Exceptions to the Educational Reuirements for Naturalization for Certain Applicants [64 FR 7990] [FR 7-99]

DOCUMENT NUMBER: FR 7-99

FEDERAL REGISTER CITE: 64 FR 7990

DATE OF PUBLICATION: February 18, 1999

BILLING CODE 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 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.

SUMMARY: On March 19, 1997, the Immigration and Naturalization Service (the Service) published a final rule in the Federal Register establishing an administrative process to adjudicate requests for exceptions from the English and Civics requirements of section 312 of the Immigration and Nationality Act (the Act), by persons with physical or developmental disabilities, or mental impairments. The Service offered the public the opportunity to comment on the final rule, specifically requesting comments on the appeal process and quality control procedures for disability-related adjudications.

Based on comments to the rule and current naturalization quality procedures, the Service has determined that a separate appeals process and additional quality procedures are unnecessary at this time. The Service, however, has amended the rule to include licensed doctors of osteopathy (DOs) as health care providers who are authorized to complete Form N-648, Medical Certification for Disability Exceptions. The Service has also made minor changes to the language of the rule to avoid misinterpretation.

DATES: This final rule is effective March 22, 1999.

FOR FURTHER INFORMATION CONTACT: Jody Marten, Office of Field Operations, Immigration Services Division, Immigration and Naturalization Service, 801 I Street NW., Suite 900, Washington, DC 20536, telephone (202) 305-4770.

SUPPLEMENTARY INFORMATION:

Background

On October 25, 1994, Congress enacted the Immigration and Naturalization Technical Corrections Act of 1994, Public Law 103-416. 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 disabil ities from 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 for naturalization.

On August 28, 1996, the Service published a proposed rule in the Federal Register at 61 FR 44227 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. The Service received 228 comments from various sources, including Federal and state government agencies, disability rights and advocacy organizations, and private individuals. On March 19, 1997, the Service published a final rule with request for comments in the Federal Register at 62 FR 12915. The final rule established an administrative procedure whereby applicants with disabilities could apply for an exception to the section 312 requirements on the newly created public use Form N-648, Medical Certification for Disability Exceptions. Since significant changes were made to the proposed rule, the Service requested additional comments on the final rule.

Discussion of Comments

The Service specifically requested comments on two areas: appeal procedures and quality control. In the final rule, the Service proposed an enhancement of the current section 336 appeal process to provide, at the appellate level, an independent medical review of all Form N-648 adjudications. The Service also requested comments on any training or additional quality control measures which the Service might adopt to ensure fairness and integrity in disability-related adjudications.

The Service received 45 comments on the final rule, addressing appeal procedures and quality control, as well as other provisions in the rule and the Service's March 19, 1997, filed guidance.

Appeal Process

The Service received no comments specifically addressing the proposed enhanced appeal procedures. Five commenters, however, did reiterate their belief that the Service should set up a separate appeal process for denials of the Form N-648. The commenters stated that the Form N-648 adjudication should be separate and apart from the overall adjudication of the Form N-400, Application for Naturalization. The commenters also stated that a separate appeal process was necessary to eliminate any additional delays that may occur from adjudication of the Form N-648-delays which could potentially disadvantage persons with disabilities who already face a lengthy administrative process and may suffer a diminished ability to meet the section 312 requirements or complete the naturalization process.

As stated in the March 19, 1997, final rule, the Service does not believe a separate appeal process for the Form N-648 is in accord with the current procedures for adjudicating the Form N-400, Application for Naturalization. The Service believes that consideration of the Form N-648 is one part of the overall adjudication of an individual's Form N-400. All applicants may avail themselves of the hearing procedures already in place in the event the naturalization application is denied, by requesting a hearin g on the denial under section 336 of the Act. This is not a strong basis for declining to adopt the commenters' suggestion. With the training Service adjudication officers have received in adjudicating N-648s and disability-based exceptions, the Service remains of the opinion that the current hearing procedure is sufficient for naturalization applicants with disabilities whose Form N-400s have been denied. Finally, with regard to independent medical review of the Form N-648 determination, the Service is c urrently conducting a pilot with the U.S. Public Health Service (PHS) through an interagency agreement, whereby PHS will provide medical staff to assist the Service with review of the Form N-648s and provide training to adjudicators on relevant medical issues. The Service believes this combined effort should provide for more timely and consistent decisions for naturalization applicants with medical disabilities.

