Exceptions to the Educational Requirements for Naturalization for Certain Applicants [62 FR 12915] [FR 9-97]

DOCUMENT NUMBER: FR 9-97

FEDERAL REGISTER CITE: 62 FR 12915

DATE PUBLISHED: March 19, 1997

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 299, 312, and 499

[INS No. 1702-96]

RIN 1115-AE02

Exceptions to the Educational Requirements for Naturalization

for Certain Applicants

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule with request for comments.

SUMMARY: This final rule amends the Immigration and Naturalization Service (the Service) regulations relating to the educational requirements for naturalization of eligible applicants under section 312 of the Immigration and Nationality Act (the Act), as amended by the Technical Corrections Act of 1994. This amendment provides an exception from the requirements of demonstrating an understanding of the English language, including an ability to read, write, and speak words in ordinary usage, and of demonstrating a knowledge and understanding of the fundamentals of the history, and of the principles and form of government of the United States, for certain applicants who are unable to comply with both requirements because they possess a "physical or developmental disability" or a "mental impairment." The final rule establishes an administrative process whereby the Service will adjudicate requests for these exceptions while providing the public with an opportunity to comment on portions of the adjudicative process whi ch the Service is altering in response to public comments from the previously published proposed rule.

DATES: This final rule is effective March 19, 1987. Written comments must be submitted on or before May 19, 1997.

ADDRESSES: Please submit written comments in triplicate to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW, Room 5307, Washington, DC 20536. To ensure proper handling, please reference INS number 1702-96 on your correspondence. Comments are available for public inspection at the above address by calling (202) 514-3048 to arrange an appointment.

FOR FURTHER INFORMATION CONTACT: Craig S. Howie or Jody Marten, Adjudications and Nationality Division, Immigration and Naturalization Service, 425 I Street NW., Room 3214, Washington, DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

On October 25, 1994, Congress enacted the Immigration and Naturalization Technical Corrections Act of 1994. Section 108(a)(4) of the Technical Corrections Act amended section 312 of the Act to provide an exemption to the United States history and government ("civics") requirements for persons with "physical or developmental disabilities" or "mental impairments" applying to become naturalized United States citizens. This exception complemented an existing exception for persons with disabilities with regard to the English language requirements for naturalization. Enactment of this amendment marked the first time Congress authorized an exception from the civics requirements for any individual applying to naturalize.

The Technical Corrections Act did not specifically define the terms developmental disability, mental impairment, or physical disability. Congress did, however, provide limited guidance for defining these terms in the Report of the House of Representatives Committee on the Judiciary, H. Rep. 103-387, dated November 20, 1993. Based in part on the language of this report, the Service provided preliminary guidance to field offices on November 21, 1995, defining the three categories of disabilities and requir ing disabled persons seeking an exception from the section 312 requirements to obtain an attestation verifying the existence of the disability from a designated civil surgeon.

On August 28, 1996, the Service published a proposed rule at 61 FR 44227-44230 proposing to amend 8 CFR part 312 to provide for exceptions from the section 312 requirements for persons with physical or developmental disabilities or mental impairments. In the preamble to the proposed rule, the Service noted that these exceptions were not blanket waivers or exemptions for persons with disabilities. Creation of blanket waivers would be contrary to the requirements of section 504 of the Rehabilitation Act, wh ich provides for equal (with modifications/accommodations) but not special treatment for disabled persons in the administration of Justice Department programs. The proposed rule provided that an exception would only be granted to those individuals with disabilities who, because of the nature of their disability, could not demonstrate the required understanding of the English language and knowledge of United States civics, even with reasonable modifications or accommodations.

The Service proposed that all disability eligibility determinations be based on medical evidence in the form of individual, one-page assessments by civil surgeons or qualified individuals or entities designated by the Attorney General, attesting to the existence of the applicant's disability. As is the case with virtually all Service adjudications for benefits, it was noted that it is the responsibility of the disabled person applying for naturalization to provide the documentation necessary to substantiat e the claim for a disability-based exception.

