N002315
Tuesday, January 22, 2002 5:44 PM
Comments on the 9/11 Victim Comp. Fund Interim Final Rule
January 22, 2002
Via Email and Regular Mail
Kenneth L. Zwick
Director, Office of Management Programs
Civil Division, U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue NW
Washington DC 20530
Dear Mr. Zwick:
We are writing to provide comments on the September 11th Victim
Compensation Fund of 2001 Interim Final Rule, published in the Federal
Register on December 21, 2001 (66 FR 66273-91).
As the largest legal services organization in New York, the Legal Aid
Society has extensive, hands-on experience providing direct legal
assistance for low income New Yorkers, including low income
immigrants. Annually, the Society provides civil legal services in
more than 23,000 cases for low income New Yorkers through a network of
neighborhood-based offices and city-wide special units, including an
Immigration Unit. Substantial numbers of our clients with civil legal
problems are immigrants. As part of our work, we provide
comprehensive direct legal services to New York City*s immigrant
community in a variety of legal forums, and work in coordination with
other organizations to make civil legal assistance available for
immigrants. We have testified before City, State, and federal
legislative bodies at the request of public officials; worked
cooperatively with all levels of government; and represented groups of
similarly situated clients, including immigrant families and children,
to address systemic problems.
In the aftermath of September 11th, the Legal Aid Society has provided
direct legal services to hundreds of New Yorkers directly and
indirectly affected by the September 11th attack. The Society staffs
a *Legal Services* table at the Federal Emergency Management Agency
(FEMA) Disaster Assistance Center at 141 Worth Street, and helps staff
Immigrant Affairs tables at both the FEMA Center and the Family
Assistance Center, first at Pier 94 and now at 51 Chambers Street. We
have published and distributed a comprehensive and regularly updated
Guide to WTC Disaster-Related Assistance (available on our web site at
www.legal-aid.org), established a toll-free disaster hotline, and
provided legal and technical assistance to community organizations
throughout the City.
Based on our experience and on behalf of our clients, we are
submitting these comments to ensure that low income New Yorkers,
including immigrants who were injured or who lost family members in
any of the three federal disaster areas, are able to obtain access to
the Fund.
Eligibility (Section 405(b))
As stated in the Supplementary Information: Statement by the Special
Master, the purpose of the Fund is to *provide fair, predictable and
appropriate compensation to the victims of September 11 and their
families . . . .* Eligible persons are defined as *individuals
[aboard the planes or those] who were present* at the World Trade
Center, Pentagon, or Shanksville, Pennsylvania sites or their
*personal representatives.* As written, the Act does not consider
the immigration status of the deceased or injured victim or his or her
personal representative. Accordingly, claimants must be compensated
without regard for immigration status. This approach correctly
advances the Fund*s goal of providing just and fair compensation to
those who lost their lives or became injured as a result of the
September 11th attacks. Perhaps more than any other claimants,
undocumented persons are likely to rely on an award from the Fund as a
primary source of compensation and income, since undocumented persons
typically earn less, have fewer employment prospects, and are entitled
to fewer social services, than are citizens or other immigrant groups.
To ensure that all statutory beneficiaries can come forward to make a
claim to the Fund, regardless of immigration status, certain
confidentiality guarantees will need to be incorporated in the
regulations. First, it would be appropriate to ensure and make
publicly known that information regarding undocumented persons who
come forward to be compensated will remain strictly confidential.
Without such a provision, many undocumented or Permanently Residing
Under Color Of Law (PRUCOL) immigrants may be too fearful of
deportation or removal to seek access to the Fund. This would
interfere with the Fund*s purpose of compensating the victims. Thus,
the Special Master should adopt and enforce a policy that information
regarding the immigration status of a claimant will not be provided to
the Immigration and Naturalization Service or any other agency or
office. Likewise, the Special Master should obtain from the INS a
formal agreement that: 1) the agency will not seek immigration status
information about claimants to the Fund; and 2) if the INS learns of
immigration status problems brought to light as a result of seeking
access to the Fund, the agency will not act on that information.
Similarly, the Interim Rule describes the use of numerous forms in the
course of a Fund application (an*Eligibility Form,* a *Personal Injury
Compensation Form,*and a *Death Compensation Form*). To the extent
these forms seek immigration status information, Social Security
Numbers, or other information which could be used as evidence of an
immigration status problem, they could effectively act as an
*immigrant screen* on the Fund, deterring needy persons from coming
forward if they fear immigration consequences. We suggest that the
forms used to access the Fund not request Social Security Numbers or
immigration status, or at least make optional the answers to questions
about Social Security Numbers, immigration status, and other
information that could potentially reveal immigration status.
Filing for Compensation (Section 104.21)
Section (b)(3)(iv) proof of physical harm: We note that the
Eligibility Form may require claimants to file proof of physical harm,
including *contemporaneous medical records . . . and records of all
continuing medical treatment.* Because many low income families and
individuals, especially immigrants, lack access to health insurance,
they are more likely to forego medical treatment in the event of an
emergency. Under these circumstances, we suggest allowing uninsured
persons to use non-contemporaneous medical records, including records
for medical treatment sought now and in the future, for injuries
suffered at the time of the disaster, provided that the treating
physician affirms it can be ascertained that the injuries were
suffered because of the disaster.
Section (c)(1): We note that the requirement for tax returns and
employment information may exclude otherwise eligible claimants from
maximizing their recovery. As a preliminary matter, most employers of
undocumented persons refuse to provide information about themselves
for fear of INS reprisal. Thus, as we have observed since September
11th, uncooperative employers can thwart employees* efforts to access
assistance. The Special Master should resolve this conflict by
providing in the regulations and making it publicly known that
information regarding the employment of undocumented persons who come
forward to be compensated will remain strictly confidential and will
not be disclosed to any other agency or office. Likewise, the Special
Master should obtain assurances from the INS that information
regarding the employment of undocumented persons gathered in the
course of a Fund application will not be the basis for any adverse
action by the INS against an employer or employee, and that the United
States will not seek to prosecute employers who come forward to verify
employment of undocumented persons.
Conclusion
We appreciate this opportunity to comment on the Special Master*s
regulations relating to the needs if immigrants. On behalf of our
clients, we ask the Special Master to consider the unintended effects
certain seemingly benign record keeping procedures may have on
immigrant claimants. If you need any further information or if you
have any questions or concerns, please do not hesitate to contact me
by telephone at or by email at .
Thank you for your consideration.
Very truly yours,
Comments by
The Legal Aid Society