[Federal Register Volume 62, Number 238 (Thursday, December 11, 1997)]
[Notices]
[Pages 65285-65287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32438]
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DEPARTMENT OF JUSTICE
[AG Order No. 2131-97]
Guidance on Standards and Methods for Determining Whether a
Substantial Connection Exists Between Battery or Extreme Cruelty and
Need for Specific Public Benefits
AGENCY: Department of Justice.
ACTION: Notice of guidance; rescission of prior order.
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SUMMARY: The Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (``PRWORA''), as amended by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, provides
that certain categories of aliens who have been subjected to battery or
extreme cruelty in the United States are
[[Page 65286]]
``qualified aliens'' eligible for certain federal, state, and local
public benefits. To be qualified under this provision, an alien must
demonstrate, among other things, that there is a substantial connection
between the battery or extreme cruelty and the need for the public
benefit sought. As initially enacted, the PRWORA vested in the Attorney
General the authority to determine whether a substantial connection
exists between the battery or extreme cruelty suffered by the alien or
alien's child and the specific benefits sought by the alien. The
Attorney General exercised that authority in Attorney General Order No.
2097-97. Subsequent to the issuance of that Order, Congress passed the
Balanced Budget Act of 1997, which amended the PRWOR to vest the
authority for making substantial connection determinations in benefit
providers, rather than the Attorney General. The Balanced Budget Act
also requires the Attorney General to issue guidance to benefit
providers on the standards and methods to be used in making substantial
connection determinations. Pursuant to the Balanced Budget Act, this
Notice rescinds Attorney General Order No. 2097-97 and provides
guidance to benefit providers regarding substantial connection
determinations.
DATES: This Notice is effective November 23, 1997.
FOR FURTHER INFORMATION CONTACT: Diane Rosenfeld, Senior Counsel, The
Violence Against Women Office, United States Department of Justice, 950
Pennsylvania Ave., Washington, D.C. 20530, (202) 616-8894.
SUPPLEMENTARY INFORMATION: Section 431(c) of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996
(``PRWORA''), Public Law 104-193, as added by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Public Law 104-208,
and amended by sections 5571-72 and 5581 of the Balanced Budget Act of
1997, Pub. L. 105-33, provides that certain categories of aliens who
have been subjected to battery or extreme cruelty in the United States
are ``qualified aliens'' eligible for certain federal, state, and local
public benefits. To be a qualified alien under this provision, an alien
must demonstrate that: (1) The Immigration and Naturalization Service
or the Executive Office for Immigration Review has granted a petition
or application field by or on behalf of the alien, the alien's child,
or the alien child's parent under one of several subsections of the
Immigration and Nationality Act (INA), or has found that a pending
petition or application sets forth a prima facie case for relief under
the applicable provision of the INA; (2) the alien, the alien's child,
or the alien child's parent has been battered or subjected to extreme
cruelty in the United States: (a) In the case of an abused alien, by
the alien's spouse or parent, or by a member of the spouse or parent's
family residing in the same household as the alien and the spouse or
parent consents to or acquiesces in such battery or cruelty; (b) in the
case of an alien whose child is abused, by the alien's spouse or
parent, or by a member of the spouse or parent's family residing in the
same household as the alien and the spouse or parent consents to or
acquiesces in such battery or cruelty and the alien did not actively
participate in the battery or cruelty; (c) in the case of an alien
child whose parent is abused, by the parent's spouse or a member of the
spouse's family residing in the same household as the parent and the
spouse consents to or acquiesces in such battery or cruelty; (3) there
is a substantial connection between the battery or extreme cruelty and
the need for the public benefit sought and (4) the battered alien,
child, or parent no longer resides in the same household as the abuser.
As originally enacted, section 431(c) of the PRWORA vested in the
Attorney General the responsibility for determining whether an alien
applicant for benefits had demonstrated a substantial connection
between the battery or extreme cruelty and the applicant's need for
particular benefits. The Attorney General exercised that authority in
Attorney General Order No. 2097-97, Determination of Situations that
Demonstrate a Substantial Connection Between Battery or Extreme Cruelty
and Need for Specific Benefits, 62 FR 39874 (July 24, 1997). In
drafting this Determination, the Attorney General consulted with
federal benefit-granting agencies that are implementing section 431(c)
of PRWORA and with other interested parties.