The Service noted that it would comply with section 504 of the Rehabilitation Act of 1973 by providing reasonable modifications and/or accommodations to its testing procedures for applicants with disabilities. In addition, the Service noted that an applicant would be deemed unable to participate in the testing procedures only in those situations where there are no reasonable modifications that would enable the applicant to participate.

After the Service completed digesting the comments received from the public and after meeting with other federal benefit-granting agencies with extensive experience in administering disability related programs, it became clear that considerable changes would be made to the proposed rule. As such, the Service is implementing the policies contained in this rule while also seeking additional comments from the public addressing our changes.

Discussion of Comments

The Service received 228 comments from a variety of sources, including federal and state governmental agencies, disability rights and advocacy organizations, and private individuals. While the Service has identified 11 specific comment areas that warrant discussion, the majority of comments address three specific areas relating to the proposed rule, in particular, the definitions of the disabilities proposed by the Service at §§ 312.1(b)(3)(i) and 312.2(b)(1)(i), the use of the civil surgeons as the medic al professionals making the disability determinations at § 312.2(b)(2), and the other statutory requirements for naturalization. The Service also notes that of the 228 comments, 46 were in the form of two separate "form memoranda" which the Service speculates were circulated among commenters. Some commenters attached these memoranda to a cover letter, while others placed the form memorandum onto their own letterhead. An additional 12 form letters, all from the same social services agency yet signed by va rious staff, were also received.

The Service appreciates the overall in-depth comments that were received, especially from other federal agencies and various disability advocacy organizations. All these comments have assisted the Service in understanding matters of concern to the disabled community, a constituent group that until now the Service has only interacted with on a limited basis. The following is a summarized discussion of the comments, opening with an issue statement, followed by a summary of the public comments, and concludin g with the Service response. The discussions are listed in order according to the volume of comments received for each topic.

Definitions of the Disabilities

Issue . Should the Service change the definitions noted in the proposed rule to comport with existing federal statutes and regulations? The Service proposed to amend §§ 312.1(b)(3)(i) and 312.2(b)(1)(i) of 8 CFR with definitions of physical disability, developmental disability, and mental impairment based upon the language of the legislative history as noted in H.R. No. 103-387. These definitions included provisions which excluded disabilities that were temporary in nature, that were not the result of a physic al or organic disorder, or that had resulted from an individual's illegal use of drugs. H.R. No. 103-387 did not clarify whether the Congress was referring to the abuse of illegal drugs or legal drugs. Each definition included language which specified that the disability must render the individual unable to fulfill either the requirements for English proficiency or to participate in the civics testing procedures even with reasonable modifications.

Summary of public comments . The disability definitions received 138 comments, the largest number of specifically referenced comments. The majority of commenters noted that while it was appreciated that the Service was attempting to follow the intent of Congress, as based on the limited legislative history, it was the obligation of the Service to use definitions already in existence and that comport with existing federal statutes. In particular, 62 comments directly referenced the position that the Service is required to use existi ng definitions that comport with other federal statutes, such as definitions found in the Americans With Disabilities Act and the Developmental Disability, Services, and Bill of Rights Act of 1978. These commenters also expressed particular concern over the proposed definition of developmental disability. They noted how there is disagreement within the medical community as to whether certain disabilities, such as mental retardation, are indeed developmental in nature as opposed to being a mental impairmen t.

As noted previously, the Service, in following the legislative history, excluded disabilities in the proposed definitions that were acquired (to exclude persons whose disability was the result of the illegal use of drugs) or disabilities non-organic or temporary in nature. Of the comments addressing the definitions, 39 specifically admonished the Service to revisit this decision. According to these commenters, by adopting the definitions as listed in the proposed rule, the Service would be excluding a larg e number of disabled naturalization applicants. For example, individuals suffering from Post Traumatic Stress Disorder or individuals whose disability resulted from an accident would not be covered by the definitions as proposed by the Service, in that both these disabilities are acquired. An additional 18 commenters noted that the definitions proposed by the Service were too narrowly drawn. They repeated the argument that by enacting such narrowly drawn definitions the Service would potentially exclude large numbers of disabled individuals who might qualify for these Congressionally mandated exceptions.

