[Federal Register Volume 62, Number 76 (Monday, April 21, 1997)]
[Rules and Regulations]
[Pages 19409-19417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10035]
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LEGAL SERVICES CORPORATION
45 CFR Part 1626
Restrictions on Legal Assistance to Aliens
Agency: Legal Services Corporation.
Action: Final rule and interim rule with request for comments.
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SUMMARY: This final rule revises the Legal Services Corporation's
(``Corporation'' or ``LSC'') interim rule on legal representation of
aliens. This rule is intended to implement the restrictions on alien
representation in the Corporation's Fiscal Year (``FY'') 1996
appropriations act that are currently incorporated by reference into
the Corporation's FY 1997 appropriations act. In general, these
restrictions apply to a recipient's LSC and non-LSC funds where, under
prior legislation and the prior rule, the restrictions applied only to
a recipient's LSC funds. In addition, the final rule includes a number
of technical and substantive revisions suggested by public comments,
and substantially reorganizes portions of the rule to give it a more
logical and coherent structure and to make it easier to understand and
apply. Finally, this final rule incorporates provisions to implement
the Kennedy Amendment, a new statutory provision permitting the use of
a recipient's non-LSC funds for legal assistance to otherwise
ineligible aliens who are the victims of domestic abuse. This provision
was included in the Corporation's FY 1997 appropriations act, which was
enacted after publication of the interim rule. Because these provisions
were added after publication of the interim rule, the Corporation is
publishing the Kennedy Amendment provisions as interim provisions and
is requesting public comment on the manner in which the Corporation has
implemented the Kennedy Amendment in this rule.
DATES: Effective Dates: The final rule is effective on May 21, 1997.
The interim provisions, Sec. 1612.2(f) and (g) and Sec. 1612.4, are
effective on April 21, 1997.
Comments: Comments on the interim provisions must be submitted on
or before May 21, 1997.
ADDRESSES: Comments should be submitted to the Office of General
Counsel, Legal Services Corporation, 750 First St., NE., 11th Floor,
Washington, DC 20002-4250.
FOR FURTHER INFORMATION CONTACT: Victor Fortuno, General Counsel, (202)
336-8910.
SUPPLEMENTARY INFORMATION: Section 504(a)(11) of the LSC appropriations
act for FY 1996, Pub. L. 104-134, 110 Stat. 1321 (1996), prohibits the
Corporation from providing funding to any person or entity
(``recipient'') that provides legal assistance to ineligible aliens.
This restriction effectively restricts a recipient's non-LSC funds for
alien representation to the same degree as LSC funds. The prior rule,
promulgated in 1983, expressly allowed recipients to use their non-LSC
funds to provide legal assistance to ineligible aliens.
On May 19, 1996, the Operations and Regulations Committee
(``Committee'') of the LSC Board of Directors (``Board'') requested the
LSC staff to prepare an interim rule to implement the restrictions in
Sec. 504(a)(11). The Committee held public hearings on staff proposals
on July 9 and 10, 1996, and the Board adopted the interim rule on July
20 which was published in the Federal Register on August 29, 1996, at
61 FR 45750.
The interim regulation extended the restrictions on alien
representation to recipients' non-LSC funds and made numerous other
revisions to the prior rule to correct technical problems, to clarify
several confusing provisions, and to remove outdated provisions. No
other major structural revisions or substantive changes were made by
the interim rule. This final rule includes changes made to the interim
rule largely in response to public written and oral comments and
recommendations made by the LSC staff. Public hearings were held on the
rule by the Committee on December 14, 1996, and January 5, 1997, and by
the LSC Board on January 6, 1997, when this final rule was adopted.
Subsequent to the publication of the interim rule, Congress passed
the Corporation's 1997 appropriations act, Pub. L. 104-208, 110 Stat.
3009 (1996). That legislation amended the Sec. 504(a)(11) restriction
in the FY 1996 appropriations act to permit recipients to use non-LSC
funds to serve indigent aliens who are victims of domestic abuse on
matters directly related to the abuse (``Kennedy Amendment''). The
Kennedy Amendment became effective on October 1, 1996, during the
comment period for the interim rule. A number of comments urged
incorporation of the Kennedy Amendment into the final regulations, even
though the interim rule understandably made no mention of the Kennedy
Amendment because the rule was published before its enactment. While
the few comments the Corporation received made suggestions on how to
include the Amendment into this rule, the general public was not
provided notice of the Amendment. Accordingly, the Corporation requests
comments on these provisions for its review and consideration. In
addition, the Corporation has determined that it is necessary to
publish the Kennedy Amendment provisions as interim rules, effective
upon publication, in order to provide prompt and critically needed
guidance to LSC recipients on the changed status of legislative
requirements. LSC determined that because of the circumstances, prior
notice and public comment were impracticable, unnecessary and contrary
to the public interest. See 5 U.S.C. 553(b)(3)(B) and 553(d)(3). The
Corporation intends to hold a public
[[Page 19410]]
hearing on the provisions and anticipates publishing a final version of
the Kennedy Amendment provisions in a later rulemaking. With the
exception of the Kennedy Amendment provisions, Sec. 1626.2 (f) and (g)
and Sec. 1626.4, this rule is final.
The Corporation received 13 timely comments on the interim rule.
The commenters raised a number of specific substantive issues and also
suggested a need for numerous technical and structural changes to
clarify or correct minor points addressed by the regulation. For the
most part, the Corporation has included the suggested technical and
structural revisions in this final regulation.
Most of the comments addressed four clusters of issues: (1) the
need to incorporate the Kennedy Amendment into part 1626; (2) the need
to provide a mechanism to update and expand the list of acceptable
documents used to establish alien eligibility; (3) issues relating to
verification of citizenship; and (4) the need to address the special
confidentiality concerns of aliens. In addition, individual comments
addressed a series of specific issues raised by the interim rule. The
Corporation has addressed issues raised by the comments and includes
its analysis of those issues in the section-by-section discussion of
the final rule and the interim provisions provided below.
