CFPB And DOJ Withdraw Joint Statement Addressing ECOA And Noncitizen Borrowers

On January 12, the CFPB and DOJ withdrew their October 2023 joint statement addressing how creditors' consideration of immigration or citizenship status may intersect with the ECOA. The joint statement, published in the Federal Register on October 18, 2023, had cautioned that certain creditor policies affecting noncitizen borrowers could, in some circumstances, raise fair lending concerns.

In withdrawing the statement, the agencies emphasized that it was nonbinding and did not accurately interpret ECOA or Regulation E. According to the agencies, the statement may have created the misimpression that ECOA limits a creditor's ability to consider immigration or citizenship status when evaluating applications for credit. The agencies clarified that existing law permits creditors to consider such information for legitimate underwriting and risk management purposes, so long as it is not used to discriminate on a prohibited basis, and that no additional limitations exist