Eight commenters noted that the Service had not included specific references to particular disabilities in the proposed rule. It was therefore suggested that the Service modify its definitions to include particular disabilities such as mental retardation and deafness and particular diseases such as Alzheimers to the language of the final rule. One commentator noted that the seriously ill should be considered physically disabled for the purposes of gaining an exception to the section 312 requirements.

Ten separate commenters noted that the proposed language of the disability definitions would not take into consideration persons with combination disabilities. It was cited that while an individual with combination disabilities might not meet the criteria for an exception in a single category, the individual's combination of disabilities might prevent them from being able to meet the requirements of section 312, even with reasonable modifications. An example given noted that an individual with mild dement ia who also suffers from hearing loss or blindness may not be able to learn the required English and civics information. Taken singularly, these disabilities might not automatically warrant an exception for the individual. However when combined, the commenters agreed on the likelihood of the individual being unable to satisfy the requirements of section 312 increase, and thus may warrant the granting of an exception.

Response . The Service has devoted considerable time in evaluating the comments addressing the disability definitions, and has consulted with other federal agencies whose experience in developing and implementing disability-related benefit programs is much more extensive than that of the Service (notably the Department of Health and Human Services and the Social Security Administration). The Service has also revisited the exact language of the Act at section 312 as well as the legislative history.

As noted, the Service has consulted with the Social Security Administration (SSA) since the publication of the proposed rule in order to gain a better understanding of disability-related programs in general. While the criteria upon which the SSA renders an individual disabled for an SSA financial benefit (the focus being on an individual's inability to support themselves financially) is wholly different from the Service adjudication process for an Immigration and Nationality Act benefit, the Service finds no compelling reason why the definitions upon which these adjudications are based should not be standard between the two agencies.

Therefore, the Service is modifying the proposed rule with regard to the definitions of the disabilities as found at § 312.1(b)(3)(i) and § 312.2(b)(1)(i). The Service is electing to use language that for the most part comports with the regulatory language utilized by the SSA. In the revised language, the three categories of disabilities as noted in the Act are not specifically mentioned but are referenced as medically determinable physical or mental impairment(s), thereby using accepted medical and regul atory language already enacted and found within the SSA regulations. Modifications have been made to SSA's suggested language in order to maintain the Congressional intent that individuals whose disabilities are the result of the illegal use of drugs not be eligible for an exception to the section 312 requirements.

Also included in the regulatory language are provisions to recognize combination impairments, as suggested by commenters and in keeping with the standards used by the SSA. However, the Service has elected not to include specific references to particular disabilities within the regulatory text found in §§ 312.1(b)(3) and 312.2(b)(1). The Service believes that inclusion of particular named disabilities could have the possible effect of limiting the scope of the proposed exceptions. In other words, some dis abled applicants, not seeing their particular disability noted in the text of 8 CFR part 312 might not believe they are covered by the potential exception and thus might not attempt to gain an exception even though they might be fully eligible.

By adopting these changes, the Service is addressing the public's concern regarding the proposed regulation's consistency with existing federal regulations and statutes. We are also ensuring that the particular concerns that Congress elected to include in the legislative record are observed, while acknowledging that adopting a broad definition of disability is mandated by the Act. However, the burden will still be on the applicant, via the medical certification, to demonstrate to the satisfaction of the S ervice how the disability prevents the applicant from learning the information required by section 312 of the Act. The Service believes that it is possible to create a humane process without creating a blanket exception policy within the regulatory language and within the administration of this program. As previously noted, creation of a blanket exception would have the tacit effect of perpetuating the stereotype that persons with disabilities are unable to participate fully in mainstream activities and w ould thus be contrary to the provisions of section 504 of the Rehabilitation Act of 1973.

Disability Determinations: Use of the Civil Surgeons and Creation of a Form

Issue . Should disabled applicants be required to be examined by a civil surgeon in order to obtain a disability certification? In the proposed rule at 8 CFR 312.2(b)(2), the Service noted that disabled applicants desiring a disability exception to the requirements of English proficiency and civics must submit medical certification attesting to the presence of the disability, executed by a designated civil surgeon or qualified individuals or entities designated by the Attorney General. The Service did not defi ne the terms qualified individuals or entities, but did specifically request public comments on the requirements of the medical certification process and in particular on the circumstances under which the Service should consider the use of qualified individuals or entities other than civil surgeons.

