2014-07-18 / Front Page

City to defy governor’s welfare order

By Duke Harrington
Contributing Writer

SOUTH PORTLAND — While Portland and Westbrook have joined a Maine Municipal Association lawsuit against the Maine Department of Health and Human Services, in which they ask the court to toss out a new state policy denying welfare to illegal immigrants, South Portland will stay the course.

Following an hour-long workshop Monday, the South Portland City Council decided that, in the words of Mayor Gerard Jalbert, it would “be a moot point,” to join the MMA suit, filed July 10 in Cumberland County Superior Court.

However, the council also agreed that until the legal dust settles it will defy a June 13 directive from DHHS, which instructs cities and towns to withhold general assistance payments to anyone who cannot prove legal residency in the United States. As a penalty for non-compliance, DHHS says it could withhold all money normally reimbursed to local general assistance programs.

At Gailey’s request, the city council will formalize its decision to continue making payouts in defiance of the DHHS dictum with a vote at its next meeting, Monday, July 21.

“Withholding all funding seems a little outrageous,” said Councilor Patti Smith. “To me, it’s a no-brainer that we should continue assistance to those who are the most in need, and let the courts play it out.”

Often referred to as welfare of last resort, general assistance provides emergency money (up to $750 per month for an individual, and $1,546 for a family of five) for living expenses such as food, rent, heat and medical supplies. The needs-based aid is intended to be temporary and given only in emergency situations, when no other options are available. Administrators can make applicants work for the money, or compel them to first sell items such as recreational vehicles, before providing relief. Although run on the local level, the state reimburses at least 50 percent of what municipalities spend.

According to General Assistance Director Kathleen Babeu, losing the state portion of South Portland’s annual relief refund would cost the city “at least $130,000,” based on monthly spending of “between $20,000 and $30,000.”

DHHS Chief Operating Officer Sam Adolphson has said Maine stands to save about $1 million per year by refusing general assistance to illegal aliens in the state, a group he’s pegged to be 1,000 strong.

Councilor Linda Cohen is on the MMA executive board, where she voted to initiate the legal suit.

Cohen said she has received “really cruel emails about people getting handouts,” during the past few weeks, but found she cannot help but side with the immigrants.

“They come to this country and they want to contribute and we put all kinds of impediments in their way. It’s just crazy what we do,” she said. “What are we telling them, go home? Because, what are their options? I cannot in good conscience not help somebody who is in need.”

MMA wants the court to provide injunctive relief, blocking the state from withholding refund subsidies. The local fear, according to City Manager Jim Gailey, is that South Portland “could be exposed to a legal challenge, probably in federal court,” if it refuses to give aid to an alien, “on the grounds (it) violated certain rights of the applicant, who is protected by both the Maine and U.S. Constitutions.”

Supreme Court cases going back as far as Yick Wo v. Hopkins in 1886 have held that constitutional protections apply to everyone, even “an alien, who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here.”

In a July 14 memo to the council, Gailey called Gov. LePage “the hammer in this debate,” questioning, as MMA does, whether the DHHS can withhold all welfare payments as leverage to pull funding for “undocumented individuals.”

“These rules look like rules that I fled in my country,” said Alain Nahimana, director of the Maine Immigration Rights Coalition, at Monday’s meeting.

Meanwhile, Maine Attorney General Janet Mills said in a June 24 statement that DHHS cannot withhold payments as an act of policy. It must first go through the proper rulemaking process laid out in the Administrative Procedures Act. The governor’s office, however, says it does not need to create a rule to enforce federal law.

As part of a 1996 welfare reform package approved and signed into law by President Bill Clinton, states are barred from providing general assistance funds to illegal aliens.

But both Mills and the MMA say the rules for making rules must be followed.

“MMA believes the (court) action is necessary to see whether the DHHS directive is legally binding, as it was issued without the standard and long-followed rulemaking procedures that govern virtually every other directive and regulation coming from the state,” said the association, in a June statement. “MMA wishes to stress that the lack of process is the central legal issue here, along with the fact that conflicting opinions among DHHS, the governor’s office and the attorney general have put municipal general assistance officials in an untenable position.”

Part of the confusion with the recent DHHS ruling is that it now interprets people “not lawfully present” in the U.S. to include people with expired visas, including those seeing asylum from persecution in their native lands.

