 Personal Satisfaction of Immigration and Nationality Act Oath
                           Requirement

Section 5 04 o f the R ehabilitation Act does n ot require accom m odation for persons unable to form
   the m ental intent n ecessary to take the naturalization oath o f allegiance prescribed by section 337
   o f the Im m ig ratio n and N ationality Act.

T he oath req u irem en t o f section 337 may not b e fulfilled by a guardian or other legal proxy.


                                                                                                    April 18, 1997

                            L e t t e r O p in io n   for th e     G en era l C ou n sel
                            I m m ig r a t i o n   and   N a t u r a l i z a t i o n S e r v ic e


    You have requested advice concerning whether section 504 of the Rehabilitation
Act, 29 U.S.C. §794 (1994), requires some sort of accommodation for persons
who are unable to form the mental intent necessary to take the naturalization oath
of allegiance prescribed by section 337 of the Immigration and Nationality Act
( “ IN A ” ), 8 U.S.C. § 1448 (1994). Memorandum for Dawn Johnsen, Acting
Assistant Attorney General, Office o f Legal Counsel, from David A. Martin, Gen­
eral Counsel, Immigration and Naturalization Service (Feb. 10, 1997). More
specifically, your memorandum of February 10 asks us to consider the question
whether, in the case of a person who cannot form the requisite intent, the oath
requirement might be fulfilled by a guardian or other legal proxy. Id.
  As we recently advised you, it is our conclusion that the oath requirement of
section 337 may not be satisfied by a guardian or legal proxy. This letter briefly
sets forth the reasoning underlying that conclusion.
   Section 504 of the Rehabilitation Act prohibits discrimination against any
“ otherwise qualified individual with a disability . . . solely by reason of her or
his disability” in “ any program or activity conducted by any Executive agency.”
29 U.S.C. § 794(a). This Office has previously advised that all INS activities and
programs constitute “ program[s] or activities] conducted by an Executive
agency,” see Memorandum for Maurice C. Inman, Jr., General Counsel, Immigra­
tion and Naturalization Service, from Robert B. Shanks, Deputy Assistant Attorney
General, Office of Legal Counsel, Re: Section 504 o f the Rehabilitation Act o f
1973 (Feb. 2, 1983). The INS m ust therefore comply with the requirements of
section 504 in the implementation and operation of its naturalization program.
  The critical question presented by your memorandum is whether an individual
who cannot personally satisfy the oath requirement for naturalization because he
or she lacks the ability to form the mental intent sufficient to take an oath can
be considered “ otherwise qualified” for naturalization; if so, section 504 would

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require the INS to provide for the naturalization of that individual.1 Department
of Justice regulations define a “ qualified handicapped person,” in the context
of a program or activity “ under which a person is required to . . . achieve a
level of accomplishment,” as “ a handicapped person 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 dem­
onstrate would result in a fundamental alteration in its nature.” 28 C.F.R. § 39.103
(1996). In other words, an individual would be “ otherwise qualified” for a pro­
gram if he or she could meet the essential eligibility requirements of that program,
either without any modification at all, or with “ reasonable” modifications. A par­
ticular program modification or accommodation is “ reasonable,” and therefore
required under section 504, only if an examination of the basic nature or purpose
of the program reveals that the requirement in question is not “ fundamental”
or “ essential” to the accomplishment of that purpose. See School Bd. o f Nassau
County v. Arline, 480 U.S. 273, 287 n.17 (1987) (accommodation is “ reasonable”
if it does not “ require[] ‘a fundamental alteration in the nature of [the] program’ ”
or does not “ impose[] ‘undue financial and administrative burdens’ ” ) (alteration
in original) (citations omitted).
   Case law makes clear that, where a program requirement is found to be essential
to the program, section 504 does not mandate an accommodation that would alter
or eliminate that requirement. Compare, e.g., Borkowski v. Valley Cent. School
Dist., 63 F.3d 131 (2d Cir. 1995) (school board not required to accommodate
disabled teacher who could not manage classroom alone if ability to manage class­
room alone was essential function of job); Bradley v. University o f Texas M.D.
Anderson Cancer Ctr., 3 F.3d 922 (5th Cir. 1993) (hospital not required to
accommodate HIV-positive surgical technician where essential function of techni­
cian’s job was to be present at and assist in the operative field), cert, denied,
510 U.S. 1119 (1994); and G ilbert v. Frank, 949 F.2d 637 (2d Cir. 1991) (postal
service not required to accommodate disabled man who sought postal clerk posi­
tion, where accommodation required waiver of essential functions of lifting and
handling 70-pound mail bags) with Strathie v. Department o f Transp., 716 F.2d
227 (3d Cir. 1983) (where essential nature of school bus driver licensing program
was to prevent only appreciable safety risks, rather than all potential safety risks,
state must accommodate individual bus drivers who wear hearing aids); Galloway
v. Superior Court, 816 F. Supp. 12 (D.D.C. 1993) (where visual observation was
not essential function or attribute of juror’s duties, state court required to
accommodate blind individuals in juror program); and Wallace v. Veterans Admin.,
683 F. Supp. 758 (D. Kan. 1988) (where it was not essential to registered nurse
program that each and every registered nurse administer narcotic injections, hos­

   1 We note by way of clarification that we are concerned here solely with whether an individual must be able
to form and manifest mental intent in order to satisfy the oath requirement of section 337 We do not attempt
to address the particulars of how or when that intent may be manifested in the naturalization process.

