State's opening brief korab

NO. 11-15132

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCIJIT

TONY KORAB, et al.,Plaintiffs - Appellees

\1•

PATRICIA McMANAMAN, in her official capacity as Director of theState of Hawai ‘i, Department of Human Services and

KENNETH FINK, in his official capacity as State of Hawai’i, Department ofHuman Services, Med-QUEST Division Administrator,

Defendants — Appellants

On Appeal From the Interlocutory Order Granting a Preliminary Injunction of theUnited States District Court for the District of Hawai’i

Case No. D.C. No. 1:1 0-cv-00483-JMS-KSC

BRIEF OF APPELLANTS

DAVID M. LOUIEAttorney GeneralState ofHawaii

HEIDI M. RIANLEE ANN N.M. BREWERJOHN F. MOLAYDeputy Attorneys GeneralDepartment of the Attorney General465 South King Street, Room 200Honolulu, Hawaii 96813(808) 587-3050

Attorneysfor Defendant- Appellants

Case: 11-15132 06/20/2011 Page: 1 of 127 ID: 7791851 DktEntry: 9

TABLE OF CONTENTS

INTRODUCTION.

JURISDICTIONAL STATEMENT 4

STATEMENT OF IS SUES PRESENTED FOR REVIEW 5

STANDARD OF REVIEW 6

STATEMENT OF CASE 6

STATEMENT OF FACTS 8

A. COFA Residents Used to be Eligible for Federal Medicaid 8

B. The Welfare Reform Act Limited COFA Residents’ Access to Federaland State Public Benefits 9

C. Since the Welfare Reform Act, the Department Provided Medicaid-Like State-Funded Medical Assistance Benefits to COFA Residents,but Not to Citizens 12

D. The Department Reduced the State-Funded Alien-Only MedicalAssistance Benefit that Was Available to COFA Residents byImplementing Basic Health Hawai’i 15

E. Applying Strict Scrutiny, the District Court Preliminarily Enjoined theDepartment from Implementing Basic Health Hawai’i 16

SUMMARY OF THE ARGUMENT 18

ARGUMENT 19

A. Basic Health Hawai ‘i Does Not Violate the Equal Protection ClauseBecause It Does Not Discriminate Against Aliens 19

1. Providing Aliens Who Are Barred from Federal Medicaid withState-Funded Alien-Only Benefits Is Not a Classification Basedon Alienage 20

2. The Past Receipt of State-Funded Alien-Only MedicalAssistance Benefits is Irrelevant to Determining WhetherReduction of Those Benefits Discriminates Against Aliens 28

1


B. Even If Basic Health Hawai’i Discriminates Against Aliens, RationalBasis Review Applies 29

1. The Federal Government May Discriminate Against Aliens inFederal Benefit Programs Under Rational Basis Review 30

2. The State’s Actions in Following a Uniform Rule Establishedby Congress Respecting Aliens Will Be Subject to RationalBasis Review 33

3. The State’s Implementation of Basic Health Hawai’i SatisfiesRational Basis Review 44

4. Only When the State Classifies Based on Alienage Within aProgram Will Strict Scrutiny Apply 46

C. The Rational Basis Test Also Applies Because the FederalGovernment Established a Uniform Rule Relating to COFAResidents’ Conditions of Entry Under the Compacts 50

CONCLUSION 56

CERTIFICATE OF COMPLIANCE 58

STATEMENT OF RELATED CASES 59

GLOSSARY 60

ADDENDUM

11


TABLE OF AUTHORITIES

CASES

Aleman v. Glickman,217F.3d 1191 (9thCir. 2000) 21

Aliessa v. Novello,96 N.Y.2d 418, 754 N.E.2d 1085 (Ct. App. 2001) 25,26,36,41

Ball v. Rodgers,492 F.3d 1094 (9th Cir. 2007) 8

Bernal v. Fainter,467 U.S. 216 (1984) 46

Children’s Hosp. & Health Ctr. v. Belshe,188 F.3d 1090 (9th Cir. 1999) 8

City of Chicago v. Shalala,189 F.3d 598 (7th Cir. 1999) 32

Dep’t of Health Servs. v. Sec’y of Health & Human Servs.,823 F.2d 323 (9th Cir. 1987) 8

Doe v. Comm’r of Transitional Assistance,773 N.E.2d 404 (Mass. 2002) 21,22,29,31

Ehrlich v. Perez,908 A.2d 1220 (Md. 2006) 21, 40

Examining Bd. of Engineers, Architects & Surveyors v. Flores de Otero,426 U.S. 572 (1976) 46

F.S. Royster Guano Co. v. Virginia,253 U.S. 412 (1920) 20

FCC v. Beach Communications, Inc.,508 U.S. 307 (1993) 45

1


Graham v. Richardson,403 U.S. 365 (1971) 20, 33,47,48,49

Guerrero v. Clinton,157 F.3d 1190 (1998) 51,53

Heller v. Doe,509 U.S. 312 (1993) 45

Hong Pham v. Starkowski,16 A.3d 635 (Conn. 2011) 9,21,24,25,29,38,39,40

Hong Pham v. Starkowski,2009 WL 5698062 (Conn. Super. 2009) 38

In re Griffiths,413U.S.717(1973) 46

K & A Radiologic Technology Services, Inc. v. Comm’r of the Dept. of Health,189 F.3d 273 (2d Cir. 1999) 8

Khrapunskiy v. Doar,12N.Y.3d 478, 909 N.E.2d 70 (2009) 21,26,27,28,41

Lewis v. Thompson,252 F.3d 567 (2d Cir. 2001) 31

Mathews v. Diaz,426 U.S. 67(1976) 30,31

Nyguist v. Mauclet,432 U.S. 1(1977) 21,46

Paige v. California,102 F.3d 1035 (9th Cir. 1996) 4

Plyler v. Doe,457 U.S. 202 (1982) 20,34,43

11


Soskin v. Reinertson,353 F.3d 1242 (10th Cir. 2004) 21, 22, 23, 31, 33, 35, 45-46

Southwest Voter Registration Education Project v. Shelley,344 F.3d 914 (9th Cir. 2003) 6

Spry v. Thompson,487 F.3d 1272 (9th Cir. 2007) 8

Sudomir v. McMahon,767 F.2d 1456 (9th Cir. 1985) 32, 34, 41,42,43, 44

Takahashi v. Fish and Game Comrn’n.,334 U.S. 410 (1948) 21,46-47

Tigner v. Texas,310 U.S. 141 (1940) 20

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV, § 1 20

FEDERAL STATUTES

28 U.S.C. § 1292(a)(1) 4

28 U.S.C. § 1331 4

28U.S.C.1343 4

28 U.S.C. § 2107(a) 4

8 U.S.C. § 1101(a)(15) 11,55

8 U.S.C. § 1601 9

8 U.S.C. § 1601(2) 54

8 U.S.C. § 160 1(4) 45, 46

8 U.S.C. § 1601(7) 37

111


8 U.S.C. § 1611(a). 1,10,11,49

8U.S.C. 1611(b) .10

8 U.S.C. § 1612(b).23

8U.S.C.16l3 10

8 U.S.C. § 1622 36

8 U.S.C. § 1622(a) 10,11

8 U.S.C. § 1622(b) 10

8U.S.C.1624 36

8 U.S.C. § 1641(b) 10,11

8 U.S.C. § 1641(c) 10

P.L. 104-193, August 22, 1996, title IV 9

FEDERAL RULES

Fed. R. App. P. 4(a)(1) 4

Fed. R. App. P. 43(c)(2) 1

COMPACTS OF Fiun AssocIATIoN

P.L. 99-239, January 14, 1986, 99 Stat. 1770 1

P.L. 99-658, November 14, 1986, 100 Stat. 3672 (Palau Compact) 1-2

Palau Compact, sec. 14 1(a) 11, 55

Palau Compact, sec. 2 11(d) 52

P.L. 108-188, December 17, 2003, 117 Stat. 2720 (2003 Compact) 2

2003 Compact, sec. 103(f) 52-53

2003 Compact, sec. 103(h) 53

iv


2003 Compact, sec.104(e).50

2003 Compact, sec. 104(e)(1) 50

2003 Compact, sec. L04(e)(3) 51

2003 Compact, sec. 104(e)(6) 53

2003 Compact, sec. 104(e)(7) 53

2003 Compact, sec. 141(a) 11, 55

2003 Compact, sec. 141(c) 55

2003 Compact, sec. 141(d) 11

2003 Compact, sec. 141(f) 55

2003 Compact, sec. 141(f)(1) 50

2003 Compact, sec. 141(h) 55

2003 Compact, sec. 177 53

2003 Compact, sec. 211(a) 52

2003 Compact, sec. 21 1(a)(2) 52

V


INTRODUCTION

This case addresses the question whether the State of Hawai ‘i is

constitutionally required to replace — entirely at its own expense -- federal

Medicaid benefits that were taken away from certain aliens byfederal law. The

answer is “no.’

Historically, federal Medicaid was available to aliens legally residing in the

United States. However, in 1996 Congress barred “nonqualified aliens” from

eligibility for federal public benefits such as Medicaid. Under the Welfare Reform

Act of 1996, only United States citizens and certain “qualified aliens” are eligible

for federal public benefits. 8 U.S.C. § 1611(a).

Plaintiffs1 in this case are citizens of island nations with a Compact of Free

Association (COFA) with the United States2who reside in Hawai’i (COFA

1Parties. The named Plaintiffs-Appellees are Tony Korab, Tojio Clanton andKeben Enoch. CRIER 1 (compi.). They are together referred to as Plaintiffs.

The defendants are Patricia McManaman, in her official capacity as Director of theState of Hawai ‘i Department of Human Services, and Kenneth Fink, in his officialcapacity as State of Hawai’i Department of Human Services, Med-QUESTDivision Administrator. Defendant McManaman is substituted for former DHSDirector Lillian B. Koller, pursuant to Fed. R. App. P. 43(c)(2). DefendantsMcManaman and Fink are together referred to as the “State” or the “Department.”

2 The United States entered into Compacts of Free Association with the Republicof the Marshall Islands (RMI), the Federated States of Micronesia (FSM), and theRepublic of Palau. See Compact of Free Association Act of 1985, P.L. 99-239,January 14, 1986, 99 Stat. 1770; Compact of Free Association between theGovernment of the United States of America and the Government of Palau, P.L.

1


Residents). COFA Residents are nonimmigrants, which are nonqualified aliens

under the Welfare Reform Act, and were therefore made ineligible for federal

Medicaid benefits. CR/ER3 24 at 3 ¶7 (stip. facts).

In response to the Welfare Reform Act, the State could have simply stopped

providing COFA Residents with federal Medicaid benefits — and provided COFA

Residents with nothing — without itself discriminating against aliens. Instead,

rather than leaving the COFA Residents without medical benefits, the State of

Hawai ‘i, through its Department of Human Services (Department), chose to

voluntarily provide COFA Residents with state-funded medical assistance benefits

that were equivalent to the benefits that were available to citizens and certain

qualified aliens under the federal Medicaid program.4 This separate state public

99-658, November 14, 1986, 100 Stat. 3672 (the Palau Compact). These countriesare collectively referred to as the “Freely Associated States.” The Compact withthe RMI and the FSM was renegotiated and amended in 2003. See Compact ofFree Association Amendments of 2003, P.L. 108-188, December 17, 2003, 117Stat. 2720 (the 2003 Compact). The Palau Compact and the 2003 Compact arecollectively referred to herein as “the Compacts.”

Citations. CR refers to the Clerk’s Record and the docket number. ERrefers to the excerpts of record. Citations to large documents with multiple partsare given with the part number, as listed on the district court’s docket. Forexample, CR 13-3 refers to part 3 of document 13. Page numbers reflect thedocket page numbers, except for the Complaint (CRIER 1), which reflects the pagenumbers as noted on the original document.

For purposes of this opening brief, the term “citizens” generally refers to U.S.citizens and certain qualified aliens who, under the Welfare Reform Act, areeligible for federal public benefits and federal means-tested public benefits.

2


benefit was only for COFI4 Residents who were ineligible for federal Medicaid, to

lessen the impact of the federal government’s discrimination.

In 2010, facing unprecedented budget deficits, the Department reduced the

level of state-funded benefits provided to COFA Residents by implementing a new

state-funded medical assistance program, called Basic Health Hawai’i, that

provided less benefits than federal Medicaid. Basic Health Hawai’i similarly

covered only aliens who, as a result of the Welfare Reform Act, were ineligible for

federal Medicaid. The State did not provide citizens who were ineligible for

Medicaid with any state-funded benefit.

The district court issued a preliminary injunction, finding that the State

discriminated against COFA Residents by providing them with a state-funded

alien-only medical assistance benefit that was less than the federal Medicaid

benefit available to citizens, in violation of the COFA Residents’ right to equal

protection.

There is no equal protection violation by the State where thefederal

government grants only citizens eligibility for federal Medicaid, and the State, in

an attempt to partially make up for the federal discrimination, voluntarily provides

COFA Residents eligibility for a separate, state-funded medical assistance program

for aliens only. The State does not discriminate against aliens when it gives COFA

Residents Basic Health Hawai ‘i benefits not provided at all to citizens. And

3


although the Basic Health Hawai ‘i benefits provided by Hawai ‘i do not match the

federal Medicaid benefits provided citizens, this different treatment for aliens

stems wholly from an act of Congress excluding COFA Residents from federal

Medicaid. Equal protection does not require the State to replace, at its own

expense, that which the federal government took away. It does not require the

Department to maintain an optional, state-funded benefit for aliens only at levels

equivalent to those offered to citizens through federal Medicaid. Accordingly, the

district court’s order for preliminary injunction should be reversed.

JURISDICTIONAL STATEMENT

District Court. The district court had jurisdiction over this case pursuant to

28 U.S.C. § 1331 and 1343. On December 13, 2010, the district court granted

Plaintiff’s motion for preliminary injunction. CR/ER 42 (inj. order).

This Court. This court has jurisdiction to consider an appeal from an

interlocutory order granting a preliminary injunction without a showing of

irreparable harm. 28 U.S.C. § 1292(a)(i); see Paige v. California, 102 F.3d 1035,

1038 (9th Cir. 1996) (involving appeal from grant of preliminary injunction).

Timeliness ofAppeal. An appeal from a district court must be filed within

30 days of the judgment or order appealed from. 28 U.S.C. § 2107(a); Fed. R.

App. P. 4(a)(1). The district court entered its preliminary injunction order on

4


December 13, 2010. CRIER 42. Defendants timely appealed that order on January

10,2011. CR/ER47.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

The issue on appeal in this case is whether the district court erred in ruling

that Hawai ‘i violates the Equal Protection clause when it creates a programjustfor

aliens to lessen the discriminatory impact of thefederal government’s Medicaid

alienage discrimination, simply because its state-funded program doesn’t

completely make up for the federal government’s Medicaid program

discrimination.

The district court ruled on this constitutional question in two orders: the

order denying the Department’s motion to dismiss, which concluded that strict

scrutiny standard of review applied, and the order granting Plaintiffs’ motion for

preliminary injunction, which contained no analysis of the standard of review, but

incorporated the court’s earlier finding of strict scrutiny. ER/CR 30 (dismiss

order) and ER/CR 42 (inj. order).

Pertinent statutes that are not quoted verbatim in this brief and pertinent

portions of the Compacts of Free Association are attached as an Addendum to this

brief.

5


STANDARD OF REVIEW

“We review the district court’s decision to grant or deny a preliminary

injunction for abuse of discretion.” Southwest Voter Registration Education

Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (citation omitted). “The

district courts interpretation of the underlying legal principles, however, is subject

to de novo review and a district court abuses its discretion when it makes an error

of law.” Id. (citation omitted).

STATEMENT OF CASE

This case raises the question whether the State may voluntarily provide

COFA Residents -- who are barred byfederal law from receiving federal public

benefits such as Medicaid -- with a state-funded alien-only benefit (not available to

citizens) that is less than the benefits available to citizens underfederal Medicaid,

without violating their right to equal protection under the Fourteenth Amendment

of the United States Constitution. It is federal law that bars the aliens from

receiving the higher federal Medicaid benefits. The State could have done nothing,

but instead voluntarily chose to provide alien COFA Residents with some state

funded benefits to mitigate some of the impact of thefederal Medicaid

discrimination.

6


Plaintiffs, who are COFA Residents, filed a class action lawsuit against the

Department in August 2010. CRIER 1 (complaint). Plaintiffs set forth three

causes of action, for violation of (1) the equal protection clause of the fourteenth

amendment of the U.S. Constitution, (2) the Americans with Disabilities Act, and

(3) article I, sections 2 and 5 of the Constitution of the State of Hawai’i. Id. at 18-

21. Plaintiffs dropped their State constitutional claim. CR/ER 10-1 at 1, n. 1

(prelirn. inj. mtn.) (“Plaintiffs intend to dismiss their claim premised on the

Constitution of the State of Hawai’i.”) Plaintiffs sought declaratory and injunctive

relief. CR/ER 1 at 21-22 (complaint).

In September 2010, the Department filed a Motion to Dismiss and Plaintiffs

filed a Motioi for Preliminary Injunction.6 CR 8, 10. The parties stipulated that

the action be certified and maintained as a class action pursuant to FRCP 23(a), as

to the COFA Residents only, with the named Plaintiffs as class representatives.

CR/ER 37 (stip. re class).

The complaint also asserted claims on behalf of permanent resident aliens whohave resided in the United States for less than five years (New Residents), but therewas no named Plaintiff representing the class of New Residents. Plaintiffswithdrew their request for interim injunctive relief relating to the New Residents,without prejudice. CR/ER 32 (notice of withdrawal of inj. relief).

6 Per Circuit Rule 30-1.5, the memoranda of law filed in support of these motionshave not been included in the excerpts of record, except those specific portions ofthe memoranda that may otherwise be required under Circuit Rule 30-1.

7


The district court denied the Department’s Motion to Dismiss by Order on

November 10, 2010, and granted Plaintiffs’ Motion for Preliminary Injunction on

December 13, 2010, both as to COFA Residents only. CRIER 30 (dismiss order),

42 (inj. order).

STATEMENT OF FACTS

A. COFA Residents Used to be Eligible for Federal Medicaid

The Medicaid program is “a cooperative federal-state program that directs

federal funding to states to assist them in providing medical assistance to low-

income individuals.” Ball v. Rodgers, 492 F.3d 1094, 1098 (9th Cir. 2007)

(citation and quotation marks omitted). “A state is not required to participate in

Medicaid, but once it chooses to do so, it must create a plan that conforms to the

requirements of the Medicaid statute and the federal Medicaid regulations.” Dep’t

of Health Servs. v. Sec’y of Health & Human Servs., 823 F.2d 323, 325 (9th Cir.

1987). In return for its conformity with federal requirements, participating state

governments get substantial reimbursement from the federal government to

subsidize the cost of the program. Spry v. Thompson, 487 F.3d 1272, 1273 (9th

Cir. 2007); Children’s Hosp. & Health Ctr. v. Belshe, 188 F.3d 1090, 1093 (9th

Cir. 1999); K & A Radiologic Technology Services, Inc. v. Comm’r of the Dept. of

Health, 189 F.3d 273, 277 (2d Cir. 1999). The Department is authorized by State

statute to “[a]dminister the medical assistance programs for eligible public welfare

8


and other medically needy individuals.. . and assuring compliance with federal

requirements to maximize federal financial participation.” Haw. Rev. Stat. § 346-

14(7).

Before August 1996, COFA Residents were eligible for federal Medicaid

benefits because the eligibility rules for the federal Medicaid program did not

discriminate in any way against lawfully-admitted alien residents, including COFA

Residents. CR/ER 37 at 3 (stip. re class).

B. The Welfare Reform Act Limited COFA Residents’ Access to Federal andState Public Benefits

In August 1996, Congress enacted the Personal Responsibility and Work

Opportunity Reconciliation Act of 1996, P.L. 104-193, August 22, 1996, title IV,

codified at 8 U.S.C. § 1601 et seq. (Welfare Reform Act), which imposed

limitations on the availability of Medicaid benefits to aliens. “Congress included

several statements regarding national immigration policy indicating that Congress

favored self-sufficiency by immigrants, immigrants were applying for and

receiving public assistance at greater rates and, through the Welfare Reform Act,

Congress intended to discourage immigrants from relying on publicly funded

assistance.” Hong Pham v. Starkowski, 16 A.3d 635 (Conn. 2011) (hereinafter

Hong Pham 2011), citing 8 U.S.C. § 1601.

The Welfare Reform Act created two classes of aliens. The first, “qualified

aliens,” generally includes aliens lawfully admitted to the United States for

9


permanent residence and those admitted pursuant to certain statutes.7 8 U.S.C. §

1641(b). Subject to certain exceptions, qualified aliens are not eligible for any

Federal means-tested public benefit, such as Medicaid, for a period of five years

after the alien’s date of entry into the United States (the five year rule). 8 U.S.C. §

1613.

Any alien who does not meet the definition of a qualified alien is a

nonqualified alien. 8 U.S.C. § 1641(b). “Nonimmigrants” do not meet the

definition of a qualified alien and are, therefore, nonqualified aliens. With certain

exceptions, all nonqualified aliens are ineligible for federal public benefits,

including federal Medicaid. 8 U.S.C. § 1611(a) and (b).

If a State has a state benefit program, then it must include certain groups of

aliens, and may include others. 8 U.S.C. § 1622(a) (“a State is authorized to

determine the eligibility for any State public benefits” of qualified aliens,

nonimmigrants and parolees for state public benefits); 8 U.S.C. § 1622(b) (listing

categories of aliens that “shall be eligible for any State public benefits.”)

COFA Residents who enter the United States under the Compacts are

admitted to work and establish residence as a “nonimmigrant” without regard to

Qualified aliens include legal permanent residents, refugees, asylees, certainparolees, aliens whose deportation is being withheld, aliens granted conditionalentry, Cuban or Haitian entrants, and certain battered aliens. 8 U.S.C. § 164 1(b)and (c).

10


provisions of the Immigration and Nationality Act (INA) relating to labor

certification and nonimmigrant visas. 2003 Compact, sec. 141(a) and (d); see,

also, Palau Compact sec. 14 1(a). A nonimmigrant alien is a person admitted to

the United States for a temporary period of time and for a specific purpose, as set

forth in the INA. 8 U.S.C. § 1 lOl(a)(15) (defining the term “nonimmigrants” to

include representatives of foreign governments, foreign students, tourists, and

others). The Department of Homeland Security has confirmed that citizens of the

Freely Associated States “may reside, work and study in the United States, but they

are not ‘lawful permanent residents.” CRIER 13-5 and 13-6 at 3 (fed. Fact Sheets

re COFA Res. immig. status).

COFA Residents, as nonimmigrants, are nonqualified aliens, and thus are

not eligible for federal Medicaid benefits under the Welfare Reform Act. 8 U.S.C.

§ 1611(a); see 8 U.S.C. § 1641(b). COFA Residents are not among the categories

of aliens that must be provided with state public benefits, therefore the State is not

required to provide state-funded benefits, although it may provide them if it so

chooses. 8 U.S.C. § 1622(a).

11


C. Since the Welfare Reform Act, the Department Provided Medicaid-LikeState-Funded Medical Assistance Benefits to COFA Residents, but Not toCitizens

In order to fully understand Plaintiffs’ claims in this case, it is necessary to

describe the structure of Hawai’i’s federal Medicaid and state-funded medical

assistance programs.

Hawai ‘i’s federal Medicaid program is operated pursuant to a waiver

approved by the federal government under section 1115 of the Social Security Act

(the waiver). CR/ER 29 at 3 ¶10 (stip. re coy, for COFA Res.). Originally

approved in 1993, the waiver authorized the Department to provide Medicaid

benefits through a managed care program, known as QUEST, to Medicaid

enrollees who were covered under Medicaid’s various coverage categories for

children and parents, and through fee-for-service8for other Medicaid-eligible

individuals who were aged, blind or disabled (ABD). CR/ER 13-7 at 1 ¶11 (2008

waiver). The Department also received authority to cover certain groups (with

federal funding) who were not otherwise eligible for Medicaid, known as

“demonstration-eligibles” because they are made eligible for coverage pursuant to

the section 1115 demonstration project. Id. at 5-6. The principal non-Medicaid

group eligible for QUEST coverage is non-disabled, childless adults with income

8 Fee-for-service (FFS) is a payment mechanism in which a health care provider ispaid for each individual service rendered to a patient.

12


below the federal poverty level. j Under the terms of the waiver, non-disabled

childless adults were subject to an enrollment cap. j at 8-9 ¶24.

In 1993, federal law did not bar legally resident aliens from eligibility for

federal Medicaid. Therefore, federal Medicaid benefits, including QUEST, were

available to COFA Residents who were otherwise eligible for Medicaid, and non-

disabled childless adult COFA Residents were subject to the QUEST enrollment

cap.

Over time, the waiver was amended to allow the Department to implement

QUEST-Net, a program to provide full Medicaid benefits to children and less

comprehensive benefits to adults who previously had QUEST coverage but lost

eligibility because they had too much income or assets to qualify for Medicaid.

CR/ER 37 at 4 ¶IV. QUEST-ACE (QUEST Adult Coverage Expansion) was

added to cover nondisabled childless adults who cannot be enrolled in QUEST due

to the enrollment cap. IcL at 4-5 ¶IV. And most recently, QUEST Expanded

Access (QExA) provided ABD individuals with Medicaid benefits through

managed care, similar to QUEST, with the addition of institutional and home-and

community-based long term care benefits. CR/ER 13-8 at 1, 6-7 (2013 waiver);

CR/ER 29 at 3 ¶8 (stip. re coy, for COFA Res.).

Because the Welfare Reform Act denied COFA Residents eligibility for

federal Medicaid, the terms of Hawai’i’s 1115 waiver state that the demonstration

13


eligibles for QUEST, QUEST-Net, QUEST-ACE and QExA “specifically excludes

unqualified aliens, including aliens from the Compact of Free Association

countries.” CR/ER 13-7 at 17 ¶50(c) (2008 waiver), 13-9 at 8 ¶60(c) (2013

waiver). Therefore, although the waiver does provide federal funding for some

groups not otherwise eligible for Medicaid, the terms of the waiver make clear that

there is no federal funding available for nonqualified aliens, including COFA

Residents. In short, federal law -- specifically, the Welfare Reform Act -- barred

COFA Residents from any federal Medicaid eligibility.

