[Federal Register Volume 62, Number 53 (Wednesday, March 19, 1997)]
[Rules and Regulations]
[Pages 12915-12928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6686]
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Rules and Regulations
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Federal Register / Vol. 62, No. 53 / Wednesday, March 19, 1997 /
Rules and Regulations
[[Page 12915]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 229, 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.
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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
which the Service is altering in response to public comments from the
previously published proposed rule.
DATES: This final rule is effective March 19, 1997. 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
Nationality 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 requiring 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, which 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 substantiate 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
[[Page 12916]]
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 Secs. 312.1(b)(3)(i) and 312.2(b)(1)(i), the
use of the civil surgeons as the medical professionals making the
disability determinations at Sec. 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
various 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 concluding 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 Secs. 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 physical 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 existing 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 impairment.
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 large 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 dementia 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 on an individual's
inability to support themselves
[[Page 12917]]
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 Sec. 312.1(b)(3)(i)
and Sec. 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 regulatory 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 Secs. 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 disabled 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 Service 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 would 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 From
Issue. Should disabled applicants be required to be examined by a
civil surgeon in order to obtain a disability certification? In the
proposed rule a 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 define 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 Service 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 mandating 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 disability 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
[[Page 12918]]
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 that 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 determinations 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 truthfulmanner 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 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 question 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
professional, 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 qualification 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 or 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 processes.
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 achieve.
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 professional 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
[[Page 12919]]
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.
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, Good 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. Writers 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 family 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 their 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 Sec. 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 form 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
[[Page 12920]]
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 might 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
Sec. 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
reconsideraiton 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 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 would 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 with 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 persons 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 suggests that the Service create special training
directed at Service officers in all local Service offices. This
training would remind officer staff on 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 in the officer taking into account the special testing needs
of naturalization applicants with learning impairments. The Service
agree with this suggestion and will 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 of 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-
[[Page 12921]]
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 decision, to regular 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 cased
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 into 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.
Exemption of All Section 312 Requirements for the Elderly
Issue. Should the Service grant a total exemption to the elderly
for the requirements of section 312 of the Act?
Summary of public comments. While the proposed rule did not address
the issue of applicants over the age of 65 being exempted from all
requirements of section 312, 16 commenters urged the Service to adopt
such a policy. Writers based their requests on the assumption that
applicants over the age of 65 are inherently unable to learn a new
language or information on United States civics due to their advanced
age. Therefore, commenters suggested a new policy whereby elderly
applicants would have the naturalization requirements found under
section 312 waived. One additional writer asked that the Service waive
the English requirements for any legal immigrant attempting to
naturalize.
Response. Section 312 of the Act offers no blanket exemption to
applicants over the age of 65 with respect to the English proficiency
requirements. Congress has afforded naturalization applicants over the
age of 50 with 20 years of permanent residence and applicants over the
age of 55 with 15 years of permanent residence an exemption from the
English language requirements. Congress has not, however, expanded
these exemptions to other groups. Congress has also granted ``special
consideration'' to applicants over the age of 65 with 20 years of
permanent residence regarding the civics knowledge requirements. (The
Service will address the section 312 ``special consideration''
provisions in the overall regulatory revision of 8 CFR part 312).
The Service cannot create a new exemption category to the Act. Only
the Congress has the authority to amend the Act. As such, the Service
cannot act on this particular suggestion.
Treating Applicants With Disabilities With Compassion and
Discretion
Issue and summary of public comments. The need for compassion and
discretion in adjudicating disability naturalization cases. In the
Service's preliminary guidance to field offices regarding section 312
disability naturalization cases, dated November 21, 1995, offices were
reminded to use compassion and discretion in their dealings with
disabled applicants. Fifteen commenters noted that this language was
missing from the proposed rule and requested the Service to include
said language in the text of the final rule.
Response. The Service understands the desire of the disabled
advocacy community to have this language included in the final rule.
