Filed: Mar. 13, 2002
Latest Update: Mar. 03, 2020
Summary: Role of Legal Guardians or Proxies in, Naturalization Proceedings, Section 504 of the Rehabilitation Act requires the Immigration and Naturalization Service as a, reasonable accommodation to permit a legal guardian or proxy to represent a mentally disabled, applicant in naturalization proceedings.
Role of Legal Guardians or Proxies in
Naturalization Proceedings
Section 504 of the Rehabilitation Act requires the Immigration and Naturalization Service as a
reasonable accommodation to permit a legal guardian or proxy to represent a mentally disabled
applicant in naturalization proceedings.
March 13, 2002
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
IMMIGRATION AND NATURALIZATION SERVICE
You have asked for our opinion whether the Rehabilitation Act of 1973, as
amended, 29 U.S.C. § 794 (1994 & Supp. IV 1998), requires the Immigration and
Naturalization Service (“INS”) as a reasonable accommodation to permit a legal
guardian or other proxy to represent a mentally disabled applicant in naturalization
proceedings. 1 For the reasons set forth below, we conclude that the Rehabilitation
Act does require such accommodation.
I. Background
In response to earlier requests from your office, this Office issued two opinions
in 1997 concluding that the oath of allegiance required under section 337 of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1448, could neither be
waived by the INS nor satisfied by a guardian or proxy. We concluded that, under
the statutory scheme established by Congress, the oath requirement was a funda-
mental and essential part of the naturalization process and that permitting a legal
guardian or proxy to fulfill this central requirement thus would not constitute a
reasonable accommodation under the Rehabilitation Act. See Letter for David A.
Martin, General Counsel, Immigration and Naturalization Service, from Dawn E.
Johnsen, Acting Assistant Attorney General, Office of Legal Counsel, Re:
Personal Satisfaction of Immigration and Nationality Act Oath Requirement
(Apr. 18, 1997) (“April 1997 Opinion”); Letter for David A. Martin, General
Counsel, Immigration and Naturalization Service, from Dawn E. Johnsen, Acting
Assistant Attorney General, Office of Legal Counsel, Re: Waiver of Oath of
Allegiance for Candidates for Naturalization (Feb. 5, 1997).
1
Memorandum for Daniel Koffsky, Acting Assistant Attorney General, Office of Legal Counsel,
from Bo Cooper, General Counsel, Immigration and Naturalization Service, Re: Request for Advisory
Legal Opinion on the Role of Legal Guardians or Proxies in Naturalization Proceedings (Aug. 6,
2001). You have asked, in the alternative, whether section 337 of the Immigration and Nationality Act,
8 U.S.C. § 1448 (2000), should be construed to enable the INS to permit a proxy to play this same role.
In light of our response to your Rehabilitation Act question, we find it unnecessary to address this
question.
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Role of Legal Guardians or Proxies in Naturalization Proceedings
In 2000, Congress amended section 337 to allow the Attorney General to
“waive the taking of the oath by a person if in the opinion of the Attorney General
the person is unable to understand, or to communicate an understanding of, its
meaning because of a physical or developmental disability or mental impairment.”
Pub. L. No. 106-448, 114 Stat. 1939 (2000) (codified at 8 U.S.C. § 1448(a)). The
amended statute further provides that “[i]f the Attorney General waives the taking
of the oath by a person under the preceding sentence, the person shall be consid-
ered to have met the requirements of section 1427(a)(3) of this title with respect to
attachment to the principles of the Constitution and well disposition to the good
order and happiness of the United States.” 8 U.S.C. § 1448(a).
II. Discussion
The 2000 amendment to section 337 removes the oath requirement as an obsta-
cle to naturalization for certain individuals with disabilities. You ask further
whether the Rehabilitation Act requires the INS to permit a legal guardian or other
proxy to represent an individual with a mental disability throughout the naturaliza-
tion process, from the filing of an application through the interview.
Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified
individual with a disability in the United States . . . shall, solely by reason of her or
his disability, be excluded from the participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity receiving Federal
financial assistance or under any program or activity conducted by any Executive
agency.” 29 U.S.C. § 794(a). This Office has previously advised that all INS
programs and activities, including naturalization proceedings, are covered by this
prohibition. See April 1997 Opinion at 1; Memorandum for Maurice C. Inman, Jr.,
General Counsel, Immigration and Naturalization Service, from Robert B. Shanks,
Deputy Assistant Attorney General, Office of Legal Counsel, Re: Section 504 of
the Rehabilitation Act of 1973 (Feb. 2, 1983).