But rather than simply doing nothing, which was the State’s prerogative, the

State voluntarily chose to continue providing COFA Residents with the same level

of medical assistance benefits that they would have received from the federal

Medicaid program if they were U.S. citizens. CR/ER 29 at 2 ¶1 (stip. re coy, for

COFA Res.). At that time the Department did not adopt administrative rules to

create a state-funded medical assistance program. at 2 ¶2. COFA Residents

who met the income and asset eligibility requirements for Hawai ‘i’s federal

Medicaid program received the same benefits as those provided to citizens under

the Medicaid fee-for-service, QUEST, QUEST-Net, QUEST-ACE and/or QExA

programs, thus creating a “de facto” state-funded medical assistance program.

at 2 ¶93, 5. Although the services received by COFA Residents were identical to

those received by citizens under federal Medicaid programs, referred to as the “Old

14


Programs” in the lawsuit, CRIER 37 at 3-4 (stip. re class), they were not receiving

federal Medicaid, but receiving state-funded medical assistance. State-funded

medical assistance was not, and is not, available to citizens or qualified aliens

who are eligible forfederal public benefits.

D. The Department Reduced the State-Funded Alien-Only MedicalAssistance Benefit that Was Available to COFA Residents byImplementing Basic Health Hawai’i

In the face of a serious fiscal crisis, the Department implemented Basic

Health Hawai’i (BHH) on July 1, 2010, a limited state-funded medical assistance

program for COFA Residents and qualified aliens who have resided in the United

States for less than five years (New Residents). BHH generally provides less

comprehensive annual benefits than those offered to citizens through the federal

Medicaid program (implemented via Hawai’i’s QUEST and QExA Medicaid

managed care programs), as follows: 12 outpatient physician visits, 6 mental

health visits, 10 inpatient hospital days, 10 inpatient physician visits, and 4

prescription drugs per month.9 CRIER 10-14 at 1 (BHH flyer), CR/ER 24 at 4-5

9[9f 14-18 (slip, facts). Eligible COFA Residents receive emergency medical care

services, emergency dental services, and renal dialysis. CR/ER 10-14 at 1 (BHH

flyer).

The BHH benefit package is similar to the QUEST-ACE and QUEST-Netprograms for Medicaid-eligible individuals, but the QUEST-ACE and QUEST-Netprograms do not include prescription drugs. CR/ER 13-8 at 24 (2013 waiver).

15


The named plaintiffs, Tony Korab, Tojio Clanton, and Keben Enoch, are

citizens of the Republic of the Marshall Islands, and are therefore COFA

Residents. CR/ER 1 at 4915, & 5 ¶9 (complaint); CR/ER 24 at 3 ¶4 (stip. facts).

Before July 2010, Plaintiffs Korab and Clanton received state-funded

medical assistance that was equivalent to federal QExA Medicaid managed care

benefits for ABD citizens. CRIER 1 at 4 ¶6, 6 ¶10 (complaint)’0.Effective July

2010, Korab and Clanton were disenrolled from QExA and enrolled into BHH by

the Department. Id. at 5-6 ¶91 7, 11.

Plaintiff Enoch had no health coverage since September 2009. CRIER 38 at

291911-3 (stip. re Enoch). In June 2010, Enoch applied for, and was denied, federal

Medicaid benefits by the Department because of his alien status, and was not

automatically enrolled into BHH because he did not meet the requirements for

automatic enrollment. Id. at 2-3 ¶915 & 8.

E. Applying Strict Scrutiny, the District Court Preliminarily Enjoined theDepartmentfrom Implementing Basic Health Hawai ‘i

The district court assumed that the provision of a state-funded medical

assistance benefit for aliens only that was more limited than thefederal Medicaid

Old Programs available to citizens was state discrimination based on alienage.

10 The State disagrees with Plaintiffs’ characterization of QUEST ExpandedAccess (QExA) as a “state program.” $ CRIER 1 at 4916 (complaint) PlaintiffsKorab and Clanton were receiving state-funded medical assistance equivalent inbenefits to the federal QExA benefits that are available to citizens.

16


Therefore, the court determined that strict scrutiny applied, and held that the

Plaintiff COFA Residents were likely to prevail on their claim that the Department

violated their right to equal protection by providing them with limited state-funded

benefits for aliens only, even though their exclusion from the more generous Old

Programs was required by thefederal Welfare Reform Act. CR/ER 42 at 11; 30 at

28 (inj. order & dismiss order).

The district court went on to hold that the Department must “mirror the

federal eligibility requirements for Medicaid in creating BHH.” CR/ER 30 at 30

(dismiss order). In other words, the district court ruled that the Department is

constitutionally required to set up a state-only-funded program that completely

“fills the void” created by thefederal Welfare Reform Act’s discrimination against

aliens.

Pursuant to the Injunction Order, the Department has reinstated the benefits

that the COFA Residents were receiving as of June 1, 2010, and is processing

applications from COFA Residents for medical assistance without regard to

citizenship. Therefore, under the injunction, a COFA Resident who meets all

eligibility requirements, other than citizenship, may apply for and receive state

funded medical assistance that is equivalent to federal Medicaid benefits available

to a similarly situated U.S. citizen.

17


SUMMARY OF THE ARGUMENT

The district court erred in holding that the State may not reduce the level of

state-funded medical assistance benefits provided only to aliens who are barred

from federal Medicaid by the Welfare Reform Act, while continuing to provide

citizens with federal Medicaid, without violating Plaintiffs’ right to equal

protection.

In evaluating claims involving equal protection, the court must first establish

whether there is a discriminatory classification. The State’s implementation of

BHH does not discriminate against aliens, because it does not benefit citizens as

opposed to aliens. Because there is no discrimination by the State (any

discrimination is by Congress through the Welfare Reform Act), it was not

necessary for the district court to determine which standard of review applies.

But even if BHH is found to classify on the basis of alienage because it

covers only aliens that are ineligible for federal Medicaid, while citizens continue

to receive federal Medicaid benefits, then rational basis — and not strict scrutiny —

should apply. The State’s actions are consistent with the “uniform rules”

established by both the Welfare Reform Act and the Compacts, warranting rational

basis review. The uniform immigration policy established by Congress is

undermined by a finding that states must provide state-funded medical assistance

18


benefits to replace the federal Medicaid benefits that were taken away under the

Welfare Reform Act.

Ultimately, equalprotection does not require the State to replace or

maintain, at its own expense, federal Medicaid benefits that Congress took away.

Therefore, the district court erred in finding discrimination by the State when it

implemented BHH and applying strict scrutiny standard of review, which

established Plaintiffs’ likelihood of success on the merits. Accordingly, the

district court’s grant of Plaintiffs’ Motion for Preliminary Injunction is in error,

and should be reversed.

ARGUMENT

A. Basic Health Hawai ‘i Does Not Violate the Equal Protection ClauseBecause It Does Not Discriminate Against Aliens

The district court ruled that the Department discriminated against COFA

Residents based on alienage because citizens and certain aliens are eligible to

participate in federal Medicaid, while COFA Residents — who are ineligible for

federal Medicaid — are only eligible for BHH, a limited state-funded medical

assistance program for aliens only. CR/ER 30 at 27-28 (dismiss order).

Benefits received by nonqualified aliens, such as COFA Residents, under

BHH, a state-funded benefit for aliens only, cannot be compared to the benefits

available to citizens under the federal Medicaid program. The cases relied upon by

the district court involved discrimination against aliens relative to citizens in the

19


same State program. Here, thefederal government created the discrimination, and

the State gratuitously mitigated part of that discrimination by creating a state-

funded aliens only program. But the district court ruled that the state was

constitutionally required to be even more generous and to fully mitigate the federal

government’s discrimination. The district court erred in finding that the State

discriminated against aliens and, on that basis, applying strict scrutiny review.

1. Providing Aliens Who Are Barredfrom Federal Medicaid with State-Funded Alien-Only Benefits Is Not a Classification Based onAlienage.

The Fourteenth Amendment provides that “[nb state. . . shall deny to any

person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.

XIV, § 1. The word “person” in this context includes “lawfully admitted resident

aliens as well as citizens of the United States.” Graham v. Richardson, 403 U.S.

365, 371 (1971)). While equal protection directs that “all persons similarly

circumstanced shall be treated alike,” Plyler v. Doe, 457 U.S. 202, 216 (1982)

(quoting F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)), “[t]he

Constitution does not require things which are different in fact or opinion to be

treated in law as though they were the same.” RI. quoting Tigner v. Texas, 310 U.S.

141, 147 (1940). “Under traditional equal protection principles, a State retains

broad discretion to classify as long as its classification has a reasonable basis [i.e.

rational basis review].” Graham, 403 U.S. at 371 (citations omitted). However,

20


“classifications based on alienage, like those based on nationality or race, are

inherently suspect and subject to close judicial scrutiny” [i.e. strict scrutiny). Içi at

372; Nyquist v. Mauclet, 432 U.S. 1, 7 (1977); Takahashi v. Fish and Game

Comm’n., 334 U.S. 410, 420 (1948).

“In resolving [an) equal protection challenge, [the court) must first

determine what classification has been created” by the legal provision in question.

Aleman v. Glickman, 217 F.3d 1191, 1195 (9th Cir. 2000). Only then does the

court determine which level of scrutiny to apply. Here, the district court found that

the Department is making a classification based on alienage because citizens are

eligible for federal Medicaid, while COFA Residents are only eligible for a state-

funded alien-only program that provides less benefits than federal Medicaid.

CR/ER 30 at 1718 (dismiss order). This finding is without merit.

The equal protection clause does not “require the state to treat individuals in

a manner similar to how others are treated in a different program governed by a

different government.” Hong Pham 2011, 16 A.3d at 650, citing to Doe v. Comm’r

of Transitional Assistance, 773 N.E.2d 404, 411, 414 (Mass. 2002) ; Soskin v.

Reinertson, 353 F.3d 1242, 1255 (10th Cir. 2004); Khrapunskiy v. Doar, 12 N.Y.3d

478, 488-89, 909 N.E.2d 70, 76-77 (2009).”

‘ But cf. Ehrlich v. Perez, 908 A.2d 1220, 1243-44 (Md. 2006) (invalidatingstate’s decision to eliminate funding for program benefitting only aliens when

21


In Massachusetts created an alien-only cash assistance program for

qualified aliens who were made ineligible for federal Temporary Assistance for

Needy Families (TANF) assistance by the Welfare Reform Act’s five year rule, but

imposed a durational state residency requirement. Doe, 773 N.E.2d at 407. Thus,

some qualified aliens who were made ineligible for federal TANF could not

qualify for the alien-only state benefit program. The court held that the statutory

limitation was not discriminatory because

the Massachusetts Legislature was not required to establish thesupplemental program. It is also undisputed that the supplementalprogram provides no benefits for citizens, and that the only personseligible for its benefits are qualified aliens. It is therefore apparentthat the supplemental program itself does not discriminate againstaliens and in favor of citizens.

Id. at 411. The same reasoning applies here, where the entirely optional

BHH program provides no benefits for citizens, and the only persons eligible for

its benefits are aliens. Therefore, like the alien-only cash assistance program in

Doe, BHH does not discriminate against aliens and in favor of citizens.

Similarly, in Soskin, the Tenth Circuit addressed Colorado’s discretionary

election to terminating Medicaid benefits of aliens who would be eligible to

participate in Colorado’s federal Medicaid program. S Soskin, 353 F.3d at 1243.

Federal Medicaid law requires the states to cover qualified aliens who are

neitherparty contested issue of whether decision discriminated on basis ofalienage.)

22


otherwise eligible for assistance in their state Medicaid program (including

meeting the five year rule, if applicable), but affords the states the option to define

additional groups of lawfully-admitted aliens as being eligible to participate in the

federal program. Id. at 1246, citing 8 U.S.C. § 16 12(b). colorado initially elected

to cover a more expansive group of eligible aliens, but then, faced with a budget

crunch, cut back to the mandatory group of qualified aliens. Although the federal

Medicaid program serves both eligible citizens and eligible aliens, the option to

serve additional aliens only applied to, and only benefited, aliens. Under these

circumstances, Soskin followed Doe and ruled that, “[a] state’s exercise of the

federal option to include fewer aliens in its alien-only program, then, should not be

treated as discrimination against aliens as compared to citizens. That aspect of the

discrimination is Congress’s doing. “ Soskin, 353 F.3d at 1255-56. The reasoning

of Doe and Soskin regarding the absence of State discriminatory treatment between

aliens and citizens in a limitation to a program that serves only aliens fully applies

to the facts of this case, and requires the district court’s order to be reversed. Any

discrimination suffered by plaintiffs here is Congress ‘s doing, through its federal

Medicaid alien restrictions. Hawai’i could have done nothing for the excluded

aliens, as it was free to do. Instead, Hawai’i gratuitously mitigated at least some

of thefederal discrimination by providing a limited program for aliens only.

23


Rather than discriminating against aliens, Hawai ‘i’s state-only-funded program was

helping aliens.

Directly on point is the recent Connecticut Supreme Court decision in Hong

Pham 2011, which upheld the elimination of Connecticut’s State Medical

Assistance for Noncitizens Program (the program) that provided medical coverage

exclusively to certain qualified aliens who were barred from federal Medicaid.

Hong Pham 2011, 16A.3d at 635. In Hong Pham 2011,

[the State] defendant argues that [the elimination of the program] doesnot discriminate against aliens in favor of. . . citizens because onlyaliens, and not citizens, ever were eligible for [the program]. Thedefendant further contends that the trial court improperly lookedbeyond the state-funded program at issue and improperly comparedthe treatment of the class members. . . with the federal government’streatment of individuals under the separatefederal Medicaid program.The defendant maintains that, because the state does not have toremediate the effects of the federal Welfare Reform Act, the equalprotection clause does not require the states to ‘fill the gap’ incoverage for the class members that the federal government hadcreated under the Welfare Reform Act. The defendant further arguesthat, because the equal protection clause does not require the state toprovide its residents with coverage under [the alien medical program],the substantial elimination of that program cannot violate the equalprotection clause. . . . We agree with the defendant.

We conclude that, in substantially eliminating [the program],the state did not draw a classification on the basis ofalienagebecause that program does not benefit citizens as opposed to aliens.To draw a classtfication on the basis ofalienage, the state statute inquestion typically must afford some benefit to citizens but deny thatbenefit to at least some aliens because of their status as noncitizens.

at 646 (bold emphasis added).

24


Because only aliens, and not citizens, ever have benefitedfrom[the program], and because no citizens presently receive assistanceunder the program, the state is not.. . treating aliens disparately ascompared to citizens.

j at 648-649 (bold emphasis added). The Connecticut Supreme Court in Hong

Pham 2011 and the Massachusetts Supreme court in Doe agree that the State does

not classify based on alienage when aliens are eligible for an alien-only state

benefit that is not equivalent to the federal benefit available to citizens. Likewise,

BHH does not classify based on alienage since it is a state benefit for aliens only.

The district court disregarded Soskin and Doe, and instead relied upon

Aliessa v. Novello, 96 N.Y.2d 418, 754 N.E.2d 1085 (Ct. App. 2001), which

“applied strict scrutiny to a New York statute that terminated state-funded

Medicaid benefits for certain non-qualified aliens, but maintained benefits for other

aliens.”12 CR/ER 30 at 20 (dismiss order), citing Aliessa, 754 N.E.2d at 1092 (sic).

The district court’s reliance upon Aliessa is misplaced.

In addition to a federally subsidized Medicaid program, the state of New

York also had a State Medicaid program, funded entirely by the state, which

provided benefits to certain categories of individuals who are not otherwise eligible

for federal Medicaid, including legal aliens and citizens. Aliessa, 96 N.Y.2d at

12 The district court’s characterization of the case is incomplete, as Aliessa made adistinction between aliens and citizens, not just between classes of aliens. Aliessa,96 N.Y.2d at 423-424, 754 N.E.2d at 1089-90 (“New York had long provided StateMedicaid to needy recipients without distinguishing between legal aliens andcitizens. It ceased to do so ... after Congress enacted the [Welfare Reform Act].”).

25


424, 754 N.E.2d at 1089-90. Pursuant to the Welfare Reform Act, New York

excluded alien plaintiffs (which included qualified aliens and non-qualified aliens)

from the State Medicaid program, but did not exclude citizens. Id. at 427, 754

N.E.2d at 1091-92. Therefore, the court in Aliessa correctly ruled that plaintiffs

were discriminated against on the basis of alienage in violation of the equal

protection clause because the state was depriving aliens of a state benefit that the

state provided to citizens. Id. at 424, 436, 754 N.E.2d. at 1089-90, 1098.

Unlike the state of New York in Aliessa, the Department in this case did not

deprive COFA Residents of a state benefit that the state provided to citizens. The

discrimination that occurred in Aliessa did not occur here. Citizens are eligible for

the federal Medicaid program, but they were never eligible for the de facto state-

funded medical assistance program following the Welfare Reform Act, nor the

state-funded BHH program.

In fact, the New York Court of Appeals itself distinguished Aliessa in a

subsequent decision. $ Khrapunskiy, 12 N.Y.3d 478, 909 N.E.2d 70.

Khrapunskiy involved a claim by legal aliens who were barred from participating

in the federal Supplemental Security Income (SSI) program, which provided cash

payments to certain categories of needy individuals along with additional payments

funded by the state of New York (ASP) (collectively SSI/ASP). Id. at 482—83, 909

N.E.2d at 72-73. The plaintiffs were barred from receiving SSI benefits by the

26


Welfare Reform Act’ s five year rule, and were barred from receiving the ASP

payments by virtue of state law because of their ineligibility under the SSI

program. Id. Plaintiffs were, however, eligible for a “safety net assistance”

program which provided significantly less cash payments than that provided to

citizens through SSIIASP. Id., at 483, 909 N.E.2d at 73.

Like the COFA Residents, the plaintiffs in Khrapunskiy claimed that the

state violated their equal protection rights because they were provided less state-

funded benefits than similarly situated citizens who remained eligible for the

federal-state SSJJASP benefits, and claimed that the state must provide them with

benefits equivalent to that received by citizens under SSI/ASP. Id. at 483-484, 909

N.E.2d at 73.

However, the court in Khrapunskiy held that the state was under no

obligation to provide, under the state-funded SNA program, the same level of

coverage that citizens received under the federal-state SSJJASP program,

distinguishing its earlier decision in Aliessa, which involved a state-funded

program “which provided benefits to citizens but excluded assistance to aliens.” jç1

at 488-489, 909 N.E.2d at 76-77. The court determined that “strict scrutiny is to be

invoked only where a challenged law can be said to create classifications along

suspect lines. . . . Because the State did not create a program of benefits which

excluded plaintiffs, levels of scrutiny are inapplicable and there is no basis for an

27


equal protection challenge.” j at 487, 909 N.E.2d at 76. Because this case is

analogous to the facts of Khrapunskiy, not Aliessa, in that only aliens, and not

citizens, are eligible for BHH, the district court erred in finding that the State

discriminated against aliens.

2. The Past Receipt of State-Funded Alien-Only Medical AssistanceBenefits is Irrelevant to Determining Whether Reduction of ThoseBenefits Discriminates Against Aliens

The lower court observes that the Department has “treated COFA Residents

the same as citizens and other qualified aliens by allowing them access to the same

programs, with the only difference being that COFA Residents’ participation was

funded through State dollars only,” and that the Department is “only now

[singling] out COFA Residents for lesser benefits than are provided to citizens and

other classes of aliens.” CR/ER 30 at 17-18 (dismiss order). On that basis, the

district court said “the issue is not whether a state must create a benefits program

for certain groups of individuals where no program exists, but rather where a

program involving state funding already exists, whether a state may then exclude

certain groups from that program based on alienage.” Id. at 28.

Thus, when the State subsequently reduced those voluntary benefits for

aliens, the District Court saw that as state discrimination against aliens. But logic,

and caselaw, says that cannot be right. Because the State could have

constitutionally done nothing in the face of the federally-mandated discrimination

28


against aliens in the federal Medicaid program, the State surely must be able to

first voluntarily create a matching state-only-funded program for federally

excluded aliens out of its generosity, and then reduce it, or even eliminate it, later

on. To rule otherwise is to burn into law the injustice that “no good deed goes

unpunished.” See Hong Pham 2011, 16 A.3d at 661. (“If the equal protection

clause did not require the state to enact [a state-funded medical assistance program

for aliens only in the first placel, then the state’s decision to eliminate that program

or to reduce its scope does not violate the constitutional rights of those formerly

eligible for assistance under the program because the provision of public assistance

does not establish a right to continue receiving assistance.”) To so hold would

create a perverse incentive to states to never provide optional state-funded

assistance to aliens only, because once given it could never be reduced or taken

away. See Doe, 773 N.E. 2d at 414. (“In concluding that a rational basis standard

of review applies, we have also considered the context in which the supplemental

program was enacted [including] . . . the potential harm to those families if the

Legislature could only choose to create an all-or-nothing program as a remedy to

their disqualification from federally funded programs.”)

B. Even IfBasic Health Hawai’i Discriminates Against Aliens, RationalBasis Review Applies

For the reasons given above, the State did not discriminate against aliens in

favor of citizens at all. In stead, it generously made up for part of the federal

29


government’s discrimination, by creating a BHH program only for aliens such as

the COFA Residents.

But if this Court were to somehow find the State’s failure to fully make up

for Congress’s discrimination to be discrimination by the State, the district court

wrongly held that “the Defendants’ determination that COFA Residents should no

longer receive the same benefits as citizens and other aliens is subject to strict

scrutiny.” CR/ER 30 at 24 (dismiss order). Instead, rational basis review should

apply.

1. The Federal Government May Discriminate Against Aliens in FederalBenefit Programs Under Rational Basis Review

The Supreme Court held that thefederal government may treat aliens

differently from citizens in a federal benefit program so long as the classification

satisfies rational basis review. Mathews v. Diaz, 426 U.S. 67, 82-83 (1976). In

that case, the Court upheld Congress’s decision to “condition an alien’s eligibility

for participation in [Medicare]’3on continuous residence in the United States for a

five-year period and admission for permanent residence.” j at 69. The Court

emphasized Congress’s broad constitutional power over naturalization and

immigration and noted that “the responsibility for regulating the relationship

between the United States and our alien visitors has been committed to the political

13 Medicare is a federal medical insurance program established under the SocialSecurity Act. Mathews, 426 U.S. at 69-70.

30


branches of the Federal Government.” Id. at 80-81. Therefore, the Court applied

rational basis review and held that “it is unquestionably reasonable for Congress to

make an alien’s eligibility [for federal Medicare benefits) depend on both the

character and the duration of his residence.” Id. at 82-83.

Following Mathews, lower courts have uniformly applied rational basis

review to uphold federal statutes that exclude certain aliens from various state-

administered federal public benefit programs, such as Medicaid, as follows:

• Soskin, 353 F.3d at 1255 (state administration of Medicaid, finding that “the

decision to have separate programs for aliens and citizens is a Congressional

choice, subject only to rational-basis review.”);

• Doe, 773 N.E.2d at 414 (state administration of TANF (Temporary

Assistance for Needy Families), recognizing that when “citizens are eligible

to receive benefits from a different [federal) program on conditions less

restrictive than those imposed on qualified aliens [in a separate state

program, this) is a direct result of the enactment of uniform Federal policies,

subject. . . to a separate rational basis review.”);

• Lewis v. Thompson, 252 F.3d 567, 583-84 (2d Cir. 2001) (state

administered pre-natal Medicaid benefits, upholding under rational basis

review Welfare Reform Act restrictions on alien eligibility based on Welfare

Reform Act’s stated purpose of removing incentive for illegal immigration

provided by the availability of public benefits, and observing that “every

31


court of appeals to consider the [Welfare Reform) Act’s deprivation of other

government benefits to unqualified aliens has found the denial to survive

rational basis scrutiny,” (citations omitted);

• City of Chicago v. Shalala, 189 F.3d 598, 604-05 (7th Cir. 1999)

(supplemental social security income and food stamps, finding that “for

purposes of equal protection analysis, Congress’s interest in regulating the

relationship between our alien visitors and the national government ought

not to be defined in such narrow terms as to preclude application of the

rational basis test in a case such as the present one involving eligibility for

government benefits”);

• Sudomir v. McMahon, 767 F.2d 1456, 1465-66 (9th Cir. 1985) (in a state-

administered AFDC (Aid to Families with Dependent Children) program,

applying a pre-Welfare Reform Act federal statutory limitation, the Sudomir

court disagreed with alien appellants that “a state’s refusal to adopt more

liberal eligibility standards is a matter of state, not federal, policy” requiring

strict scrutiny, because “[tjo so hold would amount to compelling the states

to adopt each and every more generous classification which, on its face, is

not irrational.”).

Thus, the federal Welfare Reform Act provisions that exclude COFA

Residents from receiving state-administered federal Medicaid benefits are clearly

constitutional.

32


2. The State ‘s Actions in Following a Uniform Rule Established byCongress Respecting Aliens Will Be Subject to Rational Basis Review

While Congress’s authority to make classifications based on alienage is

clear, the court in Graham recognized in dicta that Congress may not authorize the

state’s discriminatory treatment so as to reduce the applicable standard of review.

See Graham, 403 U.S. at 382 (“... Congress does not have the power to authorize

the individual States to violate the Equal Protection Clause.”)’4 This is because

“[a] congressional enactment construed so as to permit state legislatures to adopt

divergent laws on the subject of citizenship requirements forfederally supported

welfare programs would appear to contravene this explicit constitutional

requirement of uniformity” given Congress’s constitutional authority under Art. I,

§ 8, ci. 4 “[t]o establish an uniform Rule of Naturalization . . .“. Id. The

proposition that Congress does not have the power to authorize the individual

states to violate the Equal Protection Clause, however, “is almost tautological,”

and the real question is “not whether Congress can authorize such a constitutional

violation,” but whether there is a violation “when Congress has expressed its will,”

given Congress’s plenary authority over immigration. Soskin, 353 F.3d at 1254,

(quoting Graham, 403 U.S. at 382.) Furthermore, “[wjhen Congress exercises

14 This is clearly dicta because Congress did not authorize any state discriminatorytreatment of aliens in Arizona’s federal benefit program or in Pennsylvania’s statebenefit program.

33


these powers to legislate with regard to aliens, the proper standard of judicial

review is rational-basis review. That is the lesson of Mathews.” Id. at 1255.

Thus, if the State simply follows the federal mandate -- here, by not affording

federal Medicaid benefits to COFA Residents -- which itself is justified by a

rational basis, the State has not violated the Equal Protection clause. See Plyler,

457 U.S. at 219 n. 19 (“if the Federal Government has by uniform rule prescribed

what it believes to be appropriate standards for the treatment of an alien subclass,

the States may of course, follows the federal direction.”).

