Kilmar Abrego Garcia could be eligible for Obamacare subsidies

Whether he’s called an illegal immigrant or not, Kilmar Abrego Garcia could qualify for taxpayer subsidies under Obamacare.

He admitted during court proceedings in 2019 that he was not in the country legally, and an immigration judge ordered him deported. But the judge also granted him what’s known as “withholding or removal,” a special blockade on being sent back to his home country of El Salvador.

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

It turns out that while federal law in general bars illegal immigrants from getting government service benefits, in practice, that depends heavily on what the law considers an illegal immigrant.

Millions who entered during the Biden administration through “parole” would, under the law, be eligible. So would the more than a million people who were here 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 orchestrated a government shutdown, demanding any bill to keep the government running must also extend pandemic-enhanced Obamacare benefits and roll back recent changes to Medicaid eligibility.

Republicans oppose those changes, with one reason being 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, an advocacy group that went on to say “unauthorized individuals are not eligible for Obamacare or any other federal health program.”

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

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

That includes those who have applied for asylum, those paroled in, those covered by TPS or the similar Deferred Enforced Departure, some of those granted “deferred action” — another form of deportation amnesty — and those who were “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.”

As it stands, Mr. Abrego Garcia got his insurance through his job, one of his lawyers 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 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 that one.

A federal judge ordered him returned, but the administration dragged its feet — 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 him brought back also ordered him released, reasoning that since his March arrest was illegal, he needed to be returned to his status before that.

But that didn’t prevent ICE from restarting deportation proceedings, which it did days after his release, taking custody and putting him in immigration detention, part of the civil law system. That’s where he remains, while the judge in Maryland decides if his rights have been violated.

He has also now 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, pointing out that his withholding of removal and the work permit he was issued gave him tentative lawful status.

U.S. Circuit Judge Stephanie Thacker, in a ruling condemning his deportation, labeled Mr. Abrego Garcia “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 sort of government services are available.

The Congressional Research Service, in an analysis late last year, 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, the category that would include Mr. Abrego Garcia if he hadn’t had insurance through work.

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

CRS 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 getting 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.

But most demographers would count Mr. Abrego Garcia in their estimates of the unauthorized population, as well as TPS holders, those here 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 does include them, saying they are discretionary protections that can be revoked.

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

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

Curiously, illegal immigrant “Dreamers” here 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 new 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.