Other Naturalization Requirements

Issue . Must disabled naturalization applicants meet the other requirements for naturalization, including the ability to take an oath of renunciation and allegiance? In order for an applicant for naturalization to be approved, the Service must be satisfied that the applicant has met the requirements as stipulated in the Act. The 1994 Technical Corrections Act amended the Act regarding the requirements found in section 312, but did not amend the requirements found in section 316 (Requirements as to Residence, G ood Moral Character, Attachment to the Principles of the Constitution, and Favorable Disposition to the United States). Neither did it amend section 337 (Oath of Renunciation and Allegiance). Therefore, the Service did not address any of the other requirements for naturalization in the proposed rule.

Summary of Public Comments . While the Service did not address the other requirements for naturalization, 92 commenters did make direct references to these requirements. The vast majority of these writers (89 of the 92) stated that it was incumbent upon the Service to waive the other naturalization requirements for applicants with disabilities, in particular the oath of allegiance. Commenters stated that the intent of Congress was to relieve the disabled from requirements they could not be expected to meet, to remove barriers in the naturalization process for the disabled applicant, and not to create an additional test whereby disabled applicants would in effect be tested on their ability or capacity to take the oath.

Writers stated that while Congress did not directly address the issue of the other requirements for naturalization, it was the obligation of the Service to comply with Congressional intent and waive the oath requirement. These commenters stated that by not waiving the oath, the Service would place the disabled applicant in a situation of being exempt from the civics requirements of section 312, but required to have a working knowledge of civics in order to take and understand the oath of allegiance. Writ ers further stated that this situation of exempting certain requirements but holding the disabled applicant to other requirements would be a violation of the Rehabilitation Act of 1973 and the Department of Justice regulations. These regulations prohibit the government from utilizing "criteria or methods of administration the purpose or effect of which would...(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to handicapped persons." (28 CFR 39.130 ( b)(3))

These writers noted it was not only the obligation of the Service to follow Congressional intent, but that the Service has the authority to waive the oath requirement for any applicant under the Service authority to naturalize applicants via the administrative naturalization process. This administrative naturalization authority was given to the Service by Congress as part of the Immigration Act of 1990. Twenty of these writers also suggested that the Service consider the alternative idea of allowing a fam ily member, legal guardian, or court appointed trustee to stand in for the disabled applicant during the administration of the oath. This would in effect create an oath by proxy procedure, available to the disabled applicant when the disability prevents the applicant from understanding the language of the oath.

Two writers stated that the Rehabilitation Act of 1973 and companion disability-related statutes were enacted to ensure fairness to disabled persons with regard to employment and physical accessibility. Therefore, they do not relate to the naturalization process. These commenters stated that the other naturalization requirements, in particular the oath, are mandatory and should not be waived for any applicant, disabled or not. One additional writer suggested that the Service seek clarification from Congress on the issue of disabled applicants unable to meet all the requirements for naturalization.

Response . The Service did not address the issue of the oath in the proposed rule since Congress did not amend section 337 of the Act in the 1994 Technical Amendment Act. However, the Service realizes the concern that exists within the disability community as to this naturalization requirement.

The Service already makes reasonable accommodations in cases where individuals are unable, by reason of a disability, to take the oath of allegiance in the customary way. For example, it is the common practice of all Service offices to conduct naturalization interviews and to administer the oath of allegiance outside of the local Service office in instances where the applicant is either home-bound or confined to a medical facility. Such accommodations remain available for disabled individuals who signal t heir willingness to become United States citizens and to give up citizenship in other countries.

Acceptance of Disability Certifications from Other Government Agencies

Issue . Should the Service accept disability certifications issued by other government agencies? In the proposed rule at § 312.2(b)(2), the Service noted that it may consult with other federal agencies in determining whether an individual previously determined to be disabled by another federal agency has a disability as defined in the proposed rule language. This consultation could be used in lieu of the Service-required medical certification.

Summary of public comments . Thirty-eight commenters stated that the Service should be obligated to accept a certification of a disability from a federal or state governmental agency in lieu of having the disabled naturalization applicant seek an additional medical certification.

Response . The Service has consulted with other federal agencies regarding this matter. It was pointed out to the Service that with most agencies, the determination of a disability leads to either a financial or medical benefit. The SSA noted that the criteria they review prior to granting an individual a disability benefit (in particular, can the person work and thus support themselves financially) is entirely different than the requirements that all applicants applying for naturalization must meet. In addition , a disability which might render an individual eligible for a financial or medical benefit from another federal or state agency may not in all cases render the same individual unable to learn the information required by section 312 of the Act.

After careful review, the Service has determined that it will not accept certifications from other government or state agencies as absolute evidence of a disability warranting an exception to the requirements of section 312. However, and as noted in the proposed rule, the Service reserves the right to consult with other federal agencies on cases where an applicant has been declared disabled. The Service notes that the unquestioned acceptance of another agency's disability determination would equate to a blanket waiver of the section 312 requirements for anyone with a disability that has been so recognized by another agency. Such a blanket waiver, based on stereotypical speculation that persons with disabilities are unable to participate in mainstream activities, is contrary to the provisions of section 504 of the Rehabilitation Act of 1973.

Appeal Language

Issue . Should a special appeal procedure be created for disabled naturalization applicants?

