Advisory Opinion 2016-003
August 18, 2016
Must recipients of LSC funding screen group clients for eligibility under 45 C.F.R. Part 1626 (Restrictions on Legal Assistance to Aliens) when determining the group’s eligibility for representation?
Yes. Recipients must screen group clients for eligibility under Part 1626 when determining whether the group is eligible for legal assistance. Part 1626 permits an LSC recipient to represent a group client when the group client either (a) is primarily composed of individuals eligible under Part 1626 or (b) the group has as a principal activity the delivery of services to those persons in the community who would be eligible for services under Part 1626. In making this determination, a recipient must collect sufficient information that reasonably demonstrates that the group meets these eligibility requirements.1 This opinion applies to all new cases opened after the date of this opinion for new or existing clients.
In section 504(a)(11) of LSC’s FY 1996 Appropriation, Congress prohibited LSC funding recipients from providing “legal assistance for or on behalf of any alien,” subject to specific exceptions. Pub. L. 104-134, tit. V, § 504(a)(11), 122 Stat. 1321-50, 1321-53 (1996); as incorporated by reference thereafter through Pub. L. 105-119, tit. V, § 502(a)(2), 111 Stat. 2440, 2510 (1998). “This restriction largely carried forward prior alienage restrictions and also extended them to grantees’ non-LSC funds (except for tribal funds).” AO-2009-1008 (2009). LSC implemented this statutory restriction through revisions to 45 C.F.R. Part 1626, which “is designed to ensure that recipients provide legal assistance only to citizens of the United States and eligible aliens.” 45 C.F.R. § 1626.1. Part 1626 “is also designed to assist recipients in determining the eligibility and immigration status of persons who seek legal assistance.”Id. Part 1626, however, does not directly address eligibility or representation of groups. A group, such as the tenants in a building, does not have citizenship or an immigration status. Thus, LSC must determine how to apply the intent of these requirements to groups that may have a variety of combinations of eligible and ineligible individuals under Part 1626.
Part 1611—Financial Eligibility is the only regulation directly addressing representation of groups. Section 1611.6 “sets forth the financial standards for groups seeking legal assistance supported by LSC funds.”70 Fed. Reg. 45546 (Aug. 8, 2005). Under section 1611.6(a), “a recipient may provide legal assistance to a group, corporation, association, or other entity if it provides information showing that it lacks, and has no practical means of obtaining funds to retain private counsel and either: (1) the group, or for a non-membership group the organizing or operating body of the group, is primarily composed of individuals who would be financially eligible for LSC-funded legal assistance; or (2) the group has as a principal activity the delivery of services to those persons in the community who would be financially eligible for LSC-funded legal assistance and the legal assistance sought relates to such activity.” 45 C.F.R. § 1611.6(a)(1)–(2). Although Part 1611 focuses on financial eligibility, the regulation makes clear that other “applicable law and regulation” must be considered in determining eligibility: “The eligibility requirements set forth [in section 1611.6] apply only to legal assistance supported by funds from LSC, provided that any legal assistance provided by a recipient, regardless of the source of funds supporting the assistance, must be otherwise permissible under applicable law and regulation.” Id. at § 1611.6(c).
Part 1611 makes clear that “applicable law and regulation” must be considered in determining the eligibility of groups for representation. Part 1626 sets forth the restrictions and exceptions to restrictions on legal assistance to noncitizens. Part 1626, however, does not directly address representation of groups or how recipients should screen for citizenship and eligible noncitizen status when determining whether a group is eligible for legal services. The Office of Legal Affairs previously concluded that Part 1626 applies only when “legal assistance is provided to individual persons” and that “the citizenship and alien provisions in Part 1626 do not apply to group eligibility.” EX-1999-28 at 3 (1999). This interpretation of Part 1626 could permit representation of a group made up entirely of noncitizens who are ineligible under Part 1626, which would directly undermine Part 1626’s purpose “to ensure that recipients provide legal assistance only to citizens of the United States and eligible aliens.” 45 C.F.R. § 1626.1. The Office of Legal Affairs has concluded that this interpretation is inconsistent with the requirements of section 504(a)(11) of LSC’s FY 1996 Appropriation, and is therefore withdrawing the portion of EX-1999-28 at 2–3 addressing this issue as inconsistent with the statutory mandate.
Although Part 1626 does not prescribe standards for assessing the eligibility of groups, we believe that the framework used in section 1611.6 regarding financial eligibility for groups provides an appropriate framework for determining whether a group is eligible for legal services under Part 1626. Thus, when screening a group for eligibility under Part 1626, the LSC recipient must collect and retain in the case file or other records sufficient information to reasonably determine whether:
- the group, or for a non-membership group the organizing or operating body of the group, is primarily composed of individuals who would be eligible for LSC-funded legal assistance under Part 1626; or
- the group has as a principal activity the delivery of services to those persons in the community who would be eligible for LSC-funded legal assistance under Part 1626 and the legal assistance sought relates to such activity.
As with the Part 1611 requirement, a group primarily composed of Part 1626-eligible members is an eligible group under Part 1626 even if some group members would not be Part-1626 eligible if represented separately. The same is true for a group delivering services primarily benefiting Part 1626-eligible people; the presence of some beneficiaries lacking individual Part 1626 eligibility does not render that group ineligible under Part 1626. Since its inception, Part 1626 has prohibited “only legal assistance [that] directly benefits an ineligible alien and does not benefit the eligible client.” 48 Fed. Reg.28089, 28090 (June 20, 1983) (preamble to the initial final rule for Part 1626) (emphasis added);see also 45 C.F.R. § 1626.3 (prohibiting recipients from providing legal assistance for or “on behalf of an ineligible alien,” which is defined as “render[ing] assistance to an eligible client that benefits an ineligible alien and does not affect a specific legal right or interest of the eligible client.” (quoting 45 C.F.R. § 1626.2(g)). LSC specifically chose not to adopt language that “could be interpreted to preclude representation to an eligible client because such representation also benefited an ineligible client.” Id.
As with Part 1611’s requirements for group financial eligibility, the recipient does not have to conduct individual Part 1626 determinations for a specific number of group members. Rather, the recipient should “collect information that reasonably demonstrates that the group . . . meets the eligibility criteria set forth herein.” 45 C.F.R. § 1611.6(b)(2). Group clients may range greatly in size, composition, and structure. Examples of group clients include tenants in a ten-unit building, members of a Native American tribe, a small group of neighbors helping homeless veterans, or a 200-home neighborhood preserving affordable housing. Information that can reasonably demonstrate group eligibility for either Part 1611 or Part 1626 will vary according to the group and the circumstances. As with all Part 1626 eligibility determinations, grantees “shall maintain records sufficient to document the recipient's compliance with” Part 1626. Id. § 1626.12.
The eligibility requirements for Part 1626 set forth above apply to legal assistance supported both by LSC funds and non-LSC funds. If a recipient determines that a particular group is eligible under Part 1626, the legal assistance provided to the group must be otherwise permissible under applicable law and regulation.
RONALD S. FLAGG
Office of Legal Affairs