagues in Louisiana and elsewhere by conducting post-disaster legal services training programs for legal services groups in Texas and Florida that reviewed FEMA and the other major federal relief programs, significant potential legal issues, and longer-term recovery issues. (We are still formulating the best way to be of assistance to our peers in Puerto Rico.)

Five years ago Superstorm Sandy slammed into the New York City region. Photo credit: MTA

The back-to-back-to-back devastation we saw in the span of just a few weeks this September is a stark reminder that our coastal areas continue to remain at risk. Due to the billions of dollars of debt the National Flood Insurance Program has incurred in recent years, flood insurance rates have increased and will continue to rise. Homeowners should take advantage of programs and services that can help them prepare now for future floods that are expected to occur due to sea levels rising. FloodHelpNY, for example, is funded by the New York Governor’s Office of Storm and Recovery and provides elevation certificates and flood insurance counseling free-of-charge to inform New York City homeowners about how they can protect their home and finances from future floods.

Recovering from a disaster is time consuming, requires a great deal of work and an ample amount of patience. If it happens to you, here are some key things we have learned that can help make a terrible situation a little more bearable:

Be Organized: Make note of filing deadlines and photograph and videotape damages and retain all records. (Most of the disputes we are handing now, five years out, have to do with missing documentation.) Thoroughly document repair efforts on an on-going basis and keep and organize receipts – your future recovery depends upon it.

Be Proactive: Call FEMA, the Small Business Administration and other agencies early and often to try to resolve problems before they get worse. Don’t rely on the first answer you receive.

Plan for a long haul: Be prepared for substantial insurance and contractor disputes that will cut across multiple interacting issues. Five years after Sandy, we have plenty of clients who are still suing or being sued.

Most important: Find a lawyer versed in disaster legal services. If you cannot afford an attorney, there are several hundred non-profits, pro bono programs, court-based services, and others across the US that may be able to help. www.lawhelp.org is a good resource to help you find one.

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The Equifax Breach Is Bad, But There Are Steps That Can Help

Kathleen-Krumpter blog cardWhen I first saw the news that Equifax had a data breach, my initial thought was, “This is very bad.” In the days since then, the news has not gotten much better. The ramifications are essentially permanent. Since the breach affected 143 million Americans – more than half of all the adults who live in the United States – I think we need to assume that our most private data is no longer secure.

According to the U.S. Department of Justice, the vast majority (86%) of instances of identity theft have been related to misuse of existing accounts – credit cards or bank accounts (Victims of Identity Theft, 2014). This means that people with higher annual incomes were more at risk than households with lower incomes. Now that social security numbers, dates of birth and addresses are out there, I believe that there may be an increased risk of identity theft involving new accounts and/or misuse of personal information (including income tax identity theft). This could mean that lower income households will face a higher risk than they have historically as they are less likely to keep an eye on their credit reports and may not file a tax return at all.

There are a number of precautions that we can take to protect ourselves against identity theft.

Financial Counseling 849x565Think about placing a credit freeze on your accounts. This will make it harder for someone to open new credit in your name. This will only work if you place the freeze with all three credit reporting agencies (Equifax, Transunion and Experian). If, in the future, you want new credit, you can temporarily lift the freeze at one or all of the agencies by providing the PIN that they will assign to you when you request the freeze. It is imperative that you not lose this PIN and that you secure it. Depending on what state you live in, there are different fees associated with placing, temporarily lifting or permanently removing a credit freeze. Equifax has temporarily waived their fee for any freezes placed before November 21. If you live in New York, it is free to place a credit freeze. You can check your state and the costs associated at Guide to Security Freeze Protection

If you are not going to place a credit freeze on your accounts, place a fraud alert. Unlike with credit freezes, if you place a fraud alert with one agency, they are required to notify the other two agencies. A fraud alert lets creditors know that you may be a victim of identity theft and requires that they take additional steps to ensure that the person requesting the credit is you.

Check your credit reports. Everyone is allowed to request a credit report from each reporting agency once a year. You can do this online at www.annualcreditreport.com. I suggest that you check one agency every four months. Review the report for accuracy and make sure all of the accounts listed are accounts that you opened. If any of the accounts are not yours, dispute it with the credit reporting agency and begin the process for reporting identity theft on www.identitytheft.gov.

Use a password manager. There are many, but two good ones are Last Pass and 1Password. You should also change all of your passwords for all of your financial accounts to something less hackable. These password managers can generate a password that is a random assortment of letters, numbers and special characters, which security experts agree are more difficult to crack.

Anywhere that allows for it, use two factor authentication. Yes, this is a pain. Yes it makes logging in places for the first time difficult. However, it is one more thing that can make it more difficult for someone to steal your identity.

