[Federal Register Volume 91, Number 7 (Monday, January 12, 2026)]
[Notices]
[Pages 1138-1139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-00328]
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CONSUMER FINANCIAL PROTECTION BUREAU
Withdrawal of Joint Statement on the Equal Credit Opportunity Act
and Noncitizen Borrowers
AGENCY: Consumer Financial Protection Bureau.
ACTION: Notice of withdrawal.
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SUMMARY: The Consumer Financial Protection Bureau (Bureau) and
Department of Justice (DOJ) are withdrawing a joint statement issued in
October 2023 regarding the implications of a creditor's consideration
of an individual's immigration status under the Equal Credit
Opportunity Act (ECOA).
DATES: The statement published on October 18, 2023, at 88 FR 71845, is
withdrawn as of January 12, 2026.
FOR FURTHER INFORMATION CONTACT: Dave Gettler, Paralegal Specialist,
Office of Regulations, at 202-435-7700 or https://reginquiries.consumerfinance.gov/. If you require this document in an
alternative electronic format, please contact
[email protected].
SUPPLEMENTARY INFORMATION: The Consumer Financial Protection Bureau
(Bureau) and Department of Justice (DOJ), (collectively, the agencies)
are charged with enforcing the antidiscrimination provisions of the
Equal Credit Opportunity Act (ECOA).\1\ ECOA prohibits discrimination
by a creditor in any aspect of a credit transaction, on the basis of
race, color, religion, national origin, sex, marital status, age, an
applicant's receipt of public assistance, or the good faith exercise of
an applicant's rights under the Consumer Credit Protection Act. 15
U.S.C. 1691. On October 12, 2023, the agencies published a joint
statement (the joint statement) cautioning that creditor policies
related to an applicant's immigration or citizenship status could, in
certain circumstances, run afoul of ECOA's and Regulation B's
prohibition of discrimination on the basis of protected classes,
including race and national origin.\2\ The agencies now hereby withdraw
the joint statement for the following reasons.\3\
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\1\ The Bureau enforces ECOA with respect to any person subject
to ECOA's coverage, with limited exclusions under the Consumer
Financial Protection Act. 15 U.S.C. 1691c(a)(9). DOJ enforces ECOA
where there is evidence of a ``pattern or practice'' of
discrimination. 15 U.S.C. 1691e(h).
\2\ A notice of the statement was also published in the Federal
Register. 88 FR 71845 (Oct. 18, 2023).
\3\ This notice is issued under the Bureau's authority to
provide guidance regarding ECOA and Regulation B, including under
section 1022(b)(1) of the Dodd-Frank Wall Street Reform and Consumer
Protection Act. This notice does not have the force or effect of
law, and it has no legally binding effect, including on persons or
entities outside the Federal government.
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The joint statement did not purport to interpret ECOA or Regulation
B, which generally permit creditors to consider immigration or
citizenship status. The joint statement further acknowledged that
Regulation B expressly permits consideration of immigration or
citizenship status for certain purposes. However, by focusing primarily
on risks that could arise if such consideration were used to
discriminate on a protected basis, the joint statement may have created
the impression that either ECOA or the statement itself imposes
limitations on the consideration of immigration or citizenship status
when evaluating an application for credit. No such limitation exists,
and this withdrawal is intended to correct any such misimpression.
Separately, as announced in the Bureau's guidance withdrawal
notification published in the Federal Register on May 12, 2025, which
withdrew various guidance documents issued by the Bureau since 2011,
the Bureau has revised its policies regarding the issuance of guidance
documents.\4\ Under the revised policy, the Bureau avoids issuing
guidance that is not necessary or would increase compliance burdens.
The Bureau concludes that additional guidance on this topic beyond what
Regulation B provides is unnecessary and, to the extent that the joint
statement was understood to require new or increased compliance
efforts, it is appropriate for recission under the Bureau's revised
policy.
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\4\ 90 FR 20084 (May 12, 2025).
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I. ECOA and Regulation B
Nothing in ECOA or Regulation B prohibits the consideration of an
applicant's immigration or citizen status. To the contrary, Regulation
B permits the consideration of ``any information obtained, so long as
the information is not used to discriminate against an applicant on a
prohibited basis.'' 12 CFR 1002.6(a). More specifically, it states that
``[a] creditor may take the applicant's immigration status into
account,'' 12 CFR part 1002, supp I. ] 2(z)-2, and ``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.'' 12
CFR 1002.6(b)(7). The joint statement's exclusive emphasis on the risks
of such consideration, however, may have created the misimpression that
ECOA or Regulation B prohibit or otherwise limit the consideration of
immigration or citizenship status by a creditor evaluating an
application for credit.