Summary of public comments . The public responded with 125 comments directly addressing this aspect of the proposed rule. The majority of commenters had concerns over the use of civil surgeons. It was noted by 101 commenters, including HHS (the controlling federal agency for civil surgeons), that the majority of civil surgeons are in general family practice and thus not experienced in making complex disability determinations. In addition, it was noted that civil surgeons currently base the majority of their examinations for the S ervice on matters relating to the admissibility of immigrating aliens and communicable diseases. This diagnosis of communicable diseases does not relate to the disability determination process, according to these commenters.

Many commenters, acknowledging the Service's need to maintain integrity in the medical determination process, noted that it would be imposing a great burden on the disabled applicant to limit the attestation process to only civil surgeons and the unknown "qualified individuals or entities." Forty-seven commenters therefore directly requested the Service to allow disabled applicants to use the medical services of the person's attending physician, medical specialist, or clinical case worker rather than manda ting an examination by a civil surgeon. Several of these commenters also noted that the Service must consider the stress potentially placed on persons with mental impairments if forced to undergo an examination by someone other than their own physician.

In addition to the above noted reasons offered for not limiting the medical certification process to the civil surgeons, 25 commenters stated that the pool of civil surgeons was too small to adequately serve all disabled applicants who might attempt to avail themselves of the disability exceptions. The small pool of civil surgeons could potentially result in disabled applicants having to wait months for appointments.

It was noted by 10 commenters that the cost of going to a civil surgeon could be prohibitive for many persons with disabilities on fixed incomes or public assistance, especially if the civil surgeon is required to consult with medical professionals who specialize in disabilities prior to issuing a certification. Commenters noted that the Service should take this factor into consideration prior to finalizing any policy that would require the predominant use of civil surgeons in the disability determination process. Six commenters noted that the Service should be obliged to provide disabled applicants with lists of bilingual physicians qualified to render the necessary disability certification, and one commenter requested that the Service compose lists of specialists, such as psychiatrists and clinical case workers, that disabled applicants could use in locating a medical professional qualified to make the disability certification.

Three commenters requested the Service to abandon the proposed certification process altogether and adopt a procedure similar to that currently utilized by the SSA in making disability determinations. Another commenter stated that the certification process should be changed, and suggested that disability determination authority be given to the district director in every local Service office. According to this writer, this policy would dissuade a large number of individuals who view the section 312 disabil ity exceptions as a means of avoiding the English language statutory requirement.

Response . In determining a final policy for the disability determination process, the Service acknowledges that it must be responsive to the needs of the applicant base, especially the needs of persons with disabilities. However, it is also the obligation of the Service to balance these needs with the necessity of maintaining integrity in the disability determination process. Only one commenter addressed the fact that the Service will be faced with instances of fraud in the administration of this program and tha t the Service must be ever-vigilant when non-disabled applicants attempt to present themselves to the Service as disabled and therefore eligible for a disability exception. Having a structured process for the determination of a disability is critical to the Service's obligation to maintain an adjudicative process with integrity.

The Service has concluded that the public is justified in its concern over the near exclusive dependence on the civil surgeons in the disability determination process. Therefore, the Service is proposing to eliminate all references to the use of the civil surgeons in the determination process. (However, any civil surgeon meeting the criteria outlined below will be able to make a disability determination, but based on the surgeon's expertise with a particular disability, not on the fact that he or she is a civil surgeon.)

The Service is proposing that only medical doctors licensed to practice medicine in the United States (including the United States territories of Guam, Puerto Rico, and the Virgin Islands), which includes medical doctors with specialities such as board certified psychiatrists, and clinical psychologists licensed to practice psychology in the United States (including the United States territories of Guam, Puerto Rico, and the Virgin Islands) who are experienced in diagnosing disabilities, make the determinat ions that will be used by the Service. This policy will address the concerns of the public regarding the use of civil surgeons, the perception that the available pool of civil surgeons is too small to meet the needs of the disabled community, and the possible high cost of medical visits to several doctors in order to verify the existence of a disability. This determination process will be effective upon publication of this rule while the Service also investigates other possible methods for having disabled applicants gain a disability certification from professionals within the medical community.