However, the Service feels that such language is more appropriate for
inclusion in the supplemental policy guidance that will be distributed
to field offices upon publication of this rule. The special training
previously mentioned that the Service will require for adjudication
officers will also stress the need for compassion and discretion in
dealings with all applicants for benefits under the Act.
A Single Test and Single Determination
Issue and summary of public comments. Should the Service use a
single test and single determination process? Seven commenters noted
that the proposed rule implies that there are two separate tests, due
to the structure of the regulation which addresses English proficiency
at Sec. 312.1 and knowledge of United States civics at Sec. 312.2. The
Service was therefore urged to adopt a single test format. These
commenters also suggest that the Service only require one determination
for the medical certification process.
Response. The Service notes that while the current structure of the
regulation features two distinct parts regarding English proficiency
and knowledge of United States civics, current procedures do, in
effect, offer applicants a single test. During the mandatory
naturalization interview, the applicant's verbal English proficiency is
determined by the spoken interaction between the adjudication officer
and the applicant. Most civics testing is also done orally, which
provides the adjudication officer with additional evidence of the
applicant's English proficiency. The public should also note that in
the Request for Comments contained in the proposed rule, the Service
emphasized that the entire regulatory structure of 8 CFR part 312 was
under review. Commenters' suggestions about combining the requirements
of Secs. 312.1 and 312.2 into one consolidated section shall be
considered during the redrafting of 8 CFR part 312.
With regard to the request for a single determination of the
disability, the Service will require each applicant requesting an
exception to the requirements found at section 312 to submit a single
medical certification. The certification should note the existence of
the disability, and the recommendation of the medical professional that
the applicant be exempted from the requirements of section 312. This
certification must address, however, both the English proficiency and
United States civics knowledge requirement and the applicant's
inability to meet either one or both of the requirements. This is
necessary since both requirements must be met in order for the
individual to be naturalized, absent a waiver.
Expedited Processing for Applicants With Disabilities
Issue and summary of public comments. Should persons with
disabilities be afforded expedited processing of their naturalization
applications? Four commenters addressed the issue of expedited
processing of naturalization applications for persons with
disabilities. Three writers stated it was the obligation of the Service
to expedite
[[Page 12922]]
these naturalization cases, in that the applicant's status with other
government agencies regarding eligibility for social service benefits
could be affected by the applicant's not being a United States citizen.
One of these commenters suggested that the Service institute a 30-day
processing window for disabled applicants, to ensure that the Service
could grant the applicant any reasonable modification necessary to
possibly take part in the normal testing procedure. One writer noted
that the disabled should not be granted expedited processing in that
such an accommodation would be inconsistent with current Service
policy.
Response. The policy of the Service, found in the Operating
Instructions at Sec. 103.2(q), is to process all applications in
chronological order by date of receipt. This procedure ensures fairness
and equity for all applicants. The Service shall continue to observe
this procedure with regard to naturalization applications from persons
with disabilities. The public should note, however, that any applicant
able to show evidence of an emergent circumstance may request an
exception to this policy from the local district director. It is within
the discretion of the district director to either grant or deny a
request for expedited processing of any Service adjudication.
Miscellaneous Comments
Ten commenters implored the Service to take into consideration
their particular personal circumstances surrounding disability
naturalization cases currently or about to be submitted to the Service.
While the Service has empathy for these writers, the proposed rule for
which comments were solicited addressed procedural issues, not
particular cases. The Service is confident that each of these
individual cases will be adjudicated equitably when presented to an
adjudications officer for review.
One writer expressed dismay that the Service was considering an
exception to the section 312 requirements for certain disabled aliens
attempting to naturalize. This writer stated that disabled aliens
should be required to return to their native countries and that the
United States should focus its attention on assisting native-born
disabled citizens. The Service would note that the 1994 Technical
Corrections Act mandates this change to the Services' regulations. The
Service is obligated to follow the direction of the Congress when
Congress so amends the Act.