Not only would such a limitation be inconsistent with Regulation B,
but the illustrative scenarios described in the joint statement may
also create confusion as to how creditors may consider immigration
status while managing credit and compliance risks. For example, the
joint statement posited a practice in which considering how long a
credit applicant had a Social Security Number could be used as a proxy
for the applicant's national origin or race, which would then be
prohibited discrimination. This example may have been perceived as
discouraging the collection and assessment of such identifying
information when in fact it can be important to a creditor's compliance
with anti-money laundering or Know Your Customer requirements.\5\
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\5\ See, e.g., 31 U.S.C. 5318(l) (directing the Secretary of the
Treasury to promulgate regulations defining bank customer
identification requirements); 31 CFR 1020.220(a) (providing customer
identification requirements).
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[[Page 1139]]
Similarly, the joint statement suggests that applying a blanket
underwriting policy for certain groups of non-citizens may constitute
discrimination in violation of ECOA if not strictly necessary for
assessing the creditor's ability to obtain repayment or meet legal
obligations. This example could be read as positing a bright-line, one-
size-fits-all approach to underwriting noncitizens as necessary for
ECOA compliance. There is no such requirement in ECOA or Regulation B,
and focusing exclusively on compliance risks ignores that creditors may
legitimately use additional information in particular circumstances to
fully assess underwriting risks related to providing credit to those
without lawful status or who are otherwise unauthorized to work in the
United States. A credit applicant's immigration or citizenship status
may present underwriting risks that typical assessments of financial
capacity alone will not fully resolve. As Regulation B acknowledges,
this is something creditors may legitimately consider. To the extent
the joint statement suggested, or could be read to suggest, that the
practices it describes are presumptively discriminatory in violation of
ECOA, such a presumption would not be supported by ECOA or Regulation
B.
The joint statement further assessed the interaction between 42
U.S.C. 1981 (section 1981) and ECOA. While the joint statement
described how courts have approached the interaction between Regulation
B and credit discrimination claims under section 1981 based on
citizenship or alienage, the agencies did not purport to interpret the
scope of liability under section 1981, nor do they purport to do so
now. The agencies' withdrawal of the joint statement serves to address
any misimpression that the joint statement has interpreted section 1981
to confer any liability under the statute that has not already been
recognized by courts.
II. Other Considerations
While the Bureau has authority to issue guidance regarding the
statutes and regulations it administers, the Bureau has determined that
the joint statement is not consistent with its revised policy on the
issuance of guidance. As described in its May 2025 guidance withdrawal
notification, the Bureau's revised policy is to issue guidance only
where necessary and where doing so would reduce compliance burdens.
Given that it is the responsibility of Congress and the President in
the legislative process to define or expand the contours of civil
rights protections, the agencies have determined that the joint
statement is not necessary. Additionally, the joint statement does not
mitigate any unnecessary compliance burdens. Therefore, having
completed its review, the agencies have determined that the joint
statement does not meet the Bureau's current standards for the issuance
of guidance.
Finally, consistent with its May 2025 guidance withdrawal
notification, the agencies do not believe that reliance interests
compel the retention of the joint statement. Parties understand that
such statements are non-binding. Creditors who have structured their
operations consistent with the joint statement's comments on compliance
risks can continue to operate in that manner without penalty and, given
that the joint statement was non-binding on the public or courts,
consumers' rights under ECOA are unchanged.\6\
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\6\ Although ECOA section 706(e), 15 U.S.C. 1691e(e), provides
that no provision of ECOA imposing any liability applies to any act
done or omitted in good faith in conformity with any Bureau rule,
regulation, or interpretation, the joint statement was not any such
rule or interpretation and therefore did not shield any creditor
conduct from liability. The withdrawal of that statement likewise
does not subject regulated entities to new liability, create rights
or obligations from which legal consequences flow, or implicate
reliance interests sufficient to justify retaining the joint
statement.
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For these reasons, the agencies are exercising their discretion to
withdraw the October 12, 2023, notice titled: Joint Statement on Fair
Lending and Credit Opportunities for Noncitizen Borrowers Under the
Equal Credit Opportunity Act.
III. Regulatory Matters
The Office of Information and Regulatory Affairs within the Office
of Management and Budget (OMB) has determined that this action is a
``significant regulatory action'' under E.O. 12866, as amended.
Pursuant to the Congressional Review Act, the Bureau will submit a
report containing this notice of withdrawal and other required
information to the United States Senate, the United States House of
Representatives, and the Comptroller General of the United States. OMB
has designated this notice of withdrawal as not a ``major rule'' as
defined by 5 U.S.C. 804(2).
Russell Vought,
Acting Director, Consumer Financial Protection Bureau.
[FR Doc. 2026-00328 Filed 1-9-26; 8:45 am]
BILLING CODE 4810-AM-P