The question, therefore, is whether a person who, as a result of a disability, is
personally unable to file an application or participate in an interview may be
considered “otherwise qualified” for naturalization. Department of Justice
regulations implementing section 504 for federally conducted programs define a
“[q]ualified handicapped person” as one “who meets the essential eligibility
requirements and who can achieve the purpose of the program or activity without
modifications in the program or activity that the agency can demonstrate would
result in a fundamental alteration in its nature.” 28 C.F.R. § 39.103 (2001). These
regulations are based on, and should be construed consistent with, a series of
Supreme Court decisions interpreting section 504 in the context of programs
receiving federal financial assistance. The Court first interpreted section 504 in
Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979), stating that
“[a]n otherwise qualified person is one who is able to meet all of a program’s
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Opinions of the Office of Legal Counsel in Volume 26
requirements in spite of his handicap.” The Court held that an applicant with a
serious hearing disability was not “otherwise qualified” under section 504 for
admission to a nursing program where the ability to understand speech during the
clinical phase of the program was considered essential to patient safety. The Court
declined to require the college to accommodate the applicant by making
“a fundamental alteration in the nature of [its] program.” Id. at 410. The Court
noted, however, that “situations may arise where a refusal to modify an existing
program might become unreasonable and discriminatory.” Id. at 412-13.
In subsequent cases, the Court has elaborated on the types of situations where
modifications in a program may be required. In the employment context, the Court
has advised that “[e]mployers have an affirmative obligation to make a reasonable
accommodation for a handicapped employee. . . . [T]hey cannot deny an employee
alternative employment opportunities reasonably available under the employer’s
existing policies.” School Bd. of Nassau County v. Arline, 480 U.S. 273, 289 n.19
(1987). In Arline, the Court defined “an otherwise qualified person” as “one who
can perform ‘the essential functions’ of the job,” but explained that “[w]hen a
handicapped person is not able to perform the essential functions of the job, the
court must also consider whether any ‘reasonable accommodation’ by the
employer would enable the handicapped person to perform those functions.” Id. at
287 n.17 (quoting 45 C.F.R. § 84.3(k) (1985)). The Court distinguished, however,
between reasonable accommodations and those that would require fundamental
changes in a program. “Accommodation is not reasonable if it either imposes
‘undue financial and administrative burdens’ on a grantee . . . or requires
‘a fundamental alteration in the nature of [the] program.’” Arline, 480 U.S. at 287
n.17 (citations omitted) (alteration in original); see also Alexander v. Choate,
469
U.S. 287, 300 (1985) (“while a grantee need not be required to make ‘fundamen-
tal’ or ‘substantial’ modifications to accommodate the handicapped, it may be
required to make ‘reasonable’ ones”); id. at 299 n.19 (“the question of who is
‘otherwise qualified’ and what actions constitute ‘discrimination’ under [section
504] would seem to be two sides of a single coin; the ultimate question is the
extent to which a grantee is required to make reasonable modifications in its
programs for the needs of the handicapped”).
Thus, in determining whether a person is “otherwise qualified” for a particular
program, courts do not take an existing program as fixed. Instead, they ask
whether the disabled person could meet a program’s requirements if the program
were revised to make reasonable accommodations for the disabled person. If
permitting a legal guardian or other proxy to file an application and participate in
an interview on behalf of a mentally disabled applicant does not eliminate
essential requirements of, or otherwise fundamentally alter, the naturalization
program, then a mentally disabled individual who meets all other requirements is
“otherwise qualified” for naturalization.
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Role of Legal Guardians or Proxies in Naturalization Proceedings
We conclude that permitting a legal guardian or other proxy to play such a role
on behalf of a mentally disabled applicant would not fundamentally alter the
naturalization process and therefore is required by section 504. The INS may not
“utilize criteria or methods of administration the purpose or effect of which
would . . . [d]efeat or substantially impair accomplishment of the objectives of [the
naturalization program] with respect to handicapped persons.” 28 C.F.R.
§ 39.130(b)(3). Congress has already expressly provided that individuals with
severe disabilities need not fulfill a number of significant statutory prerequisites
for naturalization. By amending the INA to permit the Attorney General to waive
the oath of allegiance for persons unable to comprehend its meaning, Congress has
superseded our previous conclusion that mentally disabled applicants must
personally fulfill that statutory requirement. Moreover, any person who receives
such a waiver is also considered to have met the requirements of section 316 of the
INA with respect to being “attached to the principles of the Constitution of the
United States, and well disposed to the good order and happiness of the United
States.” 8 U.S.C. § 1427(a)(3) (2000). In addition, Congress in 1994 amended
section 312 of the INA, which requires applicants for naturalization to demonstrate
understanding of the English language and the history and government of the
United States, to exempt “any person who is unable because of physical or
developmental disability or mental impairment to comply therewith.” 8 U.S.C.
§ 1423(b)(1) (2000); see Pub. L. No. 103-416, § 108(a)(4), 108 Stat. 4305, 4309-
10 (1994).