Lastly, file your tax return as early as possible. To date, income tax identity theft has been a relatively small percentage of all instances of identity theft (and has been going down). With the Equifax breach, however, that trend could change.

The Equifax breach is scary and will reverberate for years because we can’t just change our social security numbers like we can a password. With vigilance and taking the above steps, however, we can mitigate any damage and reduce our risk.

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An End for DACA, But Not for Dreamers

NYLAG-Elizabeth-Gibson-staff-attorney-immigrant-protection-justice-core-fellow

Why are we doing this? Why is the United States government destroying the lives of innocent people who contribute to our communities and to the nation’s social and economic well-being?

Today, Attorney General Jeff Sessions announced plans to terminate Deferred Action for Childhood Arrivals (commonly called DACA), one of the most positive and successful innovations in recent immigration law.

The concept of DACA was always simple. If you came to the United States undocumented as a child, maybe so young that you do not even remember crossing the invisible line separating “us” and “them,” the country was not going to deport you from your home, from your family, from your life because of something that was not your fault.

In 2012, the Department of Homeland Security (DHS) granted these young people a reprieve. DACA did not give anyone formal immigration status. Essentially it amounted to a work permit and a promise: DACA recipients would not be targeted for deportation.

Now, DHS has announced that the administration is ending DACA with a six-month delay in enforcement. DHS stated that those with current work permits will be able to continue working until they expire and that renewals will be accepted until October 5, 2017. New applications will not be accepted. However, even before the end of six months, many Dreamers are likely to lose employment because of confused and/or discriminatory employers. Ultimately, the reprieve buys them little more than a few months to fight for new laws to protect Dreamers.

Although NYLAG supports congressional action to give lasting protection to Dreamers as soon as possible, it is dangerous to assume that action will be taken and all will be well. The very impetus of DACA was Congress’ failure to act on the issue. The DREAM Act, intended to address this problem, was introduced in 2001. Sixteen years later Congress is still deliberating on new iterations of the bill in a time when immigration issues are more divisive than ever.

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NYLAG staff rally to defend DACA

DACA came about as a result of decades of failure by Congress to make headway on immigration reform of any sort. It was not a law passed by the legislature, but rather an executive policy to exercise agency discretion in a humane and practical way. DACA came from a grassroots movement of hundreds of thousands of people saying, “I am here. I am your classmate. I am your coworker. I am your neighbor. But for a birth certificate, I am you. ” And at the time, it was not controversial. Two thirds of Americans supported DACA when it was created.

Nearly 800,000 people have applied for and received DACA, including more than 40,000 New Yorkers. The New York Legal Assistance Group (NYLAG) alone has helped with approximately 2,000 cases. Even before DACA, NYLAG pushed the government to find effective ways to use its discretion to protect young immigrants because every day we saw people who were suffering and fighting to live up to their potential.

Over the last five years, DACA Dreamers have thrived. They became teachers and nurses, artists and engineers. Research has shown that immigrants with DACA were more likely than similarly situated immigrants to pursue higher education and find white-collar jobs. They created new jobs and businesses, paid taxes, and helped raise families out of poverty.

For all of its advantages, DACA has always been a limited solution to a much larger problem. Countless children watched their parents deported out of their lives as they moved in with aunts, uncles, and family friends or set out on their own because DACA did not protect their parents. Obama-era programs for parents of DACA recipients got tied up in the courts, and, earlier this year, the Department of Homeland Security announced that the government was nixing the idea entirely. In addition, while DACA meant work authorization, it did not provide a path to a green card or citizenship. It left a generation living without full rights and in fear that one day someone might take away DACA and leave them with nothing.

Today, Dreamers may feel like that day has come, but New York City and advocates and agencies like ours have no intention of leaving them with nothing. We will continue to fight for them. As we did before DACA, we will defend the rights of all New Yorkers regardless of their immigration status, and we will seek creative solutions for DACA recipients. We also will support any available legal challenges to the repeal of DACA and encourage legislation to protect the Dreamers through congressional action.

DACA recipients

We strongly recommend that all Dreamers speak with an attorney or accredited representative to see if they may be eligible for other forms of immigration relief. It remains unclear exactly what action the government will take at the end of six months, and it would be physically and financially impossible to deport every Dreamer. However, it is important to look for new options well before the end of the six-month period. In particular, anyone who has ever been in immigration court or who has been arrested by the police should speak with an attorney immediately because they may be at higher risk.

As always, it is important to avoid being victimized by fraudulent immigration scams and immigrants should make sure to look for qualified legal representatives.  There are many organizations in New York like NYLAG that provide free legal services for immigration and employment issues.  Dreamers should review information about their rights if they encounter immigration officials, and they should put together a plan for emergency situations. NYLAG and other organizations offer know-your-rights and safety-planning resources.

