                               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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                 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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         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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                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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         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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             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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