E.M. v. Neb. Dep't of Health & Human Servs.

306 Neb. 1

944 N.W.2d 252

E.M., appellant,

v.NEBRASKA DEPARTMENT OF HEALTH AND HUMAN SERVICES et al., appellees.

Kevin Vasquez Perez, appellant,

v.Nebraska Department of Health and Human Services et al., appellees.

Walter Hernandez Marroquin, appellant,

v.Nebraska Department of Health and Human Services et al., appellees.

Nos. S-18-1146 through S-18-1148.

Supreme Court of Nebraska.

Filed June 5, 2020

Allison Derr, Robert McEwen, and Sarah Helvey, of Nebraska Appleseed Center for Law in the Public Interest, and Mindy Rush-Chipman, for appellants.

Douglas J. Peterson, Attorney General, and Ryan C. Gilbride, Lincoln, for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

A federal statute¹ and its Nebraska counterpart² make noncitizens, who are not "lawfully present,"³ ineligible for state public benefits unless the State "affirmatively provides"⁴ for eligibility. In these consolidated Administrative Procedure Act⁵ appeals, we determine whether the language of the Young Adult Bridge to Independence Act (YABI)⁶ sufficiently made several noncitizen applicants eligible for all public benefits of the Bridge to Independence program (B2I). A state agency ruled them ineligible, and on appeal, the district court affirmed. On appeal to this court, we affirm. We also reject their constitutional challenge to an agency regulation.⁷

II. BACKGROUND

Before we summarize the proceedings, a brief introduction to YABI and B2I will be helpful.

1. YABI AND B2I

YABI was enacted in 2013⁸ in response to the federal Fostering Connections to Success and Increasing Adoptions Act of 2008.⁹ The purpose of YABI is to "support former state wards in transitioning to adulthood, becoming self-sufficient, and creating permanent relationships."¹⁰ YABI, in turn, created B2I, Nebraska's extended foster care program.¹¹ The program is available to a young adult who is at least 19 years old, who was adjudicated to be a juvenile under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), who satisfies the education/ work requirement, who is a Nebraska resident, and who does not meet the level of care for a nursing facility.¹² B2I offers support services such as medical care, foster care maintenance payments, and case management services until the former ward turns 21 years old.¹³ We now turn to the procedural history in these consolidated appeals.

2. AGENCY PROCEEDINGS

E.M., Kevin Vasquez Perez, and Walter Hernandez Marroquin (applicants) are Guatemalan citizens, who fled to Nebraska as minors. Each was adjudicated by the juvenile court, pursuant to § 43-247(3)(a), and each was placed in foster care.

Before each applicant turned 19 years of age, he applied to the Nebraska Department of Health and Human Services (DHHS) for B2I. At the time of each application, the applicant had already received special immigrant juvenile (SIJ) status from the U.S. Citizenship and Immigration Services. DHHS denied each of the applications, because each applicant failed to meet the "citizenship/lawful presence requirements."

Applicants requested fair hearings with DHHS. At the hearing, the parties presented evidence and made arguments. In DHHS’ order, it reasoned that because a person not "lawfully present" in the United States shall not be provided public benefits and applicants were neither U.S. citizens nor qualified aliens, they were not eligible for B2I.

3. DISTRICT COURT APPEAL

Applicants filed timely petitions for review to the district court for Lancaster County. The parties stipulated to joinder of applicants’ petitions for review. Applicants made two arguments. First, they asserted that the omission of a citizenship requirement and the inclusion of a case management service that offers immigration assistance showed a clear intent to extend public benefits to those not "lawfully present." Second, because DHHS promulgated a regulation that they claimed added an eligibility requirement not provided in YABI, they asserted that it violated the separation of powers clause of the Nebraska Constitution.¹⁴

The district court began its analysis by discussing the relevant federal statutes. The court observed that under § 1621, aliens are not eligible for state or local public benefits unless they qualify under an enumerated alien status.¹⁵ But, the court recognized, under § 1621(d), the State can provide benefits to those not otherwise eligible through the enactment of a state law that "affirmatively provides for such eligibility."

