Kilmar Abrego Garcia could be eligible for Obamacare subsidies

Kilmar Abrego Garcia could qualify for taxpayer subsidies under Obamacare, whether he is called an illegal immigrant or not.

During court proceedings in 2019, he admitted that he was not in the country legally. An immigration judge ordered him deported but also granted him “withholding of removal,” a special blockade on his return to his home country of El Salvador.

Under the law, those granted withholding of removal are eligible to buy health care coverage on Obamacare’s state exchanges and to collect taxpayer subsidies to help pay for it.

Although federal law in general bars illegal immigrants from obtaining government service benefits, that depends heavily on what the law considers an illegal immigrant.

Millions who entered the U.S. during the Biden administration through “parole” would be eligible, as would more than 1 million under temporary protected status, a form of deportation amnesty.

The question of who’s eligible for Obamacare, officially known as the Affordable Care Act, has raged in recent days as Democrats orchestrate a government shutdown. They demand that any bill to keep the government running must extend pandemic-enhanced Obamacare benefits and roll back recent changes to Medicaid eligibility.

One of the reasons Republicans oppose those changes is that they would benefit illegal immigrants.

Democrats and liberal activists counter that illegal immigrants aren’t eligible for the programs.

“Immigrants are the scapegoats even for the government shutdown,” said America’s Voice. The advocacy group said that “unauthorized individuals are not eligible for Obamacare or any other federal health program.”

That depends on the parsing of what it means to be an illegal immigrant.

Under the bizarre complexities of U.S. immigration law, someone can be what most people would call an “illegal” or “undocumented” immigrant and still be considered “lawfully present.”

That includes those who have applied for asylum, those paroled, those covered by temporary protected status or a similar deferred enforced departure, some of those granted “deferred action,” another form of deportation amnesty, and those granted withholding of removal.

“Aliens granted withholding of removal, like Kilmar Abrego Garcia, are considered lawfully present qualified immigrations for purposes of marketplace coverage and the basic health program, with a restriction that they must wait for five years,” said Andrew “Art” Arthur, a former immigration judge and now a legal fellow at the Center for Immigration Studies. “Abrego received withholding of removal in October 2019 and therefore qualifies for Obamacare coverage.”

Mr. Abrego Garcia obtained insurance through his job, one of his attorneys told The Washington Times.

“Prior to his arrest by ICE in March, Mr. Abrego Garcia was working legally in the construction industry, with a work permit issued by the Department of Homeland Security, for several years. He has employer-sponsored health insurance, just like you and I do,” said Simon Sandoval-Moshenberg, a partner at Murray Osorio, an immigration law firm.

Mr. Abrego Garcia became the center of the biggest deportation battle in decades when he was sent back to El Salvador in March despite the immigration judge’s order. He could have been sent to any other country that would take him back, known as a third-country removal, but not El Salvador.

A federal judge ordered him returned, but the administration waited until it won a criminal indictment against him on an alien smuggling charge and brought him back to a courtroom and a jail in Tennessee. He has pleaded not guilty and argues selective prosecution.

He was granted bond in the criminal case, and the federal judge in Maryland who first ordered his return also ordered him released. The judge reasoned that his prior status must be restored because his March arrest was illegal.

That didn’t prevent ICE from restarting deportation proceedings days after his release. ICE took custody of Mr. Abrego Garcia and put him in immigration detention, part of the civil law system. He remains there while the judge in Maryland decides whether his rights have been violated.

He has filed a new claim for asylum in the U.S.

Some of Mr. Abrego Garcia’s defenders, including prominent Democrats, have challenged descriptions of him as an illegal immigrant. They say his withholding of removal and his work permit gave him tentative lawful status.

U.S. Circuit Judge Stephanie Thacker said in a ruling condemning his deportation that Mr. Abrego Garcia is “a person who is lawfully present in the United States.”

That echoes a broader problem with trying to define who an illegal immigrant is and what sorts of government services are available.

In an analysis late last year, the Congressional Research Service listed nine categories of noncitizens it said are specifically designated as eligible for Medicaid coverage.

At least three of them would likely be considered illegal immigrants by most Americans, Mr. Arthur said. Among them is withholding of removal, including Mr. Abrego Garcia, if he hadn’t obtained insurance through work.

As part of the shutdown fight, Democrats have demanded that Republicans restore the changes to Medicaid made in the budget-tax cut law this summer. Those changes tightened the rules on noncitizens who could join the government’s health care program for the poor.

The Congressional Research Service also listed 22 categories of noncitizens designated in regulations as eligible to participate in Affordable Care Act exchanges and receive taxpayer benefits. At least half of those would generally be considered illegal immigrants.

Not everyone would accept those distinctions.

NBC News said Republicans were “highly misleading” by claiming illegal immigrants were receiving health care benefits such as subsidies for Obamacare.

“They are not ‘undocumented’ or ‘illegal’ immigrants. The government knows who they are, and many are going through the process of seeking official legal status or green cards. Among other things, they are not unlawful border crossers who have been flagged for deportation,” NBC News said.

Jonathan Cohn, a writer at The Bulwark, called it a “giant lie.”

“Republicans might not want these people to be eligible for those subsidies. But these people are not ‘illegal aliens.’ They have permission to be in the United States,” Mr. Cohn wrote.

Most demographers would count Mr. Abrego Garcia in their estimates of the unauthorized population, as well as those holding temporary protected status, those in the U.S. under the Obama-era DACA program and those granted “parole.”

The Migration Policy Institute, which produces estimates of the “unauthorized immigrant population,” calls it “liminal” or “twilight” status and includes them. It said their discretionary protections can be revoked.

Steven A. Camarota, Mr. Arthur’s colleague and demographer at the Center for Immigration Studies, agreed.

“They are all removable aliens who have not been formally admitted,” he said.

Curiously, illegal immigrant “Dreamers” under the DACA program created by President Obama are not eligible for Obamacare subsidies.

Soon after the program was created in 2012, the Obama administration issued a ruling that DACA recipients were not deemed “lawfully present.” President Biden changed that in a regulation last year, officially opening Obamacare’s exchanges to DACA beneficiaries. His administration figured tens of thousands of migrants would gain taxpayer-subsidized health coverage.

The Trump administration revoked that change, effective at the end of August, so DACA recipients are once again excluded.