By Theresa Schliep

Law360 (May 5, 2020, 6:48 PM EDT) -- U.S. citizen children of unauthorized immigrant parents have been improperly denied coronavirus relief aid, according to a proposed class action filed Tuesday in a Maryland federal court in the latest constitutional challenge to the requirements governing the financial assistance.

The Coronavirus Aid, Relief and Economic Security Act , or CARES Act, discriminates against the American children of unauthorized immigrant parents because it denies their families the $500 payments for qualifying dependents 17 and under, the group of parents and children said in the complaint. 

The group, which is seeking class certification from the court, consists of seven American children and their immigrant parents, according to the filing. They are identified by initials.

Even though they're U.S. citizens, children of immigrants who are living in the country without legal permission are precluded from obtaining financial assistance by a provision in the law that requires parents claiming the payments to have Social Security numbers, according to the complaint. This provision effectively renders the children second-class citizens, the group argued.

"This punishes citizen children for their parents' immigration status and treats them worse than similarly situated citizen children whose parents are U.S. citizens or immigrants eligible to obtain Social Security numbers, in violation of the equal protection principles embodied in the Fifth Amendment of the due process clause," the group said.

The group urged the court to bar the U.S. Department of the Treasury from enforcing the Social Security number provision of the CARES Act and to declare it unconstitutional. They're also asking for $500 in damages for each citizen child of unauthorized immigrant parents in the U.S., according to the complaint.

The suit argues that children aren't getting the aid even though they have Social Security numbers and their parents pay taxes, according to the complaint. These children and their families are especially vulnerable to the economic disruption caused by the novel coronavirus outbreak, the group said.

"Undocumented immigrants, on whom these children rely for support, work in large numbers in some of the businesses — including restaurant, cleaning, retail and child-care services — that have been hardest hit by job loss in the past two months," the complaint said.

The suit is at least the third challenging the CARES Act's requirement that taxpayers claiming the payments have valid Social Security numbers. A group of U.S. citizens married to immigrants sued the Trump administration on April 29, arguing that they've been wrongly denied the relief checks since the CARES Act largely requires both spouses who are filing jointly to have SSNs. A separate suit filed April 24 also contends that American taxpayers married to immigrants have been wrongly deprived of the payments.

The group includes immigrant parents who have lost income because of the pandemic and are consequently relying on community support to pay rent and feed their U.S. citizen children, according to the latest complaint. The suit seeks approval of a nationwide class consisting of U.S. citizen children under 17 who have been denied economic relief payments, a group of people the suit estimates to number in the millions, according to the complaint.

Under the legislation signed by President Donald Trump in late March, individuals with qualifying income can receive $1,200 from the federal government, and married couples who file their taxes jointly are entitled to $2,400, plus $500 per child. Only those who filed their 2018 and 2019 taxes using a Social Security number, or who can otherwise provide SSNs to the government, can claim the payments.

Many immigrants lack SSNs but pay taxes using Individual Taxpayer Identification Numbers. Some Democratic lawmakers have proposed fixes to the CARES Act to expand the pool of eligible relief payment recipients to include immigrants, including a bill from Rep. J. Luis Correa, D-Calif., that would allow people with ITINs to claim the payments.

Mary McCord, legal director of Georgetown University Law Center's Institute for Constitutional Advocacy and Protection, which represents the group of children and parents, said she hoped the complaint would draw Congress' attention to the issue.

"We're hoping to be able to secure a relatively quick victory in the district court, but we're also hoping that this lawsuit brings the attention of this issue to Congress, who could fix this," McCord said in a call with reporters. "They could amend the CARES Act right now to ensure that economic impact payments are made to U.S. citizen children and also to U.S. citizen spouses, and they could still use the tax system to do that."

The group argued in the petition that the coronavirus relief payment program under the CARES Act is unusual in that it denies the benefits to U.S. citizens who are eligible for many other federal benefit programs, such as the child tax credit and food stamps. The legislation is also problematic because denying this group of people $500 payments for children threatens the law's ability to provide financial relief to households and the economy, one of the motivations behind the crafting of the legislation, according to the complaint.

"Denying U.S. citizen children economic impact payments serves no important government interest," the complaint said. "It undermines the United States' goals of providing urgent cash assistance for Americans to obtain basic necessities and of injecting money into the economy during the crisis brought on by the coronavirus pandemic."

The Internal Revenue Service had delivered roughly $158 billion in coronavirus relief payments to over 88 million Americans as of April 17, the agency recently announced.

The government did not immediately respond to requests for comment.

The proposed class is represented by Jonathan Lev Backer of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center.

Counsel for the U.S. Department of the Treasury and the U.S. could not be immediately determined.

The case is R.V. et al. v. Steven T. Mnuchin et al., case number 8:20-cv-01148, in the U.S. District Court for the District of Maryland.

--Additional reporting by Hannah Albarazi, Suzanne Monyak, Nadia Dreid and Dylan Moroses. Editing by Robert Rudinger.

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