INS Boss Says Aid Should Go to All Immigrants

The federal government should not bar newly legalized immigrants from community social programs while allowing illegal aliens access to the same programs, the commissioner of the Immigration and Naturalization Service said Thursday.

The assertion by INS Commissioner Gene McNary allies him with Secretary of Housing and Urban Development Jack Kemp in a growing flap over immigration policy caused by Costa Mesa’s plan to deny government funds to groups that serve illegal aliens.

“Consistency, I think, has to be the objective,” McNary said during a breakfast meeting with Times editors and reporters. “I don’t see how it can be justified to give the benefits to those who (are) undocumented, and deny (them) to those who have come forward and are following the (immigration) law in an orderly manner.

” . . . Instead of saying no one gets the benefits, why not give everyone the benefits?”

Duke Austin, senior spokesman for the INS, later said that McNary would be willing to work with lawyers for the Department of Justice and HUD to resolve the issue.

An attorney for the Justice Department added, “I think we can work together to do something about any problems that HUD has.”

In response to the Costa Mesa plan, Kemp last week issued a directive prohibiting local governments that receive funds under HUD’s $3-billion Community Development Block Grant program from withholding the money from community-based agencies that serve illegal aliens.

Community Development Block Grant funds are distributed to about 900 local governmental agencies. Those agencies, in most cases, pass along the money to private groups that offer counseling, education and other services to community residents.

Costa Mesa last fall adopted a policy that would have banned funding for community groups that serve illegal aliens. It suspended the policy after HUD officials warned that it might be illegal.

“Distinguishing among recipients on the basis of alienage would be discriminatory, impractical and counterproductive to the larger purposes of the (HUD community development programs),” Kemp said in a memorandum distributed last Friday.

However, the Department of Justice has interpreted the 1986 Immigration Reform and Control Act as barring newly legalized immigrants from benefiting from the same HUD-funded programs.

To ease the financial consequences of legalizing large numbers of undocumented aliens, the law provided that none would be eligible to benefit from federal financial assistance programs for five years after legalization.

The Justice Department last summer determined that the HUD Community Development Block Grant program fell within the category of “financial assistance” programs, a finding that HUD now disputes.

“This . . . policy leads to the anomalous situation that certain legal aliens are now denied eligibility for programs that have not traditionally denied access to undocumented aliens,” Kemp said in the memo.

Kemp took the unusual step of suspending HUD regulations that implement the Justice Department ruling until lawyers for the departments could work out a compromise.

“The secretary has said that, if for some technical reason, some lawyerly interpretation, that did not appear to be possible, he would be willing to go try to get a legislative fix and have Congress look at the issue,” said Anna Kondratas, HUD’s assistant secretary for community planning and development.

The issue essentially boils down to interpreting what is a welfare program and what is not, Kondratas said.

When it passed the 1986 immigration act, Congress stated specifically that newly legalized immigrants would not be eligible for a period of five years to receive aid from such programs as Aid to Families with Dependent Children, Medicaid and food stamps.

On the other hand, the law specifically permitted newly legalized immigrants to benefit from the national school lunch program, Headstart, vocational education, public health programs and the Higher Education Act of 1965.

But the law left to the Justice Department the task of analyzing the bulk of federal social programs to determine if they fell within the category of federal financial assistance.

In consultation with the other departments, including HUD, the Justice Department last July identified 28 federal programs, including the Community Development Block Grant program and seven other HUD programs, that qualified as federal financial assistance.

Ironically, all HUD housing programs, including programs involving direct rent subsidies and other financial aid, were exempted from the immigration-law requirement by subsequent federal legislation.

HUD officials now argue that Community Development Block Grants should be removed from the financial-assistance category. HUD requires that 60% of its community development funds benefit low income persons, Kondratas said. But that requirement does not mean that the eligibility for participation in HUD-funded programs is based on financial need.

“It’s not because someone who is not low income is not eligible, but because the grantee has to get a certain proportion of people who are low-income,” Kondratas said. “So it’s not quite the same thing.”

In Orange County Thursday, Atty. Gen. Dick Thornburgh, whose Justice Department includes the INS, said he has discussed the Costa Mesa issue with Kemp but has not yet seen a reason to step in. Told of McNary’s comment, however, Thornburgh said, “He’s the guy I look to for advice.

“This is not something I have personal knowledge of, but I look to the commissioner for advice and I will hear from him,” Thornburgh said after a speech in Irvine to the Lincoln Club. “We’ll have to look at the legality of it and the policy considerations.”