Given the federal government’s plenary authority to “establish a uniform

Rule of Naturalization,” the district court recognized the “seemingly clear line

between state action that is subject to strict scrutiny on the one hand, and federal

action that is subject to rational basis review on the other,” and found that “where

Congress has established a uniform rule regarding alienage for the states to follow,

the state’s action in following Congress ‘s mandate is subject to rational basis

review.” CR/ER 30 at 14-16 (dismiss order), citing Plyler, 457 U.S. at 219, n. 19,

Sudomir, 767 F.2d at 1464-66. Thus, the State’s not providingfederal Medicaid

benefits to COFA Residents is subject to rational basis review, which is easily

satisfied here, as explained earlier.

The inquiry then turns to the separate question of the State’s action in not

fully making up for the federal government’s discrimination by providing a state

34


funded alien-only BHH program, whose benefits are less than those provided

citizens under thefederal Medicaid program. The district court went astray in

finding that the Welfare Reform Act “does not establish a uniform rule that would

subject BHH to rational basis review because the [Welfare Reform Act] does not

require that Defendants provide lesser benefits to COFA Residents than it does to

those qualified under the [federal] Old Programs.” CRIER 30 at 24 (dismiss

order).

Although it is true that the Welfare Reform Act does not prohibit Hawai’i

from voluntarily making up for Congress’s discrimination against COFA

Residents, that is beside the point. Hawai’i is not responsible for Congress’s

discrimination against COFA Residents, and Congress did not instruct Hawai’i to

do anything to make up for Congress’s discrimination. Hawai’i surely could have

done nothing in response to Congress’s discrimination. Instead, it voluntarily made

up for part of Congress’s discrimination by providing state-funded medical

assistance, which was not available to citizens. A state does not discriminate

against aliens when, in response to the federal discrimination, it then voluntarily

provides state-funded benefits only to aliens who are excluded from federal

Medicaid due to the Welfare Reform Act. Any discrimination was Congress’s

doing. Soskin, 353 F.3d at 1255-56. Because BHH did not discriminate against

aliens and in favor of citizens, the State’s action in not completely making up for

35


Congress’s discrimination is constitutional, and not subject to any standard of

review. See infra p. 24.

The district court determined that BHH classifies individuals based on

alienage — “citizens and qualified residents receive benefits under the [federal] Old

Programs, while COFA Residents are eligible for BHH only,” CR/ER 30 at 17

(dismiss order), reasoning that the Welfare Reform Act’s grant of discretion to the

states “to determine for itself the extent to which it will discriminate against legal

aliens for State Medicaid eligibility” violated the uniformity requirement because it

allowed different states to do different things. at 20-21, citing Aliessa, 96

N.Y.2d at 433, 435. Of course, the fundamental flaw in the district court’s analysis

is its assumption that the State - as opposed to the federal government -- is

discriminating at all against aliens, as explained above. But even if we assume,

arguendo, that the State is discriminating against aliens by not fully making up for

Congress’s discrimination, the rational basis test is the appropriate standard, not

strict scrutiny.

The uniform rule does not require a total lack of discretion on the part of the

state. Certain groups of qualified aliens “shall be” eligible for state public benefits,

8 U.S.C. § 1622, but the State may include others. 8 U.S.C. § 1624. Further, “a

State that chooses to follow the Federal classification in determining the eligibility

of such aliens for public assistance shall be considered to have chosen the least

36


restrictive means available for achieving the compelling governmental interest of

assuring that aliens be self-reliant in accordance with national immigration policy.”

8 U.S.C. § 1601(7).

Therefore, this grant of discretion to the states with respect to state benefits

is not unconstitutional provided the states do not discriminate against aliens in the

provision of those state benefits. As already noted, there is no discrimination by

the State of Hawai’i because it is not providing a benefit to citizens that it

withholds from aliens. Hawai’i providesfederal Medicaid to citizens, and state-

funded medical assistance to only aliens.

The District Court concludes that the broad grant of discretion in the

Welfare Reform Act “creates neither a federal classification nor a uniform federal

policy because the states can do as they please regarding these individuals — under

the [Welfare Reform Act], states may provides these individuals with no benefits,

some benefits, or the same benefits provided to citizens and qualified aliens.”

CR/ER 30 at 23. The logical extension of the District Court’s characterization of

the “uniform rule” is that the state’s choice to exercise its discretion under the

Welfare Reform Act and not provide any state-funded medical assistance must be

subject to strict scrutiny. Therefore, every state would, in essence, be required to

fill the gap created by the Welfare Reform Act and provide — entirely at the State’s

37


expense — benefits equivalent to the federal benefits that aliens lost under the

Welfare Reform Act.

The district court discounted the decisions in Soskin and Doe, which found

the Colorado and Massachusetts laws in question subject to rational basis review,

and credited Hong Pham v. Starkowski, 2009 WL 5698062 (Conn. Super. 2009)

(“Hong Pham 2009,” a lower state court ruling), Ehrlich, and Aliessa, which held

that the Welfare Reform Act prescribes no uniform rule and the state law in

question terminating or denying benefits to legal aliens was subject to strict

scrutiny. CR/ER 30 at 18-19 (dismiss order).

The district court’s reliance on the latter three cases is without basis. Hong

Pham 2009 was recently overturned by a unanimous Connecticut Supreme Court,

which not only rejected strict scrutiny, but found no state discrimination at all. See

Hong Pham 2011, 16 A.3d at 646. The Connecticut legislature enacted statutes

that effectively terminated certain state-funded medical assistance for needy legal

immigrants who were barred from federal Medicaid by the Welfare Reform Act’s

five year rule. at 637. The Connecticut Supreme court in Hong Pham 2011

held that the state “did not draw a classification based on alienage because [the

state-funded medical assistance] program does not benefit citizens as opposed to

aliens. To draw a classification on the basis of alienage, the state statute in

question must afford some benefit to citizens but deny that benefit to at least some

38


aliens because of their status as noncitizens.” Id. at 646. Like BHH in this case,

the state medical assistance program in Connecticut “provides assistance only to

aliens who are barred by the federal government from participating in federal

Medicaid,” and never provided benefits to citizens because citizens were never

eligible for the program. at 648.

The Hong Pham 2011 court reasoned that

if any state establishes a program to benefit only aliens, any attempt toeliminate or reduce the benefit provided only to aliens under thatprogram would [under plaintiffs’ incorrect view] be subject to strictscrutiny review simply because such action necessarily will harm onlyaliens, regardless of how aliens are treated as compared to citizens.

This argument, then, is more akin to a [baseless] due processargument, i.e., that once the state has provided assistance to a certainclass, it is forever barred from eliminating or diminishing thatassistance.

Id. at648 n. 23.

The plaintiffs in this case similarly argue, and the district court agreed, that

the prior provision of a state-funded medical assistance benefit only for aliens

requires that the reduction of that benefit — which necessarily affects only aliens —

is a classification based on alienage that is subject to strict scrutiny review. CR/ER

30 at 28 (dismiss order). The Connecticut Supreme Court’decision in Hong Pham

2011 is well-reasoned and persuasive, and this honorable court would do well to

follow its analysis.

39


The district court’s reliance on Ehrlich is also misplaced. Following

enactment of the Welfare Reform Act, the court of appeals of Maryland considered

Maryland’s creation of a separate alien-only state medical assistance program for

aliens who became ineligible for federal Medicaid as a result of the federal five

year rule. Ehrlich, 908 A.2d at 1227. As a result of budget constraints, Maryland

eliminated funding for the program, effectively eliminating assistance that was

previously afforded to the plaintiffs. IcJ., at 1227-28. “The defendants in Ehrlich

did not contest the plaintiffs’ claims on the issue of discrimination but, instead,

focused exclusively on the appropriate level of judicial scrutiny.” Hong Pham

2011, 16 A.3d at 652, citing Ehrlich, 908 A.2d at 1230-32.

The Connecticut Supreme Court in Hong Pham 2011 found Ehrlich to be

unpersuasive because that case did not address the issue of discrimination,

specifically the issue of “whether the decision to eliminate funding for the alien-

only program discriminated against aliens in favor of citizens who received

coverage under federal Medicaid.” j This court should likewise discount the

Maryland Court of Appeals’ decision in Ehrlich, which was rooted in Maryland’s

failure to contest the critical issue.

Finally, as noted above, the state of New York in Aliessa discriminated

against aliens in favor of citizens within a wholly state-funded and state controlled

public assistance program, and did not involve the treatment of aliens under a

40


state-funded alien-only program. Aliessa, 96 N.Y.2d at 424, 754 N.E.2d at 1089-

90, fn. 3. Therefore, any discussion of the uniform rule in Aliessa cannot be

extended to this case, in which the COFA Residents are eligible for a state-funded

alien-only program. Moreover, the district court’s reliance on Aliessa is

questionable given that the New York Court of Appeals itself distinguished Aliessa

on that very point in a subsequent decision. $. Khrapunskiy, 12 N.Y.3d 478, 488,

909 N.E.2d 70, 76-77 (distinguishing Aliessa because in Aliessa the state-funded

program provided benefits to citizens but excluded assistance to aliens).

The district court relies on the Ninth Circuit’s opinion in Sudomir for the

proposition that the uniformity requirement is met where the federal government

dictates “both what the states may or may not do” regarding the classification of

aliens in state programs. CR/ER 30 at 22 (dismiss order). The district court reads

the court’s decision in Sudomir too broadly.

Sudomir involved the Aid to Families with Dependent Children (AFDC)

program, a federal-state program established by Congress to furnish financial

assistance to certain needy families with dependent children. Sudomir, 767 F.2d at

1457. With certain qualifications, only citizens, permanent resident aliens, and

aliens “otherwise permanently residing in the United States under color of law” are

eligible for AFDC benefits. The issue in Sudomir hinged on whether plaintiffs,

aliens illegally present in the U.S. whose deportation proceedings were stayed

41


pending action on their applications for asylum, were permanently residing in the

country under color of law. j.ç1 at 1459. The Secretary of the U.S. Department of

Health and Human Services (the Secretary) denied plaintiffs’ applications for

AFDC benefits on the basis that an application for asylum does not “confer any

status or right to reside in the United States permanently” and, therefore, asylum

applicants are not permanently residing under color of law. Id. at 1460.

Concluding that the Secretary’s construction of the statute was permissible,

the Sudomir court found that California had “employed both a federal

classification and a uniform policy regarding the appropriate treatment of a

particular subclass of aliens,” which was subject to rational basis review. i at

1466. This was because the state was required to follow federal eligibility

restrictions for the federal-state AFDC program. Likewise, the State of Hawai ‘i is

required to follow federal eligibility restrictions for its federal-state Medicaid

program. Clearly, rational basis review applies to the State’s exclusion of COFA

Residents from its Medicaid program.

The district court extended the holding in Sudomir to apply to a state public

benefit such as BHH, stating that the AFDC statute in Sudomir dictates particular

state action as to aliens for state public benefits, unlike the Welfare Reform Act in

this case. CRIER 30 at 23 (dismiss order). This is incorrect. The AFDC benefits

are not a state public benefit, but are a federal public benefit, and therefore the

42


issue of whether the AFDC statute dictated particular state action as to aliens for

state public benefits was not before the Sudomir court. j at 1457.

Sudomir is instructive, however, in recognizing that states may not employ

“the federal classification ‘for its own discriminatory policy.” Sudomir, 767 F.2d

at 1466, quoting Plyler, 457 U.S. at 226.

In Plyler, the Supreme Court held that a Texas statute withholding state

funds from local school districts for the education of illegal alien children and

authorizing the school districts to deny enrollment to such children, violated their

right to equal protection. Plyler, 457 U.S. at 224-230. Once again, Plyer is

distinguishable because in Plyler certain aliens (illegal ones) were excluded from

the public schools, while citizen children were eligible to attend public school. (In

Hawai’i, citizens are not eligible for BHH.) The court in Plyler did not find

Congressional intent to withhold basic education from the children of illegal aliens,

and therefore it was the state’s choice — with no federal direction — to bar alien

children from the same state benefit that was made available to citizens. Id. at

226.

Whether a policy is discriminatory must be determined by looking at how

aliens are treated relative to citizens in the same program. There is no State

discrimination when the state creates a limited state-funded benefit for COFA

Residents that is not available at all to citizens. Therefore, even if the Department

43


had followed the federal classification under the Welfare Reform Act and

eliminated the Medicaid-like state-funded medical assistance benefits for COFA

Residents, rather than just reduced them, the Department would not be employing

the federal classification for its own “discriminatory policy.’ For the State, in

creating BHH for certain aliens, is not discriminating against aliens in favor of

citizens at all.

Notably, the court in Sudomir disagreed with the plaintiffs in that case, who

argued that nothing prevents a state from adopting more liberal eligibility standards

than the federal standards as long as the benefits are fully state-funded, and that the

state’s refusal to adopt more liberal eligibility standards is a matter of state, not

federal, policy, and therefore subject to strict or intermediate scrutiny. Sudomir,

767 F.2d at 1465 (citations omitted); see CR/ER 16 at 11 (P1. Reply to Opp. to

Mtn. for Prelim. Inj.). “To so hold would amount to compelling the states to adopt

each and every more generous classification which, on its face, is not irrational.”

Id. at 1466. Consequently, if any standard of review is to apply, rational basis, not

strict scrutiny, is the appropriate standard.

3. The State ‘s Implementation ofBasic Health Hawai ‘i Satisfies RationalBasis Review

Again assuming, arguendo, that BHH discriminates against aliens,

Defendants’ decision to provide nonqualified aliens with less benefits than the

federal Medicaid program provides to those who are eligible for it satisfies rational

44


basis review. “[R]ational-basis review in equal protection analysis is not a license

for courts to judge the wisdom, fairness, or logic” of government choices. Heller

v. Doe, 509 U.S. 312, 319 (1993). Therefore, the state’s decision to provide health

benefits to nonqualified aliens through BHH must be upheld “if there is a rational

relationship between the disparity of treatment and some legitimate governmental

purpose.” jçj. at 320.

Furthermore, a State “that creates these categories need not actually

articulate at any time the purpose or rationale supporting its classification.” Id.

(quotation omitted). Rather, a classification “must be upheld against equal

protection challenge if there is any reasonably conceivable state of facts that could

provide a rational basis for the classification.” FCC v. Beach Communications,

Inc., 508 U.S. 307, 313 (1993). The state “has no obligation to produce evidence

to sustain the rationality of a statutory classification”; “[t]he burden is on

[Plaintiffs] to negative every conceivable basis which might support it.” Heller,

509 U.S. at 320.

Although it was under no legal obligation to do so, Hawai’i chose to use

state funds to provide health benefits to COFA Residents through BHH. While not

as comprehensive as the full Medicaid package, it is not illegitimate for the State,

in making this determination, to take into account its current budget situation,

given Congress’s goal in the Welfare Reform Act that “individual aliens not

burden the public benefits system.” 8 U.S.C. § 1601(4); see also Soskin, 353 F.3d

45


at 1255 (“In exercising that discretion each state is to make its own assessment of

whether it can bear the burden of providing any optional coverage. When a state

determines that the burden is too high and decides against optional coverage, it is

addressing the Congressional concern (not just a parochial state concern) that

‘individual aliens not burden the public benefits system.’ 8 U.S.C. § 1601(4). This

may be bad policy, but it is Congressional policy; and we review it only to

determine whether it is rational.”). The state’s decision to transfer COFA

Residents to BHH was rationally related to these legitimate state and federal

governmental interests. Therefore, the state has satisfied rational basis review and

has not violated Plaintiffs’ rights under the Equal Protection Clause.

4. Only When the State Classifies Based on Alienage Within a PrograinWill Strict Scrutiny Apply

The district court cites to several cases for the proposition that “in general,

state classifications based on alienage are subject to strict scrutiny.” CR/ER 30 at

10-11 (dismiss order). However, each of those cases involved situations where the

state denied aliens access to a program or benefit that the state made available to

citizens under the same statutes: Bernal v. Fainter, 467 U.S. 216 (1984)

(certification for notaries public), Nyciuist v. Mauclet, 432 U.S. 1 (eligibility for

college scholarships), Examining Bd. of Engineers, Architects & Surveyors v.

Flores de Otero, 426 U.S. 572 (1976) (civil engineering licensure), In re Griffiths,

413 U.S. 717 (1973) (qualification to take the bar examination), Takahashi v. Fish

46


& Game Comm’n., 334 U.S. 410 (1948) (issuance of fishing licenses), and

Graham, 403 U.S. 365 (state and federal welfare benefits). CR/ER 30 at 10-1 1

(dismiss order).

In each case, at least certain groups of aliens were discriminated against in

comparison to how citizens were treated under the same statute. None of these

cases involved treatment of aliens in an alien-only state program that differed from

treatment of citizens in a separate federal program. Therefore, none of these cases

support the district court’s conclusion that the State’s “implementation of the

[federal] Old Programs and BHH classify individuals based on alienage.” CR/ER

30 at 27 (dismiss order). The federal Old Programs discriminated against aliens,

but the State did not; instead it mitigated part of the federal government’s

discrimination.

The district court relied heavily on the U.S. Supreme Court’s Graham case,

even though the facts of Graham are clearly distinguishable, since the states in

Graham treated aliens differently from citizens within the same program. The

Graham case was decided in 1971, before enactment of the Welfare Reform Act, at

which time there was no federal prohibition on the receipt of federal or state public

benefits by aliens. Graham resolved a consolidated appeal of two cases in which

legal aliens challenged welfare programs in Arizona and Pennsylvania on equal

protection grounds. Graham, 403 U.S. at 366-69. Arizna limited eligibility for

47


federally funded categorical assistance benefits for persons who were disabled, in

need of old-age assistance, or blind, to U.S. citizens and persons who had resided

in the U.S. for at least 15 years. Id. at 366-67. Pennsylvania limited eligibility for

a state-funded welfare program to residents who were U.S. citizens or who had

filed a declaration of intention to become citizens. Id. at 368. The Supreme Court

observed that “the Arizona and Pennsylvania statutes in question create two classes

of needy persons, indistinguishable except with respect to whether they are or are

not citizens of this country.” Id. at 371. Consequently, the Court reviewed these

classifications under strict scrutiny and concluded “a state statute that denies

welfare benefits to resident aliens and one that denies them to aliens who have not

resided in the United States for a specified number of years violate (sic) the Equal

Protection Clause.” RI. at 376.

Although Arizona’s program was a federal public benefit, and

Pennsylvania’s was a state public benefit, the common thread between the two was

that each program was also available to citizens. Accordingly, the Arizona and

Pennsylvania statutes granted a welfare benefit to citizens, but not to some or all

aliens. Id.,at37l.

Before the Welfare Reform Act, there was no directive from the federal

government to restrict public benefits to aliens. Therefore, it was Arizona and

Pennsylvania, and not the federal government, which imposed more restrictive

48


eligibility requirements on aliens than they did on citizens who were applying for

the same general assistance programs.’5 The state of Hawai’i, on the other hand,

does not treat aliens less favorably than citizens. Rather, it was Congress that did

so through the Welfare Reform Act: citizens and certain qualified aliens are

eligible for federal Medicaid, and nonqualified aliens are not eligible for federal

Medicaid. 8 U.S.C. § 1611. Hawai’i actually voluntarily helps aliens through

BHH, a program not available to citizens.

Therefore, the district court misconstrues Graham’s general admonition that

“a state statute that denies welfare benefits to resident aliens and one that denies

them to aliens who have not resided in the United States for a specified number of

years violate the Equal Protection clause.” CR/ER 30 at 12 (dismiss order),

quoting Graham, 403 U.S. at 376. As noted above, Graham involved statutes that

denied benefits to aliens while at the same time providing benefits to citizens. The

district court’s extension of this holding to apply to BHH -- a state program that

provides benefits only to aliens — is in error.

15 Pennsylvania’s discrimination against aliens in its state-funded generalassistance program would, even post-Welfare Reform Act, violate equalprotection.

49


C. The Rational Basis Test Also Applies Because the Federal GovernmentEstablished a Uniform Rule Relating to COFA Residents’ Conditions ofEntry Under the Compacts

As will be demonstrated below, the federal government, in designing the

Compacts, set forth a de facto uniform policy of encouraging self-sufficiency of

COFA Residents and not involuntarily burdening states with having to provide

public benefits to COFA Residents. Hawai’i’ s decision, therefore, to provide

COFA Residents with BHH, but not all of the benefits Congress provided to

citizens under Federal Medicaid, was consistent with this uniform federal policy,

and is thus reviewable under the rational basis test.

This Court must take into consideration the restrictions and conditions of

entry into the United States imposed on COFA Residents by Congress through the

Compacts. Significantly, Congress did not intend for the Compacts to result in any

adverse economic impact to affected jurisdictions,’6including Hawai’i. , 2003

Compact, sec. 104(e). In fact, the 2003 Compact expressly states that a COFA

Resident “who cannot show that he or she has sufficient means of support in the

United States, is deportable.” 2003 Compact, sec. 141(0(1). Given this clear

federal mandate, federal policy under the 2003 Compact is inconsistent with the

notion that States may be forced, against their will, to provide the full complement

16 The “affected jurisdictions” under the Compacts include the state of Hawai ‘i,Guam, American Samoa, and the Commonwealth of the Northern MarianasIslands. CR/ER 24 at 3, ¶8; 2003 Compact, sec. 104(e)(1).

50


of healthcare benefits that the federal Medicaid program provides for citizens.

Hawai’i’s decision to provide limited health benefits to COFA Residents is thus

consistent with the uniform federal policy with respect to COFA Residents of not

involuntarily burdening the States with having to support COFA Residents.

Nevertheless, the state of Hawai ‘i spends in excess of $100 million on

services rendered to or on behalf of COFA Residents each year, $40 million on

health care alone through state-funded medical assistance. CR/ER 13-3 at 6 ¶9115

& 17 (Fink dec.). Plaintiffs argue that the federal government pays the State of

Hawai’i to provide health care to the COFA Residents, and that Hawai’i may “seek

additional funds for reimbursement to its health care and other institutions as a

result of increased demands related to public services provided to COFA

Residents.” CR/ER 10-1 at 29-30. This is not true.17

The Compacts provide for “Compact impact” assistance of $30 million

annually to the affected jurisdictions. 2003 Compact, sec. 104(e)(3). The State

currently receives about $11.2 million of that amount, which is only a small

In fact, the Ninth Circuit Court of Appeals ordered a case brought by Guam andHawai ‘i challenging the sufficiency of reports to be submitted by the Director ofthe Department of the Interior to Congress regarding the impact of the Compactson the affected jurisdictions be dismissed on remand, because “[a]lthough thegovernments’ complaint alleges that the Director’ s failure to submit completereports deprived them of ‘the benefit of the statutory commitment to actsympathetically and to expeditiously redress the adverse consequences fromimplementation of the Compact,’ the governments recognize that they lackstanding to contest the absence of appropriations. . .“. Guerrero v. Clinton, 157F.3d 1190, 1194 (1998).

51


fraction of the cost of providing state-funded services, including but not limited to

health care, to COFA Residents. CR/ER 13-3 at 6 ¶16 (Fink dec.). The Compacts

also include grant assistance that is provided directly to the Freely Associated

States -_ not to Hawai’i -- to address, among other things, health care in those

countries, “with priorities in the education and health care sectors.” 2003

Compact, sec. 211(a); see, also, Palau Compact sec. 211(d) (grant of $631,000

annually for fifteen years ... for health and medical programs). Specifically, this

grant assistance is made “to support and improve the delivery of preventive,

curative and environmental care and develop the human, financial, and material

resources necessary for the [FSM and RMI] to perform these services.” 2003

Compact, sec. 2ll(a)(2).

Other than the grant assistance noted above, the Palau Compact contains no

provision for health care services to its citizens within the United States. The 2003

Compact, on the other hand, has several specific, but limited, health care

provisions, addressing health care to citizens of the Freely Associated States in

their home countries and the United States, but none address the provision of state

or federal public benefits such as Medicaid.’8 Moreover, the State has no

18 The specific health care provisions in the 2003 Compact are as follows:• The RMI government may request that the United States “continue to

provide special medical care and logistical support thereto for the remainingmembers of the population of Rongelap and Utrik who were exposed to

52


enforceable right to obtain any additional funding under the Compacts.

Guerrero, 157 F.3d at 1194. Therefore, the only logical reading of the Compacts is

that COFA Residents are granted leave to work and reside in the United States,

with limited provision in the Compacts of health services in the Freely Associated

States and through federal Department of Defense facilities. One stated intent of

the Compacts is to not have “adverse consequences” to the State. Forcing Hawai’i

radiation resulting from the 1954 United States thermo-nuclear “Bravo” test...“. 2003 Compact, sec. 103(f);

• The Four Atoll Health Care Program limits services provided by the UnitedStates Public Health Service or any other United States agency pursuant tothe separate agreement between the United States and the RMI to peoples ofthe Bikini, Enewetak, Rongelap, and Utrik Atolls. S.., 2003 Compact, sec.103(h). The separate agreement was “for the just and adequate settlement ofall such claims which have arisen in regard to the Marshall Islands and itscitizens .. . for the continued administration by the Government of the UnitedStates of direct radiation related medical surveillance and treatmentprograms.” 2003 Compact, sec. 177 (emphasis added).

• Authorization for appropriations for health care reimbursement to “healthcare institutions in the affected jurisdictions for costs resulting from themigration of citizens of the RMI, FSM and Palau to the affectedjurisdictions” as a result of the Compacts, as amended. 2003 Compact, sec.104(e)(6) (emphasis added). These appropriations are directed to privatehealth care institutions, and not to the State of Hawai ‘i.

• Department of Defense medical facilities are to be made available on alimited basis “for use by citizens of the FSM and the RMI who are properlyreferred to the facilities by government authorities responsible for provisionof medical services in the FSM, RMI, Palau and the affected jurisdictions.”2003 Compact, sec. 104(e)(7)(A). The services of the National HealthService Corps are made “available to the residents of the [FSM] and the[RMI] to the same extent and for so long as such services are authorized tobe provided to persons residing in any other areas within or outside theUnited States.” 2003 Compact, sec. 104(e)(7)(B)

53


to provide even more benefits to COFA Residents in the form of increased

healthcare obligations plainly violates the federal policy of the Compacts to not

involuntarily burden the States.

Moreover, the federal policy to not involuntarily burden states with COFA

Residents public assistance obligations is made clear not only under the Compacts,

but also under the Welfare Reform Act. Congress stated in that Act that the

immigration policy of the United States is that “aliens within the Nation’s borders

not depend on public resources to meet their needs, but rather rely on their own

capabilities and the resources of their families, their sponsors, and private

organizations, and ... the availability of public benefits not constitute an incentive

for immigration to the United States.” 8 U.S.C. § 1601(2). By requiring

“sufficient means of support in the United States,” the 2003 Compact is consistent

with Congressional intent under the Welfare Reform Act, which eliminated COFA

Resident’s eligibility for federal public assistance benefits. Again, forcing

Hawai ‘i to provide even more benefits to COFA Residents completely undermines

this federal policy. Hawai ‘i’s decision to act consistently with that federal policy

can thus only be reviewed for, at most, a rational basis.