One commenter suggested that the Service embark upon a media
campaign in order to notify disabled persons about the provisions of
this legislative change. The writer speculated that there is no method
in existence by which the Service can notify the disabled community of
this possible exception. Based on the number of comments received from
various disabled rights advocacy groups, the Service is of the opinion
that the vast majority of individuals who might benefit from this
exception will have a means of being informed about the provisions of
the exceptions. The Service would also note that it is working with the
SSA on informational materials for all alien SSA beneficiaries who may
wish to apply for naturalization.
One writer noted that the current application for naturalization,
Form N-400, should be amended to include references to the disability
related exceptions. The Service recognizes this problem and notes that
the N-400 is currently under revision. Any revision will include
information regarding the disability exceptions to the section 312
requirements and will be submitted to the Office of Management and
Budget in accordance with the Paperwork Reduction Act.
Another commenter requested that the Service be flexible in
adjudicating naturalization applicants from disabled persons. The
Service has every intention of being flexible in these adjudications to
the extent allowable under the law. The special training effort that
will be instituted should assist the Service in meeting the goals of
being flexible and fair in the adjudication of these naturalization
applications.
Request for Comments
The Service is seeking public comments regarding the final rule. In
particular, the Service is seeking comments regarding the modifications
made to the proposed rule, published at 61 FR 44227. It should again be
noted that the Service is engaged in an additional revision of 8 CFR
part 312. That additional revision will be issued as a proposed rule,
also with a request for public comments.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that the rule
will not have a significant economic impact on a substantial number of
small entities. This rule has been drafted in a way to minimize the
economic impact that it has on small business while meeting its
intended objectives.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Under Executive Order 12866, section 6(a)(3)(B)-(D), this
proposed rule has been submitted to the Office of Management and Budget
for review. This rule is mandated by the 1994 Technical Corrections Act
in order to afford certain disabled naturalization applicants an
exemption from the educational requirements outlined in section 312 of
the Immigration and Nationality Act.
Executive Order 12612
The regulation will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988
This interim rule meets the applicable standards set forth in
section 3(a) and 3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major as defined by section 804 of the Small
Business Regulatory Enforcement Fairness Act of 1996. This rule will
not result in an annual effect on the economy of $100,000,000 or more;
a major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
[[Page 12923]]
Paperwork Reduction Act
The information collection requirement contained in this rule have
been approved by the Office of Management and Budget (OMB) under the
provision of the Paperwork Reduction Act. The OMB control number for
this collection is contained in 8 CFR 229.5, Display of control
numbers.
List of Subjects
8 CFR Part 299
Immigration, reporting, and record keeping requirements.
8 CFR Part 312
Citizenship and naturalization, Education.
8 CFR Part 499
Citizenship and naturalization.
Accordingly, chapter I of title 8 of the Code of Federal Regulation
is amended as follows:
PART 299--IMMIGRATION FORMS
1. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
2. Section 299.5 is amended by adding the entry for Form ``N-648'',
to the listing of forms, in proper numerical sequence, to read as
follows:
Sec. 299.5 Display of control numbers.
* * * * *
------------------------------------------------------------------------
Currently
assigned
INS form No. INS form title OMB control
No.
------------------------------------------------------------------------
* * * * *
N-648.................... Medical Certification for 1115-0205
Disability Exceptions.
* * * * *
------------------------------------------------------------------------
PART 312--EDUCATIONAL REQUIREMENTS FOR NATURALIZATION
3. The authority citation for part 312 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1423, 1443, 1447, 1448.
4. In Sec. 312.1 paragraph(b)(3) is revised to read as follows:
Sec. 312.1 Literacy requirements.
* * * * *
(b) * * *
(3) The requirements of paragraph(a) of this section shall not
apply to any person who is unable, because of a medically determinable
physical or mental impairment or combination of impairments which has
lasted or is expected to last at least 12 months, to demonstrate an
understanding of the English language as noted in paragraph (a) of this
section. The loss of any cognitive abilities based on the direct
effects of the illegal use of drugs will not be considered in
determining whether a person is unable to demonstrate an understanding
of the English language. For purposes of this paragraph, the term
medically determinable means an impairment that results form
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 the English
language as required by this section, or that renders the individual
unable to fulfill the requirements of English proficiency, even with
reasonable modifications to the methods of determining English
proficiency, even with reasonable modifications to the methods of
determining English proficiency as outlined in paragraph(c) of this
section.
