Lawsuit Alleges CARES Act Excludes U.S. Citizen Children Of Undocumented Immigrants

U.S. citizen children of undocumented parents who are excluded from the $2 trillion federal stimulus coronavirus package filed a federal class action lawsuit on Tuesday.

The lawsuit was filed in the District Court of Maryland by the Institute for Constitutional Advocacy and Protection at Georgetown Law Center along with CASA, a nonprofit immigrant rights organization serving the D.C.-area and Pennsylvania, on behalf of seven children ages ranging from 7-months-old to 9-years-old, and their parents.

"My daughter is a U.S. citizen," says Carmen, mother of one child in the lawsuit who did not want to give her full name because of her immigration status.

"Just as any other U.S. citizen child, my daughter deserves to have equal rights," especially during this pandemic, Carmen says. "It's an injustice."

As job losses continue to increase nationwide due to the public health pandemic, the federal government's enormous Coronavirus Aid, Relief, and Economic Security (CARES) Act signed into law on March 29 provides an economic lifeline to millions of people who pay taxes using their Social Security number instead of the Individual Taxpayer Identification Number, or ITIN, used by Carmen and many other undocumented immigrants.

Every eligible individual receives a $1,200 check if the person has an income of less than $75,000 per year, or $2,400 if a couple files taxes jointly. If the income is higher, the amount varies. Individual taxpayer's children also qualify for $500 per child under the age of 17.

Carmen says she pays income tax every year using her ITIN. Before the pandemic she worked two jobs in the food industry — one at a catering company and another at a pizzeria.

"This is the first time I'm home without an income," she says. "I'm using my voice to advocate on behalf of my daughter."

Carmen came to the U.S. from Lima, Peru, in 2001. She says she's very concerned about her and her daughter's future in this pandemic.

"It's a hard reality we are living," she says, pleading with public officials not to abandon children like hers during the crisis. "I hope their hearts soften and their minds open to see that our children are also the future of the country."

Mary McCord is the lead attorney for the lawsuit.

"The lawsuit is based on the equal protection violation of the CARES Act that discriminates and excludes U.S. children," says McCord, who is a visiting professor at the Georgetown University Law Center. "It's one thing to discriminate against the undocumented immigrants, which our system does, but it's a whole different thing to discriminate against U.S. citizen children."

McCord says she estimates there are millions of children of undocumented immigrants in the country and that by denying them the CARES Act benefit these children are being "treated as second-class citizens."

More importantly, McCord says, it's nonsensical to deny these U.S. citizen children the benefit of the stimulus package because they already qualify for other public benefit programs such as Supplemental Nutrition Assistance Program or SNAP benefits, as well as the Temporary Assistance for Needy Families, or TANF.

"Under the Constitution, U.S. citizens cannot be discriminated against based on alienage," McCord says. "These children have no say in who they're born to and yet they're being treated differently than other U.S. citizen children. And that's why so many of the other public benefits programs still do cover U.S. citizen children, because otherwise it would be discriminatory."

Nicholas Katz, CASA's senior manager of Legal Services, says the CARES Act counters its promise.

"The purpose of the CARES Act is to help the most vulnerable members of our society during this difficult time," said Katz in written statements. "Immigrants make up almost a fifth of frontline workers during this pandemic. It is an absolute outrage that we are relying on immigrant families to care for our loved ones and provide our essential supplies and yet denying their children the support they are entitled to as U.S. citizens."

This case doesn't have a precedent, though two lawsuits in Maryland and Illinois have been filed against the U.S. government on behalf of mixed-immigration status couples who are denied CARES Act relief because one of them is an undocumented immigrant while the other is a U.S. citizen. [Copyright 2020 NPR]