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                            Opinions o f the Office o f Legal Counsel in Volume 21


pital must accommodate registered nurse who was recovering from chemical
dependency). The accommodation you have suggested — that a guardian or other
legal proxy satisfy the oath requirement of section 337 on behalf of an individual
who cannot form the requisite mental intent — would thus be considered “ reason­
able” under section 504 only if personal satisfaction of the oath requirement is
not essential to naturalization.
   An analysis of the statutory scheme that Congress has established for naturaliza­
tion, and the function of the oath of allegiance within that process, convinces
us that personal satisfaction of the oath requirement is essential to naturalization.
At its core, naturalization concerns the establishment of a relationship between
the individual and the state. See generally T. Alexander Aleinikoff, Citizens,
Aliens, M em bership and the Constitution, 1 Const. Commentary 9 (1990). In
defining the prerequisites for this relationship, Congress always has required some
form of an oath of allegiance. See, e.g., Act o f March 26, 1790, 1 Stat. 103;
see also Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, 4 Immigration
Law an d Procedure §96.05[1] (1996) ( “ Gordon, Mailman & Yale-Loehr” ). The
naturalization oath set forth in the INA simultaneously affirms an individual’s
intent to become a U.S. citizen and to renounce “ all allegiance and fidelity to
any foreign prince, potentate, state or sovereignty,” 8 U.S.C. § 1448(a), as well
as his or her willingness to assume all the duties of citizenship required by the
United States. By including this oath requirement and mandating strict compliance
therewith, see 8 U.S.C. § 1421(d) (1994) (“ A person may only be naturalized
as a citizen of the United States in the manner and under the conditions prescribed
in this subchapter and not otherwise.” ), Congress has made individual volition,
as manifested through the oath o f allegiance, fundamental to naturalization. See
Gordon, Mailman & Yale-Loehr §91.02[1] (in contrast to citizenship at birth,
which is acquired automatically, naturalization involves individual volition).
  That Congress considers the oath requirement central to the naturalization
process is underscored by the fact that Congress has crafted various statutory
accommodations of the oath requirement for persons with disabilities, but has
stopped short o f exempting such persons from the oath requirement altogether.2
   2 We are not persuaded to reach a different conclusion simply because Congress excepted from the oath requirement
one narrow class of persons— namely, children bom abroad whose one U.S citizen parent petitions for naturalization
on their behalf pursuant to section 322 of the INA and who are unable to understand the meaning of the oath.
See 8 U.S.C. § 1448(a) This narrow statutory exception must be seen in the context of the unique treatment of
children of U S citizens in the citizenship process and Congress's 1940 expansion of the oath requirement to certain
children. Prior to 1940, Congress had granted automatic derivative citizenship to children bom abroad of one U.S.
citizen parent, without requiring them to live in the U.S at any time or to otherwise demonstrate their allegiance
to the United States. However, in 1940, Congress for the first time required such children to demonstrate their
allegiance to the United States Recognizing that some children nught not be able to take an oath of allegiance,
see To Revise a n d Codify the Nationality Laws o f the United States into a Comprehensive Nationality Code: Hearings
on H .R 5678 Before the H ouse Comm on Immigration and Naturalization, 76th Cong. 395 (1940), Congress included
an exemption for such cases. See Pub L. No. 76-853, § 335(a), 54 Stat. 1137, 1157 (1940) (permitting waiver
of the oath “ if in the opinion of the [naturalization] court the child is too young to understand its meaning” );
Pub L No 82—414, § 337(a), 66 Stat 163, 259 (1952) (permitting waiver of the oath “ if in the opinion of the
[naturalization] court the child is unable to understand its meaning” ). Thus, in creating the § 1448(a) exemption,

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              Personal Satisfaction o f Immigration and Nationality Act Oath Requirement


See 8 U.S.C. § 1448(c) (providing for expedited judicial oath administration cere­
mony for persons with “ developmental disability” ); 8 U.S.C. § 1445(e) (1994)
(Attorney General may provide for administration of oath of allegiance other than
in public ceremony if person has disability that “ is of a permanent nature and
is sufficiently serious to prevent the person’s personal appearance” or “ is of a
nature which so incapacitates the person as to prevent him from personally
appearing” ).
   We therefore find that, under the existing statutory scheme established by Con­
gress, personal satisfaction of the oath requirement by each individual applicant
is “ essential” to naturalization and that permitting a legal guardian to fulfill that
requirement on behalf of an individual whose disability precludes formation of
the mental intent necessary to take the oath would not be a reasonable accommo­
dation under section 504.
                               •
                               *


                                                                      DAWN E. JOHNSEN
                                                              Acting Assistant Attorney General
                                                                   Office o f Legal Counsel




Congress was tailoring its expansion of the oath requirement rather than creating a general exemption to a long­
standing requirement
         reauirement

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