Clarification Questions and Answers

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Clarification Questions and Answers

PHA Responsibility to Notify the Immigration and Naturalization Service (INS)
of Aliens not Lawfully Present in the United States Under
Section 404 of the Welfare Reform Act

[ See also Federal Register Notice - 24894 (Adobe PDF, 3 pages) on the responsibility of certain entities to notify the INS of aliens the entity knows are not lawfully present in the U.S. ]

What is Section 404 of the Welfare Reform Act?

Section 404 of the Welfare Reform Act (the Personal Responsibility and Work Opportunity Reconciliation Act of 1996) requires certain Federal and State entities, including Public Housing Agencies (PHAs), to notify the Immigration and Naturalization Service (INS) of any alien the entity "knows" is not lawfully present in the United States.

What is the purpose of the interagency Federal Register Notice regarding Section 404 which was published on September 28, 2000?

The Notice provides guidance as to when an entity (a PHA) will "know" that an alien is unlawfully present. Under the Notice, "an entity [a PHA] is not required to make … reports to the INS unless it has knowledge of an individual who is not lawfully present," as detailed in the Notice.

How does this Notice specifically relate to PHAs?

The Notice states that the reporting requirement in Section 404 applies to PHAs administering public housing and the Section 8 certificate, voucher and moderate rehabilitation programs.

When does a PHA "know" that an alien is unlawfully present in the U.S.?

A PHA will "know" that an alien is not lawfully present in the United States only when:

the unlawful presence is a "finding of fact" that is made by the PHA as part of "a formal determination that is subject to administrative review on an alien’s claim for" assistance; and

there is receipt by the PHA of a determination from the INS, such as a Final Order of Deportation, supporting the PHA’s finding of fact of the alien’s unlawful presence.

The Notice clearly states that agencies should only report "known" not "suspected" unlawfully present aliens to the INS.

When does a PHA make a "finding of fact" of an alien’s unlawful presence that is "part of a formal determination that is subject to administrative review on an alien’s claim for" assistance?

If an alien admits to unlawful presence or there is other evidence to that effect, upon which the PHA makes a finding that the alien is unlawfully present, and that finding is a basis of the PHA’s denial of assistance, either at the time of application, or recertification, then a PHA has made a "finding of fact" under the Notice.

However, such a finding of fact is not a sufficient basis for a PHA to report such alien to the INS unless there is supporting documentation from the INS or the Executive Office of Immigration Review (i.e., an immigration court), such as an order of deportation, that the alien is unlawfully present. Furthermore, a SAVE response showing no INS record on an alien, or an immigration status making the alien ineligible for assistance, is not a finding of fact that the individual is not lawfully present.

If a PHA does not make a "finding of fact" of the alien’s unlawful presence, does the PHA have to report to the INS?

             No.

If a PHA does not make a "finding of fact" of the alien’s unlawful presence, but receives written documentation of the deportation status of an applicant or resident, does the PHA have to report that alien to the INS?

The Notice does not require this.

Is a PHA required to make a determination of the unlawful presence under Section 404 of an applicant/resident for assistance or at time of reexamination?

No, a PHA is not required to make a determination of unlawful presence in order to determine an applicant’s/resident’s eligibility for assistance.

Is a declaration by an applicant/resident alone sufficient evidence of his/her unlawful presence in the U.S. for a PHA to report to INS?

No. As noted in answer number five, only if such declaration is the basis for a "finding of fact" of the alien’s unlawful presence on which the PHA denies assistance to the alien, and that finding is supported by a determination by the INS or an immigration court, is there a sufficient basis for a PHA to report to the INS.

Is mere suspicion or hearsay of an alien’s unlawful presence sufficient evidence for a PHA to report?

        No.

The Notice states that an entity also "knows" of an alien’s unlawful presence in the U.S. if the entity makes a "conclusion of law" of unlawful presence as part of a formal determination on the alien’s claim for assistance that is subject to administrative review, supported by documentation from the INS. Do PHAs make "conclusions of law" of an applicant’s or resident’s unlawful presence in determining an applicant or resident’s eligibility for assistance?

No. Unlike some other entities covered under the Notice, PHAs do not make "conclusions of law."

When are PHAs required to submit reports?

The Notice provides that reporting of "known" unlawfully present aliens to the INS is to be done on a quarterly basis. A PHA is only required to submit a quarterly report to the INS if the PHA has made a determination that an alien is unlawfully present, as noted above, which is supported by a determination by the INS or an immigration court (such as an order of deportation). This report to the INS must be submitted within 45 days after the close of the appropriate calendar year quarter.

The report must include the individual’s name, address and other identifying information in the possession of the PHA. Reports should be sent to: Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street NW, Room 4024, Washington, DC 20536, Attn: INS No. 2070-00

Must an alien reported to the INS under Section 404 be evicted?

No, Section 404 does not necessarily require that aliens reported to the INS as unlawfully present in the U.S. be evicted from public housing or terminated from the Section 8 certificate/voucher program. However, PHAs should continue to make determinations regarding evictions, including as to aliens reported by the PHA to the INS as unlawfully present under Section 404, pursuant to program requirements under Section 214 as well as the program regulations; i.e. 24 CFR Parts 966.4 and 982.552.

Who can I contact for more information?

For further information contact:

Melosan Bell
Office of Public and Assisted Housing Delivery
Department of Housing and Urban Development
451 7th Street, SW, Room 4224,
Washington, DC, 20410
Telephone: (202) 708-0744
or
The Public and Indian Housing Resource Center at 1-800-955-2232.