The Compacts are also consistent with Congressional intent under

immigration law. A COFA Resident entering under the Compact is admitted to the

United States as a noninmiigrant, with only the labor certification and non

54


immigrant visa requirements of the INA disregarded. 2003 Compact and Palau

Compact, sec. 141(a). Nonimniigrants are, as a general matter, individuals who

are in the United States temporarily and would not be eligible for medical

assistance benefits. See 8 U.S.C. § I 101(a)(15) (listing classes of nonimniigrant

aliens).’9

In sum, because any ruling forcing Hawai ‘i to provide even more public

health assistance to COFA Residents would violate the uniform federal policy --

explicit in both the Compacts and the Welfare Reform Act -- that the states not be

19 Plaintiffs deny that COFA Residents may enter the United States eitherunder the Compacts or through normal immigration channels. CR/ER 16 at 7, n. 5(P1. Reply to Opp. to Mtn. for Prelim. Inj.). This is not true. Admission under theCompacts is optional, not mandatory. The INA expressly applies, with limitedexceptions, to any person admitted or seeking admission to the United States underthe Compact. 2003 Compact. sec. 141(f). And the 2003 Compact provides thatcitizens of the Freely Associated States “may be admitted to, lawfully engage inoccupations, and establish residence as a nonimmigrant in the United States ...“.

2003 Compact, sec. 141(a).

Admission to the United States under the Compact does not confer on aCOFA Resident the right to establish the residence necessary for naturalizationunder the INA. See, 2003 Compact, sec. 14 1(h). However, the option to enter theUnited States freely under the Compact “shall not prevent a citizen of the [FreelyAssociated States] from otherwise acquiring such rights or lawful permanentresident alien status in the United States.”. 2003 Compact, sec. 14 1(c) Therefore,individuals who exercise the option to enter into the United States under theCompact subject themselves to the terms and conditions set forth in the Compact,and are precluded from enjoying the benefits of permanent resident alien ornaturalized citizen status. However, individuals from the Freely Associated Stateswho acquire permanent resident alien status in the United States would, after fiveyears, be eligible for federal public benefits to the same extent as citizens and otherqualified aliens.

55


involuntarily burdened by COFA Residents, Hawai ‘i’s decision to provide only

some health assistance to COFA Residents is at most reviewable for a rational

basis.

CONCLUSION

Hawai’i has not discriminated against aliens at all, as it has not created a

program that benefits citizens at the expense of aliens. Instead, faced with

federally mandated discrimination against aliens, rather than simply doing nothing

as was its prerogative, the State voluntarily and gratuitously chose to mitigate the

federal government’s discrimination by creating a program for aliens only. This is

not discrimination by Hawai’i at all, and thus no equal protection scrutiny is

warranted.

But even if one assumes, arguendo, that Hawai’i’s decision not to completely

make up for Congress’s discrimination is discrimination by Hawai’i, that decision

must be reviewed under the rational basis test, as the uniform federal policy that

can be derived from federal law is that Congress did not intend states to be

involuntarily burdened by having to provide public assistance benefits to COFA

Residents. Because Hawai ‘i acts rationally in not subjecting itself to the financial

burdens Congress never intended to force upon any State, plaintiffs’ equal

protection challenge must be rejected.

56


Accordingly, the State respectfully requests that the district court’s order

granting plaintiffs’ motion for preliminary injunction be REVERSED.

DATED: Honolulu, Hawai’i, June 20, 2011.

STATE OF HAWAI’IDAVID LOUIEAttorney GeneralState of Hawai ‘i

Is! Lee Ann N.M. BrewerLEE-ANN N.M. BREWERJOHN F. MOLAYDeputy Attorneys General

Attorney for Defendants-AppellantsPatricia McManaman and Kenneth Fink

57


CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 13,861 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft Word,

Times New Roman, 14 point.

DATED: Honolulu, Hawai’i, June 20, 2011.

STATE OF HAWAI’IDAVID LOUIEAttorney GeneralState of Hawai’i

/s/ Lee Ann N.M. BrewerHEIDI M. RIANLEE-ANN N.M. BREWERJOHN F. MOLAYDeputy Attorneys General

Attorneys for Defendants-AppellantsPatricia McManaman and Kenneth Fink

58


STATEMENT OF RELATED CASES

(Circuit Rule 28-2.6)

Defendants-Appellants are aware of one case, Pimentel v. Dreyfus, Ninth

Circuit Court of Appeals No. 11-35237, currently pending before this Court, which

raises closely related issues under the equal protection clause of the Fourteenth

Amendment to the United States Constitution.

In Pimentel, the State of Washington provided state-funded food assistance

to legal immigrants who are not eligible for federally-funded food assistance solely

due to their alien status. Similar to Hawai’i’s reduction of state-funded medical

assistance for only aliens, Washington eliminated its state food assistance program

for aliens. The district court in Pimentel enjoined the state from terminating the

state-funded food assistance program, concluding that the state’s elimination of the

state benefit for the alien class while continuing to administer the federal benefit

program for citizens and other legal immigrants discriminates based on alienage

and violates Equal Protection.

59


GLOSSARY

• ABD — Aged, blind, or disabled

• BHH — Basic Health Hawai ‘i, the state-funded medical assistance programfor only aliens who are barred by the Welfare Reform Act from participationin federal Medicaid.

• COFA Residents — Citizens of the Federated States of Micronesia, Republicof the Marshall Islands, and Republic of Palau, who enter the United Statesunder a Compact of Free Association and reside in Hawai’i.

• Freely Associated States — The Federated States of Micronesia, Republic ofthe Marshall Islands, and the Republic of Palau.

• FSM — Federated States of Micronesia

• New Residents — Permanent resident aliens who have resided in the UnitedStates for less than five years.

• QExA — QUEST Expanded Access. Hawai ‘i’s Medicaid managed careprogram for ABD individuals, operated pursuant to a waiver approved bythe federal government under section 1115 of the Social Security Act.QExA provides similar benefits as the QUEST program for non-ABDindividuals, but with the addition of long term care benefits.

• QUEST — Hawai ‘i’s Medicaid managed care program for non-ABDindividuals, which generally includes children and their parents. QUESTalso covers non-disabled, childless adults, subject to an enrollment cap.

• QUEST-ACE — QUEST Adult Coverage Expansion, a Medicaid waiverprogram that covers non-disabled childless adults who cannot be enrolled inQUEST due to the enrollment cap.

• QUEST-Net — Provides full Medicaid benefits to children and lesscomprehensive benefits to adults who previously had QUEST coverage butlost eligibility because they had too much income or assets to qualify forMedicaid.

• R1V1I — Republic of the Marshall Islands

60


• TANF — The federal Temporary Assistance for Needy Families program,which replaced AFDC (Aid to Families with Dependent Children) and otherassistance programs. The Welfare Reform Act ended federal entitlement toassistance and instead created TANF as a block grant that provides States,territories and tribes federal funds each year to provide financial assistanceand work opportunities to needy families.See http ://www.acf.hhs.gov/programs/ofaltanf/about.html

61


NO. 11-15132

ADDENDUM

Statutes

8U.S.C.11O1 18U.S.C.16O1 118U.S.C.1611 128 U.S.C. § 1612 158 U.S.C. § 1613 268 U.S.C. § 1622 298U.S.C.1624 318 U.S.C. § 1641 32Haw. Rev. Stat. § 346-14(7) 35

Compacts of Free Association

P.L. 99-658, November 14, 1986, 100 Stat 3672 (Palau Compact) 37P.L. 108-188, December 17, 2003, 117 Stat 2720 (2003 Compact) 41


8 U.S.C.A. § 1101

§ iioi. Definitions

Effective: November 30, 2010

(a) As used in this chapter--

(15) The term “immigrant” means every alien except an alien who is within one of thefollowing classes of nonimmigrant aliens-

(A)(i) an ambassador, public minister, or career diplomatic or consular officer who hasbeen accredited by a foreign government, recognized de jure by the United States and whois accepted by the President or by the Secretary of State, and the members of the alien’simmediate family;

(ii) upon a basis of reciprocity, other officials and employees who have been accredited bya foreign government recognized de jure by the United States, who are accepted by theSecretary of State, and the members of their immediate families; and

(iii) upon a basis of reciprocity, attendants, servants, personal employees, and members oftheir immediate families, of the officials and employees who have a nonimmigrant statusunder (i) and (ii) above;

(B) an alien (other than one coming for the purpose of study or of performing skilled orunskilled labor or as a representative of foreign press, radio, film, or other foreigninformation media coming to engage in such vocation) having a residence in a foreigncountry which he has no intention of abandoning and who is visiting the United Statestemporarily for business or temporarily for pleasure;

(C) an alien in immediate and continuous transit through the United States, or an alien whoqualifies as a person entitled to pass in transit to and from the United Nations HeadquartersDistrict and foreign countries, under the provisions of paragraphs (3), (4), and (5) of section11 of the Headquarters Agreement with the United Nations (61 Stat. 758);

(D)(i) an alien crewman serving in good faith as such in a capacity required for normaloperation and service on board a vessel, as defined in section 1288(a) of this title (otherthan a fishing vessel having its home port or an operating base in the United States), oraircraft, who intends to land temporarily and solely in pursuit of his calling as a crewmanand to depart from the United States with the vessel or aircraft on which he arrived or someother vessel or aircraft;

ADDENDUMI


(ii) an alien crewman serving in good faith as such in any capacity required for normaloperations and service aboard a fishing vessel having its home port or an operating base inthe United States who intends to land temporarily in Guam or the Commonwealth of theNorthern Mariana Islands and solely in pursuit of his calling as a crewman and to departfrom Guam or the Commonwealth of the Northern Mariana Islands with the vessel onwhich he arrived;

(E) an alien entitled to enter the United States under and in pursuance of the provisions of atreaty of commerce and navigation between the United States and the foreign state of whichhe is a national, and the spouse and children of any such alien if accompanying orfollowing to join him; (i) solely to carry on substantial trade, including trade in services ortrade in technology, principally between the United States and the foreign state of which heis a national; (ii) solely to develop and direct the operations of an enterprise in which he hasinvested, or of an enterprise in which he is actively in the process of investing, a substantialamount of capital; or (iii) solely to perform services in a specialty occupation in the UnitedStates if the alien is a national of the Commonwealth of Australia and with respect to whomthe Secretary of Labor determines and certifies to the Secretary of Homeland Security andthe Secretary of State that the intending employer has filed with the Secretary of Labor anattestation under section 11 82(t)( 1) of this title;

(F) (i) an alien having a residence in a foreign country which he has no intention ofabandoning, who is a bona fide student qualified to pursue a full course of study and whoseeks to enter the United States temporarily and solely for the purpose of pursuing such acourse of study consistent with section 1184(1) of this title at an established college,university, seminary, conservatory, academic high school, elementary school, or otheracademic institution or in a language training program in the United States, particularlydesignated by him and approved by the Attorney General after consultation with theSecretary of Education, which institution or place of study shall have agreed to report to theAttorney General the termination of attendance of each nonimmigrant student, and if anysuch institution of learning or place of study fails to make reports promptly the approvalshall be withdrawn, (ii) the alien spouse and minor children of any alien described in clause(i) if accompanying or following to join such an alien, and (iii) an alien who is a national ofCanada or Mexico, who maintains actual residence and place of abode in the country ofnationality, who is described in clause (i) except that the alien’s qualifications for andactual course of study may be full or part-time, and who commutes to the United Statesinstitution or place of study from Canada or Mexico;

(G)(i) a designated principal resident representative of a foreign government recognized dejure by the United States, which foreign government is a member of an internationalorganization entitled to enjoy privileges, exemptions, and immunities as an internationalorganization under the International Organizations Immunities Act (59 Stat. 669)[22U.S.C.A. 288 et seq.], accredited resident members of the staff of such representatives,1

.U tti. U S Nor’

ADDENDUM2


and members of his or their immediate family;

(ii) other accredited representatives of such a foreign government to such internationalorganizations, and the members of their immediate families;

(iii) an alien able to qualify under (i) or (ii) above except for the fact that the government ofwhich such alien is an accredited representative is not recognized de jure by the UnitedStates, or that the government of which he is an accredited representative is not a memberof such international organization; and the members of his immediate family;

(iv) officers, or employees of such international organizations, and the members of theirimmediate families;

(v) attendants, servants, and personal employees of any such representative, officer, oremployee, and the members of the immediate families of such attendants, servants, andpersonal employees;

(H) an alien (i) (a) [Repealed. Pub.L. 106-95, § 2(c), Nov. 12, 1999, 113 Stat. 13161 (b)subject to section 1182(j)(2) of this title, who is coming temporarily to the United States toperform services (other than services described in subclause (a) during the period in whichsuch subclause applies and other than services described in subclause (ii)(a) or insubparagraph (0) or (P)) in a specialty occupation described in section 11 84(i)(l) of thistitle or as a fashion model, who meets the requirements for the occupation specified insection 11 84(i)(2) of this title or, in the case of a fashion model, is of distinguished meritand ability, and with respect to whom the Secretary of Labor determines and certifies to theAttorney General that the intending employer has filed with the Secretary an applicationunder section 11 82(n)( 1) of this title, or (b 1) who is entitled to enter the United Statesunder and in pursuance of the provisions of an agreement listed in section 11 84(g)(8)(A) ofthis title, who is engaged in a specialty occupation described in section 11 84(i)(3) of thistitle, and with respect to whom the Secretary of Labor determines and certifies to theSecretary of Homeland Security and the Secretary of State that the intending employer hasfiled with the Secretary of Labor an attestation under section 11 82(t)( 1) of this title, or (c)who is coming temporarily to the United States to perform services as a registered nurse,who meets the qualifications described in section 11 82(m)( 1) of this title, and with respectto whom the Secretary of Labor determines and certifies to the Attorney General that anunexpired attestation is on file and in effect under section 11 82(m)(2) of this title for thefacility (as defined in section 11 82(m)(6) of this title) for which the alien will perform theservices; or (ii)(a) having a residence in a foreign country which he has no intention ofabandoning who is coming temporarily to the United States to perform agricultural labor orservices, as defined by the Secretary of Labor in regulations and including agriculturallabor defined in section 3 121(g) of Title 26, agriculture as defined in section 203(f) of Title29, and the pressing of apples for cider on a farm, of a temporary or seasonal nature, or (b)having a residence in a foreign country which he has no intention of abandoning who is

<:j \?:.,i::.

ADDENDUM3


coming temporarily to the United States to perform other temporary service or labor ifunemployed persons capable of performing such service or labor cannot be found in thiscountry, but this clause shall not apply to graduates of medical schools coming to theUnited States to perform services as members of the medical profession; or (iii) having aresidence in a foreign country which he has no intention of abandoning who is comingtemporarily to the United States as a trainee, other than to receive graduate medicaleducation or training, in a training program that is not designed primarily to provideproductive employment; and the alien spouse and minor children of any such alienspecified in this paragraph if accompanying him or following to join him;

(I) upon a basis of reciprocity, an alien who is a bona fide representative of foreign press,radio, film, or other foreign information media, who seeks to enter the United States solelyto engage in such vocation, and the spouse and children of such a representative, ifaccompanying or following to join him;

(J) an alien having a residence in a foreign country which he has no intention ofabandoning who is a bona fide student, scholar, trainee, teacher, professor, researchassistant, specialist, or leader in a field of specialized knowledge or skill, or other person ofsimilar description, who is coming temporarily to the United States as a participant in aprogram designated by the Director of the United States Information Agency, for thepurpose of teaching, instructing or lecturing, studying, observing, conducting research,consulting, demonstrating special skills, or receiving training and who, if he is coming tothe United States to participate in a program under which he will receive graduate medicaleducation or training, also meets the requirements of section 1182(j) of this title, and thealien spouse and minor children of any such alien if accompanying him or following to joinhim;

(K) subject to subsections (d) and (p) of section 1184 of this title, an alien who-

(1) is the fiancee or fiance of a citizen of the United States (other than a citizen describedin section 1 154(a)(1)(A)(viii)(I) of this title) and who seeks to enter the United Statessolely to conclude a valid marriage with the petitioner within ninety days afteradmission;

(ii) has concluded a valid marriage with a citizen of the United States (other than acitizen described in section 11 54(a)( 1 )(A)(viii)(I) of this title) who is the petitioner, is thebeneficiary of a petition to accord a status under section 115 1(b)(2)(A)(i) of this title thatwas filed under section 1154 of this title by the petitioner, and seeks to enter the UnitedStates to await the approval of such petition and the availability to the alien of animmigrant visa; or

(iii) is the minor child of an alien described in clause (i) or (ii) and is accompanying, orfollowing to join, the alien;

ADDENDUM4


(L) subject to section 1 184(c)(2) of this title, an alien who, within 3 years preceding thetime of his application for admission into the United States, has been employedcontinuously for one year by a firm or corporation or other legal entity or an affiliate orsubsidiary thereof and who seeks to enter the United States temporarily in order to continueto render his services to the same employer or a subsidiary or affiliate thereof in a capacitythat is managerial, executive, or involves specialized knowledge, and the alien spouse andminor children of any such alien if accompanying him or following to join him;

(M) (i) an alien having a residence in a foreign country which he has no intention ofabandoning who seeks to enter the United States temporarily and solely for the purpose ofpursuing a full course of study at an established vocational or other recognizednonacademic institution (other than in a language training program) in the United Statesparticularly designated by him and approved by the Attorney General, after consultationwith the Secretary of Education, which institution shall have agreed to report to theAttorney General the termination of attendance of each nonimmigrant nonacademic studentand if any such institution fails to make reports promptly the approval shall be withdrawn,(ii) the alien spouse and minor children of any alien described in clause (i) if accompanyingor following to join such an alien, and (iii) an alien who is a national of Canada or Mexico,who maintains actual residence and place of abode in the country of nationality, who isdescribed in clause (i) except that the alien’s course of study may be full or part-time, andwho commutes to the United States institution or place of study from Canada or Mexico;

(N)(i) the parent of an alien accorded the status of special immigrant under paragraph(27)(I)(i) (or under analogous authority under paragraph (27)(L)), but only if and while thealien is a child, or

(ii) a child of such parent or of an alien accorded the status of a special immigrant underclause (ii), (iii), or (iv) of paragraph (27)(I) (or under analogous authority under paragraph(27)(L));

(0) an alien who-

(I) has extraordinary ability in the sciences, arts, education, business, or athletics whichhas been demonstrated by sustained national or international acclaim or, with regard tomotion picture and television productions a demonstrated record of extraordinaryachievement, and whose achievements have been recognized in the field throughextensive documentation, and seeks to enter the United States to continue work in thearea of extraordinary ability; or

(ii)(1) seeks to enter the United States temporarily and solely for the purpose ofaccompanying and assisting in the artistic or athletic performance by an alien who isadmitted under clause (i) for a specific event or events,

ADDENDUM5


(II) is an integral part of such actual performance,

(III) (a)has critical skills and experience with such alien which are not of a generalnature and which cannot be performed by other individuals, or (b) in the case of a motionpicture or television production, has skills and experience with such alien which are notof a general nature and which are critical either based on a pre-existing longstandingworking relationship or, with respect to the specific production, because significantproduction (including pre- and post-production work) will take place both inside andoutside the United States and the continuing participation of the alien is essential to thesuccessful completion of the production, and

(IV) has a foreign residence which the alien has no intention of abandoning; or

(iii) is the alien spouse or child of an alien described in clause (i) or (ii) and isaccompanying, or following to join, the alien;

(P) an alien having a foreign residence which the alien has no intention of abandoningwho--

(1) (a) is described in section 1 184(c)(4)(A) of this title (relating to athletes), or (b) isdescribed in section 11 84(c)(4)(B) of this title (relating to entertainment groups);

(ii)(I) performs as an artist or entertainer, individually or as part of a group, or is anintegral part of the performance of such a group. and

(II) seeks to enter the United States temporarily and solely for the purpose of performingas such an artist or entertainer or with such a group under a reciprocal exchange programwhich is between an organization or organizations in the United States and anorganization or organizations in one or more foreign states and which provides for thetemporary exchange of artists and entertainers, or groups of artists and entertainers;

(iii)(I) performs as an artist or entertainer, individually or as part of a group, or is anintegral part of the performance of such a group, and

(II) seeks to enter the United States temporarily and solely to perform, teach, or coach assuch an artist or entertainer or with such a group under a commercial or noncommercialprogram that is culturally unique; or

(iv) is the spouse or child of an alien described in clause (i), (ii), or (iii) and isaccompanying, or following to join, the alien;

(Q) an alien having a residence in a foreign country which he has no intention of

ADDENDUM6


abandoning who is coming temporarily (for a period not to exceed 15 months) to theUnited States as a participant in an international cultural exchange program approved bythe Secretary of Homeland Security for the purpose of providing practical training,employment, and the sharing of the history, culture, and traditions of the country of thealien’s nationality and who will be employed under the same wages and workingconditions as domestic workers;

(R) an alien, and the spouse and children of the alien if accompanying or following to jointhe alien, who-

(i) for the 2 years immediately preceding the time of application for admission, has beena member of a religious denomination having a bona fide nonprofit, religiousorganization in the United States; and

(ii) seeks to enter the United States for a period not to exceed 5 years to perform thework described in subclause (I), (II), or (III) of paragraph (27)(C)(ii);

(S) subject to section 1184(k) of this title, an alien-

(1) who the Attorney General determines-

(I) is in possession of critical reliable information concerning a criminal organizationor enterprise;

(II) is willing to supply or has supplied such information to Federal or State lawenforcement authorities or a Federal or State court; and

(III) whose presence in the United States the Attorney General determines is essentialto the success of an authorized criminal investigation or the successful prosecution ofan individual involved in the criminal organization or enterprise; or

(ii) who the Secretary of State and the Attorney General jointly determine-

(I) is in possession of critical reliable information concerning a terrorist organization,enterprise, or operation;

(II) is willing to supply or has supplied such information to Federal law enforcementauthorities or a Federal court;

(III) will be or has been placed in danger as a result of providing such information;and

(IV) is eligible to receive a reward under section 2708(a) of Title 22,

H.

ADDENDUM7


and, if the Attorney General (or with respect to clause (ii), the Secretary of State and theAttorney General jointly) considers it to be appropriate, the spouse, married and unmarriedsons and daughters, and parents of an alien described in clause (i) or (ii) if accompanying,or following to join, the alien;

(T)(i) subject to section 1184(o) of this title, an alien who the Secretary of HomelandSecurity, or in the case of subclause (III)(aa) the Secretary of Homeland Security, inconsultation with the Attorney General, determines-

(I) is or has been a victim of a severe form of trafficking in persons, as defined in section7102 of Title 22;

(II) is physically present in the United States, American Samoa, or the Commonwealthof the Northern Mariana Islands, or at a port of entry thereto, on account of suchtrafficking, including physical presence on account of the alien having been allowedentry into the United States for participation in investigative or judicial processesassociated with an act or a perpetrator of trafficking;

(III)(aa) has complied with any reasonable request for assistance in the Federal, State, orlocal investigation or prosecution of acts of trafficking or the investigation of crimewhere acts of trafficking are at least one central reason for the commission of that crime;

(bb) in consultation with the Attorney General, as appropriate, is unable to cooperatewith a request described in item (aa) due to physical or psychological trauma; or

(cc) has not attained 18 years of age; and

(IV) the alien would suffer extreme hardship involving unusual and severe harm uponremoval; and

(ii) if accompanying, or following to join, the alien described in clause (i)-

(I) in the case of an alien described in clause (i) who is under 21 years of age, the spouse,children, unmarried siblings under 18 years of age on the date on which such alienapplied for status under such clause, and parents of such alien;

(II) in the case of an alien described in clause (i) who is 21 years of age or older, thespouse and children of such alien; or

(III) any parent or unmarried sibling under 18 years of age of an alien described insubclause (I) or (II) who the Secretary of Homeland Security, in consultation with thelaw enforcement officer investigating a severe form of trafficking, determines faces a

ADDENDUM8


present danger of retaliation as a result of the alien’s escape from the severe form oftrafficking or cooperation with law enforcement.

(iii) Repealed. Pub.L. 110-457, Title II, § 201(a)(3), Dec. 23, 2008, 122 Stat. 5053

(U)(i) subject to section 1184(p) of this title, an alien who files a petition for status underthis subparagraph, if the Secretary of Homeland Security determines that-

(I) the alien has suffered substantial physical or mental abuse as a result of having been avictim of criminal activity described in clause (iii);

(II) the alien (or in the case of an alien child under the age of 16, the parent, guardian, ornext friend of the alien) possesses information concerning criminal activity described inclause (iii);

(III) the alien (or in the case of an alien child under the age of 16, the parent, guardian,or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful toa Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor,to a Federal or State judge, to the Service, or to other Federal, State, or local authoritiesinvestigating or prosecuting criminal activity described in clause (iii); and

(IV) the criminal activity described in clause (iii) violated the laws of the United Statesor occurred in the United States (including in Indian country and military installations)or the territories and possessions of the United States;

(ii) if accompanying, or following to join, the alien described in clause (i)-

(I) in the case of an alien described in clause (i) who is under 21 years of age, the spouse,children, unmarried siblings under 18 years of age on the date on which such alienapplied for status under such clause, and parents of such alien; or

(II) in the case of an alien described in clause (i) who is 21 years of age or older, thespouse and children of such alien; and

(iii) the criminal activity referred to in this clause is that involving one or more of thefollowing or any similar activity in violation of Federal, State, or local criminal law: rape;torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact;prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage;involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; falseimprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witnesstampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commitany of the above mentioned crimes; or

.j:r:

ADDENDUM9


(V) subject to section 1184(q) of this title, an alien who is the beneficiary (including a childof the principal alien, if eligible to receive a visa under section 1153(d) of this title) of apetition to accord a status under section 1 153(a)(2)(A) of this title that was filed with theAttorney General under section 1154 of this title on or before December 21, 2000, if-

(I) such petition has been pending for 3 years or more; or

(ii) such petition has been approved, 3 years or more have elapsed since such filing date,and--

(I) an immigrant visa is not immediately available to the alien because of a waiting listof applicants for visas under section 1 153(a)(2)(A) of this title; or

(II) the alien’s application for an immigrant visa, or the alien’s application foradjustment of status under section 1255 of this title, pursuant to the approval of suchpetition, remains pending.