The selective list of licensed health care providers eligible to render a disability determination is critical to the Service obligation that fraud not corrupt this program or the adjudicative process. Further safeguards can be found in the proposal of the Service to require the medical professional making the disability determination to (1) sign a statement that he or she has answered all the questions in a complete and truthful manner and agrees, with the applicant, to the release of all medical records relating to the applicant that may be requested by the Service, and (2) an attestation stating that any knowingly false or misleading statements may subject the medical professional to possible criminal penalties under Title 18, United States Code, Section 1546. Title 18, United States Code, Section 1546 provides in part:

...Whoever knowingly makes under oath, or as permitted under penalty of perjury under Section 1746 of Title 28, United States Code, knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document containing any such false statement - shall be fined in accordance with this title or imprisoned not more than ten years, or both.

In addition to the criminal penalties of Title 18 noted above, the applicant and licensed medical professional are subject to the civil penalties under section 274C of the Act, Penalties for Document Fraud, 8 U.S.C. 1324c.

The Service has many concerns over the preservation of integrity but cannot expect the public to wait for the implementation of a possible alternative determination process. Other federal agencies have advised the Service that their experience with accepting documentation from attending physicians has in some instances been negative. For this reason, the Service has elected to reserve the right to request additional medical records relating to the applicant's disability if the Service has reason to questi on the disability determination or certification.

The Service is also reserving the right to refer the applicant to another authorized licensed health care provider for a supplemental disability determination. This option will be invoked when the Service has credible doubts about the veracity of a medical certification that has been presented by an applicant. The Service will likely be faced with cases where non-disabled individuals, fully capable of meeting the functional English and United States civics requirements of section 312, will attempt to gain a disability exception. Therefore, the Service must be free to use reasonable means to prevent fraud in the disability determination process and to ensure that the integrity of United States citizenship is preserved.

The Service notes that it is not the responsibility of this agency to provide disabled applicants with lists of bilingual medical professionals, nor is it the responsibility of the Service to provide lists of licensed health care providers qualified to perform the disability determinations. The burden is on the applicant to provide the documentation deemed necessary for the Service to make a determination as to the qualifications of the applicant for any benefit requested under the Act.

The public must also note that the naturalization program is financed entirely by the fees paid by the naturalization applicant. No Congressionally appropriated funds are dedicated to the naturalization adjudicative process. The creation of any alternative determination process would need to be financed either by the user fees paid by applicants or by other as yet unidentified non-fee sources of funding. The Service desires to learn the public viewpoint on various alternative disability determination pro cesses.

In its proposed rule, the Service specifically requested public comments on the requirements for the medical certification. Only two commenters made specific suggestions that the Service would better serve the public as well as its own interests by creating a new public use form. Initially, the Service proposed that the medical professional making the certification issue a one-page document, attesting to the origin, nature, and extent of the applicant's condition as it relates to the disability exception. The certification was specified to be only one page in an attempt to keep applicants from submitting entire medical histories that the Service has no experience with or capacity to archive.

The Service has determined that the creation of a new public use form will be a benefit to both the Service and the public. In particular, creation of a form will take the burden off both the applicant and the licensed medical professionals with regard to information dissemination. The form's instructions will include complete explanations of the disability categories and define which licensed medical professionals can execute the certification. A new form will allow the licensed medical professionals to state simply, via reference to the instructional guidelines, how the applicant's disability prevents the applicant from learning the information needed to fulfill the requirements of section 312 of the Act. The form will also allow the licensed medical professionals an opportunity to comment on how their particular medical experience qualifies them to render complex disability

assessments.

As previously noted, the Service also believes that a form will ensure the integrity of the disability determination process (a vital concern of the Service) by requiring the licensed medical professionals to sign and declare that the examination and certification is accurate under penalty of perjury. The new form will also allow for the submission of additional background medical documentation, upon request of the Service, which may reduce the likelihood of fraud. Lastly, Service offices will be advised, and the public should note, that the Service will accept photocopies of the new Form N-648, Medical Certification for Disability Exceptions, until the form becomes fully available to the public.