Section 1626.1 Purpose
The final rule revises the ``Purpose'' section of the interim rule,
by stating affirmatively that the rule is intended to ensure that
recipients provide legal assistance only to citizens and eligible
aliens, rather than stating the purpose as a prohibition on the
representation of certain aliens. It continues to be a purpose of this
rule to assist recipients in determining eligibility and alien status.
Section 1626.2 Definitions
The final rule includes all of the definitions that were in the
interim rule, but also incorporates several new definitions, including
definitions of ``citizen'' and ``United States'' and terms used in the
Kennedy Amendment. The definitions of ``citizen'' and ``United States''
reference the sections of the Immigration and Nationality Act (``INA'')
that define those terms or describe the individuals covered by those
terms for purposes of the rule. As suggested by comments, this
commentary notes that persons born in Puerto Rico and the U.S. Virgin
Islands are U.S. citizens. Furthermore, an individual may be a U.S.
citizen even though born outside the U.S. and not naturalized. For
example, persons born outside of the U.S. may have acquired U.S.
citizenship at birth from their U.S. citizen parent or parents, or
through naturalization of their parents.
Sections 1626.2 (f) and (g) and Sec. 1626.4 Kennedy Amendment
Provisions
Many of the comments specifically urged LSC to incorporate the
``Kennedy Amendment'' into the final version of Part 1626. The
Amendment permits LSC recipients to use non-LSC funds to provide legal
assistance to ineligible aliens who are the victims of domestic abuse
when the legal assistance is ``directly related to the prevention of,
or obtaining relief from,'' the abuse. All of the Kennedy Amendment
provisions are published as interim rules on which the Corporation
seeks public comment.
To implement the Kennedy Amendment, this rule contains two new
definitions in Sec. 1626.2 and adds applicability provisions in
Sec. 1626.4. The first new definition is found in Sec. 1626.2(f) which
defines the phrase ``battered or subjected to extreme cruelty,'' the
term for domestic abuse used in the Kennedy Amendment. The Kennedy
Amendment states that ``battered or subjected to extreme cruelty has
the meaning given such term under regulations issued pursuant to
subtitle G of the Violence Against Women Act of 1994.''
On March 26, 1996, the Immigration and Naturalization Service
(``INS'') of the Department of Justice issued an interim rule which
contains the definition referred to in the Kennedy Amendment. See 61 FR
13074. The regulation provides the following definition:
(vi) Battery or extreme cruelty. For the purpose of this chapter,
the phrase ``was battered by or was the subject of extreme cruelty''
includes, but is not limited to, being the victim of any act or
threatened act of violence, including any forceful detention, which
results or threatens to result in physical or mental injury.
Psychological or sexual abuse or exploitation, including rape,
molestation, incest (if the victim is a minor), or forced prostitution
shall be considered acts of violence. Other abusive actions may also be
acts of violence under certain circumstances, including acts that, in
and of themselves, may not initially appear violent but that are a part
of an overall pattern of violence.
The INS definition is subject to change because the INS interim
rule has not been finalized. Therefore, the Corporation has cited but
has not included the language of the INS definition in the text of this
rule. Thus, if the INS definition changes, this rule would still be
correct.
The second definition is of the phrase ``legal assistance directly
related to the prevention of, or obtaining relief from, the battery or
cruelty'' and is found at Sec. 1626.2(g). The comments urged the
Corporation to define ``directly related'' broadly, to permit
representation on a wide range of legal issues that would permit the
victim of abuse to escape from the abusive situation, ameliorate the
effects of the abuse, and protect against future abuse. Some of the
comments suggested specific areas of legal representation that should
be permitted; others urged LSC to permit any legal representation that
could arguably be described as related to the abuse.
The Corporation adopted a definition that it believes is consistent
with the statutory intent. The definition would allow a broad area of
representation that has the specific purpose of assisting the abused
spouse or child to escape from the abusive relationship, to ameliorate
the effects of the abuse or to protect against future abuse. The
definition, however, would not permit a recipient to use non-LSC funds
to provide an ineligible alien who has suffered domestic abuse with any
and all legal assistance that would fall within the recipient's
priorities. To do so would ignore congressional intent and would also
ignore the specific language of the exception, which permits recipients
to provide only assistance that is ``directly related'' to the abuse.
Although the question of whether a particular service is directly
related to the abuse will need to be made on a case-by-case basis, the
following provides some guidance. First, the definition would permit a
recipient to use non-LSC funds to provide assistance on a broad range
of family law issues, but would not permit assistance on matters that
are not directly related to the abusive relationship. For example, a
recipient could provide legal assistance to seek a civil protection
order against the abuser and to terminate the marriage and the parental
rights of the abuser, but could not provide adoption assistance if the
client remarries and the new spouse, who is also an ineligible alien,
wishes to adopt the children. Similarly, the definition would permit
the recipient to use non-LSC funds to provide assistance to secure
housing, medical or income assistance for the abused spouse and
children, so they would no longer have to be dependent on the abuser.
However, absent some evidence that subsequent events were the direct
result of the abuse, it would not permit them
[[Page 19411]]
to challenge an eviction action by a landlord for non-payment of rent,
sue the agency administering the medical assistance program for failure
to pay for specific care, or to challenge a cutoff of public assistance
for failure to meet work requirements. Finally, the definition would
permit the recipient to use non-LSC funds to assist the abused spouse
or child to seek suspension of deportation, or to self-petition for
immigrant status, a procedure which avoids the necessity of relying on
the citizen/legal permanent resident abusive spouse or parent's
willingness to file or pursue the petition on their behalf. Both of
these procedures are included in the Violence Against Women Act and the
interim INS regulations which implement that act. See 8 CFR part 204.