ADDENDUM 10


8 U.S.C.A. § i6oi

§ 1601. Statements of national policy concerning welfare and immigrationEffective: August 22, 1996

The Congress makes the following statements concerning national policy with respect towelfare and immigration:

(1) Self-sufficiency has been a basic principle of United States immigration lawsince this country’s earliest immigration statutes.

(2) It continues to be the immigration policy of the United States that—

(A) aliens within the Nation’s borders not depend on public resources to meettheir needs, but rather rely on their own capabilities and the resources of theirfamilies, their sponsors, and private organizations, and

(B) the availability of public benefits not constitute an incentive forimmigration to the United States.

(3) Despite the principle of self-sufficiency, aliens have been applying for andreceiving public benefits from Federal, State, and local governments at increasingrates.

(4) Current eligibility rules for public assistance and unenforceable financialsupport agreements have proved wholly incapable of assuring that individualaliens not burden the public benefits system.

(5) It is a compelling government interest to enact new rules for eligibility andsponsorship agreements in order to assure that aliens be self-reliant in accordancewith national immigration policy.

(6) It is a compelling government interest to remove the incentive for illegalimmigration provided by the availability of public benefits.

(7) With respect to the State authority to make determinations concerning theeligibility of qualified aliens for public benefits in this chapter, a State that choosesto follow the Federal classification in determining the eligibility of such aliens forpublic assistance shall be considered to have chosen the least restrictive meansavailable for achieving the compelling governmental interest of assuring thataliens be self-reliant in accordance with national immigration policy.

ADDENDUM 11


8 U.S.C.A. § 1611

§ 1611. Aliens who are not qualified aliens ineligible for Federal public benefits

Effective: October 28, 1998(a) In general

Notwithstanding any other provision of law and except as provided in subsection (b) ofthis section, an alien who is not a qualified alien (as defined in section 1641 of this title)is not eligible for any Federal public benefit (as defined in subsection (c) of this section).

(b) Exceptions

(1) Subsection (a) of this section shall not apply with respect to the following Federalpublic benefits:

(A) Medical assistance under title XIX of the Social Security Act [42 U.S.C.A §1396 et seq.] (or any successor program to such title) for care and services that arenecessary for the treatment of an emergency medical condition (as defined insection l903(v)(3) of such Act [42 U.S.C.A. § 1396b(v)(3)]) of the alien involvedand are not related to an organ transplant procedure, if the alien involvedotherwise meets the eligibility requirements for medical assistance under the Stateplan approved under such title (other than the requirement of the receipt of aid orassistance under title IV of such Act [42 U.S.C.A § 601 et seq.], supplementalsecurity income benefits under title XVI of such Act [42 U.S.C.A. § 1381 et seq.],or a State supplementary payment).

(B) Short-term, non-cash, in-kind emergency disaster relief.

(C) Public health assistance (not including any assistance under title XIX of theSocial Security Act [42 U.S.C.A. § 1396 et seq.]) for immunizations with respectto immunizable diseases and for testing and treatment of symptoms ofcommunicable diseases whether or not such symptoms are caused by acommunicable disease.

(D) Programs, services, or assistance (such as soup kitchens, crisis counseling andintervention, and short-term shelter) specified by the Attorney General, in theAttorney General’s sole and unreviewable discretion after consultation withappropriate Federal agencies and departments, which (i) deliver in-kind services atthe community level, including through public or private nonprofit agencies; (ii)do not condition the provision of assistance, the amount of assistance provided, orthe cost of assistance provided on the individual recipient’s income or resources;and (iii) are necessary for the protection of life or safety.

ADDENDUM 12


(E) Programs for housing or community development assistance or financialassistance administered by the Secretary of Housing and Urban Development, anyprogram under Title V of the Housing Act of 1949 [42 U.S.C.A. § 1471 et seq.], orany assistance under section 1926c of Title 7, to the extent that the alien isreceiving such a benefit on August 22, 1996.

(2) Subsection (a) of this section shall not apply to any benefit payable under title II ofthe Social Security Act [42 U.S.C.A. § 401 et seq.] to an alien who is lawfully presentin the United States as determined by the Attorney General, to any benefit ifnonpayment of such benefit would contravene an international agreement described insection 233 of the Social Security Act [42 U.S.C.A. § 433], to any benefit ifnonpayment would be contrary to section 202(t) of the Social Security Act [42U.S.C.A. § 402(t)], or to any benefit payable under title II of the Social Security Actto which entitlement is based on an application filed in or before August 1996.

(3) Subsection (a) of this section shall not apply to any benefit payable under titleXVIII of the Social Security Act (relating to the medicare program) [42 U.S.C.A. §1395 et seq.] to an alien who is lawfully present in the United States as determined bythe Attorney General and, with respect to benefits payable under part A of such title[42 U.S.C.A. § 1395c et seq.], who was authorized to be employed with respect to anywages attributable to employment which are counted for purposes of eligibility forsuch benefits.

(4) Subsection (a) of this section shall not apply to any benefit payable under theRailroad Retirement Act of 1974 [45 U.S.C.A. § 231 et seq.] or the RailroadUnemployment Insurance Act [45 U.S.C.A. § 351 et seq.] to an alien who is lawfullypresent in the United States as determined by the Attorney General or to an alienresiding outside the United States.

(5) Subsection (a) of this section shall not apply to eligibility for benefits for theprogram defined in section 16 12(a)(3)(A) of this title (relating to the supplementalsecurity income program), or to eligibility for benefits under any other program that isbased on eligibility for benefits under the program so defined, for an alien who wasreceiving such benefits on August 22, 1996.

(c) “Federal public benefit” defined

(1) Except as provided in paragraph (2), for purposes of this chapter the term “Federalpublic benefit” means-

(A) any grant, contract, loan, professional license, or commercial license providedby an agency of the United States or by appropriated funds of the United States;

::::..j

ADDENDUM 13


and

(B) any retirement, welfare, health, disability, public or assisted housing,postsecondary education, food assistance, unemployment benefit, or any othersimilar benefit for which payments or assistance are provided to an individual,household, or family eligibility unit by an agency of the United States or byappropriated funds of the United States.

(2) Such term shall not apply--

(A) to any contract, professional license, or commercial license for anonimmigrant whose visa for entry is related to such employment in the UnitedStates, or to a citizen of a freely associated state, if section 141 of the applicablecompact of free association approved in Public Law 99-239 or 99-658 (or asuccessor provision) is in effect;

(B) with respect to benefits for an alien who as a work authorized nonimmigrant oras an alien lawfully admitted for permanent residence under the Immigration andNationality Act [8 U.S.C.A. § 1101 et seq.] qualified for such benefits and forwhom the United States under reciprocal treaty agreements is required to paybenefits, as determined by the Attorney General, after consultation with theSecretary of State; or

(C) to the issuance of a professional license to, or the renewal of a professionallicense by, a foreign national not physically present in the United States.

2f iiSfl Iurs liS. (j en.nent

Nec ) O 1 horr:sc.n Reuss. No ,aini to onano U S Gove oen ij

ADDENDUM 14


8 U.S.C.A. § 1612

§ 1612. Limited eligibility of qualified aliens for certain Federal programs

Effective: October 1, 2008

(a) Limited eligibility for specified Federal programs

(1) In general

Notwithstanding any other provision of law and except as provided in paragraph (2), an alienwho is a qualified alien (as defined in section 1641 of this title) is not eligible for any specifiedFederal program (as defined in paragraph (3)).

(2) Exceptions

(A) Time-limited exception for refugees and asylees

With respect to the specified Federal programs described in paragraph (3), paragraph (1)shall not apply to an alien until 7 years after the date-

(1) an alien is admitted to the United States as a refugee under section 207 of theImmigration and Nationality Act [8 U.S.C.A. § 1157];

(ii) an alien is granted asylum under section 208 of such Act [8 U.S.C.A. § 1158];

(iii) an alien’s deportation is withheld under section 243(h) of such Act [8 U.S.C.A. §1253] (as in effect immediately before the effective date of section 307 of division C ofPublic Law 104-208 or section 241(b)(3) of such Act [8 U.S.C.A. § 123 1(b)(3)] (asamended by section 305(a) of division C of Public Law 104-208);

(iv) an alien is granted status as a Cuban and Haitian entrant (as defined in section50 1(e) of the Refugee Education Assistance Act of 1980); or

(v) an alien is admitted to the United States as an Amerasian immigrant pursuant tosection 584 of the Foreign Operations, Export Financing, and Related ProgramsAppropriations Act, 1988 (as contained in section 101(e) of Public Law 100-202 andamended by the 9th proviso under Migration and Refugee Assistance in title II of theForeign Operations, Export Financing, and Related Programs Appropriations Act, 1989,Public Law 100-46 1, as amended).

(B) Certain permanent resident aliens

Paragraph (1) shall not apply to an alien who-

ADDENDUM 15


(i) is lawfully admitted to the United States for permanent residence under theImmigration and Nationality Act [8 U.S.C.A. § 1101 et seq.]; and

(ii) (I) has worked 40 qualifying quarters of coverage as defined under title II of theSocial Security Act [42 U.S.C.A. § 401 et seq.] or can be credited with such qualifyingquarters as provided under section 1645 of this title, and (II) in the case of any suchqualifying quarter creditable for any period beginning after December 31, 1996, did notreceive any Federal means-tested public benefit (as provided under section 1613 of thistitle) during any such period.

(C) Veteran and active duty exception

Paragraph (1) shall not apply to an alien who is lawfully residing in any State and is-

(i) a veteran (as defined in section 101, 1101, or 1301, or as described in section 107 ofTitle 38) with a discharge characterized as an honorable discharge and not on account ofalienage and who fulfills the minimum active-duty service requirements of section5303A(d) of Title 38,

(ii) on active duty (other than active duty for training) in the Armed Forces of the UnitedStates, or

(iii) the spouse or unmarried dependent child of an individual described in clause (i) or(ii) or the unrernarried surviving spouse of an individual described in clause (i) or (ii)who is deceased if the marriage fulfills the requirements of section 1304 of Title 38.

(D) Transition for aliens currently receiving benefits

(1) SSI

(I) In general

With respect to the specified Federal program described in paragraph (3)(A), duringthe period beginning on August 22, 1996, and ending on September 30, 1998, theCommissioner of Social Security shall redetermine the eligibility of any individualwho is receiving benefits under such program as of August 22, 1996, and whoseeligibility for such benefits may terminate by reason of the provisions of thissubsection.

(II) Redetermination criteria

With respect to any redetermination under subclause (I), the Commissioner of SocialSecurity shall apply the eligibility criteria for new applicants for benefits under suchprogram.

.:::i:

..

..

ADDENDUM 16


(III) Grandfather provision

The provisions of this subsection and the redetermination under subclause (I), shallonly apply with respect to the benefits of an individual described in subclause (I) formonths beginning on or after September 30, 1998.

(IV) Notice

Not later than March 31, 1997, the Commissioner of Social Security shall notify anindividual described in subclause (I) of the provisions of this clause.

(ii) Food stamps

(I) In general

With respect to the specified Federal program described in paragraph (3)(B),ineligibility under paragraph (1) shall not apply until April 1, 1997, to an alien whoreceived benefits under such program on August 22, 1996, unless such alien isdetermined to be ineligible to receive such benefits under the Food Stamp Act of 1977[7 U.S.C.A. § 2011 et seq.j. The State agency shall recertify the eligibility of all suchaliens during the period beginning April 1, 1997, and ending August 22, 1997.

(II) Recertification criteria

With respect to any recertification under subclause (I), the State agency shall apply theeligibility criteria for applicants for benefits under such program.

(III) Grandfather provision

The provisions of this subsection and the recertification under subclause (I) shall onlyapply with respect to the eligibility of an alien for a program for months beginning onor after the date of recertification, if on August 22, 1996, the alien is lawfully residingin any State and is receiving benefits under such program on August 22, 1996.

(E) Aliens receiving SSI on August 22, 1996

With respect to eligibility for benefits for the program defined in paragraph (3)(A) (relatingto the supplemental security income program), paragraph (1) shall not apply to an alien whois lawfully residing in the United States and who was receiving such benefits on August 22,1996.

(F) Disabled aliens lawfully residing in the United States on August 22, 1996

With respect to eligibility for benefits for the specified Federal programs described inparagraph (3), paragraph (1) shall not apply to an alien who-

ADDENDUM17


(i) in the case of the specified Federal program described in paragraph (3)(A)--

(I) was lawfully residing in the United States on August 22, 1996; and

(II) is blind or disabled (as defined in paragraph (2) or (3) of section 16 14(a) of theSocial Security Act (42 U.S.C. 1382c(a))); and

(ii) in the case of the specified Federal program described in paragraph (3)(B), is receivingbenefits or assistance for blindness or disability (within the meaning of section 3(j) of theFood Stamp Act of 1977 (7 U.S.C.A. § 2012(j))).

(G) Exception for certain Indians

With respect to eligibility for benefits for the specified Federal programs described inparagraph (3), section 16 11(a) of this title and paragraph (1) shall not apply to anyindividual- -

(1) who is an American Indian born in Canada to whom the provisions of section 289 of theImmigration and Nationality Act (8 U.S.C.A. § 1359) apply; or

(ii) who is a member of an Indian tribe (as defined in section 450b(e) of Title 25).

(H) SSI exception for certain recipients on the basis of very old applications

With respect to eligibility for benefits for the program defined in paragraph (3)(A) (relatingto the supplemental security income program), paragraph (1) shall not apply to anyindividual-

(i) who is receiving benefits under such program for months after July 1996 on the basis ofan application filed before January 1, 1979; and

(ii) with respect to whom the Commissioner of Social Security lacks clear and convincingevidence that such individual is an alien ineligible for such benefits as a result of theapplication of this section.

(I) Food stamp exception for certain elderly individuals

With respect to eligibility for benefits for the specified Federal program described inparagraph (3)(B), paragraph (1) shall not apply to any individual who on August 22, 1996--

(i) was lawfully residing in the United States; and

(ii) was 65 years of age or older.

I I) 1

ADDENDUM 18


(J) Food stamp exception for certain children

With respect to eligibility for benefits for the specified Federal program described inparagraph (3 )(B), paragraph (1) shall not apply to any individual who is under 18 years ofage.

(K) Food stamp exception for certain Hmong and Highland Laotians

With respect to eligibility for benefits for the specified Federal program described inparagraph (3)(B), paragraph (1) shall not apply to-

(1) any individual who-

(I) is lawfully residing in the United States; and

(II) was a member of a Hmong or Highland Laotian tribe at the time that the triberendered assistance to United States personnel by taking part in a military or rescueoperation during the Vietnam era (as defined in section 101 of Title 38);

(ii) the spouse, or an unmarried dependent child, of such an individual; or

(iii) the unremarried surviving spouse of such an individual who is deceased.

(L) Food stamp exception for certain qualified aliens

With respect to eligibility for benefits for the specified Federal program described inparagraph (3)(B), paragraph (1) shall not apply to any qualified alien who has resided in theUnited States with a status within the meaning of the term “qualified alien” for a period of 5years or more beginning on the date of the alien’s entry into the United States.

(M) SSI extensions through fiscal year 2011

(i) Two-year extension for certain aliens and victims of trafficking

(I) In general

Subject to clause (ii), with respect to eligibility for benefits under subparagraph (A) forthe specified Federal program described in paragraph (3)(A) of qualified aliens (asdefined in section 1641(b) of this title) and victims of trafficking in persons (as definedin section 7105(b)(1)(C) of Title 22) or as granted status under section 101(a)(15)(T)(ii)of the Immigration and Nationality Act), the 7-year period described in subparagraph(A) shall be deemed to be a 9-year period during fiscal years 2009 through 2011 in thecase of such a qualified alien or victim of trafficking who furnishes to theCommissioner of Social Security the declaration required under subclause (IV) (ifapplicable) and is described in subclause (III).

ADDENDUM 19


(II) Aliens and victims whose benefits ceased in prior fiscal years

Subject to clause (ii), beginning on September 30, 2008, any qualified alien (as definedin section 1641(b) of this title) or victim of trafficking in persons (as defined in section7105(b)(1)(C) of Title 22 or as granted status under section 101(a)(15)(T)(ii) of theImmigration and Nationality Act) rendered ineligible for the specified Federal programdescribed in paragraph (3)(A) during the period beginning on August 22, 1996, andending on September 30, 2008, solely by reason of the termination of the 7-year perioddescribed in subparagraph (A) shall be eligible for such program for an additional 2-year period in accordance with this clause, if such qualified alien or victim oftrafficking meets all other eligibility factors under title XVI of the Social Security Act,furnishes to the Commissioner of Social Security the declaration required undersubclause (IV) (if applicable), and is described in subclause (III).

(III) Aliens and victims described

For purposes of subclauses (I) and (II), a qualified alien or victim of traffickingdescribed in this subclause is an alien or victim who-

(aa) has been a lawful permanent resident for less than 6 years and such status hasnot been abandoned, rescinded under section 246 of the Immigration andNationality Act, or terminated through removal proceedings under section 240 ofthe Immigration and Nationality Act, and the Commissioner of Social Security hasverified such status, through procedures established in consultation with theSecretary of Homeland Security;

(bb) has filed an application, within 4 years from the date the alien or victim beganreceiving supplemental security income benefits, to become a lawful permanentresident with the Secretary of Homeland Security, and the Commissioner of SocialSecurity has verified, through procedures established in consultation with suchSecretary, that such application is pending;

(cc) has been granted the status of Cuban and Haitian entrant, as defined in section501(e) of the Refugee Education Assistance Act of 1980 (Public Law 96-422), forpurposes of the specified Federal program described in paragraph (3)(A);

(dd) has had his or her deportation withheld by the Secretary of Homeland Securityunder section 243(h) of the Immigration and Nationality Act (as in effectimmediately before the effective date of section 307 of division C of Public Law104-208), or whose removal is withheld under section 241 (b)(3) of such Act;

(ee) has not attained age 18; or

(ff) has attained age 70.

ADDENDUM2O


(IV) Declaration required

(aa) In general

For purposes of subclauses (I) and (II), the declaration required under this subclause of aqualified alien or victim of trafficking described in either such subclause is a declarationunder penalty of perjury stating that the alien or victim has made a good faith effort topursue United States citizenship, as determined by the Secretary of Homeland Security.The Commissioner of Social Security shall develop criteria as needed, in consultationwith the Secretary of Homeland Security, for consideration of such declarations.

(bb) Exception for children

A qualified alien or victim of trafficking described in subclause (I) or (II) who has notattained age 18 shall not be required to furnish to the Commissioner of Social Security adeclaration described in item (aa) as a condition of being eligible for the specifiedFederal program described in paragraph (3)(A) for an additional 2-year period inaccordance with this clause.

(V) Payment of benefits to aliens whose benefits ceased in prior fiscal years

Benefits paid to a qualified alien or victim described in subclause (II) shall be paidprospectively over the duration of the qualified alien’s or victim’s renewed eligibility.

(ii) Special rule in case of pending or approved naturalization application

With respect to eligibility for benefits for the specified program described in paragraph(3)(A), paragraph (1) shall not apply during fiscal years 2009 through 2011 to an aliendescribed in one of clauses (i) through (v) of subparagraph (A) or a victim of traffickingin persons (as defined in section 71 05(b)( 1 )(C) of Title 22) or as granted status undersection 101 (a)( 1 5)(T)(ii) of the Immigration and Nationality Act), if such alien or victim(including any such alien or victim rendered ineligible for the specified Federal programdescribed in paragraph (3)(A) during the period beginning on August 22, 1996, andending on September 30, 2008, solely by reason of the termination of the 7-year perioddescribed in subparagraph (A)) has filed an application for naturalization that is pendingbefore the Secretary of Homeland Security or a United States district court based onsection 33 6(b) of the Immigration and Nationality Act, or has been approved fornaturalization but not yet sworn in as a United States citizen, and the Commissioner ofSocial Security has verified, through procedures established in consultation with theSecretary of Homeland Security, that such application is pending or has been approved.

(3) “Specified Federal program” defined

For purposes of this chapter, the term “specified Federal program” means any of thefollowing:

..S.

ADDENDUM21


(A) SSI

The supplemental security income program under title XVI of the Social Security Act [42U.S.C.A. § 1381 et seq.], including supplementary payments pursuant to an agreement forFederal administration under section 1616(a) of the Social Security Act [42 U.S.C.A. §13 82e(a)] and payments pursuant to an agreement entered into under section 212(b) ofPublic Law 93-66.

(B) Food stamps

The food stamp program as defined in section 3(1) of the Food Stamp Act of 1977 [7U.S.C.A. § 20 12(1)].

(b) Limited eligibility for designated Federal programs

(1) In general

Notwithstanding any other provision of law and except as provided in section 1613 of thistitle and paragraph (2), a State is authorized to determine the eligibility of an alien who is aqualified alien (as defined in section 1641 of this title) for any designated Federal program(as defined in paragraph (3)).

(2) Exceptions

Qualified aliens under this paragraph shall be eligible for any designated Federal program.

(A) Time-limited exception for refugees and asylees

(i) Medicaid

With respect to the designated Federal program described in paragraph (3)(C), paragraph (1)shall not apply to an alien until 7 years after the date-

(I) an alien is admitted to the United States as a refugee under section 207 of of theImmigration and Nationality Act [8 U.S.C. 1157];

(II) an alien is granted asylum under section 208 of such Act [8 U.S.C. 11581;

(III) an alien’s deportation is withheld under section 243(h) of such Act [8 U.S.C.1253] (as in effect immediately before the effective date of section 307 of division C ofPublic Law 104-208) or section 241(b)(3) of such Act [8 U.S.C. 123 1(b)(3)] (asamended by section 305(a) of division C of Public Law 104-208);

(IV) an alien is granted status as a Cuban and Haitian entrant (as defined in section501(e) of the Refugee Education Assistance Act of 1980); or

ADDENDUM22


(V) an alien 1 admitted to the United States as an Amerasian immigrant as described insubsection (a)(2)(A)(i)(V) of this section until 5 years after the date of such alien’sentry into the United States.

(ii) Other designated Federal programs

With respect to the designated Federal programs under paragraph (3) (other thansubparagraph (C)), paragraph (1) shall not apply to an alien until 5 years after the date-

(I) an alien is admitted to the United States as a refugee under section 1157 of thistitle;

(II) an alien is granted asylum under section 1158 of this title;

(III) an alien’s deportation is withheld under section 1253(h) of this title (as in effectimmediately before April 1, 1997) or section 125 1(b)(3) of this title (as amended bysection 305(a) of division C of Public Law 104-208);

(IV) an alien is granted status as a Cuban and Haitian entrant (as defined in section50 1(e) of the Refugee Education Assistance Act of 1980); or

(V) an alien admitted to the United States as an Amerasian immigrant as described insubsection (a)(2)(A)(i)(V) of this section until 5 years after the date of such alien’sentry into the United States.

(B) Certain permanent resident aliens

An alien who-

(i) is lawfully admitted to the United States for permanent residence under theImmigration and Nationality Act [8 U.S.C.A. § 1101 et seq.]; and

(ii) (I) has worked 40 qualifying quarters of coverage as defined under title II of theSocial Security Act [42 U.S.C.A. § 401 et seq.] or can be credited with such qualifyingquarters as provided under section 1645 of this title, and (II) in the case of any suchqualifying quarter creditable for any period beginning after December 31, 1996, didnot receive any Federal means-tested public benefit (as provided under section 1613 ofthis title) during any such period.

(C) Veteran and active duty exception

An alien who is lawfully residing in any State and is-

(I) a veteran (as defined in section 101, 1101, or 1301, or as described in section 107 ofTitle 38) with a discharge characterized as an honorable discharge and not on account

. :;.

ADDENDUM23


of alienage and who fulfills the minimum active-duty service requirements of section5303A(d) of Title 38,

(ii) on active duty (other than active duty for training) in the Armed Forces of theUnited States, or

(iii) the spouse or unmarried dependent child of an individual described in clause (i) or(ii) or the unremarried surviving spouse of an individual described in clause (i) or (ii)who is deceased if the marriage fulfills the requirements of section 1304 of Title 38.

(D) Transition for those currently receiving benefits

An alien who on August 22, 1996, is lawfully residing in any State and is receiving benefitsunder such program on August 22, 1996, shall continue to be eligible to receive suchbenefits until January 1, 1997.

(E) Medicaid exception for certain Indians

With respect to eligibility for benefits for the program defined in paragraph (3)(C) (relatingto the medicaid program), section 1611(a) of this title and paragraph (1) shall not apply toany individual described in subsection (a)(2)(G) of this section.

(F) Medicaid exception for aliens receiving SSI

An alien who is receiving benefits under the program defined in subsection (a)(3)(A) of thissection (relating to the supplemental security income program) shall be eligible for medicalassistance under a State plan under title XIX of the Social Security Act (42 U.S.C. § 1396 etseq.) under the same terms and conditions that apply to other recipients of benefits under theprogram defined in such subsection.

(3) “Designated Federal program” defined

For purposes of this chapter, the term “designated Federal program” means any of thefollowing:

(A) Temporary assistance for needy families

The program of block grants to States for temporary assistance for needy families under partA of title IV of the Social Security Act [42 U.S.C.A. § 601 et seq.].

(B) Social services block grant

The program of block grants to States for social services under title XX of the SocialSecurity Act [42 U.S.C.A. § 1397 et seq.].

(C) Medicaid

.ut.ei:

.J :.

ADDENDUM24


A State plan approved under title XIX of the Social Security Act [42 U.S.C.A. § 1396 etseq.], other than medical assistance described in section 161 1(b)(1)(A) of this title.

Footnotes1

So in original. Probably should be “alien is”.

ADDENDUM25


8U.S.C.A.1613

§ 1613. Five-year limited eligibility of qualified aliens for Federal means-testedpublic benefit

Effective: October 1, 2003

(a) In general

Notwithstanding any other provision of law and except as provided in subsections (b),(c), and (d) of this section, an alien who is a qualified alien (as defined in section 1641 ofthis title) and who enters the United States on or after August 22, 1996, is not eligible forany Federal means-tested public benefit for a period of 5 years beginning on the date ofthe alien’s entry into the United States with a status within the meaning of the term“qualified alien”.

(b) Exceptions

The limitation under subsection (a) of this section shall not apply to the following aliens:

(1) Exception for refugees and asylees

(A) An alien who is admitted to the United States as a refugee under section 207 of theImmigration and Nationality Act [8 U.S.C. 1157].

(B) An alien who is granted asylum under section 208 of such Act [8 U.S.C. 11581.

(C) An alien whose deportation is being withheld under section 243(h)i of such Act [8U.S.C. 12531 (as in effect immediately before the effective date of section 307 ofdivision C of Public Law 104-208) or section 241(b)(3) of such Act [8 U.S.C.123 1(b)(3)] (as amended by section 305(a) of division C of Public Law 104-208).

