Preserving Massachusetts' Right to Shelter in the Context of Increased Migration
Boston Bar Journal | February 25, 2025 | Winter 2025 Vol. 69 #1
by Karen Bobadilla and William Lonn
In 1983, responding to a rise in homelessness that followed the dismantling of its large-scale residential mental health system, Massachusetts became the first state in the nation to enact a “Right to Shelter” Law. G. L. c. 23B § 30. The law, also often referred to as Emergency Assistance (“EA”), conferred a right to shelter for families and pregnant women who met certain criteria. Over the years, specific requirements have been established for eligibility. See Laticia Walker-Simpson, Life Raft or Quicksand?: Emergency Assistance’s Role in Greater Boston’s Homelessness Crisis, 64.2 Bos. Bar. J. 23 (Spring 2020).
EA is available to noncitizens who meet eligibility requirements and are “lawfully admitted [by U.S. Customs and Border Patrol (“CBP”)] for permanent residence or otherwise permanently residing under color of law in the U.S.” (See 760 C.M.R. 67.02(7) and 106 C.M.R. 203.675); as such, it is typical for noncitizen shelter recipients have a petition or application pending with USCIS or the Immigration Court. In the Summer of 2023, the EA shelter system began to experience substantial stress as increasing numbers of housing insecure families from outside the U.S. began arriving in Massachusetts, compounding a pre-existing affordable housing crisis. But, as the volume of families grew, with many forced to shelter in place at Logan Airport and local hospitals, Governor Maura T. Healey declared a state of emergency that modified the shelter system by imposing a cap on the services and instituting a waiting list. Those changes raised substantial concerns for housing and immigration advocates, causing them to bring a putative class challenge that sought to temporarily enjoin the implementation of these policies. While the plaintiffs were found to have lacked standing, the challenge indicated the severity of the modifications to the unhoused population. See Alcarraz et al. v. Executive Office of Housing and Livable Communities, et al., Suffolk Superior Court No. 2384CV02449 (Nov. 1, 2023).
By the Spring of 2024, the Legislature, claiming fiscal constraints (notwithstanding its having passed $1 billion in tax cuts in the prior budget cycle), further modified the shelter system in an outside section to a supplemental state budget. The modifications specified that (1) the right to shelter only exists to the extent that resources are available, and (2) the Commonwealth is not required to further fund the EA program to address unmet needs. In the Summer of 2024, the Commonwealth’s Executive Office of Housing and Livable Communities (“EOHLC”) then imposed a strict cap on the length of time that a family could spend in a shelter, presently nine months with two possible 90-day extensions.
But the most sweeping change to the Commonwealth’s commitment to the unhoused came in September 2024 when EOHLC promulgated guidelines that split eligible families seeking shelter into two categories based on prioritization criteria: those who qualify for Bridge Shelter sites or those who qualify for Rapid Shelter sites. See EOHLC’s Emergency Assistance Program Guidance on Contact List and Prioritization Procedures. Bridge Shelter sites are subject to the nine-month limitation, but Rapid Shelter sites have placements of only 30 days subject to limited extensions. If EOHLC does not have capacity, families are placed on a “contact list” maintained by the agency. And in January 2025, the Healey Administration proposed further reducing the length of stay in Bridge Shelter sites from nine months to six months, followed by additional proposed caps suggested by the Legislature. Effectively, the “right” to shelter has become a limited, highly contingent privilege.
For migrant families that are qualified for EA but that do not meet EOHLC’s prioritization criteria, the timeline provided by the Rapid Shelter rules is daunting because of the lack of long-term resources available to them following the expiration of the 30-day shelter period. Many of the federal programs used to transition people from shelters to housing are unavailable to new arrivals who are often in various stages of resolving their immigration status. The private rental market is often unrealistic for many working families, but even more so for migrants who are unable to earn wages while their applications for work permits are indefinitely delayed by the overwhelming backlog currently before the U.S. Citizenship and Immigration Service (“USCIS”).
Massachusetts has received certain funding from the federal government specifically to address this crisis. For example, in August 2024, Massachusetts was awarded over $20 million from Federal Emergency Management Agency’s (“FEMA”) Shelter and Services Program. But even those funds came with restrictions: funds could only be used to assist families who were released by the Department of Homeland Security (“DHS”) at the border and the funding provided to them could not be diverted from any general FEMA emergency relief funds. The 2025 change in administration is likely to bring an end to any further federal support, which will only increase pressure on this already-overburdened system.
It has become clear that the state’s recent changes to the EA program have hobbled its ability to meaningfully achieve its promise to shelter homeless families, especially for new arrivals. Just as the closing of the in-patient mental health facilities in 1983 led to the need for increased shelter space, so too does the current affordable housing crisis exacerbate the demand for this assistance today. Pressure from the new federal administration contributes to the urgency of the present need.
Various organizations are attempting to address these challenges. Legal services organizations and shelter advocates can inform homeless families about the levels of Bridge Shelter services or temporary extensions for which they might qualify and assist by documenting their efforts to find permanent housing. And in 2024, several immigration clinics were sponsored by the state to help shelter residents in applying for their employment authorization from USCIS. But these are stop-gap measures and systematic challenges require systematic solutions.
Immediate efforts are needed to preserve the shelter system, especially in light of the increased pressure from the federal administration on this easily scapegoated population. The Right to Shelter will only be able to achieve its goals in the context of increased migration with a revision to its recently-enacted eligibility criteria that accounts for the long process to find stable housing for newly struggling and recently arriving families, recognizes the impact of the severe affordable housing crisis, and a provides for a stable funding source insulated from federal cuts; these measures will be crucial to protect one of Massachusetts’ key policy legacies.