Section 1626.4 on applicability is a new section not found in
either the interim or prior regulation. Paragraph (a) sets out the
Kennedy Amendment, and paragraph (b) addresses the confidentiality
concerns of otherwise ineligible aliens who may be served under the
Kennedy Amendment.
As indicated above, numerous comments urged the Corporation to
incorporate the Kennedy Amendment in the final rule as an exception to
the restrictions on alien representation. The Kennedy Amendment is not
stated as an exception. Rather, it clarifies that the restriction on
alien representation in Sec. 504(a)(11) shall not be construed to
prohibit representation of persons who fall within the terms of the
Kennedy Amendment. Accordingly, the Corporation decided to state that
the prohibition in the rule does not apply to applicants for service
who meet the criteria set out in the Kennedy Amendment. Thus, victims
of abuse under the Kennedy Amendment may be represented by recipients
with non-LSC funds, provided that the legal assistance is directly
related to the abuse. Under this analysis, the immigration status of
Kennedy Amendment clients is essentially irrelevant, because they may
be served with non-LSC funds regardless of citizenship or alien status.
Section 1626.4(b) was included to address special confidentiality
concerns raised by several of the comments. Those comments discussed
the special needs of aliens with respect to confidentiality of
information relating to immigration status. Comments particularly noted
the need to protect from disclosure information provided to a recipient
by (1) applicants for service who are rejected or referred to another
legal services provider because they do not fall within one of the
permitted categories of aliens who may be served or (2) clients who are
represented using non-LSC funds under the Kennedy Amendment. In both of
these situations, the information on alien status contained in intake
records, which records are accessible to Federal auditors, could
potentially lead to loss of employment or educational opportunities,
deportation, imprisonment or other serious consequences if disclosed.
Fear that such information might be revealed to the INS or other law
enforcement agencies, whether or not well-founded, could discourage
those aliens uncertain of their eligibility for services from seeking
legal assistance for critical legal needs. The Corporation decided that
part 1626 should explicitly state that recipients are not required to
maintain records regarding the immigration status of clients served
under the Kennedy Amendment.
Recipients are also not required to maintain immigration records
for applicants who are rejected or referred to other sources of legal
assistance. Section 1626.3 clarifies that normal intake and referral
services are not legal assistance for the purposes of this part. In
addition, the documentation requirements in Secs. 1626.6 and 1626.7
specifically do not apply to persons who receive only intake or
referral services.
Section 1626.3 Prohibition
This section restates the general prohibition on providing legal
assistance to ineligible aliens included in the interim regulation. It
also revises the language of the interim regulation with respect to
intake and referral, making it clear that normal intake and referral of
ineligible aliens do not constitute the provision of legal assistance,
and is not prohibited by this part. Thus, if an ineligible alien seeks
legal assistance, a recipient may complete intake and either reject the
applicant or refer the applicant to a private attorney, a non-LSC
funded legal services provider or a non-legal organization that
provides immigration assistance. In addition, since applicants who are
either rejected or referred are not covered by the prohibition,
recipients are not required to maintain records of alien status for
those individuals, which was a concern raised by a number of the
comments and is addressed in more detail in the discussion of
Sec. 1626.4(b) above.
Section 1626.5 Alien Status and Eligibility
This section sets out the categories of aliens eligible for legal
services. It is essentially the same as Sec. 1626.4 of the interim
regulation except that the text of Sec. 1626.4(c) of the interim
regulation has been divided into two subparagraphs in this rule for
clarity. Other technical changes have also been made to the numbering
and cross citations.
Sections 1626.6, 1626.7 and 1626.8
Section 1626.5 of the interim rule has been subdivided into
Secs. 1626.6, 1626.7 and 1628 in this final rule for clarity and ease
of application. Section 1626.6 deals with verification of citizenship,
Sec. 1626.7 deals with eligible alien status and Sec. 1626.8 deals with
emergencies.
Section 1626.6 Verification of Citizenship
This section is based on Sec. 1626.5(a) of the interim rule, but
the language has been revised substantially and additional provisions
have been added in response to numerous comments. This section requires
applicants for service who claim to be citizens to attest in writing to
the fact of their citizenship. Only when there is reason to doubt that
the applicant is a citizen is the recipient required to seek
documentation to verify the applicant's citizenship.
Under Sec. 1626.5(f) of the interim regulation, no written
verification of citizenship was required when only brief service and
consultation by telephone, without continuing representation, was
provided. This provision has been simplified and is incorporated into
Sec. 1626.6(a) of this rule with no substantive changes intended.
Several comments addressed the issue of when verification of
citizenship should be required. All noted that under both the interim
rule and the rule that preceded it, verification of citizenship was
required only when the ``recipient has reason to doubt that a person is
a United States citizen.'' The comments also made the point that, while
not explicitly stated in the regulation itself, recipients are not
permitted to base a determination that there is reason to doubt a
person's citizenship on personal characteristics, such as the person's
accent, limited English-speaking ability, appearance or race, since to
do so would constitute discrimination. Several of the comments
suggested that recipients need additional guidance on this issue and
recommended that the regulation explicitly include language prohibiting
discrimination, rather than simply including it in the commentary, as
was done when part 1626 was originally promulgated in 1983. A comment
submitted by the LSC Office of Inspector General (``OIG''), suggested
that inclusion of such a statement would be insufficient to cure the
problem of potential discrimination. The Board agreed that the text of
the regulation should include a provision explicitly
[[Page 19412]]
prohibiting discrimination, but disagreed that recipients must verify
citizenship for all applicants who claim citizenship in order to
prevent any discrimination. Accordingly, the Board added a non-
discrimination provision to Sec. 1626.6(b).