(D) An alien who is a Cuban and Haitian entrant as defined in section 50 1(e) of theRefugee Education Assistance Act of 1980.

(E) An alien admitted to the United States as an Amerasian immigrant as described insection 1612(a)(2)(A)(i)(V) of this title.

(2) Veteran and active duty exception

An alien who is lawfully residing in any State and is--

(A) a veteran (as defined in section 101, 1101, or 1301, or as described in section107 of Title 38) with a discharge characterized as an honorable discharge and not on

ADDENDUM26


account of alienage and who fulfills the minimum active-duty service requirementsof section 5303A(d) of Title 38,

(B) on active duty (other than active duty for training) in the Armed Forces of theUnited States, or

(C) the spouse or unmarried dependent child of an individual described insubparagraph (A) or (B) or the unremarried surviving spouse of an individualdescribed in clause (i) or (ii)2 who is deceased if the marriage fulfills therequirements of section 1304 of Title 38.

(c) Application of term Federal means-tested public benefit

(1) The limitation under subsection (a) of this section shall not apply to assistance orbenefits under paragraph (2).

(2) Assistance and benefits under this paragraph are as follows:

(A) Medical assistance described in section 161 1(b)(1)(A) of this title.

(B) Short-term, non-cash, in-kind emergency disaster relief.

(C) Assistance or benefits under the Richard B. Russell National School Lunch Act [42U.S.C.A. § 1751 etseq.].

(D) Assistance or benefits under the Child Nutrition Act of 1966 [42 U.S.C.A. § 1771et seq.].

(E) Public health assistance (not including any assistance under title XIX of the SocialSecurity Act [42 U.S.C.A. § 1396 et seq.]) for immunizations with respect toimmunizable diseases and for testing and treatment of symptoms of communicablediseases whether or not such symptoms are caused by a communicable disease.

(F) Payments for foster care and adoption assistance under parts B and E of title IV ofthe Social Security Act [42 U.S.C.A. § 620 et seq., 670 et seq.] for a parent or a childwho would, in the absence of subsection (a) of this section, be eligible to have suchpayments made on the child’s behalf under such part, but only if the foster or adoptiveparent (or parents) of such child is a qualified alien (as defined in section 1641 of thistitle).

(G) Programs, services, or assistance (such as soup kitchens, crisis counseling andintervention, and short-term shelter) specified by the Attorney General, in the AttorneyGeneral’s sole and unreviewable discretion after consultation with appropriate Federalagencies and departments, which (i) deliver in-kind services at the community level,

)H :fl.. .

ADDENDUM27


including through public or private nonprofit agencies; (ii) do not condition theprovision of assistance, the amount of assistance provided, or the cost of assistanceprovided on the individual recipient’s income or resources; and (iii) are necessary forthe protection of life or safety.

(H) Programs of student assistance under titles IV, V, IX, and X of the HigherEducationActof 1965 [20 U.S.C.A. § 1070 etseq., 1101 etseq., 1134 etseq., 1135etseq., and 42 U.S.C.A § 2751 et seq.], and titles III, VII, and VIII of the Public HealthService Act [42 U.S.C.A. § 241 et seq., 292 et seq., 296 et seq.].

(I) Means-tested programs under the Elementary and Secondary Education Act of1965 [20 U.S.C.A. § 6301 et seq.].

(J) Benefits under the Head Start Act [42 U.S.C.A. § 9831 et seq.].

(K) Benefits under the3 title I of the Workforce Investment Act of 1998 [29 U.S.C.A. §2801 et seq.].

(L) Assistance or benefits provided to individuals under the age of 18 under the FoodStamp Act of 1977 (7 U.S.C. 2011 et seq.).

(d) Benefits for certain groups

Notwithstanding any other provision of law, the limitations under section 1611(a) of thistitle and subsection (a) of this section shall not apply to--

(1) an individual described in section 1612(a)(2)(G) of this title, but only with respectto the programs specified in subsections (a)(3) and (b)(3)(C) of section 1612 of thistitle; or

(2) an individual, spouse, or dependent described in section 1612(a)(2)(K) of this title,but only with respect to the specified Federal program described in section1612(a)(3)(B) of this title.

Footnotes

See References in Text note set out under this section.

So in original. Probably should be “subparagraph (A) or (B)”.

So in original. The word “the” probably should not appear.

:.: ,. .

ADDENDUM28


8 U.S.C.A. § 1622

§ 1622. State authority to limit eligibility of qualified aliens for State publicbenefits

Effective: August 5, 1997

(a) In general

Notwithstanding any other provision of law and except as provided in subsection (b) ofthis section, a State is authorized to determine the eligibility for any State public benefitsof an alien who is a qualified alien (as defined in section 1641 of this title), anonimmigrant under the Immigration and Nationality Act [8 U.S.C.A. § 1101 et seq.], oran alien who is paroled into the United States under section 212(d)(5) of such Act [8U.S.C.A. § 1 182(d)(5)] for less than one year.

(b) Exceptions

Qualified aliens under this subsection shall be eligible for any State public benefits.

(1) Time-limited exception for refugees and asylees

(A) An alien who is admitted to the United States as a refugee under section 207 of theImmigration and Nationality Act [8 U.S.C.A. § 1157] until 5 years after the date of analien’s entry into the United States.

(B) An alien who is granted asylum under section 208 of such Act [8 U.S.C.A. § 1158]until 5 years after the date of such grant of asylum.

(C) An alien whose deportation is being withheld under section 243(h) of such Act [8U.S.C.A. § 1253] (as in effect immediately before the effective date of section 307 ofdivision C of Public Law 104-208) or section 241(b)(3) of such Act [8 U.S.C.A. §123 1(b)(3)] (as amended by section 305(a) of division C of Public Law 104-208) until5 years after such withholding.

(D) An alien who is a Cuban and Haitian entrant as defined in section 50 1(e) of theRefugee Education Assistance Act of 1980 until 5 years after the alien is granted suchstatus.

(E) An alien admitted to the United States as an Amerasian immigrant as described insection 1612(a)(2)(A)(i)(V) of this title.

(2) Certain permanent resident aliens

2J I.

ADDENDUM29


An alien who--

(A) is lawfully admitted to the United States for permanent residence under theImmigration and Nationality Act [8 U.S.C.A. § 1101 et seq.]; and

(B) (i) has worked 40 qualifying quarters of coverage as defined under title II of theSocial Security Act [42 U.S.C.A. § 401 et seq.] or can be credited with suchqualifying quarters as provided under section 1645 of this title, and (ii) in the case ofany such qualifying quarter creditable for any period beginning after December 31,1996, did not receive any Federal means-tested public benefit (as provided undersection 1613 of this title) during any such period.

(3) Veteran and active duty exception

An alien who is lawfully residing in any State and is--

(A) a veteran (as defined in section 101, 1101, or 1301, or as described in section107 of Title 38) with a discharge characterized as an honorable discharge and not onaccount of alienage and who fulfills the minimum active-duty service requirementsof section 5303A(d) of Title 38,

(B) on active duty (other than active duty for training) in the Armed Forces of theUnited States, or

(C) the spouse or unmarried dependent child of an individual described insubparagraph (A) or (B) or the unremarried surviving spouse of an individualdescribed in clause (i) or (ii)i who is deceased if the marriage fulfills therequirements of section 1304 of Title 38.

(4) Transition for those currently receiving benefits

An alien who on August 22, 1996, is lawfully residing in any State and is receivingbenefits on August 22, 1996, shall continue to be eligible to receive such benefits untilJanuary 1, 1997.

Footnotes1

So in original. Probably should be “subparagraph (A) or (B)”.

.1

.:

ADDENDUM3O


8 U.S.C.A. § 1624

§ 1624. Authority of States and political subdivisions of States to limit assistance toaliens and to distinguish among classes of aliens in providing general cash public

assistance

Effective: September 30, 1996

(a) In general

Subject to subsection (b) of this section and notwithstanding any other provision of law, a Stateor political subdivision of a State is authorized to prohibit or otherwise limit or restrict theeligibility of aliens or classes of aliens for programs of general cash public assistance furnishedunder the law of the State or a political subdivision of a State.

(b) Limitation

The authority provided for under subsection (a) of this section may be exercised only to theextent that any prohibitions, limitations, or restrictions imposed by a State or politicalsubdivision of a State are not more restrictive than the prohibitions, limitations, or restrictionsimposed under comparable Federal programs. For purposes of this section, attribution to an alienof a sponsor’s income and resources (as described in section 1631 of this title) for purposes ofdetermining eligibility for, and the amount of, benefits shall be considered less restrictive than aprohibition of eligibility for such benefits.

2G I flmson Rciters No c1m a o;ia U S. Govener: Works

ADDENDUM31


8 U.S.C.A. § 1641

§ 1641. Definitions

Effective: December 23, 2008

(a) In general

Except as otherwise provided in this chapter, the terms used in this chapter have the samemeaning given such terms in section 101(a) of the Immigration and Nationality Act [8U.S.C.A. § 1101(a)].

(b) Qualified alien

For purposes of this chapter, the term “qualified alien” means an alien who, at the timethe alien applies for, receives, or attempts to receive a Federal public benefit, is--

(1) an alien who is lawfully admitted for permanent residence under the Immigrationand Nationality Act [8 U.S.C.A. § 1101 et seq.],

(2) an alien who is granted asylum under section 208 of such Act [8 U.S.C.A. § 1158],

(3) a refugee who is admitted to the United States under section 207 of such Act [8U.S.C.A. § 1157],

(4) an alien who is paroled into the United States under section 212(d)(5) of such Act[8 U.S.C.A. § 1 182(d)(5)] for a period of at least 1 year,

(5) an alien whose deportation is being withheld under section 243(h) of such Act [8U.S.C. 12531 (as in effect immediately before the effective date of section 307 ofdivision C of Public Law 104-208) or section 241(b)(3) of such Act [8 U.S.C.123 1(b)(3)] (as amended by section 305(a) of division C of Public Law 104-208),

(6) an alien who is granted conditional entry pursuant to section 203 (a)(7) of such Act[8 U.S.C. 1 153(a)(7)] as in effect prior to April 1, 1980;i or

(7) an alien who is a Cuban and Haitian entrant (as defined in section 501(e) of theRefugee Education Assistance Act of 1980).

(c) Treatment of certain battered aliens as qualified aliens

For purposes of this chapter, the term “qualified alien” includes-

1’i. .

ADDENDUM32


(1) an alien who--

(A) has been battered or subjected to extreme cruelty in the United States by aspouse or a parent, or by a member of the spouse or parent’s family residing in thesame household as the alien and the spouse or parent consented to, or acquiesced in,such battery or cruelty, but only if (in the opinion of the agency providing suchbenefits) there is a substantial connection between such battery or cruelty and theneed for the benefits to be provided; and

(B) has been approved or has a petition pending which sets forth a prima facie casefor- -

(i) status as a spouse or a child of a United States citizen pursuant to clause (ii),(iii), or (iv) of section 204(a)(1)(A) of the Immigration and Nationality Act [8U.S.C.A. § 1 154(a)(1)(A)(ii), (iii) or (iv)],

(ii) classification pursuant to clause (ii) or (iii) of section 204(a)(1)(B) of the Act[8 U.S.C.A. § 1154(a)(1)(B)(ii) or (iii)],

(iii) suspension of deportation under section 244(a)(3) of the Immigration andNationality Act [8 U.S.C.A. § 1254(a)(3)] (as in effect before the title Ill-Aeffective date in section 309 of the Illegal Immigration Reform and ImmigrantResponsibility Act of 1996).

(iv) status as a spouse or child of a United States citizen pursuant to clause (i) ofsection 204(a)(1)(A) of such Act [8 U.S.C.A. § 1 154(a)(1)(A)(i)], or classificationpursuant to clause (i) of section 204(a)(1)(B) of such Act [8 U.S.C.A. §11 54(a)( 1 )(B)(i)} ;2

(v) cancellation of removal pursuant to section 240A(b)(2) of such Act [8 U.S.C.1229b(b)(2)];

(2) an alien--

(A) whose child has been battered or subjected to extreme cruelty in the UnitedStates by a spouse or a parent of the alien (without the active participation of thealien in the battery or cruelty), or by a member of the spouse or parent’s familyresiding in the same household as the alien and the spouse or parent consented oracquiesced to such battery or cruelty, and the alien did not actively participate insuch battery or cruelty, but only if (in the opinion of the agency providing suchbenefits) there is a substantial connection between such battery or cruelty and theneed for the benefits to be provided; and

ADDENDUM33


(B) who meets the requirement of subparagraph (B) of paragraph (1);

(3) an alien child who--

(A) resides in the same household as a parent who has been battered or subjected toextreme cruelty in the United States by that parent’s spouse or by a member of thespouse’s family residing in the same household as the parent and the spouseconsented or acquiesced to such battery or cruelty, but only if (in the opinion of theagency providing such benefits) there is a substantial connection between suchbattery or cruelty and the need for the benefits to be provided; and

(B) who meets the requirement of subparagraph (B) of paragraph (1); or

(4) an alien who has been granted nonimmigrant status under section 1101 (a)( 1 5)(T) ofthis title or who has a pending application that sets forth a prima facie case foreligibility for such nonimmigrant status.

This subsection shall not apply to an alien during any period in which the individualresponsible for such battery or cruelty resides in the same household or family eligibilityunit as the individual subjected to such battery or cruelty.

After consultation with the Secretaries of Health and Human Services, Agriculture, andHousing and Urban Development, the Commissioner of Social Security, and with theheads of such Federal agencies administering benefits as the Attorney General considersappropriate, the Attorney General shall issue guidance (in the Attorney General’s soleand unreviewable discretion) for purposes of this subsection and section 163 1(f) of thistitle, concerning the meaning of the terms “battery” and “extreme cruelty”, and thestandards and methods to be used for determining whether a substantial connection existsbetween battery or cruelty suffered and an individual’s need for benefits under a specificFederal, State, or local program.

Footnotes

So in original. The semicolon probably should be a comma.

So in original. The semicolon probably should be”, or”.

... 3

ADDENDUM34


• ‘estLawHRS § 346-14 Page 1

C

West’s Hawai’i Revised Statutes Annotated CurrentnessDivision 1. Government

Title 20. Social Servicesia1 Chapter 346. Department of Human Services (Refs & Annos)

iJ Part 1. General and Administrative Provisions

§ 346-14. Duties generally

Except as otherwise provided bylaw, the department of human services shall:

(1) Establish and administer programs and standards, and adopt rules as deemed necessary for all public assistanceprograms;

(2) Establish, extend, and strengthen services for the protection and care of abused or neglected children and children in danger of becoming delinquent to make paramount the safety and health of children who have beenharmed or are in life circumstances that threaten harm;

(3) Establish and administer programs, and adopt rules as deemed necessary, for the prevention of domestic andsexual violence and the protection and treatment of victims of domestic and sexual violence;

(4) Assist in preventing family breakdown;

(5) Place, or cooperate in placing, abused or neglected children in suitable private homes or institutions and place,or cooperate in placing, children in suitable adoptive homes;

(6) Have authority to establish, maintain, and operate receiving homes for the temporary care and custody ofabused or neglected children until suitable plans are made for their care; and accept from the police and otheragencies, for temporary care and custody, any abused or neglected child until satisfactory plans are made for thechild;

(7) Administer the medical assistance programs for eligible public welfare and other medically needy individualsby establishing standards, eligibility, and health care participation rules, payment methodologies, reimbursement allowances, systems to monitor recipient and provider compliance, and assuring compliance with federalrequirements to maximize federal financial participation;

(8) Cooperate with the federal government in carrying out the purposes of the Social Security Act and in othermatters of mutual concern pertaining to public welfare, public assistance, and child welfare services, includingthe making of reports, the adoption of methods of administration, and the making of rules as are found by thefederal government, or any properly constituted authority thereunder, to be necessary or desirable for the efficient operation of the plans for public welfare, assistance, and child welfare services or as may be necessary ordesirable for the receipt of financial assistance from the federal government;

(9) Carry on research and compile statistics relative to public and private welfare activities throughout the State,including those dealing with dependence, defectiveness, delinquency, and related problems;

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

ADDENDUM35


HRS § 346-14 Page 2

(10) Develop plans in cooperation with other public and private agencies for the prevention and treatment of conditions giving rise to public welfare problems;

(11) Adopt rules governing the procedure in hearings, investigations, recording, registration, determination of allowances, and accounting and conduct other activities as may be necessary or proper to carry out this chapter;

(12) Supervise or administer any other activities authorized or required by this chapter, including the developmentof the staff of the department through in-service training and educational leave to attend schools and other appropriate measures, and any other activities placed under the jurisdiction of the department by any other law;

(13) Make, prescribe, and enforce policies and rules governing the activities provided for in section 346-31 itdeems advisable, including the allocation of moneys available for assistance to persons assigned to work projects among the several counties or to particular projects where the apportionment has not been made pursuantto other provisions of law, if any, governing expenditures of the funds;

(14) Determine the appropriate level for the Hawaii security net, by developing a tracking and monitoring systemto determine what segments of the population are not able to afford the basic necessities of life, and advise thelegislature annually regarding the resources required to maintain the security net at the appropriate level;

(15) Subject to the appropriation of state funds and availability of federal matching assistance, expand optionalhealth care to low-income persons as follows:

(A) Pregnant women and infants under one year of age living in families with incomes up to one hundredeighty-five per cent of the federal poverty level and without any asset restrictions;

(B) Children under six years of age living in families with incomes up to one hundred thirty-three per cent ofthe federal poverty level and without any asset restrictions;

(C) Older children to the extent permitted under optional federal medicaid rules;

(D) Elder persons;

(E) Aliens;

(F) The homeless; and

(G) Other handicapped and medically needy persons; and

(16) Subject to the appropriation of state funds and availability of federal matching assistance, establish the income eligibility level for the medically needy program at one hundred thirty-three per cent of the assistance allowance.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Worlcs.

ADDENDUM36


Westtaw.PL 99-65 8, 1986 HJRes 626 Page 1PL 99-658, November 14, 1986, 100 Stat 3672(Publication page references are not available for this document.)

UNITED STATES PUBLIC LAWS99th Congress - Second Session

Convening January 21, 1986

Copr. © West Group 1998. No Claim to Orig. U.S. Govt. Works

DATA SUPPLIED BY THE U.S. DEPARTMENT OF JUSTICE. (SEE SCOPE)Additions and Deletions are not identified in this document.

PL 99-658 (HJRes 626)November 14, 1986

Joint Resolution

To approve the “Compact of Free Association” between the United States and theGovernment of Palau, and for other purposes.

Whereas the United States is the administering authority of the Trust Territory of the Pacific Islands under the termsof the Trusteeship Agreement for the former Japanese Mandated Islands entered into by the United States with theSecurity Council of the United Nations on April 2, 1947, and approved by the United States on July 18, 1947; and“61 Stat. 3301.”

Whereas the United States, in accordance with the Trusteeship Agreement, the Charter of the United Nations and theobjectives “59 Stat. 1031” of the international trusteeship system, has promoted the development of the peoples ofthe Trust Territory toward self-government or independence as appropriate to the particular circumstances of theTrust Territory and its peoples and the freely expressed wishes of the peoples concerned; and

Whereas the United States, in response to the desires of the people of Palau expressed through their freely-electedrepresentatives and by the official pronouncements and enactments of their lawfully constituted government, and inconsideration of its own obligations under the Trusteeship Agreement to promote self-determination, entered intopolitical status negotiations with representatives of the people of Palau; and

Whereas these negotiations resulted in the “Compact of Free Association” between the United States and Palauwhich, together with its related agreements, was signed by the United States and by Palau on January 10, 1986; and

Whereas the Compact of Free Association received a favorable vote of a majority of the people of Palau voting in aUnited Nations-observed plebiscite conducted on February 21, 1986; and

Whereas the Supreme Court of Palau has ruled that the constitutional process of Palau for approval of the Compactof Free Association in accordance with section 411 of the Compact has not yet been completed; and

Whereas the President of Palau has requested the United States to complete the process of United States approval ofthe Compact of Free Association in accordance with section 411 of the Compact through enactment of an appropriate joint resolution: Now, therefore, be it


ADDENDUM37


PL 99-658, 1986 HJRes 626 Page 10PL 99-658, November 14, 1986, 100 Stat 3672(Publication page references are not available for this document.)

The Government of Palau shall permit the Government of the United States to operate telecommunications servicesin Palau to the extent necessary to fulfill the obligations of the Government of the United States under this Compactin accordance with the terms of related agreements which shall come into effect simultaneously with this Compact.

Article IV

Immigration

Section 141

(a) Any person in the following categories may enter into, lawfully engage in occupations, and establish residenceas a nonimmigrant in the United States and its territories and possessions without regard to paragraphs (14), (20),and (26) of section 212(a) of the Immigration and Nationality Act, 8 U.S.C. 1182(a) (14, (20), and (26):

(1) a person who, on the day preceding the effective date of this Compact, is a citizen of Trust Territory of the Pacific Islands, as defined in Title 53 of the Trust Territory Code in force on January 1, 1979, and has become a citizenof Palau;

(2) a person who acquires the citizenship of Palau, at birth, on or after the effective date of the Constitution of Palau; or

(3) a naturalized citizen of Palau, who has been an actual resident there for not less than five years after attainingsuch naturalization and who holds a certificate of actual residence.

Such persons shall be considered to have the permission of the Attorney General of the United States to accept employment in the United States.

(b) The right of such persons to establish habitual residence in a territory or possession of the United States may,however, be subjected to nondiscriminatory limitations provided for:

(1) in statutes or regulations of the United States; or

(2) in those statutes or regulations of the territory or possession concerned which are authorized by the laws of theUnited States.

(c) Section 141(a) does not confer on a citizen of Palau, the right to establish the residence necessary for naturalization under the Immigration and Nationality Act, “8 USC 1101 note” or to petition for benefits for alien relatives under that Act. Section 141(a), however, shall not prevent a citizen of Palau from otherwise acquiring such rights orlawful permanent resident alien status in the United States.

Section 142

(a) Any citizen or national of the United States may enter into, lawfully engage in occupations, and reside in Palau,subject to the right of that Government to deny entry to or deport any such citizen or national as an undesirablealien. A citizen or national of the United States may establish habitual residence or domicile in Palau only in accordance with the laws of Palau. This subsection is without prejudice to the right of the Government of Palau to regulate occupations in Palau in a nondiscriminatory manner.


ADDENDUM38



A separate agreement, which shall come into effect simultaneously with this Compact, shall be concluded betweenthe Government of the United States and the Government of Palau regarding mutual assistance and cooperation inlaw enforcement matters including the pursuit, capture, imprisonment and extradition of fugitives from justice andthe transfer of prisoners. The separate agreement shall have the force of law. In the United States, the laws of theUnited States governing international extradition, including 18 U.S.C. 3184, 3186 and 3188-3195, shall be applicable to the extradition of fugitives under the separate agreement, and the laws of the United States governing thetransfer of prisoners, including 18 U.S.C. 4100-4115, shall be applicable to the transfer of prisoners under the separate agreement.

Section 176

The Government of Palau confirms that final judgments in civil cases rendered by any court of the Trust Territoryof the Pacific Islands shall continue in full force and effect, subject to the constitutional power of the courts of Palauto grant relief from judgments in appropriate cases.

Section 177

(a) Federal agencies of the Government of the United States which provide services and related programs in Palauare authorized to settle and pay tort claims arising in Palau from the activities of such agencies or from the acts oromissions of the employees of such agencies. Except as provided in Section 177(b), the provisions of 28 U.S.C.2672 and 31 U.S.C. 1304 shall apply exclusively to such administrative settlements and payments.

(b) Claims under Section 177(a) which cannot be settled under Section 177(a) shall be disposed of exclusively inaccordance with Article II of Title Four. Arbitration awards rendered pursuant to this subsection shall be paid out offunds under 31 U.S.C. 1304.

(c) The Government of the United States and the Government of Palau shall provide for:

(1) the administrative settlement of claims referred to in Section 177(a), including designation of local agents inPalau, such agents to be empowered to accept, investigate and settle such claims, in a timely manner, as provided insuch related agreements; and

(2) arbitration, referred to in Section 177(b), in a timely manner, at a site convenient to the claimant, in the event aclaim is not otherwise settled pursuant to Section 177(a).

(d) The provisions of Section 174(d) shall not apply to claims covered by this Section.

TITLE TWOECONOMIC RELATIONS

Article I

Grant Assistance

Section 211

In order to assist the Government of Palau in its efforts to advance the well-being of the people of Palau and in recognition of the special relationship that exists between the United States and Palau, the Government of the United


ADDENDUM39



States shall provide to the Government of Palau on a grant basis the following amounts:

(a) $12 million annually for ten years commencing on the effective date of this Compact, and $11 million annuallyfor five years commencing on the tenth anniversary of the effective date of this Compact, for current account operations and maintenance purposes, which amounts commencing on the fourth anniversary of the effective date of thisCompact shall include a minimum annual distribution of $5 million from the fund specified in Section 21 1(f).

(b) $2 million annually for fourteen years commencing on the first anniversary of the effective date of this Compactas a contribution to efforts aimed at achieving increased self-sufficiency in energy production, of which annualamounts not less than $500,000 shall be devoted to the energy needs of those parts of Palau not served by its centralpower-generating facility.

(c) $150,000 annually for fifteen years commencing on the effective date of this Compact as a contribution to current account operations and maintenance of communications systems, and the sum of$l.5 million, to be made available concurrently with the grant assistance provided during the first year after the effective date of this Compact, forthe purpose of acquiring such communications hardware as may be located within Palau or for such other current orcapital account activity’ as the Government of Palau may select.

(d) $631,000 annually on a current account basis for fifteen years commencing on the effective date of this Compact for the purposes set forth below:

(1) for the surveillance and enforcement by Government of Palau of its maritime zone;

(2) for health and medical programs, including referrals to hospital and treatment centers; and

(3) for a scholarship fund to support the post-secondary education of citizens of Palau attending United States accredited, post-secondary institutions in Palau, the United States, its territories and possessions, and states in free association with the United States. The curricular criteria for the award of scholarships shall be designed to advancethe purposes of the plan referred to in Section 231.

(e) The sum of $666,800 as a contribution to the commencement of activities pursuant to Section 211(d)(l).