City agencies and advocates across New York are hard at work to help Dreamers. We are here for you. We are inspired by you. We know you belong here. We share your dream.

Today, we cry with you. Tomorrow, we fight on.

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Relief in Sight for Defrauded Student Borrowers

Jane Stevens, Co-Director, Special Litigation UnitDanielle Tarantolo, Co-Director, Special Litigation Unit

In August, a federal court in Manhattan approved a historic settlement between the U.S. Department of Education and student loan borrowers who attended the “Wilfred Beauty Academy” in the 1980s and ”˜90s. The settlement brings the possibility of millions of dollars of relief to the approximately 60,000 students who were victimized decades ago by Wilfred””and by the Department’s lax oversight of for-profit schools””and have been suffering ever since.

For-profit schools have exploited students for many years, and continue to do so today, but Wilfred was especially nefarious. It enticed vulnerable people, mostly young women, many with limited English abilities, to enroll in search of a better life, and then flagrantly lied to the Department of Education in order to draw student loan dollars to fund those individuals’ tuitions. Specifically, Wilfred falsely certified to the Department that these students met the eligibility requirements for the student loans, when they did not. (A recent New York Times article paints a stark portrait of the devastating and lasting impact of this fraud on just two of the school’s victims.)

Eventually, the Department wised up to these practices and, along with the Department of Justice, investigated Wilfred for its fraudulent acts. Outcry over rampant violations by schools like Wilfred led Congress in 1992 to enact a statutory remedy: full discharge, or forgiveness of their loans for students who had been “falsely certified”.

When the falsely certified students either graduated from Wilfred (or as often happened, dropped out in frustration), having obtained a useless so-called “education” and with no job prospects at all, they were saddled with debt.  Following Congress’s action, the majority of them were eligible to have their loans fully discharged, but there was a big problem: none of them had any idea this was possible. And the only body with the ability, and the obligation, to notify them””the Department of Education””didn’t. In fact, it did the opposite. Year after year, decade after decade, the Department, and Guaranty Agencies holding the loans, continued to collect on these loans from Wilfred borrowers, including forcibly, by intercepting income tax refunds and garnishing wages.

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NYLAG’s Jane Greengold Stevens and two former Wilfred students are featured in a Telemundo interview about this significant settlement.

For years, we had helped individual Wilfred borrowers apply for discharges of their loans. In 2013, as a result of a brief mention in a local TV spot, we received calls from 30 Wilfred students in a short period of time. On behalf of a group of borrowers, we formally demanded that the Department of Education fulfill its duty to notify these individuals of their rights, but the Department refused. We brought Salazar v. Duncan (now called Salazar v. DeVos) in 2014 to prod the Department into action. After several years of hard-fought litigation, the Department has now agreed, through the settlement approved this month, to tell all Wilfred borrowers about the possibility of relief from these debts.

Over the next several months, thousands of letters will go out to these borrowers, along with discharge applications. At the time the Department of Education sends these letters, it will suspend collection on the loans for borrowers not in default. If borrowers in default file applications for discharge within 60 days after receiving the letter, collection will be suspended for them too.  All suspensions will continue until the Department adjudicates the application. By December 9, 2018, the Department will have discharged the loans of all applicants found eligible, and by June, 2019, will have refunded all their loan payments.

The value of this relief cannot be overstated, but it’s an after-the-fact fix.  The real work for the Department is still ahead. As we write this, scores of schools like Wilfred are continuing to defraud student borrowers and the taxpayers, by enticing vulnerable students to enroll and to take out federal student loans, incurring huge debt to pay for worthless educations that they are falsely promised will lead to jobs. Most of the for-profit schools are able to exist only because of the availability of federal student loans.

The Department has the tools to crack down on these abuses, yet does not exercise meaningful oversight””with the result that more and more students will find themselves in the same situation as the Wilfred borrowers: finances ruined, and unable to obtain relief from the government agency that was supposed to protect them.  We urge the Department of Education to fulfill its obligation to students and U.S. taxpayers by refusing to allow sham schools to participate in the federal student loan program, and establishing meaningful borrower protections when it lets bad schools slip through the cracks.

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Tax Scams Are on the Rise, and Recognizing Them Is Getting Harder

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Meghan Hudson blog cardDeath and taxes, they say, are the only certainties in life, so perhaps it should come as no surprise that being victimized by a taxpayer fraud scheme is becoming more common. These lucrative schemes are increasing in number and complexity around the world. Many of the scammers pressure taxpayers to make immediate payments and threaten license suspension, deportation or arrest if they don’t. Their sophisticated methods can be very convincing. This summer we had a client fall prey: she lost $3,500 of her savings to a fraudster via iTunes Gift Cards. She is one of many who were defrauded and certainly won’t be the last.

