INS on Disability Naturalization Adjudications
Date: March 16, 1998
To: Regional Directors
Regional General Counsels
District Directors (Except foreign)
Officers-in-Charge (Except foreign)
Service Center Directors
From: Office of Naturalization Operations
This memorandum provides additional policy guidance on section 312 exceptions for persons with disabilities to all Immigration and Naturalization (INS) field offices and Service Centers currently processing applications for naturalization. The information contained within this document supplements our March 12, 1997 memorandum on disability-based adjudications.
I. Denials Based on Failure to Assent to the Provisions of the Oath of Allegiance.
Congress did not waive the oath of allegiance requirement for persons with disabilities when it passed the section 312 exception amendment. Therefore, the oath is still required for all adult naturalization applications.[1]
In the March 12, 1997 policy guidance, we instructed all field offices to hold all applications, pending further guidance, where a naturalization application could not be approved based on the applicant’s inability to understand the nature of the oath. Based on the following information, offices should now begin issuing final determinations on disability-based cases where the applicant has such a significant cognitive impairment that he or she cannot demonstrate to the district adjudications officer (DAO) an understanding of the nature of the oath.
For the naturalization applicant with a disability, particularly those with mental impairments that render them unable to assent to the provisions of the oath (even with reasonable accommodations or modifications), offices should prepare standard form N-335 as they do with any other denial and use the attached template which advises the applicant that the basis of the denial will be the failure to meet the requirements of sections 335 and/or 337 of the Immigration and Nationality Act and 8 CFR 335.2(a) & (b) and/or 337.1(c).
As noted in our previous memorandum, decisions made on cases where the applicant has a significant cognitive impairment will be difficult. DAOs may be under intense pressure from family members and advocates to naturalize these individuals. If possible, DAOs should attempt to explain to family members the requirements of section 337 of the Act, and how, as the law is currently written, the oath cannot be waived for adult naturalization applicants.
While officers must make reasonable accommodations, such as simplifying questions to see if the applicant has a basic understanding of the actions being taken regarding his or her citizenship status, the oath is a legal requirement of naturalization that cannot be waived, regardless of the applicant’s disability status. This position has been confirmed by the Office of Legal Counsel at the Departure of Justice.
II. Signature on Naturalization Forms
Questions have been raised about the required applicant signature on the N-400, N-648, and the N-550, Certificate of Naturalization. First, there is one correction to the March 12, 1997 memorandum. In the first line of page 14, we indicated that a family member or person holding legal guardian status for a naturalization applicant with disabilities may sign the N-648 on behalf of the applicant. Offices must note that with regard to the N-648, only the legal guardian (including a family member holding legal guardian status) may sign the N-648 on behalf of the disabled applicant. All DAOs should amend the previous instructions to reflect this correction.
A related issue is whether the legal guardian may sign the N-400 at the end of the naturalization interview. While the legal guardian may sign the preparer’s box (Question 12 on the N-400), the guardian may not sign the N-400 on behalf of the applicant at the conclusion of the interview. In cases where the applicant can make some kind of mark, the DAO should accept such a mark as a reasonable accommodation for the signature. In cases where the applicant is unable to make any type of mark but has indicated assent to the requirements of naturalization, the DAO should note in the section where the signature is required (Question 11 on the N-400) that he or she has determined that the applicant has so assented and has responded to questions pertaining to the information contained on his or her form. No actual signature will thus be noted.
A similar situation exists with the Certificate of Naturalization. Applicants with disabilities falling into the category noted above will also be unable to sign the certificate. In these cases, where the applicant is unable to make any type of mark, the DAO should note on the signature line of the certificate: Person’s Disability Prevents Signature. A legal guardian may not sign the certificate on behalf of a disabled naturalization applicant.
III. Liaison with the Medical Community
Several districts are reporting that they are receiving fraudulent medical certifications on the new N-648. Some of these cases may in fact be fraudulent certificates. However, in some instances, certifications which may appear fraudulent are in reality incorrectly completed due to misinformation or lack of information about the N-648 process by the specialized medical professional serving various immigrant communities or groups.
Prior to concluding that a certification is fraudulent or was fraudulently issued by a particular medical doctor or clinical psychologist, offices should pursue the following steps to educate these medical professionals.
- Over the next several months, schedule meetings with local doctors, medical associations, and medical centers known to service immigrant communities. Since this is a new requirement for the medical profession, attempts should be made to explain in basic terms the section 312 requirements for naturalization and to give these medical professionals an overview of the naturalization and interview process. Offices should remember that completing the N-648 may be a doctor’s first encounter with the Service.
- Ensure that the five-page supplemental information document (attached) prepared for doctors and psychologist, dated March 12, 1997, is distributed to doctors known to service immigrants, as well as distributed to the local medical association. The local medical association may be able to assist with the dissemination of this document.
- Target medical doctors and clinical psychologists who are making incomplete or questionable certifications and provide supplemental information or possibly schedule a special meeting. The meeting could be the vehicle for further explanation of the certification process, as well as reiteration of the possible legal sanctions and consequences for doctors or psychologists making fraudulent disability determinations.
- Stress to medical doctors and clinical psychologists that certifying an elderly person as "old, unable to learn" is unacceptable. While many debilitating conditions may be related to or the result of advanced age, the mere fact that an applicant is elderly does not automatically guarantee an applicant the exception.
