As many as one-third of the 900 or so immigrants who live in Portland and have been at the center of a debate about public assistance may be ineligible for city aid because they have expired visas and have not applied for asylum, according to a preliminary analysis by city staff.

City officials are trying to determine who qualifies as an “asylum seeker” under the city’s recently revised aid program after staff found that more than 200 immigrants relying on the assistance have not yet applied for asylum even though their visas have expired. Although those immigrants remain eligible to apply for asylum for a year after their arrival and may be in the process of applying, they lack legal protection from deportation and may or may not qualify for aid.

“They’re kind of in this gray zone where there isn’t a clear, defined status,” said Robyn Merrill, executive director of Maine Equal Justice Partners, which advocates for immigrants and low-income Mainers. Merrill is among those who believe such immigrants are not doing anything wrong and should qualify for support if they are still eligible to seek asylum.

The city created the “Portland Community Support Fund” last month to provide assistance to asylum-seeking immigrants who had been cut off from state-funded General Assistance, a program that provides vouchers for housing, food, clothing and medicine. City staff has been charged with developing guidelines for the program and determining who is eligible.

City councilors were recently informed by staff members that as many as one-third of the 900 or so immigrants who stand to lose state GA benefits may not be eligible for assistance under the new city program.

Acting City Manager Michael Sauschuck said city staff is currently examining those cases more closely and intends to report back to the City Council at its July 20 meeting. Though he would not discuss any revised estimates, Sauschuck said the initial estimate was likely too high and would ultimately come down.

“This is an ever-evolving process,” Sauschuck said. “It’s a dynamic process and we’re just doing the best we can to do a thorough analysis of the data we have available.”

COUNCILORS CAUTIOUS ON NEXT STEPS

Until staff reports back, councilors are approaching the issue cautiously.

City Councilor Jon Hinck said the revelation is “contrary to my understanding previously” about the immigrants being served by GA.

Under federal law, only immigrants who have formally applied for asylum are protected from deportation until their final legal status is determined, according to an immigration attorney. Asylum applicants are considered to be lawfully present while they wait for a decision.

Throughout the debate, advocates insisted that those getting GA were in the country legally and simply couldn’t work because federal law required them to wait at least six months for a work permit after applying for asylum. It was never acknowledged that a significant number of those individuals may have overstayed their visas, without filing an application.

“We only learned it recently,” Hinck said. “It was contrary to my understanding previously. I’m holding back on making judgments on the entire group of people and would like to learn more about those cases and their circumstances.”

When it seemed like an effort to include asylum seekers in the state GA program was headed for defeat, city councilors David Brenerman and Justin Costa proposed creating a Portland Community Support Fund that would continue providing aid to those currently receiving it through the state program. The $2.6 million in costs was funded by tax revenue and largely offset by $1.7 million in additional state education funding that the city received as part of the final state budget.

The question is whether someone can be described as an asylum seeker without having formally applied.

“We’re creating a new program and were asking staff to come up with rules in a short period of time,” Brenerman said. “So there will be some issues that arise, but hopefully within a month we’ll know better how (to) proceed.”

He said he was not aware there was another category of people who came to the country on valid visas that expired before their filing of an official application for asylum.

“There may be very logical reasons why people haven’t sought an extension to their visas,” Brenerman said.

Until last year, municipal officials never asked people applying for GA about their immigration status. The state statute speaks only to financial need.

Asylum seekers are barred from working for at least six months after filing their application and have come to rely on GA to make ends meet. The six-month work prohibition was enacted in 1996 in response to perceived abuses of the process in which immigrants would file “fictitious ‘boilerplate’ asylum applications” so they could get instant permits to work in the U.S., according to a 2013 report issued by Human Rights Watch.

Last year, however, Gov. Paul LePage began to argue that state law was not in compliance with a separate federal law because the Legislature has never passed a bill explicitly making asylum seekers eligible for state and local benefits.

The administration has not reimbursed municipalities that have continued to provide assistance to asylum seekers – a move that cost Portland an estimated $5 million in the fiscal year that ended June 30.

GROUP ASSISTS ASYLUM SEEKERS

Immigrants seeking asylum have one year to file a formal application with the federal government, said Philip Mantis, an attorney and asylum coordinator with the Immigrant Legal Advocacy Project, which assists immigrants with a variety of legal issues, including asylum. An applicant must demonstrate a credible fear that he would face persecution or violence if he returned home.

Mantis said asylum seekers can legally enter the U.S. through a variety of visas, ranging from student visas, which are valid as long as that individual is in school, to visitor visas, which last about six months.

Mantis is the only person at the immigrant advocacy project charged with screening applicants to be assigned to one of 130 lawyers who volunteer their time to help. He said the agency will not typically take an asylum case if an immigrant has already been here six months and has only six months left to apply, or if the application is without merit.

In those cases, immigrants often choose to file their own asylum application, he said, which can be a time-consuming process and result in the expiration of their visas before the application is officially filed. Mantis said he conducts monthly informational lectures in Portland about applying for asylum, drafting a statement in support of that application, gathering facts to support the request and preparing for immigration hearings.

Mantis said 97 percent of all asylum cases handled by the advocacy project are successful. He could not immediately provide information about the success rate of those who apply without the help of an attorney. “Usually, they have a good case,” he said, noting it can take 2½ years for an asylum application to receive a ruling.

GA FUNDING TANGLED IN DISPUTE

One of the most contentious issues of the legislative session has been whether the state should provide General Assistance to asylum seekers.

LePage opposes such assistance, but he may have inadvertently let a state law be enacted to allow it by not vetoing L.D. 369 within 10 days of its passage. That bill, which provides assistance for up to 24 months, passed both houses of the Legislature, but not by a two-thirds margin to overcome a veto. But since LePage hasn’t vetoed it, Democrats and the state’s attorney general argue the bill has become law. The administration is challenging that interpretation.

If the law takes effect, it would apply only to “a person who is lawfully present in the United States or who is pursuing a lawful process to apply for immigration relief.”

Merrill, of the Maine Equal Justice Partners, said a state and municipal rule-making process would be needed to determine exactly what “pursuing a lawful process” means.

Merrill believes that the city’s definition – and the state’s definition if L.D. 369 has in fact become law – should allow people who are within that one-year time frame to apply for asylum to receive state GA or city-funded assistance, even if their visa has expired and they have not yet filed an asylum application.

“It makes no sense to give someone housing for six months and then throw them out on the streets for three months because they haven’t applied for asylum yet,” Merrill said. “If (GA) is truly going to provide a bridge for people, which I think is the intent, you want to cover them as asylum seekers while they’re moving through that process.”