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Law360 (July 27, 2020, 8:25 PM EDT ) A Massachusetts federal judge has sided with a Haitian college student who was denied CARES Act relief, ordering the U.S. Department of Education and the college on Friday not to deny her emergency funds based on her immigration status.
U.S. District Judge Leo T. Sorokin ordered Bunker Hill Community College and the Department of Education to stop blocking Farah Noerand from receiving Higher Education Emergency Relief Fund, or HEERF, assistance due to her temporary protected status while her case proceeds, but declined to open up access to other immigrant students for now.
"The word 'students' has a plain and ordinary meaning well understood in 2020 by the drafters of the CARES Act. ... That meaning, 'one who attends a school,' encompasses persons enrolled in institutions of higher education without regard to their immigration or citizenship status," Judge Sorokin wrote in his preliminary injunction.
Counsel for the Department of Education declined to comment.
According to her complaint filed earlier this month, Noerand lost her job as well as access to the college's food pantry due to COVID-19 shutdowns, and she had to take on the extra costs of purchasing a laptop and an internet subscription to continue her education remotely.
Noerand was ineligible for HEERF assistance as she negotiated the unexpected costs due to a Department of Education rule limiting distribution of the funds to students who would qualify for financial aid under Title IV of the Higher Education Act, predominantly citizens and green card holders, according to Judge Sorokin.
Judge Sorokin pointed to multiple discrepancies between the department's interpretation and the language of the CARES Act concerning students. In particular, the judge noted that the law ordered Secretary of Education Betsy DeVos to award 75% of a school's HEERF assistance funds based on Pell Grant recipients, and 25% of HEERF funding "according to the relative share of full-time equivalent enrollment of students who were not federal Pell Grant recipients."
Since Pell Grants are available only to students who qualify for Title IV financial aid, by including provisions for both, the CARES Act formula "requires the secretary to allocate funds based, in part, on the number of [temporary protected status] or other non-citizen students at an [institution of higher education]," Judge Sorokin said.
He also pointed to preliminary injunctions from Washington and California federal courts that found the department's exclusion of foreign students inconsistent with the law, and likely unconstitutional.
Judge Sorokin further disagreed with the Department of Education's argument that even if its rule were wrong, Noerand and similarly situated students would be barred from receiving HEERF assistance under Section 1611 of Title 8, which specifies that only "qualified aliens" may receive federal public benefits.
"Congress can safely ... privilege the later specific statute, within its terms, over the older, more general, statute," Judge Sorokin wrote.
Therefore, Judge Sorokin concluded that "the CARES Act directs the distribution of funds to students of any immigration status (e.g., green card holders, TPS recipients, etc.)."
The Department of Education has until July 31 to argue why the court should not expand the injunction beyond Noerand.
"We appreciate the court's careful and thorough reading, and intend to urge that the court broaden relief to persons situated similarly to the plaintiff throughout Massachusetts going forward," Noerand's attorney Iris Gomez of the Massachusetts Law Reform Institute told Law360 in a statement.
Noerand is represented by Rachel C. Hutchinson, Jeremy W. Meisinger and Dean Richlin of Foley Hoag LLP and Iris Gomez and Deirdre M. Giblin of the Massachusetts Law Reform Institute.
Betsy DeVos and the Department of Education are represented by Annapurna Balakrishna of the U.S. Attorney's Office for the District of Massachusetts.
The case is Noerand v. DeVos et al., case number 1:20-cv-11271, in U.S. District Court for the District of Massachusetts.
--Additional reporting by Suzanne Monyak. Editing by Brian Baresch.
For a reprint of this article, please contact reprints@law360.com.
