Mentally Disabled Rights at Naturalization Proceedings
Posted Feb 27, 2004

Prior to the transfer of immigration functions to the Department of Homeland Security (DHS), the U.S. Department of Justice's Office of Legal Counsel (OLC) was occasionally called upon by the Legacy INS to issue legal opinions on various immigration matters. The American Immigration Lawyers Association (AILA) recently received a copy of one such opinion, issued over a year ago on March 13, 2002, as to whether mentally disabled naturalization applicants may have legal guardians or other proxies represent them in immigration proceedings. The short answer was yes; the reasoning, as follows.

A provision of the Rehabilitation Act of 1973 provides that otherwise qualified individuals with disabilities shall not, solely by reason of the disability, be excluded from or denied the benefits of any program or activity conducted by any executive agency. All Legacy INS programs and activities, including naturalization proceedings, have been determined to fall under this provision.

The OLC advised that a mentally disabled person is "otherwise qualified" for naturalization and should have an opportunity to seek naturalization through a legal guardian or proxy if, by granting such permission, the essential elements of the naturalization program are not eliminated or otherwise fundamentally altered.

In its analysis, the OLC noted that the law already provides several waivers of requirements for the disabled, including, most notably, a waiver of the oath requirement. This matter was the subject of controversy at one time. The OLC determined that the only two naturalization requirements that every naturalization applicant must meet are the physical presence requirement and the good moral character requirement. For additional information on the physical presence requirement, see our article, Citizenship Requirements, posted June 17, 2000. Information on how a crime may affect a person's eligibility for naturalization can be found in our article, Permanent Residents: Keep These Things in Mind, posted December 22, 2003. Both articles are available on MurthyDotCom.

The OLC concluded that a mentally disabled person could meet both the physical presence and good moral character requirements for becoming a U.S. citizen. Under this reasoning, they decided that a mentally disabled person could be otherwise qualified for naturalization and could use a legal guardian or proxy to file for naturalization on his or her behalf and to attend the naturalization interview.

As a practical matter, the legal guardian or proxy should be prepared to show that the applicant is mentally disabled and, therefore, needs assistance with the naturalization process. S/He should consider seeking legal guidance from a qualified immigration attorney and may consider taking an immigration attorney to the interview in case the interviewer is not experienced with such cases and, possibly, is unfamiliar with this interpretation of the law. This opinion will help in providing additional protection for those who need the government to protect their rights.