To guide recipients in this matter, this commentary provides
several examples of legitimate, non-discriminatory reasons to doubt
that a particular applicant for service is a citizen. For example, if,
in the course of an interview, an applicant who claims to be a citizen
mentions having difficulties with the INS or being denied certain
benefits because of alien status, the recipient should seek
verification of citizenship. Similarly, if an applicant claiming
citizenship specifically seeks representation in an immigration matter,
the recipient should seek citizenship verification. If an applicant for
services makes statements relating to the applicant's citizenship that
the recipient has reason to believe are false or misleading, the
applicant should seek verification. Also, if an applicant who attests
to citizenship seems to be confused or misinformed about whether the
steps to become a citizen have been completed, the recipient should
seek verification of status.
The OIG also commented that the lack of verification of citizenship
of all applicants claiming citizenship makes compliance with the
prohibition on providing legal assistance to ineligible aliens
virtually impossible to assess. Thus, the OIG, now charged with
assessing compliance through audits, recommended that the regulation be
revised to require recipients to verify citizenship in all instances
where an applicant for services claims to be a citizen. The Board
disagreed, because such a requirement might result in denying services
to poor citizens who do not have ready access to documents such as
birth certificates or passports that are needed to verify citizenship.
The Board also noted that the verification procedures in the interim
rule have been in place with virtually no change since 1983, and there
has never been any suggestion that ineligible aliens have
inappropriately received services on the basis of false claims of
citizenship.
The final rule contains two additional changes that will reduce the
administrative burden on recipients and applicants for service while
maintaining an appropriate verification procedure. Under the previous
regulation and the interim rule, the attestation was to be ``in a form
approved by the Corporation.'' Section 1626.6(a) of the final rule now
provides that citizenship attestation will be ``in a standard form
provided by the Corporation'' and LSC plans to issue such a standard
form shortly. In the meantime, recipients should continue to use their
current attestation forms. Although not explicitly stated as a
requirement in the rule itself, the Corporation believes that when an
applicant for service is not fluent in English, the attestation form
should be translated, either orally or in writing, into a language that
the applicant understands.
Section 1626.6(b)(1) of the final rule permits a recipient to
accept, in addition to originals or certified copies of documents,
``photocopies that appear to be complete, correct and authentic.''
Finally, subsection 1626.6(b)(2) now makes it clear that in addition to
the specific documents listed, recipients ``may also accept any other
authoritative document such as a document issued by INS, by a court or
by any other governmental agency, that provides evidence of
citizenship.''
Finally, the Corporation has long recognized that legal guardians
often must act for clients who are incompetent. For example, Office of
General Counsel opinions have approved such guardians acting on behalf
of clients seeking assistance as eligible clients under the
Corporation's poverty guidelines in 45 CFR Part 1611. Although not
expressly provided for in the rule, for the purposes of this rule, an
attestation of citizenship for applicants who are children and
incompetent adults may be done, for example, by a parent, legal
guardian, guardian ad litem, or other legal representative of the child
or incompetent adult. Such attestation may not be done, however, by the
recipient, even though the recipient may be the applicant's guardian
for other purposes.
Section 1626.7. Verification of Eligible Alien Status
This section is based on Secs. 1626.5(b)-(d) of the interim
regulation, but it has been substantially revised in response to
comments and recommendations from the LSC staff.
Under Sec. 1626.5(f) of the interim regulation, no written
verification was required when only brief service and consultation by
telephone, without continuing representation, is provided. This
provision has been simplified and included in Sec. 1626.7(a) without
substantive change.
Several of the comments addressed issues related to documentation
of alien status for determining eligibility. The comments noted that
the list of documents contained in Sec. 1626.5(b) of the interim rule
was outdated and did not include a number of the common documents
currently issued by INS. In addition, the comments noted that INS
frequently changes the name, number or format of the documents that it
issues, and, as a result, it is difficult to maintain a current list of
acceptable documents. To deal with these realities, several of the
comments suggested that the list of acceptable documents be removed
from the regulation and placed, instead, in an Appendix to the
regulation that could be updated by the LSC staff annually, or more
frequently if needed, without Board action. There is precedent for use
of such an Appendix in part 1611 of the LSC regulations. Appendix A to
Part 1611 contains the LSC poverty guidelines, which are based on 125%
of the poverty guidelines that are issued each year by the Department
of Health and Human services. The LSC staff publishes the new poverty
guidelines each year in the Federal Register without Board action. The
Corporation agreed that this approach would be preferable to the
current structure, and the final rule deletes the list of documents
from the text of the interim rule. An Appendix of current acceptable
documents is published with this final rule. The Appendix has been
provided to the Corporation by the National Immigration Law Center, Los
Angeles, California. Comments on recommended revisions or additions to
the Appendix will be accepted at any time by the Corporation.
The comments raised several additional issues relating to
documentation of alien status. First, several comments noted that
Sec. 1626.5(b)(5) of the interim rule permitted a recipient to accept
other authoritative documents issued by the INS as evidence of alien
status. Pointing out that there are situations where a court or other
governmental agency (e.g. State Department) may also issue such
authoritative documents, comments urged that recipients be permitted to
accept these as well. The Corporation agreed and Sec. 1626.7(a)(2) of
the final rule includes language that permits recipients to accept
other authoritative documents such as those issued by a court or
government agency other than INS.
Several of the comments also noted that eligible aliens are often
unable to produce original documents as required under Sec. 1626.5(b)
of the interim regulation. Documents may be lost, stolen or destroyed.
