```
[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]

-----------------------------------------------------------------------

LEGAL SERVICES CORPORATION

45 CFR Part 1626

Restrictions on Legal Assistance to Aliens

AGENCY: Legal Services Corporation.

ACTION: Final rule.

-----------------------------------------------------------------------

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
```