CFPB and DOJ Withdraw Joint Statement Regarding Creditor’s Consideration of Immigration Status Under ECOA

The CFPB and DOJ recently withdrew their prior joint statement (published on October 12, 2023), which had cautioned that a creditor’s consideration of an applicant’s immigration or citizenship status could violate ECOA by discriminating on a prohibited basis like race or national origin.

By concentrating on the risks to a creditor that could arise from discriminating on a prohibited basis, the agencies now maintain, creditors may have mistakenly read the prior joint statement to suggest that ECOA (or the statement itself) limits consideration of immigration or citizenship status when evaluating an application for credit.  Thus, the agencies withdrew the prior joint statement to avoid any such confusion.

Moreover, the agencies clarified that neither ECOA/Regulation B nor any agency statement explicitly limits consideration of immigration or citizenship status in evaluating an application for credit.  As the agencies observed, Regulation B explicitly states that a creditor “may consider the applicant’s immigration status or status as a permanent resident of the United States, and any additional information that may be necessary to ascertain the creditor’s rights and remedies regarding repayment.”

The agencies’ notice of withdrawal, however, made clear that, because the prior joint statement had no legally binding effect, their withdrawal of such statement likewise does not modify any legal obligation under ECOA or Regulation B.