The only significant remaining substantive prerequisites for naturalization
under the INA are (1) at least five years of continuous residence in the United
States after being lawfully admitted for permanent residence, and (2) “good moral
character” during that period. INA § 316, 8 U.S.C. § 1427. There is no question
that a mentally disabled individual can satisfy the residency requirement and
establish proof of residency through documentary evidence and the testimony of
others. Whether a mentally disabled individual can establish “good moral charac-
ter” might be facially less obvious, especially in the case of mental disabilities so
severe that they render the individual not morally responsible for his actions. We
note, however, that the INA essentially defines the term “good moral character” as
the absence of bad moral character, as it specifies various circumstances that
preclude a finding that a person is of “good moral character.” See INA § 101(f),
8 U.S.C. § 1101(f) (2000) (“For the purposes of this chapter—[n]o person shall be
regarded as, or found to be, a person of good moral character who, during the
period for which good moral character is required to be established,” has been
“a habitual drunkard,” has been convicted of certain crimes, has derived income
principally from gambling activities or been convicted of two or more gambling
offenses, has given false testimony to obtain immigration benefits, has been
confined after conviction to a penal institution for 180 days or more, or has at any
time been convicted of an aggravated felony.). The INS regulation states that the
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Opinions of the Office of Legal Counsel in Volume 26
determination of good moral character will be based on the elements listed in the
statute and “the standards of the average citizen in the community of residence.”
8 C.F.R. § 316.10(a)(2) (2000). The regulation includes additional prohibitive
factors beyond those contained in the statute, specifying, for example, that in the
absence of extenuating circumstances an applicant will be found to lack good
moral character who has “[w]illfully failed or refused to support dependents” or
“[h]ad an extramarital affair which tended to destroy an existing marriage,” id.
§ 316.10(b)(3)(i), (ii), but does not impose any positive requirements for establish-
ing good moral character. We therefore see no barrier to a mentally disabled
applicant establishing the requirement of good moral character, accord Galvez-
Letona v. Kirkpatrick, 54 F. Supp. 2d 1218, 1222, 1224 (D. Utah 1999) (finding it
undisputed that applicant with mental capacity of 18-month-old child met all
requirements for naturalization other than ability to take oath of allegiance,
including good moral character), aff’d on other grounds, 246 F.3d 680 (10th Cir.
2001) (table), and we conclude that permitting an applicant to do so through the
testimony of others would not fundamentally alter the naturalization process.
We thus find nothing in the naturalization process prescribed by the INA that
requires a mentally disabled applicant personally to file an application or testify at
an interview. While the Supreme Court has noted that “it has been universally
accepted that the burden is on the alien applicant to show his eligibility for
citizenship in every respect,” INS v. Pangilinan, 486 U.S. 875, 886 (1988)
(quoting Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637 (1967)); see also INA
§ 316(e), 8 U.S.C. § 1427(e) (directing Attorney General to determine “whether
the applicant has sustained the burden of establishing good moral character and the
other qualifications for citizenship”), the means of carrying that burden may vary
in particular cases. Indeed, the statute and regulations already make certain
accommodations for persons with disabilities. See INA § 334(a), 8 U.S.C.
§ 1445(a) (2000) (“An applicant for naturalization shall make and file with the
Attorney General a sworn application in writing, signed by the applicant in the
applicant’s own handwriting if physically able to write.”) (emphasis added);
8 C.F.R. § 103.2(a)(2) (2001) (“legal guardian” may sign application “for a
mentally incompetent person”). Cf. 8 C.F.R. § 341.2(a)(2) (2001) (incompetent
applicant for certificate of citizenship “must have a parent or guardian apply,
appear, and testify for the applicant”). The statute expressly grants the Attorney
General discretion to “make such rules and regulations as may be necessary to
carry into effect the provisions of this part [dealing with naturalization]” and “to
prescribe the scope and nature of the examination of applicants for naturalization
as to their admissibility to citizenship.” INA § 332(a), 8 U.S.C. § 1443(a) (2000).
We therefore conclude that mentally disabled individuals who cannot testify in
their own behalf or fill out an application without the assistance of a legal guardian
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Role of Legal Guardians or Proxies in Naturalization Proceedings
or other proxy may still be “otherwise qualified” for naturalization, and that
section 504 of the Rehabilitation Act thus requires such an accommodation. 2
M. EDWARD WHELAN III
Principal Deputy Assistant Attorney General
Office of Legal Counsel
2
Our conclusion is consistent with the legislative history of the 2000 amendment to section 337 of
the INA. Proponents of that legislation expressed the view that the oath of allegiance was the sole
remaining barrier to naturalization for individuals with severe mental disabilities. See, e.g., 146 Cong.
Rec. 12,994 (2000) (statement of Sen. Hatch) (“such persons are able to fulfill all other requirements of
naturalization, or it is clear that the Attorney General can waive them”) (emphasis added); id.
(statement of Sen. Dodd) (1994 amendment “le[ft] the oath as the only barrier to citizenship for such
individuals”); 146 Cong. Rec. 21,935 (2000) (statement of Rep. Smith) (bill will allow “disabled
applicants who cannot understand the oath . . . to overcome this last obstruction to becoming a United
States citizen”).
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