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HUD OIG assisted U.S. Attorney’s Office, Southern District of New York in a civil investigation related to illegal-undocumented aliens  receiving Housing Opportunities for Persons with AIDS (HOPWA) assistance.  The HOPWA program at 24 CFR (Code of Federal Regulations) Part 574 is a HUD Office of Community Planning and Development (CPD) grant program that provides formula allocations and competitively awarded grants to eligible States, cities, and nonprofit organizations to provide housing assistance and related supportive services to meet the housing needs of low-income persons and their families living with HIV-AIDS.

Noncitizen or alien ineligibility for federally funded programs is a recurring issue in Congress.  Two laws primarily govern noncitizen or alien eligibility for housing programs:  Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 - 8 U.S.C. (United States Code 1611 (PRWORA) and Section 214 of the Housing and Community Development Act of 1980 as amended.  PRWORA states that aliens, who are not qualified aliens, are not eligible for “Federal public benefits,” a term defined in the law to include public and assisted housing.  Under this statute, unauthorized (illegal aliens) do not meet the definition of qualified aliens and as a result are ineligible for Federal public benefits.  However, PRWORA exempted certain Federal public benefits from the alien eligibility restrictions, including programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelters) specified by the Attorney General, after consultation with the appropriate Federal agency.

The issue of nonqualified aliens receiving assistance under HOPWA or other homeless assistance programs has not been clearly addressed in HUD regulations and guidance.  Specifically, there does not appear to be any clear guidance as to whether programs that are funded through HUD’s community development programs and administered through nonprofits (such as HOPWA) have been clearly designated as a “Federal public benefit.”  This designation is important because aliens, who have not been qualified to be considered “qualified aliens” under 8 U.S.C. 1611, are not eligible for Federal benefits.  Also, it is not clear whether homeless assistance grants are considered a Federal public benefit.  There is a discord between “housing assistance,” which is considered a Federal benefit and is limited to qualified aliens, and “homeless assistance.”  If homeless assistance grants were considered a Federal public benefit, HOPWA would not be available to illegal-undocumented aliens.  However, since it is unclear whether such grants are considered Federal public benefits, there is a potential for unqualified aliens to fall under the exceptions under 8 U.S.C. 1611 (which include emergency type programs) and qualify to receive benefits.

We recommend that HUD’s Office of Community Planning and Development (1) Clarify whether assistance provided under its community development programs, such as HOPWA, are considered “Federal public benefits” and are, therefore, subject to PRWORA’s noncitizen eligibility restrictions and (2) Consult with the Office of the Attorney General to establish whether HOPWA and other homeless assistance programs are a Federal public benefit that meets the definition of “providing assistance for the protection of life or safety” and are, therefore, exempt from PRWORA noncitizen eligibility restrictions.