[Federal Register Volume 62, Number 168 (Friday, August 29, 1997)]
[Rules and Regulations]
[Pages 45755-45757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23041]
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LEGAL SERVICES CORPORATION
45 CFR Part 1626
Restrictions on Legal Assistance to Aliens
AGENCY: Legal Services Corporation.
ACTION: Final rule.
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SUMMARY: This final rule revises the Legal Services Corporation's
(``Corporation'' or ``LSC'') rule on legal representation of aliens.
The revisions to this rule are intended to implement a statutory
provision included in the Corporation's FY 1997 appropriations act,
which permits the use of a recipient's non-LSC funds for legal
assistance to otherwise ineligible aliens who are the victims of
domestic abuse.
DATES: The final rule is effective on September 29, 1997.
FOR FURTHER INFORMATION CONTACT: Office of the General Counsel, (202)
336-8817.
SUPPLEMENTARY INFORMATION: Section 504(a)(11) of the LSC appropriations
act for Fiscal Year (``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. Subsequent to the publication of an interim rule to implement
this restriction, 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
(hereinafter referred to as the ``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 enactment of the Amendment. While
the few comments the Corporation received made suggestions on how to
include the Amendment into the rule, the general public was not
provided notice of the Amendment. Accordingly, on April 21,
[[Page 45756]]
1997 (62 FR 19409), the Corporation published a final rule that
included the Kennedy Amendment provisions as interim provisions with a
request for comments.
The Corporation received 2 comments on the Kennedy Amendment
interim provisions, one from an LSC recipient and one from Ayuda, a
public interest organization which handles cases relating to
immigration, political asylum and family law matters for foreign-born
individuals residing in the D.C. Metropolitan area. Both comments urged
the Corporation to interpret the Kennedy Amendment as broadly as
possible consistent with Congressional intent. The comments also
applauded the provisions protecting the confidentiality of Kennedy
Amendment clients. In addition, Ayuda pointed out some inconsistencies
in one of the interim definitions with the terms of the Kennedy
Amendment.
The Corporation's Operations and Regulations Committee of the LSC
Board of Directors held public hearings in Los Angeles, California, on
July 13, 1997, on the Kennedy Amendment provisions and revised the
definition of ``battered or subjected to extreme cruelty'' in response
to comments. The other interim provisions were approved by the
Committee without change. The Committee recommended that the LSC Board
adopt the provisions as revised by the Committee, and on July 14, 1997,
the Board adopted the recommended provisions as final regulations.
A section-by-section discussion of the Kennedy Amendment provisions
is provided below.
Section 1626.2 Definitions
The Kennedy Amendment uses the terms ``spouse'' and ``parent'' as
the defining relationships in abusive relationships covered by the
Amendment. The abuser must either be a spouse or parent, or a member of
the spouse's or parent's family residing in the same household. Ayuda's
comment advocated a category broader than ``spouse'' or ``parent'' but
conceded that new legislation would be required to include, for
example, a non-spouse partner, a blood relative other than a parent, or
an individual with whom the victim has had a dating relationship. Ayuda
did, however, urge the Corporation to use a broad definition of what
constitutes ``a member of the spouse's or parent's family residing in
the same household.''
``Spouse'' and ``parent'' are terms of relationships that are
generally regulated by State law. ``Spouse'' refers to either the
husband or wife in a marital relationship and ``parent'' generally
refers to a father or mother by blood or legal adoption. See Random
House Webster's College Dictionary at 948 and 1249 (1997). This rule
does not expand the generally recognized legal meanings of these terms;
nor does it provide definitions for such common terms. The Board
decided that it is unnecessary to define such common terms. Recipients
should defer to local law defining ``spouse'' and ``parent'' or Federal
law where it would apply in a particular case. For example, if the
recipient assists the victim of abuse to self-petition for immigrant
status under part 204 of the Immigration and Nationality Act (``INA''),
the representation may require reference to the definition of
``spouse'' in Sec. 101(a)(35) of the INA.
The Board decided to direct recipients to refer to State protection
order statutes for guidance on the meaning of a ``member of the
spouse's or parent's family.'' Ayuda pointed out that most states have
protection order statutes that define ``family members.'' Because
protection order statutes would normally have the same purpose as the
Kennedy Amendment to provide legal protection against domestic
violence, it is appropriate for recipients to defer to such laws where
available or to other applicable local law.
Section 1626.2(f) Battered or Subjected to Extreme Cruelty
The Kennedy Amendment requires the Corporation to base its
definition of ``battered or subjected to extreme cruelty'' on the
regulatory definition of the term promulgated by the Immigration and
Naturalization Service (``INS'') pursuant to subtitle G of the Violence
Against Women Act of 1994 (``VAWA''), see Pub. L. 103-322, 108 Stat.
1953 (1994). Subtitle G refers to the section of VAWA that provides
protections for battered immigrant women and children. Id. For example,
Subtitle G provides authority for abused women and children to self-
petition for lawful permanent resident status and to apply for
suspension of deportation proceedings. Rather than include the language
of the INS definition, the LSC interim rule simply cited to the INS
definition at 8 CFR part 204. See 8 CFR 204.2(c)(1)(vi) and
204.2(e)(1)(vi) (The definition is found twice in part 204, once in the
regulations governing self-petitions by spouses and again in the
regulations governing self-petitions by a child).