INS has a procedure for applying for replacement documents, but there
is a substantial fee that indigent applicants may not be able to
afford. Also, INS officials often do not
[[Page 19413]]
know, or do not inform applicants, about the fee waiver procedure, and
it may take months for substitute documents to be provided. Comments
suggested that the final rule deal with the issue of missing documents
in two ways. First, commenters recommended that recipients be permitted
to accept certified copies of documents or photocopies that appear to
be complete, correct and authentic. The Corporation agreed and
Sec. 1626.7(a)(1) provides that such copies are acceptable
documentation.
Second, commenters recommended that where eligible aliens could not
produce either the original or an acceptable copy of the appropriate
documents, the final rule should include a provision that permits
recipients to accept either a copy of an application for replacement of
the documents or a notarized statement by a third party, similar to the
statement permitted for establishing citizenship, stating that the
applicant for service is eligible under one or more of the categories
listed in Sec. 1626.4. Comments raised the point that the regulation
should not be designed in a way that forces recipients to turn away
eligible aliens who do not have the appropriate paper work. The
Corporation agreed that a copy of an application for replacement of
documents, if it adequately described the document, would be acceptable
and would be covered by Sec. 1626.7(a)(2). However, the Corporation
rejected the suggestion that a notarized statement by a third party
should be adequate to establish eligibility, since an alien eligibility
determination requires careful review of specific documents and most
third parties would not be adequately informed about the intricacies of
immigration law to make an authoritative judgment about immigration
status.
Section 1626.8 Emergencies
This section is based on the substantive requirements of
Sec. 1626.5(e) of the interim rule, but in response to comments, the
language has been substantially revised and simplified to eliminate
unnecessary complexity and confusion and to state the principles more
directly. This rule now states more clearly and affirmatively that a
recipient may provide emergency legal assistance without written
verification of alien status, but that further representation is not
permitted without appropriate documentation. The Corporation also
eliminated the reference in Sec. 1626.5(e)(3) of the interim rule to
the recipients' ``criteria for emergency assistance as used in their
general determination of priorities,'' because the reference no longer
makes sense in light of the recent revisions made to 45 CFR Part 1620.
Although the final rule does not define ``emergency,'' in the legal
services context, an emergency would be a situation where immediate
action is necessary to preserve significant legal rights or prevent
significant harm to a person's family, property, or other legal
interests.
Section 1626.9 Change in Circumstances
This section is based on Sec. 1626.6 of the interim regulation, but
the language has been revised to make it clear that if the recipient
learns that a client is no longer eligible for legal assistance under
the rule, further representation is prohibited and the recipient must
discontinue representation, although it must do so in a manner
consistent with professional responsibilities.
Section 1626.10 Special Eligibility Questions
This section is based on the provisions of Sec. 1626.7 of the
interim regulation, but a number of revisions and additions have been
made in response to comments received by the Corporation.
The comment of the Office of Inspector General stated that the
interim rule had revised the provisions on special eligibility in a way
that had unintended consequences. Under the prior version of part 1626,
the rule stated that the restrictions on alien representation were not
applicable to the legal services programs serving the listed geographic
area and that citizens of those areas were eligible to receive legal
assistance provided they were otherwise eligible. The rule did not
explicitly state whether the legal assistance had to be provided only
by recipients providing service in those areas or could be provided by
other recipients as well. Under the interim rule, the restrictions on
alien representation were explicitly made inapplicable to citizens of
the listed geographic areas, but there was no mention of applicability
to the recipients providing services in those entities. The OIG
suggested that both the prior rule and the interim rule dealt with the
question of special eligibility incorrectly, and urged that the final
rule refer only to the legal services programs serving people who were
citizens of those jurisdictions. The effect of this change would be to
make financially eligible citizens of the Federated States of
Micronesia, the Republic of the Marshall Islands and the Republic of
Palau only eligible for legal services from the recipients serving
those areas and the Commonwealth of the Northern Marianas. They would
not be eligible for services from any other recipients unless they also
came within one of the categories of eligible aliens listed in
Sec. 1626.5. Citizens of the Commonwealth of the Northern Mariana
Islands, however, are U.S. Citizens and could be eligible for services
from any LSC recipient. The Board agreed with the OIG analysis and
revised Sec. 1626.10(a) accordingly.
Another comment raised the issue of eligibility for LSC-funded
services of indigent foreign nationals who seek legal assistance to
obtain the return of children who were abducted from their country of
residence and were brought to the U.S. for adoption. The comment noted
that under the Hague Convention on the Civil Aspects of International
Child Abduction (``Treaty'') and the Federal implementing statute, the
International Child Abduction Remedies Act (``ICARA'') foreign
nationals who reside in countries that have ratified the Treaty are
eligible for Federally funded legal services as if they were U.S.
nationals. This issue was addressed by the Corporation in a 1994 Office
of General Counsel's opinion that concluded that part 1626 should be
interpreted to permit representation of indigent persons abroad who
seek to invoke the protection of the Treaty, so long as they are
otherwise financially eligible. The rule has incorporated that
interpretation in Sec. 1626.10(e).
Section 1626.11 H-2 Agricultural Workers
This section is based on Sec. 1626.8 of the interim regulation. The
language has been revised and simplified, but no substantive changes
have been made. This section sets out the eligibility requirements for
H-2 workers.
Replenishment Agricultural Workers
One comment suggested that the provisions in Sec. 1626.9 of the
interim regulation relating to Replenishment Agricultural Workers
(RAWs) should be deleted since the program was never implemented and
INA Sec. 210A(c) was repealed by Sec. 219(ee)(1) of the Immigration and
Technical Corrections Act of 1994 (Pub. L. 103-416). Accordingly, the
Corporation removed the references to RAWs and deleted Sec. 1626.9 from
the interim rule.
