Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations 45755

published or made publicly available.

The index will be maintained and made

available for public inspection and

copying at the Corporation’s office in

Washington, DC. The Corporation will

provide a copy of the index on request,

at a cost not to exceed the direct cost of

duplication.

3. Section 1602.5 is amended by

revising paragraph (a) to read as follows:

§ 1602.5 Central records room.

(a) The Corporation will maintain a

central records room at its office at 750

First Street, NE. 11th Floor, Washington,

DC 20002–4250. This room will be

supervised by a Records Officer, and

will be open during regular business

hours of the Corporation for the

convenience of members of the public

in inspecting and copying records made

available pursuant to this part. Certain

records, described in paragraph (b) of

this section, will be regularly

maintained in or in close proximity to

the records room, to facilitate access

thereto by any member of the public.

* * * * *

4. Section 1602.7 is amended by

revising the heading and paragraph (b)

to read as follows:

§ 1602.7 Use of records room.

* * * * *

(b) The records room will also be

available to any member of the public to

inspect and copy records which are not

regularly maintained in such room. To

obtain such records a person should

present his or her request identifying

the records to the Records Officer.

Because it will sometimes be impossible

to produce these records or copies of

them on short notice, a person who

wishes to use records room facilities to

inspect or copy such records is advised

to arrange a time in advance, by

telephone or letter request made to the

Records Officer. Persons submitting

requests by telephone will be advised by

the Records Officer or another

designated employee whether a written

request would be advisable to aid in the

identification and expeditious

processing of the records sought.

Persons submitting written requests

should identify the records sought in

the manner provided in § 1602.8(b) and

should indicate whether they wish to

use the records room facilities on a

specific date. The Records Officer will

endeavor to advise the requesting party

as promptly as possible if, for any

reason, it may not be possible to make

the records sought available on the date

requested.

5. Section 1602.8 is amended by

revising paragraphs (a) and (b) (4) and

(5) to read as follows:

§ 1602.8 Availability of records on request.

(a) In addition to the records made

available through the records room, the

Corporation will make such records

available to any person in accordance

with paragraphs (b) and (c) of this

section, unless it is determined that

such records should be withheld and

are exempt from mandatory disclosure

under the FOIA and § 1602.9 of these

regulations.

(b) Requests. * * *

(4) All requests for records under this

section shall be made in writing, with

the envelope and the letter clearly

marked ‘‘Freedom of Information

Request.’’ All such requests shall be

addressed to the Records Officer at the

address given in § 1602.5(a). Any

request not marked and addressed as

specified in this paragraph will be so

marked by Corporation personnel as

soon as it is properly identified, and

forwarded immediately to the Records

Officer. A request improperly addressed

will not be deemed to have been

received for purposes of the time period

set forth in paragraph (c) of this section

until forwarding has been effected. On

receipt of an improperly addressed

request, the Records Officer shall notify

the requesting party of the date on

which the time period commenced to

run.

(5) A person desiring to secure copies

of records by mail should write to the

Records Officer at the address given in

§ 1602.5(a). The request must identify

the records of which copies are sought

in accordance with the requirements of

this paragraph, and should indicate the

number of copies desired. Fees may be

required to be paid in advance in

accordance with § 1602.13. The

requesting party will be advised of the

estimated fee, if any, as promptly as

possible. If a waiver of fees is requested,

the grounds for such request should be

included in the letter.

* * * * *

5. Section 1602.12(a) is revised to

read as follows:

§ 1602.12 Appeals of denial.

(a) Any person whose written request

has been denied is entitled to appeal the

denial within ninety days by writing to

the President of the Corporation at the

address given in § 1602.5(a). The

envelope and letter should be clearly

marked ‘‘Freedom of Information

Appeal.’’ An appeal need not be in any

particular form, but should adequately

identify the denial, if possible, by

describing the requested record,

identifying the official who issued the

denial, and providing the date on which

the denial was issued.

* * * * *

Dated: August 25, 1997.

Victor M. Fortuno,

General Counsel.

[FR Doc. 97–23040 Filed 8–28–97; 8:45 am]

BILLING CODE 7050–01–P

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

§ 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,
45756 Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations

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 selfpetitions 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 § 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
Federal Register / Vol. 62, No. 168 / Friday, August 29, 1997 / Rules and Regulations 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 § 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 §§ 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:

§ 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