Ayuda contended that, by simply citing to the definition in part
204, the Corporation was including language that goes beyond defining
the type of abuse and is inconsistent with or not required by the
Kennedy Amendment. The Board agreed in part with Ayuda's specific
recommendations regarding this definition.
In addition to defining the meaning of abuse, the INS definition in
part 204 includes requirements that an abused person must meet in order
to qualify to self-petition for immigration status under part 204.
These qualifying requirements are unrelated to defining the type of
abuse contemplated by the term ``battered or subjected to extreme
cruelty.'' In addition, for the purposes of the LSC definition in part
1626, certain of these qualifying requirements are not consistent with
the Kennedy Amendment. For example, one requirement in the INS
definition is that the abuse be committed by a U.S. citizen or lawful
permanent resident spouse or parent. The Kennedy Amendment does not
require that the spouse or parent be a U.S. citizen or lawful permanent
resident. In addition, the category of perpetrators is limited to a
spouse or parent in the INS definition, whereas the Kennedy Amendment
also includes ``a member of the spouse's or parent's family residing in
the same household as the alien and the spouse or parent.''
Ayuda urged the Corporation to adopt a definition that, unlike the
INS definition, does not require that the abuse must have taken place
during the victim's marriage to the abuser. The Board noted that the
terms of the Kennedy Amendment only apply to spousal abuse that occurs
during marriage. However, the Board decided it was unnecessary to deal
with the issue in a definition, as the matter is made clear in
Sec. 1626.4, the provision setting out the terms of the Kennedy
Amendment.
The Board adopted a definition that includes only that language
from the INS definition that defines the type of abuse and that is
consistent with the terms of the Kennedy Amendment. In addition, the
final definition not only includes clear acts of violence, such as rape
or forceful detention, it also clarifies that certain actions may be
considered to be abusive because they are part of an overall pattern of
violence.
Section 1626.2(g) Legal Assistance Directly Related to the Prevention
of, or Obtaining Relief From, the Battery or Cruelty
The interim rule's definition of ``legal assistance directly
related to the prevention of, or obtaining relief from the battery or
cruelty'' established a standard that would include any legal
assistance that would assist an abuse victim to escape from the abuse,
ameliorate the current effects of the
[[Page 45757]]
abuse, or protect against future abuse. Ayuda urged that this standard
be broadened to (1) ensure that ``protecting against future abuse''
include representation that would assist the victim to establish self-
sufficiency, (2) recognize the lingering effects of domestic violence,
and (3) allow assistance in immigration matters not covered by VAWA.
The Board did not broaden the interim rule's standard. A broader
standard would be inconsistent with the language and intent of the
Kennedy Amendment, because the Kennedy Amendment requires a direct
nexus to the abusive situation. Besides, the standard already includes
much of the type of representation of concern to Ayuda. Apparently, the
interim rule's preamble discussion of the scope of representation was
misinterpreted as being exclusive. It was not meant to be exclusive;
rather, it was intended to provide a few examples. Although the
preamble mentioned that representation under VAWA would be allowed,
this was not intended to mean that other representation in immigration
matters is prohibited. Thus, representation under the INA that would
allow an abuse victim to stabilize immigration status, facilitate
naturalization, or acquire work authorization would be permitted if the
recipient can show the necessary connection to abuse. Likewise, as long
as the representation can be justified as necessary to ``assist victims
escape from an abusive situation, ameliorate the current effects of the
abuse or protect against future abuse,'' allowable representation would
include everyday domestic and poverty law matters such as obtaining
civil protection orders, divorce, paternity, child custody, child and
spousal support, housing, public benefits, employment, abuse and
neglect, juvenile proceedings, and contempt actions. 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, for example, permit them 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.
Section 1626.4 Applicability
Paragraph (a) of this section sets out the terms of the Kennedy
Amendment. As a threshold matter, the Kennedy Amendment is not stated
as an exception; rather, it clarifies that the restriction on alien
representation in 504(a)(11) shall not be construed to prohibit
representation of persons who fall within the terms of the Kennedy
Amendment. Accordingly, the rule states 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.
One comment stated that the Kennedy Amendment does not require that
the abuse take place in the United States. The Board did not agree. The
Kennedy Amendment clearly applies to ``an alien who has been battered
or subjected to extreme cruelty in the United States'' or ``whose child
has been battered or subjected to extreme cruelty in the United
States.'' [Emphasis added]. No changes were made to the rule in
response to this comment, as the terms of Sec. 1626.4 already make it
clear that the abuse must occur in the United States.
Paragraph (b) addresses special confidentiality concerns regarding
the special needs of aliens with respect to confidentiality of
information relating to immigration status. There is a 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 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.
List of Subjects in 45 CFR Part 1626
Grant programs-law, Legal services.
For the reasons set forth in the preamble, LSC adopts the interim
regulation at 62 FR 19409 (April 21, 1997) a final, with the following
changes:
PART 1626--RESTRICTIONS ON LEGAL ASSISTANCE TO ALIENS
1. The authority citation for part 1626 continues to read as
follows:
Authority: Pub. L. 104-208, 110 Stat. 1321; Pub. L. 104-134, 110
Stat. 3009.
2. Section 1626.2 is amended by revising paragraph (f) to read as
follows:
Sec. 1626.2 Definitions.
* * * * *
(f) Battered or subjected to 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.
* * * * *
Dated: August 25, 1997.
Victor M. Fortuno,
General Counsel.
[FR Doc. 97-23041 Filed 8-28-97; 8:45 am]
BILLING CODE 7050-01-P