Section 1626.12 Recipient Policies, Procedures and Recordkeeping
This section in the final rule is identical to Sec. 1626.10 of the
interim rule. It requires a recipient to adopt written policies and
procedures to guide
[[Page 19414]]
its staff in complying with this part and to maintain documentation
sufficient to document compliance.
List of Subjects in 45 CFR Part 1626
Grant programs, Legal services.
For the reasons set forth in the preamble, LSC revises 45 CFR part
1626 to read as follows:
PART 1626--RESTRICTIONS ON LEGAL ASSISTANCE TO ALIENS
Sec.
1626.1 Purpose.
1626.2 Definitions.
1626.3 Prohibition.
1626.4 Applicability.
1626.5 Alien status and eligibility.
1626.6 Verification of citizenship.
1626.7 Verification of eligible alien status.
1626.8 Emergencies.
1626.9 Change in circumstances.
1626.10 Special eligibility questions.
1626.11 H-2 agricultural workers.
1626.12 Recipient policies, procedures and recordkeeping.
Authority: Pub. L. 104-208, 110 Stat. 1321; Pub. L. 104-134, 110
Stat. 3009.
Sec. 1626.1 Purpose.
This part is designed to ensure that recipients provide legal
assistance only to citizens of the United States and eligible aliens.
It is also designed to assist recipients in determining the eligibility
and immigration status of persons who seek legal assistance.
Sec. 1626.2 Definitions.
(a) Citizen includes persons described or defined as citizens or
nationals of the United States in 8 U.S.C. 1101(a)(22) and Title III of
the Immigration and Nationality Act (INA), Chapter 1 (8 U.S.C. 1401 et
seq.) (citizens by birth) and Chapter 2 (8 U.S.C. 1421 et seq.)
(citizens by naturalization) or antecedent citizen statutes.
(b) Eligible alien means a person who is not a citizen but who
meets the requirements of Sec. 1626.5.
(c) Ineligible alien means a person who is not a citizen and who
does not meet the requirements of Sec. 1626.5.
(d) Rejected refers to an application for adjustment of status that
has been denied by the Immigration and Naturalization Service (INS) and
is not subject to further administrative appeal.
(e) To provide legal assistance on behalf of an ineligible alien is
to render legal assistance to an eligible client which benefits an
ineligible alien and does not affect a specific legal right or interest
of the eligible client.
(f) Battered or subjected to extreme cruelty has the meaning given
that phrase under 8 CFR part 204, the regulations issued pursuant to
subtitle G of the Violence against Women Act of 1994, 108 Stat. 1953.
(g) Legal assistance directly related to the prevention of, or
obtaining relief from, the battery or cruelty means any legal
assistance that will assist victims of abuse in their escape from the
abusive situation, ameliorate the current effects of the abuse, or
protect against future abuse.
(h) United States, for purposes of this part, has the same meaning
given that term in 8 U.S.C. 1101(a)(38) of the INA.
Sec. 1626.3 Prohibition.
Except as provided in Sec. 1626.4, recipients may not provide legal
assistance for or on behalf of an ineligible alien. For purposes of
this part, legal assistance does not include normal intake and referral
services.
Sec. 1626.4 Applicability.
(a) Except for Sec. 1626.12, the requirements of this part do not
apply to the use of non-LSC funds by a recipient to provide legal
assistance to an alien:
(1) Who has been battered or subjected to extreme cruelty in the
United States by a spouse or a parent, or by a member of the spouse's
or parent's family residing in the same household as the alien and the
spouse or parent consented or acquiesced to such battery or cruelty; or
(2) Whose child has been battered or subjected to extreme cruelty
in the United States by a spouse or parent of the alien (without the
active participation of the alien in the battery or extreme cruelty),
or by a member of the spouse's or parent's family residing in the same
household as the alien and the spouse or parent consented or acquiesced
to such battery or cruelty, and the alien did not actively participate
in such battery or cruelty; provided that the legal assistance is
directly related to the prevention of, or obtaining relief from, the
battery or cruelty.
(b) Recipients are not required by Sec. 1626.12 to maintain records
regarding the immigration status of clients represented pursuant to
paragraph (a) of this section.
Sec. 1626.5 Alien status and eligibility.
Subject to all other eligibility requirements and restrictions of
the LSC Act and regulations and other applicable law, a recipient may
provide legal assistance to an alien who is present in the United
States and who is within one of the following categories:
(a) An alien lawfully admitted for permanent residence as an
immigrant as defined by section 1101(a)(20) of the INA (8 U.S.C.
1101(a)(20));
(b) An alien who is either married to a United States citizen or is
a parent or an unmarried child under the age of 21 of such a citizen
and who has filed an application for adjustment of status to permanent
resident under the INA, and such application has not been rejected;
(c) An alien who is lawfully present in the United States pursuant
to an admission under section 207 of the INA (8 U.S.C. 1157) (relating
to refugee admissions) or who has been granted asylum by the Attorney
General under section 208 of the INA (8 U.S.C. 1158).
(d) An alien who is lawfully present in the United States as a
result of being granted conditional entry pursuant to section 203(a)(7)
of the INA (8 U.S.C. 1153(a)(7), as in effect on March 31, 1980) before
April 1, 1980, because of persecution or fear of persecution on account
of race, religion, or political opinion or because of being uprooted by
catastrophic natural calamity;
(e) An alien who is lawfully present in the United States as a
result of the Attorney General's withholding of deportation pursuant to
section 243(h) of the INA (8 U.S.C. 1253(h)); or
(f) An alien who meets the requirements of Sec. 1626.10 or 1626.11.
Sec. 1626.6 Verification of citizenship.
(a) A recipient shall require all applicants for legal assistance
who claim to be citizens to attest in writing in a standard form
provided by the Corporation that they are citizens, unless the only
service provided for a citizen is brief advice and consultation by
telephone which does not include continuous representation.