The court reasoned that because there was no affirmative language in YABI to include those not "lawfully present" to receive public benefits, applicants were not eligible for B2I. It explained that applicants’ argument-that the inclusion of an immigration assistance service in the program provided eligibility to those with SIJ status-"require[d] an inference not warranted by the statutory language or scheme." It stated that providing the immigration assistance service to those ineligible for the program does not automatically convert an individual into someone who is eligible. It remarked that the generic language of the statute did not rise to the level of affirmative language by the Legislature to provide eligibility for those individuals.

The court analyzed applicants’ argument regarding the additional eligibility regulation. It stated:

In other words, that regulation explains that if a person does not meet the citizenship/lawful presence requirement, the Department may nevertheless assist the young adult in obtaining the necessary state court findings for status adjustment application (after which that the young adult may achieve an appropriate status under § 1621(a) to receive public benefits).

It concluded that the regulation did not change the language or meaning of the program. It affirmed DHHS’ denial of applicants’ participation in B2I.

Each of the applicants filed a timely appeal, which, pursuant to the parties’ stipulation, the Nebraska Court of Appeals consolidated for briefing and disposition. Later, we granted applicants’ petition to bypass the Court of Appeals.¹⁶

III. ASSIGNMENTS OF ERROR

Applicants assign, restated, that the district court erred in (1) determining that citizenship or immigration status is relevant to eligibility for B2I; (2) affirming DHHS’ determination that because each applicant was not a citizen or qualified alien, he was not eligible; and (3) failing to strike down the eligibility regulation on the basis that it violated the separation of powers clause of the Nebraska Constitution.

IV. STANDARD OF REVIEW

A judgment or final order rendered by a district court in a judicial review pursuant to the Administrative Procedure Act may be reversed, vacated, or modified by an appellate court for errors appearing on the record.¹⁷ When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.¹⁸ Whether an agency decision conforms to the law is by definition a question of law.¹⁹

The meaning and interpretation of statutes and regulations are questions of law for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.²⁰

V. ANALYSIS

The federal Immigration and Nationality Act (INA)²¹ defines many terms, including "alien"²² and "national of the United States."²³ Federal statutes also use lengthy terms, such as "an alien who is not lawfully present,"²⁴ to describe the status of particular individuals. Following the lead of the California Supreme Court and purely for the sake of brevity, we refer to such individuals as "unlawful aliens."²⁵

The overarching question that we must answer is whether applicants were eligible for B2I.

1. ARGUMENTS NOT CONSIDERED

On appeal to this court, applicants make several arguments—two of which DHHS challenges as being outside the scope of applicants’ petitions for review filed in the district court. DHHS first challenges the argument that because § 1621 does not apply to unlawful aliens in foster care services under the juvenile court jurisdiction, it does not apply to unlawful aliens in extended foster care. DHHS also challenges the argument that B2I is an in-kind service, necessary for life and safety, which, applicants argue, is an exempt public benefit.

As DHHS correctly notes, an Administrative Procedure Act statute dictates that a petition for review must set forth the "petitioner's reasons for believing that relief should be granted."²⁶ Thus, we have said that an issue that has not been presented in the petition for judicial review has not been properly preserved for consideration by the district court.²⁷

We agree that neither argument was raised in the amended petitions for review filed in the district court. Each broadly stated that "[DHHS has] incorrectly and unlawfully determined that [applicants are] not eligible for extended foster care benefits ...." We agree with DHHS that this broad assertion did not properly preserve the challenged arguments for review.

This, in turn, dictates that we should not consider either argument. An appellate court will not consider an issue on appeal that was not passed upon by the trial court.²⁸ Therefore, we will not address them.

2. FEDERAL AND STATE STATUTORY LIMITATIONS

Before we can determine if applicants are eligible for B2I, we must determine whether the federal and state statutory limitations on providing state public benefits to noncitizens apply to YABI. And before undertaking that analysis, we first recall the relevant federal and state statutes.

(a) PRWORA

In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA).²⁹ PRWORA prohibited an alien who is not a "qualified alien (as defined in [ 8 U.S.C. § 1641 ] )" from receiving any "Federal public benefit."³⁰ It did so "...