* * * * *
5. Section 312.2 is amended by:
a. Revising the last sentence of paragraph(a);
b. Redesignating paragraph(b) as paragraph(c) and by
c. Adding a new paragraph(b), to read as follows:
Sec. 312.2 Knowledge of history and government of the United States.
(a) * * * A person who is exempt from the literacy requirement
under Sec. 312.1(b) (1) and (2) must still satisfy this requirement.
(b) Exceptions. (1) The requirements of paragraph(a) of this
section shall not apply to any person who is unable to demonstrate a
knowledge and understanding of the fundamentals of the history, and of
the principles and form of government of the Untied stated because of a
medically determinable physical or mental impairment, that already has
or is expected to last at least 12 months. The loss of any cognitive
skills based on the direct effects of the illegal use of drugs will not
be considered in determining whether an individual may be exempted. For
the purposes of this paragraph the term medically determinable means an
impairment that results form anatomical, physiological, or
psychological abnormalities which can be shown by medically acceptable
clinical and laboratory diagnosis techniques to have resulted in
functioning so impaired as to render an individual to be unable to
demonstrate the knowledge required by this section or that renders the
individuals unable to participate in the testing procedures for
naturalization, even with reasonable modifications.
(2) Medical certification. All persons applying for naturalization
and seeking an exception from the requirements of Sec. 312.1(a) and
paragraph(a) of this section based on the disability exceptions must
submit Form N-648, Medical Certification for Disability Exceptions, to
be completed by a medical doctor licensed to practice medicine in the
United States or a clinical psychologist licensed to practice
psychology in the Untied states (including the United States
territories of Guam, Puerto Rico, and the Virgin Islands). Form N-648
must be submitted as an attachment to the applicant's Form N-400,
Application for Neutralization. These medical professionals shall be
experienced in diagnosing those with physical or mental medically
determinable impairments and shall be able to attest to the origin,
nature, and extent of the medical condition as it relates to the
disability exceptions noted under Sec. 312.1(b)(3) and paragraph(b)(1)
of this section. In addition, the medical professionals making the
disability determination must sign a statement on the Form N-648 that
they have answered all the questions in a complete and truthful manner,
that they (and the applicant) agree to the release of all medical
records relating to the applicant that may be requested by the Service
and that they attest that any knowingly false or misleading statements
may subject the medical professional to the penalties for perjury
pursuant to title 18, United Stated Code, Section 1546 and to civil
penalties under section 274C of the Act. The Service also reserves the
right to refer the applicant to another authorized medical source for a
supplemental disability determination. This option shall be invoked
when the Service has credible doubts about the veracity of a medical
certification that has been presented by the applicant. An affidavit or
attestation by the applicant, his or her relatives, or guardian on his
or her medical condition is not a a sufficient medical attestation for
purpose of satisfying this requirement.
* * * * *
(Approved by the Office of Management and Budget under control
number 1115-0208)
[[Page 12924]]
PART 499--NATIONALITY FORMS
6. The authority citation for part 499 continues to read as
follows:
Authority: 8 U.S.C. 1103; 8 CFR part 2.
7. Section 499.1 is amended by adding the entry for the Form ``N-
648'', in proper numerical sequence, to the listing of forms, to read
as follows:
Sec. 499.1 Prescribed forms.
* * * * *
------------------------------------------------------------------------
Edition
Form No. date Title and description
------------------------------------------------------------------------
* * * * *
N-648..................... 1/23/97 Medical Certification for
Disability Exceptions.
------------------------------------------------------------------------
Dated: March 2, 1997.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
Note: The attached Medical Certification for Disability
Exceptions, Form N-648, will not appear in the Code of Federal
Regulations.
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[FR Doc. 97-6686 Filed 3-18-97; 8:45 am]
BILLING CODE 4410-10-C