According to Cape Elizabeth Town Councilor Jamie Wagner, who spoke at Monday’s workshop in his capacity as a civil attorney practiced in asylum law — he currently has 50 clients from seven African countries — many immigrants end up with expired documents through no fault of their own.

“Almost without exception, my clients come to the U.S. with a valid U.S. visa. They didn’t cross the border by sneaking in or being smuggled across,” he said.

Noting that an immigrant must wait 150 days after applying for asylum before seeking a work permit, Wagner said many of his clients have been waiting as long as two years for an interview with officials from the Department of Homeland Security that will allow them to work in the U.S. One just had his case pushed off by a Boston judge until 2018, Wagner said.

In Maine alone, 800 asylum applications are pending, said Wagner.

“This is going on over and over again,” he said. “It’s not the immigrant’s fault everything is just so backlogged.”

“It can be depressing,” said Claude Rwaganje of Portland, who waited seven years after applying for asylum in 1996 before it was finally granted in 2003.

Since then, Rwaganje has founded the Community Financial Literacy Agency. Started in his backyard, he now employs a staff of four that help immigrants navigate the American banking and credit system, which can seem confounding to many.

Discouraging immigrants is bad public policy, he said.

“When we hear immigrants are coming here to take things away, it’s not necessarily true,” he said. “We may send people away who might otherwise be helping this state.”

“We need to welcome immigrants,” said Phil Mantis of the Portland-based Immigrant Legal Advocacy Project, citing a recent MMA report that claims the ratio of working-age adults to retirees in Maine will double in the next 12 years.

More to the point, said Mantis, determining a person’s immigration status can be a daunting task.

“Who does the administration expect to bear the substantial financial burden caused by its directive?” he asked, rhetorically, before calling the policy of withholding general assistance from illegal aliens, “an unfunded mandate.”

“Do we have the staff that can do that?” asked Councilor Michael Pock. “We have immigration lawyers here (tonight) and they don’t seem to know what’s what. We’re going to need a lawyer now to work in the G.A. office.”

Babeu said her office has not historically tried to verify the immigration status of applicants, relying instead on Maine identification and a Social Security card.

“But you can have a Maine I.D. and still not be ‘documented,’ so it can be a little tricky,” she said.

Part of the problem, said Mantis, is that the reasons for immigration are confidential. Local general assistance officials can ask for certain documents, but are barred from asking for details, including whether the person is in the U.S. seeking asylum.

According to Babeu, no one lacking proper documentation as a legal resident has applied for general assistance in South Portland in the last three weeks. However, her office did check records going back to December and found nine instances in which a foreign national did not show a visa, a passport, and a Form I-94 — the arrival and departure record used by U.S. Customs and Border Protection and U.S. Citizenship and Immigration Services.

Those nine people and their families were given a total of $30,802 to pay various bills. However, because a Maine identification was what her office chiefly relied on in applications, there’s no way to know if any of those nine applicants were not “lawfully present” in the U.S., Babeu said.

One outstanding question is whether a state rule against giving welfare to illegal aliens, if upheld in court, applies only to the immigrant or to his or her entire family.

In his memo to city councilors, Gailey said a family of four might only be considered a family of three when calculating the allowed benefit. However, Babeu thought differently.

In one family that has been given general assistance “periodically” in South Portland, the father is a U.S. citizen, as are the children, by virtue of being born here, she said. However, the mother, who came to the U.S. illegally as a young child, is still an illegal alien.

“Therefore, she can’t work,” said Babeu, “and she may or may not, due to extenuating circumstance. Now, my understanding is that you can’t provide assistance to the family whatsoever and that would be a shame in this particular case. If they get an eviction, you’ve got a bigger problem, because you now have a family with children that is homeless.”

For Wagner, a Democrat, the issue boils down to a reactionary measure by LePage, taken in an election year to shore up his base.

“The governor has not spoken with enough (asylum law) practitioners, or possibly any,” he said. “If he only knew what he was doing to these people with this policy change. But the law is being used by him, frankly, to go after a group he’s targeted for a long time now.”

Even Pock, an avowed “Tea Party” Republican generally sympathetic to LePage, seemed inclined to doubt the new policy.

“This is a case of, while Rome is burning, people don’t have any money,” he said.

“There’s a lot of information swirling on one side and the other,” Gailey said. “Staff would really like to have the backing of a council order, that they give the go-ahead that we continue to fund all individuals who come though for general assistance.”

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