Subsequently, Congress enacted the Balanced Budget Act of 1997,
which amended section 431(c) of the PRWORA to require that benefit
providers, rather than the Attorney General, determine whether an
applicant for benefits under this section has demonstrated a
substantial connection between battery or extreme cruelty and the need
for the particular benefit sought. Although section 5571 of the
Balanced Budget Act transfers the authority to make substantial
connection determinations from the Attorney General to the benefit
provider, it directs the Attorney General to issue guidance to benefit
providers on the standards and methods for making such
determinations.\1\ That guidance is set forth below.
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\1\ Section 5571 also requires the Attorney General to issue
guidance on the meaning of the terms ``battery'' and ``extreme
cruelty'' as employed in the PRWORA, as amended. That information
can be found in Exhibit B to Attachment 5 of the Interim
Verification Guidance.
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This Notice of guidance is an ``interpretive rule'' and therefore
is not subject to the notice and comment or delay in effective date
requirements of 5 U.S.C. 553. This Determination is not a ``significant
regulatory action'' under Executive Order 12866 and is not a ``major
rule'' under 5 U.S.C. 804.
Guidance on Standards and Methods for Determining Whether a Substantial
Connection Exists Between Battery or Extreme Cruelty and Need for
Specific Public Benefits
By virtue of the authority vested in me as Attorney General by law,
including section 431(c) of the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996, as amended, I hereby issue the
following guidance to federal, state, and local public benefit
providers concerning the standards and methods to be used in
determining whether an alien applicant for benefits demonstrates that
there is a substantial connection between the battery or extreme
cruelty suffered by the alien, the alien's child, or (in the case of an
alien child) the alien's parent and the need for the public benefit(s)
sought. The following list sets forth the circumstances under which I
would find the existence of a substantial connection. Although this
guidance is not binding upon benefit providers, it is intended to
assist benefit providers in developing standards by which to make
substantial connection determinations.
(1) Where the benefits are needed to enable the applicant, the
applicant's child, and/or (in the case of an alien child) the
applicant's parent to become self-sufficient following separation from
the abuser;
(2) Where the benefits are needed to enable the applicant, the
applicant's child, and/or (in the case of an alien child) the
applicant's parent to escape the abuser and/or the community in which
the abuser lives, or to ensure the safety of the applicant, the
applicant's child, and/or (in the case of an alien child) the
applicant's parent from the abuser;
(3) Where the benefits are needed due to a loss of financial
support resulting from the applicant's, his or her child's, and/or (in
the case of an alien child) his or her parent's separation from the
abuser;
[[Page 65287]]
(4) Where the benefits are needed because the battery or cruelty,
separation from the abuser, or work absences or lower job performance
resulting from the battery or extreme cruelty or from legal proceedings
relating thereto (including resulting child support or child custody
disputes) cause the applicant, the applicant's child, and/or (in the
case of an alien child) the applicant's parent to lose his or her job
or require the applicant, the applicant's child, and/or (in the case of
an alien child) the applicant's parent to leave his or her job for
safety reasons;
(5) Where the benefits are needed because the applicant, the
applicant's child, and/or (in the case of an alien child) the
applicant's parent requires medical attention or mental health
counseling, or has become disabled, as a result of the battery or
cruelty;
(6) Where the benefits are needed because the loss of a dwelling or
source of income or fear of the abuser following separation from the
abuser jeopardizes the applicant's and/or (in the case of an alien
child) the applicant's parent's ability to care for his or her children
(e.g., inability to house, feed, or clothe children or to put children
into day care for fear of being found by the abuser);
(7) Where the benefits are needed to alleviate nutritional risk or
need resulting from the abuse or following separation from the abuser;
(8) Where the benefits are needed to provide medical care during a
pregnancy resulting from the abuser's sexual assault or abuse of, or
relationship with, the applicant, the applicant's child, an/or (in the
case of an alien child) the applicant's parent and/or to care for any
resulting children; or
(9) Where medical coverage and/or health care services are needed
to replace medical coverage or health care services the applicant, the
applicant's child, and/or (in the case of an alien child) the alien's
parent had when living with the abuser.
Dated: November 23, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-32438 Filed 12-10-97; 8:45 am]
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