(b) When a recipient has reason to doubt that an applicant is a
citizen, the recipient shall require verification of citizenship. A
recipient shall not consider factors such as a person's accent, limited
English-speaking ability, appearance, race or national origin as a
reason to doubt that the person is a citizen.
(1) If verification is required, a recipient may accept originals,
certified copies, or photocopies that appear to be complete, correct
and authentic of any of the following documents as evidence of
citizenship:
(i) United States passport;
(ii) Birth certificate;
(iii) Naturalization certificate;
(iv) United States Citizenship Identification Card (INS Form 1-197
or I-197); or
(v) Baptismal certificate showing place of birth within the United
States and date of baptism within two months after birth.
(2) A recipient may also accept any other authoritative document
such as a
[[Page 19415]]
document issued by INS, by a court or by another governmental agency,
that provides evidence of citizenship.
(3) If a person is unable to produce any of the above documents,
the person may submit a notarized statement signed by a third party,
who shall not be an employee of the recipient and who can produce proof
of that party's own United States citizenship, that the person seeking
legal assistance is a United States citizen.
Sec. 1626.7 Verification of eligible alien status.
(a) An alien seeking representation shall submit appropriate
documents to verify eligibility, unless the only service provided for
an eligible alien is brief advice and consultation by telephone which
does not include continuous representation of a client.
(1) As proof of eligibility, a recipient may accept originals,
certified copies, or photocopies that appear to be complete, correct
and authentic, of any of the documents found in the appendix to this
part.
(2) A recipient may also accept any other authoritative document
issued by the INS, by a court or by another governmental agency, that
provides evidence of alien status.
(b) A recipient shall upon request furnish each person seeking
legal assistance with a list of the documents in the appendix to this
part.
Sec. 1626.8 Emergencies.
In an emergency, legal services may be provided prior to compliance
with Secs. 1626.6 and Sec. 1626.7 if:
(a) An applicant cannot feasibly come to the recipient's office or
otherwise transmit written documentation to the recipient before
commencement of the representation required by the emergency, and the
applicant provides oral information to establish eligibility which the
recipient records, and the applicant submits the necessary
documentation as soon as possible; or
(b) An applicant is able to come to the recipient's office but
cannot produce the required documentation before commencement of the
representation, and the applicant signs a statement of eligibility and
submits the necessary documentation as soon as possible; and
(c) The recipient informs clients accepted under paragraph (a) or
(b) of this section that only limited emergency legal assistance may be
provided without satisfactory documentation and that, if the client
fails to produce timely and satisfactory written documentation, the
recipient will be required to discontinue representation consistent
with the recipient's professional responsibilities.
Sec. 1626.9 Change in circumstances.
If, to the knowledge of the recipient, a client who was an eligible
alien becomes ineligible through a change in circumstances, continued
representation is prohibited by this part and a recipient must
discontinue representation consistent with applicable rules of
professional responsibility.
Sec. 1626.10 Special eligibility questions.
(a) This part is not applicable to recipients providing services in
the Commonwealth of the Northern Mariana Islands, the Republic of
Palau, the Federated States of Micronesia, or the Republic of the
Marshall Islands.
(b) All Canadian-born American Indians at least 50% Indian by blood
are eligible to receive legal assistance provided they are otherwise
eligible under the Act.
(c) Members of the Texas Band of Kickapoo are eligible to receive
legal assistance provided they are otherwise eligible under the Act.
(d) An alien who qualified as a special agricultural worker and
whose status is adjusted to that of temporary resident alien under the
provisions of the Immigration Reform and Control Act (``IRCA'') is
considered a permanent resident alien for all purposes except
immigration under the provisions of section 302 of 100 Stat. 3422, 8
U.S.C. 1160(g). Since the status of these aliens is that of permanent
resident alien under section 1101(a)(20) of Title 8, these workers may
be provided legal assistance. These workers are ineligible for legal
assistance in order to obtain the adjustment of status of temporary
resident under IRCA, but are eligible for legal assistance after the
application for adjustment of status to that of temporary resident has
been filed, and the application has not been rejected.
(e) A recipient may provide legal assistance to indigent foreign
nationals who seek assistance pursuant the Hague Convention on the
Civil Aspects of International Child abduction and the Federal
implementing statute, the International Child Abduction Remedies Act,
42 U.S.C. 11607(b), provided that they are otherwise financially
eligible.
Sec. 1626.11 H-2 Agricultural workers.
(a) Nonimmigrant agricultural workers admitted under the provisions
of 8 U.S.C. 1101(a)(15)(h)(ii), commonly called H-2 workers, may be
provided legal assistance regarding the matters specified in paragraph
(b) of this section.
(b) The following matters which arise under the provisions of the
worker's specific employment contract may be the subject of legal
assistance by an LSC-funded program:
(1) Wages;
(2) Housing;
(3) Transportation; and
(4) Other employment rights as provided in the worker's specific
contract under which the nonimmigrant worker was admitted.
Sec. 1626.12 Recipient policies, procedures and recordkeeping.
Each recipient shall adopt written policies and procedures to guide
its staff in complying with this part and shall maintain records
sufficient to document the recipient's compliance with this part.
[[Page 19416]]
Appendix To Part 1626
Alien Eligibility for Representation by LSC Programs
----------------------------------------------------------------------------------------------------------------
Immigration Act LSC Regs 45 CFR Sec.
Alien category (INA) 1626 Examples of acceptable documents
----------------------------------------------------------------------------------------------------------------
LAWFUL PERMANENT RESIDENT....... INA Sec. Sec. 1626.5(a) I-551 or I-151
101(a)(20) 8 USC, or I-181 (Memorandum of Creation
Sec. 1101(a)(20). of Record of Lawful Permanent
Residence), with approval stamp;
or passport bearing immigrant
visa or stamp indicating
admission for lawful permanent
residence
ororder granting residency or
suspension or adjustment of
status or I-327 Reentry Permit
or I-94, with stamp indicating
admission for lawful permanent
residence
or any computerized verification
from INS or other authoritative
document.