Meanwhile, the Internal Revenue Service announced in April that it has hired private debt collection companies to collect past taxes (despite two failed attempts at privatizing tax debt collection in the past), adding a new wrinkle and making it more difficult to know what’s real and what’s a scam. And, as reported in the New York Times, a group of Democratic senators have found that the IRS’s private collectors are using tactics that are not just high-pressure, but may be illegal. The article describes training scripts that suggest that debtors use 401(k) funds, home loans and credit cards to pay off their overdue taxes. Pushing taxpayers to the limit like this can have dire consequences. There are other options that we’ll discuss below.

Both fraudsters and IRS contractors have the same goal: they want your money – and they have little incentive to deal fairly with people who legitimately cannot afford to pay their taxes.  The following are steps you can take to determine whether you are dealing with a real IRS debt or a scammer, and what your options are if it’s legit.

Paperwork | file taxes | recognize tax scams

Know the players

There are only four debt collection agencies that can collect IRS debt: CBE, ConServe, Performant and Pioneer. Unlike the scammer, the IRS will inform you first by mail of the tax debt and indicate the debt collector assigned to your case. Only then will you get a call. If you are contacted by anyone who is not affiliated with one of these companies, you are at risk of being defrauded.

Validate the company collecting the debt

If you owe back taxes, you will need to pay them, but make sure you’re really paying your tax debt and not lining the pocket of a scam artist. Keep some things in mind. The IRS-approved debt collection companies will NOT ask for a payment via iTunes or other gift cards, or prepaid debt cards. Payments and checks should only be made be payable to the U.S. Treasury and sent directly to the IRS regardless of what collection agency you are working with. You can also pay online at www.IRS.gov/PayYourTaxBill.

Know your rights

You have the right to work with the Taxpayer Advocate Service (TAS) and to get a financial analysis of your economic situation in order to assess proper payment options. The IRS must take basic living expenses into consideration when determining ability to pay. The average monthly Allowed Living Expenses in New York City, for example, is $3,132 for a single person household. But, keep in mind that private debt collection companies are not required to refer hardship accounts to the TAS and are free to try to collect on debt that would otherwise be uncollectable by the IRS. If you can’t afford the payment, call the TAS yourself or visit their website. A TAS Taxpayer Advocate can put you on a payment plan that is affordable based on your income.

The debt collectors tasked with collecting IRS tax debt must follow the Fair Debt Collection Practices Act. The IRS must inform you of the debt that will be transferred and to whom. They can’t engage in harassing or abusive practices. To make a complaint about a private collection agency or report misconduct by its employee, call the Treasury Inspector General for Tax Administration (TIGTA) hotline at 800-366-4484 or visit www.tigta.gov.

Know what you owe

You have a right to know how much you owe in taxes and how the amount was calculated. You can call the TAS at 800-829-1040 or go online to https://taxpayeradvocate.irs.gov/ and create a Secure Access Account on the IRS website. In the tax account tools page you can see 18 months of payment history, the balance for each tax year that you owe and the payoff amount. Don’t ask the person on the phone to validate it, make sure it’s correct with the IRS.

Analyze your actual ability to pay

While you are sorting out your situation – and your options, do not agree to a payment plan that you can’t afford. Do not live off your credit cards or withdraw money from your retirement savings to pay off the tax debt. (This is often taxed as income and if you’re under 59 ½ years old there are additional ramifications, such as early withdraw fees.)

According to the same New York Times article, a recent analysis found that nearly a quarter of the accounts involved taxpayers with below-poverty level wages, and more than half were taxpayers with incomes of less than 250 percent of the poverty level. If you have an economic hardship, the TAS can place you into a status known as Currently Not Collectible which means that the IRS will stop trying to collect the debt from you and won’t garnish wages – though your tax debt will continue to accumulate interest and penalties. The TAS can also approve Offer in Compromise plans, an agreement to settle the debt for less than the full amount. It’s better to work with a Taxpayer Advocate to get on a payment plan that allows you to still cover your basic needs. I suggest you create a budget before creating a payment plan and see how much you can afford to pay. If you don’t qualify for either program you can work with a TAS advocate to create a longer installment plan so that your monthly payments are affordable.

In summary, when it comes to calls related to tax debt don’t be bullied into making an immediate payment. Validate the debt and take a realistic look at your income. If you indeed owe the debt, you will need to pay it or a portion of it. However, make sure that you are paying a reasonable amount based on your income and that you’re not living on borrowed money or surviving solely on ramen noodles to make it happen. And don’t hesitate to reach out to your politicians and demand they promote policies that protect your rights. Private debt collection programs have historically wasted federal resources and violated consumer rights.

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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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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.”

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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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