- If all these steps fail and particular medical doctors or clinical psychologists continue to make questionable or fraudulent certifications, explore the possibility of legal actions based on a charge of perjury, work with investigations on possible action, or file a complaint with the local or state medical licensing agency demanding disciplinary action based on documented evidence.
IV. Exceptions for Hearing and Visually Impaired Applicants
In the March 12, 1997 policy guidance, we noted that the regulation had been amended to delete particular references to blind or deaf individuals receiving an exemption from the English language requirements. Offices were notified that, "blind or deaf applicants desiring either a complete exception to the section 312 requirements, or only an exception to the English or civics portion of the requirement, must file an N-648 in the same manner as any other applicant with a disability."
There is some confusion about how offices are to apply exception requests from an applicant who is deaf or blind. A blind or deaf naturalization applicant, requesting an exemption from the English language and/or civics requirements, must file the N-648. If the N-648 is accepted, the blind or deaf applicant is exempted from all the English language requirements, including reading, writing, and speaking, and/or all the civics requirements. The applicant, via the medical professional’s certification on the N-648, however, must establish how the blindness or deafness prevents him or her from learning English and/or the civics information required by section 312.
Officers in most local offices have experience in accommodating applicants with visual or hearing impairments. Many blind or deaf naturalization applicants will not request an exception to the section 312 requirements. They will be able to meet the requirements with common-sense accommodations. If an exception is not requested, the hearing-impaired applicant may use a sign language interpreter (an accommodation) during the interview and may read and write answers to civics questions if they are not requesting an exception. An applicant who is blind may respond orally to questions on civics, and is not expected to read. Similarly, an applicant who is quadriplegic may be able to speak and read English, but should not be expected to write.
A DAO should not assume that an applicant with a disability possessing limited English verbal skills (in particular those with mental impairments) should be able to read and write English. For example, an applicant with mental retardation may be able to speak with the interviewing officer in limited English, but may not have the ability to read or write English. This applicant will still need an N-648 for the exception, but the interview does not need to be in the native language if the applicant has the English verbal skills to answer the necessary questions.
In a similar vein, an applicant presenting an N-648 should not be automatically tested on section 312 material if the N-648 is initially deficient. Officers must comply with the established procedures outlined in the March 12, 1997 policy guidance prior to the non-acceptance of an N-648. Officers may, however, give the applicant the option of being tested at the time of the first interview if the N-648 is deficient.
Lastly, officers must remember that not all countries are as accommodating to persons with visual, hearing, or other debilitating impairments as the United States. The advances made by many persons with disabilities in the United States have not necessarily been matched by other countries. For example, blindness and deafness are considered completely debilitating in many countries and cultures. Officers therefore should not assume that foreign-born naturalization applicants with disabilities, especially those from developing nations, will have had the opportunities for communication and language skill development as many native-born United States citizens with disabilities.
V. Family Members and the Naturalization Interview
In the March 12, 1997 policy guidance, DAOs were instructed to consider, in appropriate circumstances, the accommodation of allowing a family member or the legal guardian of an applicant with a disability to accompany the applicant during the interview. Officers are reminded of this important modification that should be extended to many applicants with disabilities, in particular, those with mental or developmental impairments.
The naturalization interview can be a stressful experience for any applicant. The stress factor for an applicant with a disability, especially not accustomed to an unfamiliar environment, can be even greater. The presence of a family member or guardian can have a distinct calming influence, and can help facilitate the interview. It is the interest of the DAO to include a family member or guardian in situations where the family member can calm or defuse a situation that might become confrontational.
VI. Conclusion
As we noted in the previous field guidance, naturalization interviews involving requests for disability-based exceptions will be extremely challenging for DAOs. They will be time consuming, and in many instances, emotionally charged proceedings. As such, officers performing naturalization interviews involving disability exception requests shall not be held to a mandatory production number for daily interviews, and shall not be held to a set time per interview. Granting both the officer and the applicant with a disability the necessary time to complete the interview is an important accommodation that the Service is obligated to make under Section 504 of the Rehabilitation Act of 1973.
All offices should also note that we are moving forward with full direct mail filings for N-400s Servicewide. All N-648s must be filed with the N-400 when direct mailed to the Service Center. Local immigrant assistance organizations should be made aware of this requirement.
Offices are reminded that with the exception of the section 312 requirements, naturalization applicants with disabilities must meet the other statutory requirements. There are no blanket waivers or provisions that exempt a naturalization applicant with a disability from the other statutory requirements for naturalization.
All officers should also note that the Federal Register notice of March 19, 1997 contained numerous typographical errors. Although the Federal Register was at fault for these errors, they will only publish a list of corrections, not an entirely new notice. Therefore, officers who need copies of the regulation should use the version found on INS Inserts, or make photocopies of the attached version.
Questions about the policy outlined in this memorandum, the previous filed guidance memorandum of March 12, 1997, and the Federal Register final rule may be directed to Staff Officer Jody Marten, HQ Naturalization Operations, Policies & Procedures. She may be reached by CC Mail or on 202/305-0539.
James S. Angus
Acting Executive Director
Attachments
Footnote:
[1] See memorandum of 3/12/97, page 3, for reference to an opinion from the Department’s Office of Legal Counsel regarding the oath of allegiance requirement.
[Editor’s Note: The attachment (March 12, 1997 INS memo) was posted to AILA InfoNet on 5/6/97 and appears in the June 1997 Monthly Mailing on page 481.]