Quality Control Procedures

Six commenters stated that there should be a separate quality control program for disability-related adjudications. Several commenters also stated that organizations or agencies with disability-related expertise, rather than the Service, should conduct quality control reviews of Form N-648 processing.

As previously stated in the March 19, 1997, final rule, the Service has instituted the Naturalization Quality Procedure (NQP), which establishes quality control procedures for review of Form N-648 adjudications. In addition, Service adjudications officers have been extensively trained on disability-related adjudications and have received supplemental guidance addressing the Service's obligations under section 504 of the Rehabilitation Act, and reiterating the need to provide accommodations and modifications to the testing procedures to allow naturalization applicants who are disabled to complete the naturalization process. The Service believes that these measures are adequate to fulfill the quality control needs noted by the commenters.

Miscellaneous Comments

Thirteen commenters requested that the Service add licensed doctors of osteopathic medicine to the list of health care providers currently authorized to complete the Form N-648 (licensed medical doctors and licensed clinical psychologists). After a review of individual state licensing procedures, academic requirements, and credentials for licensed medical doctors (MDs) and licensed osteopathic doctors (Dos), it appears to the Service that Dos, like licensed MDs and clinical psychologists, must be experienc ed in diagnosing persons with physical or mental, medically determinable impairments, and must also be able to attest to the origin, nature, and extent of the medical conditions. In addition, Dos have comparable training and knowledge which the Service believes are sufficient to assess a naturalization applicant's ability to meet the section 312 requirements. The Service therefore has concluded that Dos should be included among the health care providers authorized to complete the Form N-648. Accordingly, l icensed doctors of osteopathic medicine (Dos) have been included at 8 CFR 312.2(b)(2).

Eight commenters requested the Service slightly modify the definition of "medically determinable" found at 8 CFR 312.1(b)(3) and 312.2(b)(1), which define "medically determinable" as "* * * an impairment that results from anatomical, physiological or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques to have resulted in functioning so impaired as to render an individual unable to demonstrate an understanding of [English and Civics] * * *, (emphasis added). The commenters expressed concern that use of the word "and" instead of "or" in the phrase "clinical and laboratory diagnostic techniques" might indicate that applicants are required to submit both clinical and laboratory evidence of their disabilities, though either clinical or laboratory diagnostic information would be adequate to establish the disability. The Service agrees and has made the recommended change in the rule.

Ten commenters requested that the Service issue further policy guidance and clarification of the requirements for reasonable accommodations under section 504 of the Rehabilitation Act of 1975 (Pub. L. 92-112). As stated in the March 19, 1997, final rule, the Service is in full compliance with section 504 of the Rehabilitation Act and provides accommodations and modifications to testing procedures when required. In addition, the Service currently makes regular accommodations and modifications for applicant s who are disabled, including conducting off-site testing, interviews, and where authorized, off-site swearing-in ceremonies. The Service is currently working on additional field guidance regarding disability-related adjudications, which will provide additional instructions regarding reasonable accommodations.

Seven commenters stated that the Service should waive the oath of allegiance for persons with disabilities as a reasonable accommodation requirement under section 504 of the Rehabilitation Act of 1975. As stated in the March 19, 1997, final rule, the Service has not addressed the issue of the oath requirement in this rulemaking since Congress did not amend section 337 of the Act in the 1994 Technical Corrections Act. The Service will continue to adhere to the tenets of the Rehabilitation Act and make reas onable accommodations (e.g., off-site oath ceremonies) in cases where individuals are unable, by reason of a disability, to take the oath of allegiance in the customary way. Such accommodations remain available for individuals who are disabled who signal their willingness to become United States citizens and to give up citizenship in other countries.

Twenty-five commenters requested that the Form N-648 be revised so health care providers can complete the form and provide information about the applicant in a more comprehensive and understandable manner. The Service has made minor revisions to the Form N-648 to make it more "user-friendly." On the original Form N-648, health care providers were required to complete question 3, providing a comprehensive medical diagnosis of the applicant and description of why the applicant cannot meet the basic English l anguage and/or U.S. history and civics requirements. In addition, if the applicant has a mental disability or impairment, health care providers were required to include the Diagnostic and Statistical manual of Mental Disorders (DSM) diagnosis. The Service found that many health care providers were not responding fully to question 3. The Service, therefore, has expanded this question, creating three new questions to ensure a more accurate and complete response. The Service also has eliminated the second p art of question 4, regarding when an applicant's condition was first manifested. The Service believes this question is addressed in response to one of the other questions.