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Maine AG: Denying Asylum Seekers General Assistance Unconstitutional

Susan Sharon
Maxwell Chikuta (center) in January makes his case for allowing asylum seekers General Assistance.

The LePage administration has suffered a major setback in its effort to exclude asylum seekers and certain immigrants from General Assistance. The Maine Attorney General's office has reviewed the request, and after "extensive research," has concluded that it is unconstitutional, represents an unfunded mandate and exceeds statutory authority.

  The Maine Department of Health and Human Services requested a change in rules for General Assistance months ago. And in January dozens of immigrants and their supporters showed up in Augusta for a three-hour-long public hearing to oppose the measure.

At the hearing, Maxwell Chikuta of the Democratic Republic of Congo told the crowd that when he arrived in Portland in 2003 he didn't speak English, had nowhere to live and little more than the clothes on his back before General Assistance came to his rescue. General Assistance is often considered the safety net of last resort.

"This is what the program was designed for, to help people like me, coming in this country with no papers, with no ability to work. But you get your papers, you start working. You look back in the community how you can pay back."

No one spoke in favor of the proposed rule, which would make some non-citizens ineligible for General Assistance, even though they are in the United States legally. Now that her office has time to look into the legality of the change, Attorney General Janet Mills says there are several big problems with it.

"One of the problems is the rule is basically an unfunded mandate. It would require almost every town clerk in the 400-odd towns of this state to become mini immigration agents. The determination of somebody's immigration status is not an easy thing. It can be very complicated."

Mills says that's because there are people here who are refugees or who are asylum seekers. Some have work visas. Some have other kinds of visas for all kinds of legitimate reasons.

"And to require the part-time town clerk of East Wallagash to examine somebody's papers to determine if they merit $100 dollars worth of food or housing assistance in an emergency is a mandate by the state and under our Maine Constitution such a mandate would have to be funded by the state - 90 percent of it funded by the state - and that hasn't happened."

A spokesman for DHHS did not respond to a request seeking comment for this story. But when the department made the rule change request in January, John Martins issued a written statement sayinig the rule "aligns Maine's General Assistance program with the rules that govern federal benefits to those who are not documented citizens of the United States, and some legal non-citizens."

But in a memo to DHHS, the Attorney General's Office says the biggest problem with the proposed rule change is that it violates the equal protection clauses of the United States and Maine Constitutions.

"The state cannot discriminate against non-citizens in a program that is state- and locally-funded. The state can't say, 'You can't give the same kinds of emergency benefits to non citizens.'"

"We are thrilled with the attorney general's decision." Alison Beyea is executive director of the ACLU of Maine. Because the attorney general has the final say on the rule change, Beyea says this should be the end of it.

"And what this means is that tonight hundreds of Mainers won't have to worry about whether they can pay their rent or how they're going to feed their kids. They can move on setting their new lives in Maine."

Beyond the rule's characterization as an unfunded mandate and a violation of equal protection under the United States and Maine Constitutions, the Attorney General's Office also finds that it likely exceeds the Department's statutory authority.

The memo points out that primary responsibility for administering General Assistance falls to individual municipalities that are required to adopt ordinances for administering the program, including eligibility. The memo was dated May 16. Mills says she has yet to hear whether the department is prepared to offer any alternatives.