(f) The sum of $66 million on the effective date of this Compact, and the sum of $4 million concurrently with thegrant assistance to be made available during the third year after the effective date of this Compact, to create a fundto be invested by the Government of Palau in issues of bonds, notes or other redeemable instruments of the Government of the United States or other qualified instruments which may be identified by mutual agreement of theGovernment of the United States and the Government of Palau. Investment of the fund in qualified instruments ofUnited States nationality, and the distribution of sums derived from such investment to the Government of Palau,shall not be subject to any form of taxation by the United States or its political subdivisions. The Government of theUnited States and the Government of Palau shall set forth in a separate agreement, which shall come into effect simultaneously with this Compact, provisions for the investment, management and review of the fund so as to allowfor an agreed minimum annual distribution from its accrued principal and interest commencing upon the effectivedate of this Compact for fifty years. The objective of this sum is to produce an average annual distribution of $15million commencing on the fifteenth anniversary of this Compact for thirty-five years. Any excess or variance fromthe agreed minimum annual distributions which may be produced from these sums shall accrue to or be absorbed bythe Government of Palau unless otherwise mutually agreed in accordance with the provisions of the separate agreement referred to in this paragraph. The annual distributions produced from these sums are not subject to Sections215 and 236.

Section 212


ADDENDUM4O


\AJest[aw

PL 108-188, 2003 HJRes 63 Page 1PL 108-188, December 17, 2003, 117 Stat 2720(Cite as: 117 Stat 2720)

UNITED STATES PUBLIC LAWS108th Congress - First SessionConvening January 7, 2003

Copr. © West Group 2003. No Claim to Orig. U.S. Govt.Works

Additions and Deletions are not identified in this database.Vetoed provisions within tabular material are not displayed

PL 108-188 (HJRes 63)December 17, 2003

COMPACT OF FREE ASSOCIATION WITH MICRONESIA AND MARSHALL ISLAND

Joint Resolution To approve the Compact of Free Association, as amended, between the Government of the United States ofAmerica and the Government of the Federated States of Micronesia, and the Compact of Free Association, as amended, between the Government of the United States of America and the Government of the Republic of the Marshall Islands, and toappropriate funds to carry out the amended Compacts.

<<48USCA 1921 NOTE>>

Whereas the United States (in accordance with the Trusteeship Agreement for the Trust Territory of the Pacific Islands, theUnited Nations Charter, and the objectives of the international trusteeship system of the United Nations) fulfilled its obligations to promote the development of the people of the Trust Territory toward self-government or independence as appropriateto the particular circumstances of the Trust Territory and its peoples and the freely expressed wishes of the peoples concerned;

Whereas the United States, the Federated States of Micronesia, and the Republic of the Marshall Islands entered into theCompact of Free Association set forth in title II of Public Law 99-239, January 14, 1986, 99 Stat. 1770, to create and maintain a close and mutually beneficial relationship;

Whereas the United States, in accordance with section 231 of the Compact of Free Association entered into negotiations withthe Governments of the Federated States of Micronesia and the Republic of the Marshall Islands to provide continued UnitedStates assistance and to reaffirm its commitment to this close and beneficial relationship; and

Whereas these negotiations, in accordance with section 431 of the Compact, resulted in the “Compact of Free Association, asamended between the Government of the United States of America and the Government of the Federated States of Micronesia”, and the “Compact of Free Association, as amended between the Government of the United States of America and theGovernment of the Republic of the Marshall Islands”, which, together with their related agreements, were signed by the Government of the United States and the Governments of the Federated States of Micronesia and the Republic of the MarshallIslands on May 14, and April 30, 2003, respectively: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States ofAmerica in Congress assembled,

*2721 SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.


ADDENDUM41



<<48USCA 1921b>>

SEC. 103. AGREEMENTS WITH AND OTHER PROVISIONS RELATED TO THE REPUBLIC OF THE MARSHALLISLANDS.

(a) LAW ENFORCEMENT ASSISTANCE--Pursuant to sections 222 and 224 of the U.S.- RIvII Compact, the United Statesshall provide non-reimbursable technical and training assistance as appropriate, including training and equipment for postalinspection of illicit drugs and other contraband, to enable the Government of the Marshall Islands to develop and adequatelyenforce laws of the Marshall Islands and to cooperate with the United States in the enforcement of criminal laws of theUnited States. Funds appropriated pursuant to section 105(j) of this title may be used to reimburse State or local agenciesproviding such assistance.

(b) EJIT.-- -

(1) In the joint resolution of January 14, 1986 (Public Law 99-239) Congress provided that the President of the United Statesshall negotiate with the Government of the Marshall Islands an agreement whereby, without prejudice as to any claims whichhave been or may be asserted by any party as to rightful title and ownership of any lands on Ejit, the Government of the Marshall Islands shall assure that lands on Ejit used as of January 1, 1985, by the people of Bikini, will continue to be availablewithout charge for their use, until such time as Bikini is restored and inhabitable and the continued use of Ejit is no longernecessary, unless a Marshall Islands court of competent jurisdiction finally determines that *2728 there are legal impediments to continued use of Ejit by the people of Bikini.

(2) In the joint resolution of January 14, 1986 (Public Law 99-239) Congress provided that if the impediments described inparagraph (1) do arise, the United States will cooperate with the Government of the Marshall Islands in assisting any personadversely affected by such judicial determination to remain on Ejit, or in locating suitable and acceptable alternative lands forsuch person’s use.

(3) In the joint resolution of January 14, 1986 (Public Law 99-239) Congress provided that paragraph (1) shall not be appliedin a manner which would prevent the Government of the Marshall Islands from acting in accordance with its constitutionalprocesses to resolve title and ownership claims with respect to such lands or from taking substitute or additional measures tomeet the needs of the people of Bikini with their democratically expressed consent and approval.

(c) Section 177 Agreement-

(I) In the joint resolution of January 14, 1986 (Public Law 99-239) Congress provided that in furtherance of the purposes ofArticle I of the Subsidiary Agreement for Implementation of Section 177 of the Compact, the payment of the amount specified therein shall be made by the United States under Article I of the Agreement between the Government of the UnitedStates and the Government of the Marshall Islands for the Implementation of section 177 of the Compact (hereafter in thissubsection referred to as the “Section 177 Agreement”) only after the Government of the Marshall Islands has notified thePresident of the United States as to which investment management firm has been selected by such Government to act as FundManager under Article I of the Section 177 Agreement.

(2) In the joint resolution of January 14, 1986 (Public Law 99-239) Congress provided that in the event that the Presidentdetermines that an investment management firm selected by the Government of the Marshall Islands does not meet the requirements specified in Article I of the Section 177 Agreement, the United States shall invoke the conference and disputeresolution procedures of Article II of Title Four of the Compact. Pending the resolution of such a dispute and until a qualifiedFund Manager has been designated, the Government of the Marshall Islands shall place the funds paid by the United Statespursuant to Article I of the Section 177 Agreement into an interest-bearing escrow account. Upon designation of a qualifiedFund Manager, all funds in the escrow account shall be transferred to the control of such Fund Manager for management pursuant to the Section 177 Agreement.


ADDENDUM42



(3) In the joint resolution of January 14, 1986 (Public Law 99-239) Congress provided that if the Government of the Marshall Islands determines that some other investment firm should act as Fund Manager in place of the firm first (or subsequently) selected by such Government, the Government of the Marshall Islands shall so notif’ the President of the UnitedStates, identif’ing the firm selected by such Government to become Fund Manager, and the President shall proceed to evaluate the qualifications of such identified firm.

*2729 (4) In the joint resolution of January 14, 1986 (Public Law 99-239) Congress provided that at the end of 15 years afterthe effective date of the Compact, the firm then acting as Fund Manager shall transfer to the Government of the MarshallIslands, or to such account as such Government shall so notif,’ the Fund Manager, all remaining funds and assets being managed by the Fund Manager under the Section 177 Agreement.

(d) NUCLEAR TEST EFFECTS--In the joint resolution of January 14, 1986 (Public Law 99-239) Congress provided that inapproving the Compact, the Congress understands and intends that the peoples of Bikini, Enewetak, Rongelap, and Utrik,who were affected by the United States nuclear weapons testing program in the Marshall Islands, will receive the amounts of$75,000,000 (Bikini); $48,750,000 (Enewetak); $37,500,000 (Rongelap); and $22,500,000 (Utrik), respectively, whichamounts shall be paid out of proceeds from the fund established under Article I, section 1 of the subsidiary agreement for theimplementation of section 177 of the Compact. The amounts specified in this subsection shall be in addition to any amountswhich may be awarded to claimants pursuant to Article IV of the subsidiary agreement for the implementation of Section 177of the Compact.

(e) ESPOUSAL PROVISIONS.--

(1) In the joint resolution of January 14, 1986 (Public Law 99-239) Congress provided that it is the intention of the Congressof the United States that the provisions of section 177 of the Compact of Free Association and the Agreement between theGovernment of the United States and the Government of the Marshall Islands for the Implementation of Section 177 of theCompact (hereafter in this subsection referred to as the “Section 177 Agreement”) constitute a full and final settlement of allclaims described in Articles X and XI of the Section 177 Agreement, and that any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement.

(2) In the joint resolution of January 14, 1986 (Public Law 99-239) Congress provided that in furtherance of the intention ofCongress as stated in paragraph (I) of this subsection, the Section 177 Agreement is hereby ratified and approved. It is theexplicit understanding and intent of Congress that the jurisdictional limitations set forth in Article XII of such Agreement areenacted solely and exclusively to accomplish the objective of Article X of such Agreement and only as a clarification of theeffect of Article X, and are not to be construed or implemented separately from Article X.

(f) DOE RADIOLOGICAL HEALTH CARE PROGRAM; USDA AGRICULTURAL AND FOOD PROGRAMS.-

(1) MARSHALL ISLANDS PROGRAM.--Notwithstanding any other provision of law, upon the request of the Governmentof the Republic of the Marshall Islands, the President (either through an appropriate department or agency of the UnitedStates or by contract with a United States firm) shall continue to provide special medical care and logistical support theretofor the remaining members of the population of Rongelap and Utrik who were exposed to radiation resulting from the 1954United States thermo-nuclear “Bravo” test, pursuant to Public Laws 95-134 and 96-205.

*2730 (2) AGRICULTURAL AND FOOD PROGRAMS.-

(A) IN GENERAL.--In the joint resolution of January 14, 1986 (Public Law 99- 239) Congress provided that notwithstanding any other provision of law, upon the request of the Government of the Marshall Islands, for the first fifteen yearsafter the effective date of the Compact, the President (either through an appropriate department or agency of the United Statesor by contract with a United States firm or by a grant to the Government of the Republic of the Marshall Islands which may


ADDENDUM43



further contract only with a United States firm or a Republic of the Marshall Islands firm, the owners, officers and majorityof the employees of which are citizens of the United States or the Republic of the Marshall Islands) shall provide technicaland other assistance-

(i) without reimbursement, to continue the planting and agricultural maintenance program on Enewetak, as provided insubparagraph (C); and

(ii) without reimbursement, to continue the food programs of the Bikini and Enewetak people described in section 1(d) ofArticle II of the Subsidiary Agreement for the Implementation of Section 177 of the Compact and for continued waterbornetransportation of agricultural products to Enewetak including operations and maintenance of the vessel used for such purposes.

(B) POPULATION CHANGES--The President shall ensure the assistance provided under these programs reflects thechanges in the population since the inception of such programs.

(C) PLANTING AND AGRICULTURAL MAINTENANCE PROGRAM.-

(i) IN GENERAL--The planting and agricultural maintenance program on Enewetak shall be funded at a level of not lessthan $1,300,000 per year, as adjusted for inflation under section 218 of the U.S.-RMI Compact.

(ii) AUTHORIZATION AND CONTINUING APPROPRIATION--There is hereby authorized and appropriated to theSecretary of the Interior, out of any funds in the Treasury not otherwise appropriated, to remain available until expended, foreach fiscal year from 2004 through 2023, $1,300,000, as adjusted for inflation under section 218 of the U.S.-RMI Compact,for grants to carry out the planting and agricultural maintenance program.

(3) PAYMENTS.--In the joint resolution of January 14, 1986 (Public Law 99- 239) Congress provided that payments underthis subsection shall be provided to such extent or in such amounts as are necessary for services and other assistance providedpursuant to this subsection. It is the sense of Congress that after the periods of time specified in paragraphs (1) and (2) of thissubsection, consideration will be given to such additional funding for these programs as may be necessary.

(g) RONGELAP.-

(1) In the joint resolution of January 14, 1986 (Public Law 99-239) Congress provided that because Rongelap was *2731directly affected by fallout from a 1954 United States thermonuclear test and because the Rongelap people remain unconvinced that it is safe to continue to live on Rongelap Island, it is the intent of Congress to take such steps (if any) as may benecessary to overcome the effects of such fallout on the habitability of Rongelap Island, and to restore Rongelap Island, ifnecessary, so that it can be safely inhabited. Accordingly, it is the expectation of the Congress that the Government of theMarshall Islands shall use such portion of the funds specified in Article II, section 1(e) of the subsidiary agreement for theimplementation of section 177 of the Compact as are necessary for the purpose of contracting with a qualified scientist orgroup of scientists to review the data collected by the Department of Energy relating to radiation levels and other conditionson Rongelap Island resulting from the thermonuclear test, It is the expectation of the Congress that the Government of theMarshall Islands, after consultation with the people of Rongelap, shall select the party to review such data, and shall contractfor such review and for submission of a report to the President of the United States and the Congress as to the results thereof.

(2) In the joint resolution of January 14, 1986 (Public Law 99-239) Congress provided that the purpose of the review referred to in paragraph (1) of this subsection shall be to establish whether the data cited in support of the conclusions as to thehabitability of Rongelap Island, as set forth in the Department of Energy report entitled: “The Meaning of Radiation forThose Atolls in the Northern Part of the Marshall Islands That Were Surveyed in 1978”, dated November 1982, are adequateand whether such conclusions are fully supported by the data. If the party reviewing the data concludes that such conclusionsas to habitability are fully supported by adequate data, the report to the President of the United States and the Congress shall


ADDENDUM44



so state. If the party reviewing the data concludes that the data are inadequate to support such conclusions as to habitability orthat such conclusions as to habitability are not fully supported by the data, the Government of the Marshall Islands shall contract with an appropriate scientist or group of scientists to undertake a complete survey of radiation and other effects of thenuclear testing program relating to the habitability of Rongelap Island. Such sums as are necessary for such survey and reportconcerning the results thereof and as to steps needed to restore the habitability of Rongelap Island are authorized to be madeavailable to the Government of the Marshall Islands.

(3) In the joint resolution of January 14, 1986 (Public Law 99-23 9) Congress provided that it is the intent of Congress thatsuch steps (if any) as are necessary to restore the habitability of Rongelap Island and return the Rongelap people to theirhomeland will be taken by the United States in consultation with the Government of the Marshall Islands and, in accordancewith its authority under the Constitution of the Marshall Islands, the Rongelap local government council.

(4) There are hereby authorized and appropriated to the Secretary of the Interior, out of any funds in the Treasury not otherwise appropriated, to remain available until expended, for fiscal year 2005, $1,780,000; for fiscal year 2006, $1,760,000;*2732 and for fiscal year 2007, $1,760,000, as the final contributions of the United States to the Rongelap Resettlement TrustFund as established pursuant to Public Law 102-154 (105 Stat. 1009), for the purposes of establishing a food importationprogram as a part of the overall resettlement program of Rongelap Island.

(h) FOUR ATOLL HEALTH CARE PROGRAM.-

(1) In the joint resolution of January 14, 1986 (Public Law 99-239) Congress provided that services provided by the UnitedStates Public Health Service or any other United States agency pursuant to section 1(a) of Article II of the Agreement for theImplementation of Section 177 of the Compact (hereafter in this subsection referred to as the “Section 177 Agreement”) shallbe only for services to the people of the Atolls of Bikini, Enewetak, Rongelap, and Utrik who were affected by the consequences of the United States nuclear testing program, pursuant to the program described in Public Law 95-134 (91 Stat.1159) and Public Law 96-205 (94 Stat. 84) and their descendants (and any other persons identified as having been so affectedif such identification occurs in the manner described in such public laws). Nothing in this subsection shall be construed asprejudicial to the views or policies of the Government of the Marshall Islands as to the persons affected by the consequencesof the United States nuclear testing program.

(2) In the joint resolution of January 14, 1986 (Public Law 99-239) Congress provided that at the end of the first year afterthe effective date of the Compact and at the end of each year thereafter, the providing agency or agencies shall return to theGovernment of the Marshall Islands any unexpended funds to be returned to the Fund Manager (as described in Article I ofthe Section 177 Agreement) to be covered into the Fund to be available for future use.

(3) In the joint resolution of January 14, 1986 (Public Law 99-23 9) Congress provided that the Fund Manager shall retain thefunds returned by the Government of the Marshall Islands pursuant to paragraph (2) of this subsection, shall invest and manage such funds, and at the end of 15 years after the effective date of the Compact, shall make from the total amount so retained and the proceeds thereof annual disbursements sufficient to continue to make payments for the provision of health services as specified in paragraph (1) of this subsection to such extent as may be provided in contracts between the Governmentof the Marshall Islands and appropriate United States providers of such health services.

(i) ENJEBI COMMUNITY TRUST FUND.--In the joint resolution of January 14, 1986 (Public Law 99-239) Congress provided that notwithstanding any other provision of law, the Secretary of the Treasury shall establish on the books of the Treasury of the United States a fund having the status specified in Article V of the subsidiary agreement for the implementation ofSection 177 of the Compact, to be known as the “Enjebi Community Trust Fund” (hereafter in this subsection referred to asthe “Fund”), and shall credit to the Fund the amount of $7,500,000. Such amount, which shall be ex gratia, shall be in addition to and not charged against any other funds provided for in the Compact and its subsidiary agreements, this joint resolution, or any other Act. Upon receipt by the President of the United States of the agreement described *2733 in this subsection,the Secretary of the Treasury, upon request of the Government of the Marshall Islands, shall transfer the Fund to the Gov


ADDENDUM45



amounts required to be paid pursuant to the land use agreement dated October 19, 1982, shall be paid into, and held in, aninterest bearing escrow account in a United States financial institution by the Government of the Republic of the MarshallIslands. At such time, the funds and interest held in escrow shall be paid to the landowners of Kwajalein in accordance withthe new land use agreement. If no such agreement is concluded by the date which is five years after the date of enactment of*2737 this resolution, then such funds and interest shall, unless otherwise mutually agreed between the Government of theUnited States of America and the Government of the Republic of the Marshall Islands, be returned to the U.S. Treasury.

(4) NOTIFICATIONS AND REPORT.--

(A) The Government of the Republic of the Marshall Islands shall notify the Government of the United States of Americawhen an agreement amending or superseding the land use agreement dated October 19, 1982, is concluded.

(B) If no agreement amending or superseding the land use agreement dated October 19, 1982 is concluded by the date fiveyears after the date of enactment of this resolution, then the President shall report to Congress on the intentions of the UnitedStates with respect to the use of Kwajalein Atoll after 2016, on any plans to relocate activities carried out on Kwajalein Atoll,and on the disposition of the funds and interest held in escrow under paragraph (3).

(5) ASSISTANCE--The President is authorized to make loans and grants to the Government of the Marshall Islands to address the special needs of the community at Ebeye, Kwajalein Atoll, and other Marshallese communities within the Kwajalem Atoll, pursuant to development plans adopted in accordance with applicable laws of the Marshall Islands. The loans andgrants shall be subject to such other terms and conditions as the President, in the discretion of the President, may determineare appropriate.

<<48USCA 1921c>>

SEC. 104. INTERPRETATION OF AND UNITED STATES POLICY REGARDING U.S.-FSM COMPACT AND U.S.RMI COMPACT.

(a) HUMAN RIGHTS--In approving the U.S.-FSM Compact and the U.S.-RMI Compact, Congress notes the conclusion inthe Statement of Intent of the Report of The Future Political Status Commission of the Congress of Micronesia in July, 1969,that “our recommendation of a free associated state is indissolubly linked to our desire for such a democratic, representative,constitutional government” and notes that such desire and intention are reaffirmed and embodied in the Constitutions of theFederated States of Micronesia and the Republic of the Marshall Islands. Congress also notes and specifically endorses thepreamble to the U.S.-FSM Compact and the U.S.-RMI Compact, which affirms that the governments of the parties to theU.S.-FSM Compact and the U.S.-RMI Compact are founded upon respect for human rights and fundamental freedoms for all.The Secretary of State shall include in the annual reports on the status of internationally recognized human rights in foreigncountries, which are submitted to Congress pursuant to sections 116 and 502B of the Foreign Assistance Act of 1961, “22U.S.C. 215 in, 2304” a full and complete report regarding the status of internationally recognized human rights in the Federated States of Micronesia and the Republic of the Marshall Islands.

(b) IMMIGRATION AND PASSPORT SECURITY.--

(1) NATURALIZED CITIZENS.--The rights of a bona fide naturalized citizen of the Federated States of Micronesia or theRepublic of the Marshall Islands to enter the United States, to lawfully engage therein in occupations, and to establish *2738residence therein as a nonimmigrant, to the extent such rights are provided under section 141 of the U. S.-FSM Compact andU.S.-RMI Compact, shall not be deemed to extend to any such naturalized citizen with respect to whom circumstances associated with the acquisition of the status of a naturalized citizen are such as to allow a reasonable inference, on the part of appropriate officials of the United States and subject to United States procedural requirements, that such naturalized status wasacquired primarily in order to obtain such rights.


ADDENDUM46



(2) PASSPORTS--It is the sense of Congress that up to $250,000 of the grant assistance provided to the Federated States ofMicronesia pursuant to section 211(a)(4) of the U.S.-FSM Compact, and up to $250,000 of the grant assistance provided tothe Republic of the Marshall Islands pursuant to section 211(a)(4) of the U.S.-RIvll Compact (or a greater amount of the section 211 (a)(4) grant, if mutually agreed between the Government of the United States and the government of the FederatedStates of Micronesia or the government of the Republic of the Marshall Islands), be used for the purpose of increasing themachine-readability and security of passports issued by such jurisdictions. It is further the sense of Congress that such fundsbe obligated by September 30, 2004 and in the amount and manner specified by the Secretary of State in consultation withthe Secretary of Homeland Security and, respectively, with the government of the Federated States of Micronesia and thegovernment of the Republic of the Marshall Islands. The United States Government is authorized to require that passportsused for the purpose of seeking admission under section 141 of the U.S.-FSM Compact and the U.S.-R]VII Compact containthe security enhancements funded by such assistance.

(3) INFORMATION-SHARING.--It is the sense of Congress that the governments of the Federated States of Micronesia andthe Republic of the Marshall Islands develop, prior to October 1, 2004, the capability to provide reliable and timely information as may reasonably be required by the Government of the United States in enforcing criminal and security-relatedgrounds of inadmissibility and deportability under the Immigration and Nationality Act, as amended, and shall provide suchinformation to the Government of the United States.

(4) TRANSITION; CONSTRUCTION OF SECTIONS I4l(a)(3) AND 141(a)(4) OF THE U.S.-FSM COMPACT ANDU.S.-RMI COMPACT--The words “the effective date of this Compact, as amended” in sections 141(a)(3) and 141(a)(4) ofthe U.S.-FSM Compact and the US.-RIvII Compact shall be construed to read, “on the day prior to the enactment by theUnited States Congress of the Compact of Free Association Amendments Act of 2003”.

(c) NONALIENATION OF LANDS--Congress endorses and encourages the maintenance of the policies of the Governmentof the Federated States of Micronesia and the Government of the Republic of the Marshall Islands to regulate, in accordancewith their Constitutions and laws, the alienation of permanent interests in real property so as to restrict the acquisition of suchinterests to persons of Federated States of Micronesia citizenship and the Republic of the Marshall Islands citizenship, respectively.

(d) NUCLEAR WASTE DISPOSAL.--In approving the U.S.-FSM Compact and the U.S.- RMI Compact, Congress understands that *2739 the Government of the Federated States of Micronesia and the Government of the Republic of the MarshallIslands will not permit any other government or any nongovernmental party to conduct, in the Republic of the Marshall Islands or in the Federated States of Micronesia, any of the activities specified in subsection (a) of section 314 of the U.S.-FSMCompact and the U.S.-RMI Compact.

(e) IMPACT OF THE U.S.-FSM COMPACT AND THE U.S.-RMI COMPACT ON THE STATE OF HAWAII, GUAM,THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS AND AMERICAN SAMOA; RELATED AUTHORIZATION AND CONTINUING APPROPRIATION.-

(1) STATEMENT OF CONGRESSIONAL INTENT--In reauthorizing the U.S.-FSM Compact and the U.S.-RMI Compact,it is not the intent of Congress to cause any adverse consequences for an affected jurisdiction.

(2) DEFINITIONS.--For the purposes of this title--

(A) the term “affected jurisdiction” means American Samoa, Guam, the Commonwealth of the Northern Mariana Islands,or the State of Hawaii; and

(B) the term “qualified nonimmigrant’ means a person, or their children under the age of 18, admitted or resident pursuantto section 141 of the U.S.-RMI or U.S.-FSM Compact, or section 141 of the Palau Compact who, as of a date referenced inthe most recently published enumeration is a resident of an affected jurisdiction. As used in this subsection, the term “resi


ADDENDUM47



dent’ shall be a person who has a residence,” as that term is defined in section 101(a)(33) of the Immigration and NationalityAct, as amended.

(3) AUTHORIZATION AND CONTINUING APPROPRIATION--There is hereby authorized and appropriated to the Secretary of the Interior, out of any funds in the Treasury not otherwise appropriated, to remain available until expended, foreach fiscal year from 2004 through 2023, $30,000,000 for grants to affected jurisdictions to aid in defraying costs incurred byaffected jurisdictions as a result of increased demands placed on health, educational, social, or public safety services or infrastructure related to such services due to the residence in affected jurisdictions of qualified nonimmigrants from the Republicof the Marshall Islands, the Federated States of Micronesia, or the Republic of Palau. The grants shall be--

(A) awarded and administered by the Department of the Interior, Office of Insular Affairs, or any successor thereto, in accordance with regulations, policies and procedures applicable to grants so awarded and administered; and

(B) used only for health, educational, social, or public safety services, or infrastructure related to such services, specificallyaffected by qualified nonimmigrants.

(4) ENUMERATION.--The Secretary of the Interior shall conduct periodic enumerations of qualified nonimmigrants in eachaffected jurisdiction. The enumerations--

(A) shall be conducted at such intervals as the Secretary of the Interior shall determine, but no less frequently than everyfive years, beginning in fiscal year 2003;

(B) shall be supervised by the United States Bureau of the Census or such other organization as the Secretary of the Interior may select; and

*2740 (C) after fiscal year 2003, shall be funded by the Secretary of the Interior by deducting such sums as are necessary,but not to exceed $300,000 as adjusted for inflation pursuant to section 217 of the U.S.-FSM Compact with fiscal year 2003as the base year, per enumeration, from funds appropriated pursuant to the authorization contained in paragraph (3) of thissubsection.