Summary of public comments . Twenty-six commenters noted that in the proposed rule, the Service failed to include any references to an appeal procedure for a disabled naturalization applicant who is denied naturalization based on the Service not accepting a medical certificate attesting to a disability. Six of these commenters stated that since Service officers were not medical professionals, they should be obliged to accept a medical certificate. These same commenters additionally stated that any applicant's certificate that migh t be denied be afforded an immediate appeal to the local Service district director. Three commenters suggested that the Service be required to obtain independent medical evidence prior to denying any naturalization case, based on questions about the disability certification. Twelve commenters stated that the Service should be obligated to establish a separate appeal process for disabled applicants, also repeating the request that the appeal be forwarded immediately to the local Service district director.

Response . Many separate decisions comprise the overall adjudication of an individual's application for naturalization. One part of the overall adjudication will be acceptance or rejection of the applicant's N-648. This will not be a separate adjudication, entitled to its own set of appeal rights and procedures, but a part of the entire N-400 approval or denial process.

All applicants seeking to naturalize, including disabled applicants, may avail themselves of the hearing procedure already in place in the event the naturalization application is denied. Applicants may request a hearing on a denial under the provision of section 336 of the Act. The regulations governing these hearings are found at § 336.2. The review hearing will be with other than the officer who conducted the original examination and who is classified at a grade level equal to or higher than the grade of the original examining officer. Applicants may submit additional independent evidence as may be deemed relevant to the applicant's eligibility for naturalization. If the denial is sustained, the applicant may seek de novo reconsideration in federal court. With the additional training Service adjudication officers will receive regarding disabilities and the disability-based exception to the requirements of section 312, the Service is of the opinion that in the interim, the current hearing procedure for a denied naturalization application is sufficient.

In the interest of making an accommodation, the Service is considering a modification to the current hearing procedure. The procedure under consideration contemplates using the current hearing process augmented with an independent medical opinion issued on the disability finding. This opinion could be issued by a medical professional that the applicant has been referred to by the Service, especially in instances where the Service officer questions the medical certification. An augmented hearing process w ould need to be financed through the user fees paid by the applicant or by other as yet unidentified non-fee sources of funding. As noted previously, the naturalization program is entirely funded by user fees, with no additional funding appropriated by the Congress. The Service welcomes additional public comments on this idea. However, such a procedure would necessitate a separate regulatory amendment to 8 CFR 336.2.

Reasonable Modifications/Accommodations, Special Training, and Quality Control

Issue . Should examples of reasonable modifications and accommodations to the naturalization testing procedure be included in the language of the regulation? Noted in the preamble to the proposed rule were statements that pursuant to section 504 of the Rehabilitation Act of 1973, the Service would make reasonable modifications and accommodations to its testing procedures to enable naturalization applicants with disabilities participation in the process.

Summary of public comments . Twenty-two commenters raised specific references to the modifications and accommodations. In particular, commenters felt that the Service should include in the text of the final rule examples of the modifications or accommodations which might be afforded the disabled applicant during the testing and interview process. Writers stressed that appropriate modifications depend upon the applicant's individual needs. One commenter stated that it would be more efficient for the Service to interview persons wi th disabilities off-site rather than modifying each officer's work station in each Service office for complete disability access.

Response . The Service is in full compliance with its obligations under section 504 of the Rehabilitation Act and provides accommodations and modifications to the testing procedures when required. The Service currently makes regular accommodations and modifications for disabled applicants for the full range of its services.

However, the Service has reservations about including language within the text of the regulation detailing specific accommodations or modifications. It is the opinion of the Service that the appropriate place for such language is in the accompanying field policy guidance and instructions that will be distributed to all Service offices upon publication of this final rule. Service offices are routinely reminded of the obligations section 504 places on all governmental agencies regarding accommodating person s with disabilities. The Service notes that it is current Service policy to conduct off-site testing, interviews, and where authorized, off-site swearing-in ceremonies in appropriate situations.

Four commenters suggested that the Service create special training directed at Service officers in all local Service offices. This training would remind officer staff of their responsibilities under section 504 of the Rehabilitation Act and offer staff examples of exact modifications and accommodation to the testing procedures. An example might be the officer taking into account the special testing needs of naturalization applicants with learning impairments. The Service agrees with this suggestion and w ill initiate special training for local district office adjudication officers. Program staff at Service Headquarters are currently working on the creation of this training module and plan to provide this special training as close to the publication of the final rule as possible. The Service asks the public for suggested training methods which may be of value to the adjudication officers responsible for hearing those cases where the applicant is requesting a disability-based exception to the requirements o f section 312.

In addition to the special training efforts that will be undertaken, the Service is committed to ensuring that substantial quality control mechanisms are followed regarding these disability-related naturalization adjudications. Currently, all Service offices responsible for processing naturalization cases must comply with mandatory quality control procedures. These procedures include regular supervisory review of every stage of the naturalization process, from clerical data entry and final decisions, to r egular Form N-400 random samplings. These quality control procedures are not optional instructions that Service offices are encouraged to follow. These procedures are mandatory for every office. The Service is committed to ensuring that all naturalization cases are handled properly, administratively processed correctly, and adjudicated fairly.

The Service will supplement these current quality control procedures with additional procedures particularly directed at cases where applicants have requested an exception from the requirements of section 312. These procedures will include the previously referenced special training efforts for local Service adjudicators as well as supplemental random samplings of cases where the applicant has a disability and has requested an exception. The Service is currently investigating the possibility of entering in to a contract with a private entity to perform these random samplings. Such an arrangement would ensure an unprecedented level of objectivity in reviewing disability-related cases. It would also allow the Service to gain independent medical viewpoints on these disability adjudications as well as opinions on medical certifications which may have been questioned by the local Service officer. The Service requests public comments on additional quality control methods which may assist the Service in ensuring that its disability related adjudications are fair and accurate.