ALIEN WHO IS INA Secs. 209, Sec. 1626.5(b) Proof of relationship to U.S.
--married to U.S. citizen, 210, 244, citizen*
--parent of U.S. citizen, or (replaced by INA and
--unmarried child under 21 of Sec. 240A(b) for I-485 (application for adjustment
U.S. citizen aliens in of status on the basis of a
and proceedings family
--has filed an application for initiated after 4/ based visa, registry, Cuban
adjustment of status to 1/97), 245, 245A, Adjustment, Cuban-Haitian
permanent residency. 249 8 USC Secs. Adjustment, or spouses and
1159, 1160, 1259, children eligible for Violence
1254, 1255, Against Women Act relief) and
1255a, 1259. proof of filing**
or I-256A or EOIR-40 (application
for suspension of
deportation)*** and proof of
filing**
or EOIR-42 (application for
cancellation of removal) and
proof of filing**
or OF-230 (application at
consulate for visa) and proof of
filing with consulate**
or I-360 (application to qualify
as abused spouse or child under
the Violence Against Women Act)
or I-688B or I-766 (employment
authorization document) coded 8
CFR Sec.
274a.12(c)(9)(applicant for
adjustment) or (c)(16)(registry
applicant) or (c)(10)(suspension
applicant)
or letter or Form I-797 from INS
acknowledging receipt of I-485;
or I-94, with stamp indicated
entry pursuant to advance parole
(INASec. 212(d)(5)) for pending
Sec. 245;
or I-512 (advance parole),
indicating entry to pursue
pending Sec. 245 application
or passport, with stamp or
writing by INS officer,
indicating pending Sec. 245
application
or I-130 (visa petition) and
proof of filing**
or any computerized verification
from INS or other authoritative
document
*Proof of relationship may
include a copy of the alien's
marriage certificate accompanied
by proof of the spouse's U.S.
citizenship; a copy of the birth
certificate, baptismal
certificate, adoption decree or
other documents demonstrating
that the alien is the parent of
a U.S. citizen under the age of
21; a copy of the alien's birth
certificate, baptismal
certificate, adoption decree, or
other documents demonstrating
that the alien is a child under
the age of 21, accompanied by
proof that the alien's parent is
a U.S. citizen; or in lieu of
the above, a copy of INS Form I-
130 (visa petition) containing
information that demonstrates
that the alien is related to
such a U.S. citizen, accompanied
by proof of filing.
**Proof of filing may include a
fee receipt showing that the
application was filed with the
INS or the immigration court; a
filing stamp showing that the
application was filed; or a copy
of the application accompanied
by a notarized statement signed
by the alien that such form was
filed.
***Note: ``cancellation of
removal and adjustment of
status'' replaces ``suspension
of deportation'' for aliens in
proceedings initiated on or
after April 1, 1997.
REFUGEE......................... INA Sec. 207, 8 Sec. 1626.5(c) I-94 or passport stamped
USC Sec. 1157. ``refugee'' or ``Sec. 207''
or I-688B or I-766 coded 8 CFR
Sec. 274a.12(a)(3)(Refugee) or
(a)(4)(paroled asylees)
or I-571 refugee travel document,
or any computerized verification
from INS or other authoritative
document.
ASYLEEINA....................... Sec. 208 8 USC Sec. 1626.5 (c) I-94 or passport stamped
Sec. 1158. ``asylee'' on ``Sec. 208''
or order granting asylum from
INS, immigration judge, BIA, or
federal court
or I-571 refugee travel document
or I-688B or I-766 coded 8 CFR
Sec. 274a.12(a) (5)(asylee)
or other computerized
verification from INS or other
authoritative document.
[[Page 19417]]
GRANTING WITHHOLDING OF INA Sec. 243(h) 8 Sec. 1626.5(e) I-94 stamped ``Sec. 243(h)'' or
DEPORTATION. USC Sec. 1253(h) order granting withholding of
(as of 4/1/97, deportation from INS,
repealed and immigration court, BIA, or
redesignated INA federal court
Sec. 241(b)(3), or I-688B or I-766 coded 8 CFR
``Restriction on Sec. 274a.12(a)(10)(withholding
Removal''). of deportation)
or I-571 refugee travel document;
or any computerized verification
from INS or other authoritative
document.
CONDITIONAL ENTRANT............. INA Sec. Sec. 1626.5(d) I-94 or passport stamped
203(a)(7) (prior ``conditional entrant''
to 4/1/80), 8 USC or any computerized verification
Sec. 1153(a)(7). from INS or other authoritative
document.
AGRICULTURAL WORKER............. INA Sec. Sec. 1626.11 I-94 or passport stamped ``H-2A''
101(a)(15)(H)(II) or any computerized verification
, 8 USC Sec. from INS or other authoritative
1101(a)(15)(H)(II document.
).
SPECIAL AGRICULTURAL WORKER INA Sec. 210, 8 Sec. 1626.10(d) I-688, 688A, 688 or 766
TEMPORARY RESIDENT. USC Sec. 1160. indicating issuance under Sec.
210 (or under 8 CFR Sec.
274a.12 (a)(2), with other
evidence indicating eligibility
under INA Sec. 210).
or any computerized verification
from INS or other authoritative
document.
----------------------------------------------------------------------------------------------------------------
National Immigration Law Center 3/7/97.
Dated: April 14, 1997.
Victor M. Fortuno,
General Counsel.
[FR Doc. 97-10035 Filed 4-18-97; 8:45 am]
BILLING CODE 7050-01-P