(5) ALLOCATION--The Secretary of the Interior shall allocate to the government of each affected jurisdiction, on the basisof the results of the most recent enumeration, grants in an aggregate amount equal to the total amount of funds appropriatedunder paragraph (3) of this subsection, as reduced by any deductions authorized by subparagraph (C) of paragraph (4) of thissubsection, multiplied by a ratio derived by dividing the number of qualified nonimmigrants in such affected jurisdiction bythe total number of qualified nonimmigrants in all affected jurisdictions.

(6) AUTHORIZATION FOR HEALTH CARE REIMBURSEMENT.--There are hereby authorized to be appropriated to theSecretary of the Interior such sums as may be necessary to reimburse health care institutions in the affected jurisdictions forcosts resulting from the migration of citizens of the Republic of the Marshall Islands, the Federated States of Micronesia andthe Republic of Palau to the affected jurisdictions as a result of the implementation of the Compact of Free Association, approved by Public Law 99-239, or the approval of the U.S.-FSM Compact and the U.S.-RMI Compact by this resolution.

(7) USE OF DOD MEDICAL FACILITIES AND NATIONAL HEALTH SERVICE CORPS.--

(A) DOD MEDICAL FACILITIES--The Secretary of Defense shall make available, on a space available and reimbursablebasis, the medical facilities of the Department of Defense for use by citizens of the Federated States of Micronesia and theRepublic of the Marshall Islands who are properly referred to the facilities by government authorities responsible for provision of medical services in the Federated States of Micronesia, the Republic of the Marshall Islands, the Republic of Palauand the affected jurisdictions.


ADDENDUM48



(B) NATIONAL HEALTH SERVICE CORPS.--The Secretary of Health and Human Services shall continue to make theservices of the National Health Service Corps available to the residents of the Federated States of Micronesia and the Republic of the Marshall Islands to the same extent and for so long as such services are authorized to be provided to persons residing in any other areas within or outside the United States.

(C) AUTHORIZATION OF APPROPRIATIONS--There are authorized to be appropriated to carry out this paragraphsuch sums as are necessary for each fiscal year.

(8) REPORTING REQUIREMENT.--Not later than one year after the date of enactment of this joint resolution, and at oneyear intervals thereafter, the Governors of Guam, the State of Hawaii, the Commonwealth of the Northern Mariana Islands,and American Samoa may provide to the Secretary of the Interior by February 1 of each year their comments with respect tothe impacts of the Compacts on their respective jurisdiction. *2741 The Secretary of the Interior, upon receipt of any suchcomments, shall report to the Congress not later than May I of each year to include the following:

(A) The Governors comments on the impacts of the Compacts as well as the Administration’s analysis of such impact.

(B) The Administration views on any recommendations for corrective action to eliminate those consequences as proposedby such Governors.

(C) With regard to immigration, statistics concerning the number of persons availing themselves of the rights described insection 14 1(a) of the Compact during the year covered by each report.

(D) With regard to trade, an analysis of the impact on the economy of American Samoa resulting from imports of cannedtuna into the United States from the Federated States of Micronesia, and the Republic of the Marshall Islands.

(9) RECONCILIATION OF UNREIMBURSED IMPACT EXPENSES.--

(A) IN GENERAL--Notwithstanding any other provision of law, the President, to address previously accrued and unreimbursed impact expenses, may at the request of the Governor of Guam or the Governor of the Commonwealth of the NorthernMariana Islands, reduce, release, or waive all or part of any amounts owed by the Government of Guam or the Governmentof the Commonwealth of the Northern Mariana Islands (or either government’s autonomous agencies or instrumentalities),respectively, to any department, agency, independent agency, office, or instrumentality of the United States.

(B) TERMS AND CONDITIONS.-

(i) SUBSTANTIATION OF IMPACT COSTS.--Not later than 120 days after the date of the enactment of this resolution,the Governor of Guam and the Governor of the Commonwealth of the Northern Mariana Islands shall each submit to the Secretary of the Interior a report, prepared in consultation with an independent accounting firm, substantiating unreimbursedimpact expenses claimed for the period from January 14, 1986, through September 30, 2003. Upon request of the Secretaryof the Interior, the Governor of Guam and the Governor of the Commonwealth of the Northern Mariana Islands shall submitto the Secretary of the Interior copies of all documents upon which the report submitted by that Governor under this clausewas based.

(ii) CONGRESSIONAL NOTIFICATION--The President shall notify Congress of his intent to exercise the authoritygranted in subparagraph (A).

(iii) CONGRESSIONAL REVIEW AND COMMENT.--Any reduction, release, or waiver under this Act shall not takeeffect until 60 days after the President notifies Congress of his intent to approve a request of the Governor of Guam or the


ADDENDUM49



the Federated States of Micronesia in the area of foreign affairs, except as may from time to time be expressly agreed.

Section 126

*2760 At the request of the Government of the Federated States of Micronesia and subject to the consent of the receivingstate, the Government of the United States shall extend consular assistance on the same basis as for citizens of the UnitedStates to citizens of the Federated States of Micronesia for travel outside the Federated States of Micronesia, the UnitedStates and its territories and possessions.

Section 127

Except as otherwise provided in this Compact, as amended, or its related agreements, all obligations, responsibilities, rightsand benefits of the Government of the United States as Administering Authority which resulted from the application pursuantto the Trusteeship Agreement of any treaty or other international agreement to the Trust Territory of the Pacific Islands onNovember 2, 1986, are, as of that date, no longer assumed and enjoyed by the Government of the United States.

Article IIICommunications

Section 131

(a) The Government of the Federated States of Micronesia has full authority and responsibility to regulate its domestic andforeign communications, and the Government of the United States shall provide communications assistance as mutuallyagreed.

(b) On May 24, 1993, the Government of the Federated States of Micronesia elected to undertake all functions previouslyperformed by the Government of the United States with respect to domestic and foreign communications, except for thosefunctions set forth in a separate agreement entered into pursuant to this section of the Compact, as amended.

Section 132

The Government of the Federated States of Micronesia shall permit the Government of the United States to operate telecommunications services in the Federated States of Micronesia to the extent necessary to fulfill the obligations of the Government of the United States under this Compact, as amended, in accordance with the terms of separate agreements enteredinto pursuant to this section of the Compact, as amended.

Article IVImmigration

Section 141

(a) In furtherance of the special and unique relationship that exists between the United States and the Federated States ofMicronesia, under the Compact, as amended, any person in the following categories may be admitted to, lawfully engage inoccupations, and establish residence as a nonimmigrant in the United States and its territories and possessions (the “UnitedStates”) without regard to paragraph (5) or (7)(B)(i)(II) of section 2 12(a) of the Immigration and Nationality Act, asamended, 8 U.S.C. 1 182(a)(5) or (7)(B)(i)(II):

(1) a person who, on November 2, 1986, was a citizen of the Trust Territory of the Pacific Islands, as defined in Title 53 ofthe Trust Territory Code in force on January 1, *2761 1979, and has become and remains a citizen of the Federated States of


ADDENDUM5O



Micronesia;

(2) a person who acquires the citizenship of the Federated States of Micronesia at birth, on or after the effective date of theConstitution of the Federated States of Micronesia;

(3) an immediate relative of a person referred to in paragraphs (1) or (2) of this section, provided that such immediate relative is a naturalized citizen of the Federated States of Micronesia who has been an actual resident there for not less than fiveyears after attaining such naturalization and who holds a certificate of actual residence, and further provided, that, in the caseof a spouse, such spouse has been married to the person referred to in paragraph (1) or (2) of this section for at least fiveyears, and further provided, that the Government of the United States is satisfied that such naturalized citizen meets the requirement of subsection (b) of section 104 of Public Law 99-23 9 as it was in effect on the day prior to the effective date ofthis Compact, as amended;

(4) a naturalized citizen of the Federated States of Micronesia who was an actual resident there for not less than five yearsafter attaining such naturalization and who satisfied these requirements as of April 30, 2003, who continues to be an actualresident and holds a certificate of actual residence, and whose name is included in a list furnished by the Government of theFederated States of Micronesia to the Government of the United States no later than the effective date of the Compact, asamended, in form and content acceptable to the Government of the United States, provided, that the Government of theUnited States is satisfied that such naturalized citizen meets the requirement of subsection (b) of section 104 of Public Law99-239 as it was in effect on the day prior to the effective date of this Compact, as amended; or

(5) an immediate relative of a citizen of the Federated States of Micronesia, regardless of the immediate relative’s country ofcitizenship or period of residence in the Federated States of Micronesia, if the citizen of the Federated States of Micronesia isserving on active duty in any branch of the United States Armed Forces, or in the active reserves.

(b) Notwithstanding subsection (a) of this section, a person who is coming to the United States pursuant to an adoption outside the United States, or for the purpose of adoption in the United States, is ineligible for admission under the Compact andthe Compact, as amended. This subsection shall apply to any person who is or was an applicant for admission to the UnitedStates on or after March 1, 2003, including any applicant for admission in removal proceedings (including appellate proceedings) on or after March 1, 2003, regardless of the date such proceedings were commenced. This subsection shall have no effect on the ability of the Government of the United States or any United States State or local government to commence orotherwise take any action against any person or entity who has violated any law relating to the adoption of any person.

(c) Notwithstanding subsection (a) of this section, no person who has been or is granted citizenship in the Federated States ofMicronesia, or has been or is issued a Federated States of Micronesia passport pursuant to any investment, passport sale, orsimilar program has been or shall be eligible for admission *2762 to the United States under the Compact or the Compact, asamended.

(d) A person admitted to the United States under the Compact, or the Compact, as amended, shall be considered to have thepermission of the Government of the United States to accept employment in the United States. An unexpired Federated Statesof Micronesia passport with unexpired documentation issued by the Government of the United States evidencing admissionunder the Compact or the Compact, as amended, shall be considered to be documentation establishing identity and employment authorization under section 274A(b)(1)(B) of the Immigration and Nationality Act, as amended, 8 U.S.C.1324a(b)(1)(B). The Government of the United States will take reasonable and appropriate steps to implement and publicizethis provision, and the Government of the Federated States of Micronesia will also take reasonable and appropriate steps topublicize this provision.

(e) For purposes of the Compact and the Compact, as amended:

(1) the term “residence” with respect to a person means the person’s principal, actual dwelling place in fact, without regard to


ADDENDUM51



intent, as provided in section 101(a)(33) of the Immigration and Nationality Act, as amended, 8 U.S.C. 1 101(a)(33), andvariations of the term “residence,” including “resident” and “reside,” shall be similarly construed;

(2) the term “actual residence” means physical presence in the Federated States of Micronesia during eighty-five percent ofthe five-year period of residency required by section 14l(a)(3) and (4);

(3) the term “certificate of actual residence” means a certificate issued to a naturalized citizen by the Government of the Federated States of Micronesia stating that the citizen has complied with the actual residence requirement of section 14l(a)(3) or(4);

(4) the term “nonimmigrant” means an alien who is not an “immigrant” as defined in section 101(a)(l5) of such Act, 8U.S.C. I lOl(a)(15); and

(5) the term “immediate relative” means a spouse, or unmarried son or unmarried daughter less than 21 years of age.

(f) The Immigration and Nationality Act, as amended, shall apply to any person admitted or seeking admission to the UnitedStates (other than a United States possession or territory where such Act does not apply) under the Compact or the Compact,as amended, and nothing in the Compact or the Compact, as amended, shall be construed to limit, preclude, or modif’ theapplicability of, with respect to such person:

(1) any ground of inadmissibility or deportability under such Act (except sections 212(a)(5) and 2l2(a)(7)(B)(i)(II) of suchAct, as provided in subsection (a) of this section), and any defense thereto, provided that, section 237(a)(5) of such Act shallbe construed and applied as if it reads as follows: “any alien who has been admitted under the Compact, or the Compact, asamended, who cannot show that he or she has sufficient means of support in the United States, is deportable”;

(2) the authority of the Government of the United States under section 214(a)(l) of such Act to provide that admission as anonimmigrant shall be for such time and under such *2763 conditions as the Government of the United States may by regulations prescribe;

(3) except for the treatment of certain documentation for purposes of section 274A(b)(l)(B) of such Act as provided by subsection (d) of this section of the Compact, as amended, any requirement under section 274A, including but not limited to section 274A(b)( 1 )(E);

(4) section 643 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208, and actions taken pursuant to section 643; and

(5) the authority of the Government of the United States otherwise to administer and enforce the Immigration and Nationality Act, as amended, or other United States law.

(g) Any authority possessed by the Government of the United States under this section of the Compact or the Compact, asamended, may also be exercised by the Government of a territory or possession of the United States where the Immigrationand Nationality Act, as amended, does not apply, to the extent such exercise of authority is lawful under a statute or regulation of such territory or possession that is authorized by the laws of the United States.

(h) Subsection (a) of this section does not confer on a citizen of the Federated States of Micronesia the right to establish theresidence necessary for naturalization under the Immigration and Nationality Act, as amended, or to petition for benefits foralien relatives under that Act. Subsection (a) of this section, however, shall not prevent a citizen of the Federated States ofMicronesia from otherwise acquiring such rights or lawful permanent resident alien status in the United States.


ADDENDUM52


PL 108-188, 2003 HJRes 63 Page 44PL 108-188. December 17, 2003, 117 Stat 2720(Cite as: 117 Stat 2720)

(b) A separate agreement, which shall come into effect simultaneously with this Compact, as amended, and shall have theforce of law, shall govern requirements relating to labor recruitment practices, including registration, reporting, suspension orrevocation of authorization to recruit persons for employment in the United States, and enforcement for violations of suchrequirements.

Section 176

The Government of the Federated States of Micronesia confirms that final judgments in civil cases rendered by any court ofthe Trust Territory of the Pacific Islands shall continue in full force and effect, subject to the constitutional power of thecourts of the Federated States of Micronesia to grant relief from judgments in appropriate cases.

Section 177

Section 177 of the Compact entered into force with respect to the Federated States of Micronesia on November 3, 1986 asfollows:

*2770 (a) The Government of the United States accepts the responsibility for compensation owing to citizens of the Marshall Islands, or the Federated States of Micronesia, or Palau for loss or damage to property and person of the citizens of theMarshall Islands, or the Federated States of Micronesia, resulting from the nuclear testing program which the Government ofthe United States conducted in the Northern Marshall Islands between June 30, 1946, and August 18, 1958.

‘(b) The Government of the United States and the Government of the Marshall Islands shall set forth in a separate agreementprovisions for the just and adequate settlement of all such claims which have arisen in regard to the Marshall Islands and itscitizens and which have not as yet been compensated or which in the future may arise, for the continued administration by theGovernment of the United States of direct radiation related medical surveillance and treatment programs and radiologicalmonitoring activities and for such additional programs and activities as may be mutually agreed, and for the assumption bythe Government of the Marshall Islands of responsibility for enforcement of limitations on the utilization of affected areasdeveloped in cooperation with the Government of the United States and for the assistance by the Government of the UnitedStates in the exercise of such responsibility as may be mutually agreed. This separate agreement shall come into effect simultaneously with this Compact and shall remain in effect in accordance with its own terms.

‘(c) The Government of the United States shall provide to the Government of the Marshall Islands, on a grant basis, theamount of $150 million to be paid and distributed in accordance with the separate agreement referred to in this Section, andshall provide the services and programs set forth in this separate agreement, the language of which is incorporated into thisCompact.”.

The Compact, as amended, makes no changes to, and has no effect upon, Section 177 of the Compact, nor does the Compact,as amended, change or affect the separate agreement referred to in Section 177 of the Compact including Articles IX and Xof that separate agreement, and measures taken by the parties thereunder.

Section 178

(a) The Federal agencies of the Government of the United States that provide the services and related programs in the Federated States of Micronesia pursuant to Title Two are authorized to settle and pay tort claims arising in the Federated States ofMicronesia from the activities of such agencies or from the acts or omissions of the employees of such agencies. Except asprovided in section 178(b), the provisions of 28 U.S.C. 2672 and 31 U.S.C. 1304 shall apply exclusively to such administrative settlements and payments.

(b) Claims under section 178(a) that cannot be settled under section 178(a) shall be disposed of exclusively in accordancewith Article II of Title Four. Arbitration awards rendered pursuant to this subsection shall be paid out of funds under 31


ADDENDUM53



U.S.C. 1304.

(c) The Government of the United States and the Government of the Federated States of Micronesia shall, in the separateagreement referred to in section 231, provide for:

*2771 (1) the administrative settlement of claims referred to in section 178(a), including designation of local agents in eachState of the Federated States of Micronesia; such agents to be empowered to accept, investigate and settle such claims, in atimely manner, as provided in such separate agreements; and

(2) arbitration, referred to in section 178(b), in a timely manner, at a site convenient to the claimant, in the event a claim isnot otherwise settled pursuant to section 178(a).

(d) The provisions of section 174(d) shall not apply to claims covered by this section.

(e) Except as otherwise explicitly provided by law of the United States, neither the Government of the United States, its instrumentalities, nor any person acting on behalf of the Government of the United States, shall be named a party in any actionbased on, or arising out of, the activity or activities of a recipient of any grant or other assistance provided by the Governmentof the United States (or the activity or activities of the recipient’s agency or any other person or entity acting on behalf of therecipient).

Section 179

(a) The courts of the Federated States of Micronesia shall not exercise criminal jurisdiction over the Government of theUnited States, or its instrumentalities.

(b) The courts of the Federated States of Micronesia shall not exercise criminal jurisdiction over any person if the Government of the United States provides notification to the Government of the Federated States of Micronesia that such person wasacting on behalf of the Government of the United States, for actions taken in furtherance of section 221 or 224 of thisamended Compact, or any other provision of law authorizing financial, program, or service assistance to the Federated Statesof Micronesia.

TITLE TWOECONOMIC RELATIONS

Article IGrant Assistance

Section 211--Sector Grants

(a) In order to assist the Government of the Federated States of Micronesia in its efforts to promote the economic advancement, budgetary self-reliance, and economic self-sufficiency of its people, and in recognition of the special relationship thatexists between the Federated States of Micronesia and the United States, the Government of the United States shall provideassistance on a sector grant basis for a period of twenty years in the amounts set forth in section 216, commencing on theeffective date of this Compact, as amended. Such grants shall be used for assistance in the sectors of education, health care,private sector development, the environment, public sector capacity building, and public infrastructure, or for other sectors asmutually agreed, with priorities in the education and health care sectors. For each year such sector grant assistance is madeavailable, the proposed division of this amount among these sectors shall be certified to the Government of the United Statesby the Government of the Federated States *2772 of Micronesia and shall be subject to the concurrence of the Government ofthe United States. In such case, the Government of the United States shall disburse the agreed upon amounts and monitor theuse of such sector grants in accordance with the provisions of this Article and the Agreement Concerning Procedures for theImplementation of United States Economic Assistance Provided in the Compact, as Amended, of Free Association Between


ADDENDUM54



the Government of the United States of America and the Government of the Federated States of Micronesia (‘Fiscal Procedures Agreement”) which shall come into effect simultaneously with this Compact, as amended. The provision of any UnitedStates assistance under the Compact, as amended, the Fiscal Procedures Agreement, the Trust Fund Agreement, or any othersubsidiary agreement to the Compact, as amended, shall constitute “a particular distribution ... required by the terms or special nature of the assistance” for purposes of Article XII, section 1(b) of the Constitution of the Federated States of Micronesia.

(1) EDUCATION.--United States grant assistance shall be made available in accordance with the plan described in subsection (c) of this section to support and improve the educational system of the Federated States of Micronesia and develop thehuman, financial, and material resources necessary for the Government of the Federated States of Micronesia to performthese services. Emphasis should be placed on advancing a quality basic education system.

(2) HEALTH--United States grant assistance shall be made available in accordance with the plan described in subsection (c)of this section to support and improve the delivery of preventive, curative and environmental care and develop the human,financial, and material resources necessary for the Government of the Federated States of Micronesia to perform these services.

(3) PRIVATE SECTOR DEVELOPMENT.--United States grant assistance shall be made available in accordance with theplan described in subsection (c) of this section to support the efforts of the Government of the Federated States of Micronesiato attract foreign investment and increase indigenous business activity by vitalizing the commercial environment, ensuringfair and equitable application of the law, promoting adherence to core labor standards, and maintaining progress toward privatization of state-owned and partially state-owned enterprises, and engaging in other reforms.

(4) CAPACITY BUILDING IN THE PUBLIC SECTOR.--United States grant assistance shall be made available in accordance with the plan described in subsection (c) of this section to support the efforts of the Government of the FederatedStates of Micronesia to build effective, accountable and transparent national, state, and local government and other publicsector institutions and systems.

(5) ENVIRONMENT--United States grant assistance shall be made available in accordance with the plan described in subsection (c) of this section to increase environmental protection; conserve and achieve sustainable use of natural resources; andengage in environmental infrastructure planning, design construction and operation.

(6) PUBLIC INFRASTRUCTURE.-

(i) U.S. annual grant assistance shall be made available in accordance with a list of specific projects included in *2773 theplan described in subsection (c) of this section to assist the Government of the Federated States of Micronesia in its efforts toprovide adequate public infrastructrne.

(ii) INFRASTRUCTURE AND MAINTENANCE FUND.--Five percent of the annual public infrastructure grant madeavailable under paragraph (i) of this subsection shall be set aside, with an equal contribution from the Government of theFederated States of Micronesia, as a contribution to an Infrastructure Maintenance Fund (IMF). Administration of the Infrastructure Maintenance Fund shall be governed by the Fiscal Procedures Agreement.

(b) HUMANITARIAN ASSISTANCE.--Federated States of Micronesia Program. In recognition of the special developmentneeds of the Federated States of Micronesia, the Government of the United States shall make available to the Government ofthe Federated States of Micronesia, on its request and to be deducted from the grant amount made available under subsection(a) of this section, a Humanitarian Assistance--Federated States of Micronesia (“HAFSM”) Program with emphasis on health,education, and infrastructure (including transportation), projects. The terms and conditions of the HAFSM shall be set forthin the Agreement Regarding the Military Use and Operating Rights of the Government of the United States in the Government of the Federated States of Micronesia Concluded Pursuant to Sections 321 and 323 of the Compact of Free Association,


ADDENDUM55



as Amended which shall come into effect simultaneously with the amendments to this Compact.

(c) DEVELOPMENT PLAN.--The Government of the Federated States of Micronesia shall prepare and maintain an officialoverall development plan. The plan shall be strategic in nature, shall be continuously reviewed and updated through the annual budget process, and shall make projections on a multi-year rolling basis. Each of the sectors named in subsection (a) ofthis section, or other sectors as mutually agreed, shall be accorded specific treatment in the plan. Insofar as grants funds areinvolved, the plan shall be subject to the concurrence of the Government of the United States.

(d) DISASTER ASSISTANCE EMERGENCY FUND.--An amount of two hundred thousand dollars ($200,000) shall beprovided annually, with an equal contribution from the Government of the Federated States of Micronesia, as a contributionto a “Disaster Assistance Emergency Fund (DAEF).’ Any funds from the DAEF may be used only for assistance and rehabilitation resulting from disasters and emergencies. The funds will be accessed upon declaration by the Government of theFederated States of Micronesia, with the concurrence of the United States Chief of Mission to the Federated States of Micronesia. The Administration of the DAEF shall be governed by the Fiscal Procedures Agreement.

Section 212--Accountability

(a) Regulations and policies normally applicable to United States financial assistance to its state and local governments, asreflected in the Fiscal Procedures Agreement, shall apply to each sector grant described in section 211, and to grants administered under section 221 below, except as modified in the separate agreements referred to in section 231 of this Compact, asamended, or by United States law. The Government of the United States, after annual consultations with the Federated Statesof Micronesia, may attach reasonable terms and conditions, including annual *2774 performance indicators that are necessaryto ensure effective use of United States assistance and reasonable progress toward achieving program objectives. The Government of the United States may seek appropriate remedies for noncompliance with the terms and conditions attached to theassistance, or for failure to comply with section 234, including withholding assistance.

(b) The Government of the United States shall, for each fiscal year of the twenty years during which assistance is to be provided on a sector grant basis under section 211, grant the Government of the Federated States of Micronesia an amount equalto the lesser of(i) one half of the reasonable, properly documented cost incurred during each fiscal year to conduct the annualaudit required under Article VIII (2) of the Fiscal Procedures Agreement or (ii) $500,000. Such amount will not be adjustedfor inflation under section 217 or otherwise.

Section 213--Joint Economic Management Committee

The Governments of the United States and the Federated States of Micronesia shall establish a Joint Economic ManagementCommittee, composed of a U.S. chair, two other members from the Government of the United States and two members fromthe Government of the Federated States of Micronesia. The Joint Economic Management Committee shall meet at least onceeach year to review the audits and reports required under this Title, evaluate the progress made by the Federated States ofMicronesia in meeting the objectives identified in its plan described in subsection (c) of section 211, with particular focus onthose parts of the plan dealing with the sectors identified in subsection (a) of section 211, identiI’ problems encountered, andrecommend ways to increase the effectiveness of U.S. assistance made available under this Title. The establishment and operations of the Joint Economic Management Committee shall be governed by the Fiscal Procedures Agreement.

Section 214--Annual Report

The Government of the Federated States of Micronesia shall report annually to the President of the United States on the useof United States sector grant assistance and other assistance and progress in meeting mutually agreed program and economicgoals. The Joint Economic Management Committee shall review and comment on the report and make appropriate recommendations based thereon.


ADDENDUM56


NO. 11-15132

CERTIFICATE OF SERVICE

I certify that on June 20, 2011, I electronically filed the foregoing document

with the Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CMIECF system.

All participants in the case that are registered CM/ECF users will be served

by the appellate CM/ECF system.

The following party is not a registered CMIECF user. I have mailed the

foregoing document by First-Class Mail, postage prepaid for delivery within 3

calendar days to the following non-CM/ECF participant:

Catherine Leilani AubuchonBRONSTER HOSHIBATASuite 23001003 Bishop StreetHonolulu, Hawaii

DATED: Honolulu, Hawai’i, June 20, 2011

/s/ Lee Ann N.M. BrewerLEE AM’J N.M. BREWERJOHN F. MOLAYDeputy Attorneys General

Attorneys for Defendants-AppellantsPATRICIA McMANAMAN, in herofficial capacity as Director of theState of Hawai’i, Department ofHuman Services and KENNETHFINK, in his official capacity as Stateof Hawai’i, Department of HumanServices, Med-QUEST DivisionAdministrator


News & Politics

State's opening brief korab