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Disabled woman's family says INS denial of citizenship is discriminatory

Vijai's parents, Sunder and Shakunthala Rajan, shown here following a ceremony commemorating Vijai's attendance at a special school, are suing the INS to allow their daughter to become a U.S. citizen

By Raju Chebium
CNN.com Correspondent

July 18, 2000
Web posted at: 4:05 p.m. EDT (2005 GMT)

WASHINGTON (CNN) -- Vijai Shree Rajan cannot walk or talk or get around without a wheelchair. About all she can do is move her head, smile, blink and stick out her tongue like a child.

The 24-year-old Anaheim, California, woman was born in Madurai, India, with muscular dystrophy and cerebral palsy. She contracted Crohn's Disease later in life. She has lived in the United States as a permanent resident since she was 4 months old.

Vijai lives with her parents. She requires round-the-clock care so her parents have hired a nurse to help take care of her medical needs. Doctors have ruled that Vijai has the mental capacity of an infant. Her father, Sunder Rajan, said his daughter's childlike innocence inspires compassion even among "certified grouches."

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Vijai's parents, who are U.S. citizens, filed a naturalization application on their daughter's behalf in 1996 at the Los Angeles office of the Immigration of Naturalization Service. They thought getting citizenship for Vijai would be a formality.

They were wrong.

The INS denied her citizenship in September 1998, saying that because of her physical condition, Vijai does not understand the oath of allegiance as required by law.

Now, Vijai is the plaintiff in a federal discrimination lawsuit that her family filed in April against the INS and the agency's Los Angeles office.

The lawsuit accuses the INS of violating the Rehabilitation Act of 1973, which bars federal agencies from discriminating against anyone "solely by reason of her or his disability." The Rajans also accuse the INS of violating its own antidiscrimination regulations.

The family wants the judge to order a new hearing for Vijai. The lawsuit does not seek monetary damages. A trial date has not been set.

"Our daughter is left stateless. She has no country. She has no home. That is the fundamental issue here," Rajan said in a telephone interview from California. "We are trying to get her a home."

The INS' response

The INS says it feels for the Rajan family. But INS chief spokesman Russ Bergeron in Washington said the agency's hands are tied because the Immigration and Nationality Act says all naturalization applicants must take the oath.

Only Congress can amend the law to provide exceptions to the oath requirement, the government says.

"There is no arbitrary or discretionary decision we can make here," Bergeron said. "We understand their frustration and their angst. We also understand this is a situation where they have to shoot the messenger in order to get Congress to act. They are suing us because they can't sue Congress."

The INS refused to discuss the specifics of the Rajan case, citing Justice Department policy.

Responding to the Rajans' lawsuit last month, the U.S. attorney's office in Los Angeles wrote, "The requirements of the oath of allegiance to the principles of the Constitution are essential to naturalization and, therefore, not subject to waiver or alteration under ... the Rehabilitation Act."

The government also argued that the Los Angeles District Court lacks jurisdiction because the "requirements for naturalization lie solely within the province of Congress."

The genesis of the lawsuit

The INS' September 1998 denial was based on a portion of the nationality act which says people over the age of 18 must take the oath to become citizens.

That requirement has not changed for 200 years, said David Martin, a former INS general counsel who teaches at the University of Virginia law school.

In taking the oath, an applicant renounces prior citizenship, pledges allegiance to the United States, and indicates comprehension of the democratic principles contained in the Constitution.

The INS says immigrants who participate in the citizenship ceremony need to be able to comprehend and agree to comply with the citizenship oath

Applicants comply with the oath by raising their hand when the oath is read or repeating it afterward. If they cannot speak or cannot raise their hands, the INS official conducting the swearing-in ceremony has the discretion to accept some other sign of comprehension and assent, Martin said. That sign could be as simple as nodding the head, for example.

Martin said, however, that the INS' hands are tied by the law in Vijai Rajan's case. He said the law is clear in that the applicant must exhibit some level of understanding of the oath.

Vijai did not make it to the swearing-in stage of the process. Her application was denied after a required interview with an INS official a few weeks before the ceremony.

Rajan said the interviewer told him even though his daughter cannot understand the oath, he would pass her. But about two weeks later, the INS sent a letter rejecting citizenship on medical grounds.

The Rajans appealed to INS authorities in Los Angeles -- and lost in December 1999.

The family sued in April.

"We are not asking for anything (other than) a U.S. passport," Rajan said. "We feel like we are at the end of the road."

Philip Abramowitz, the Rajans' lawyer, said the INS grants citizenship to disabled people who can speak or have some motor skills.

"If you are mildly disabled you can become a citizen. If you are severely disabled you cannot become a citizen. What kind of distinction is that? It serves no purpose. It's ludicrous," he said.

"The whole issue here is: Is taking the oath a necessity? The INS says it is a necessity and you can't become a citizen until you take it. My take on it: It is more of a formality," he said.

Congress involved in Rajan case

Congress has also waded into the issue. U.S. Rep. Christopher Cox and Sen. Dianne Feinstein, both of California, filed bills in May to make Vijai a citizen.

Senators Dianne Feinstein (D-CA) and Orrin Hatch (R-UT) support having the oath requirement waived for disabled immigrants at the discretion of the attorney general

Feinstein and Utah Sen. Orrin Hatch filed legislation late last month giving the attorney general the discretion to waive the oath requirement for disabled applicants like Vijai.

All three measures are pending in Congress.

Vijai is not in danger of being deported because she has a permanent residency card, or "green" card, which allows her to stay in this country as long as she wants. But permanent residents remain citizens of their home countries. They cannot vote or hold some types of federal jobs.

Rajan, a 55-year-old scientist for the aeronautics industry who became a U.S. citizen in 1980, said he is not seeking citizenship so his daughter can receive welfare benefits.

"None of these things like welfare even entered our minds," Rajan said. "Whatever we eat, she is going to have her share. Whatever roof we have, she will have."

Rajan said he is worried about what will happen to his daughter after he and his wife die and she remains stateless.

"If we put her in a wheelchair and leave her alone, there is nothing she can do. She will just sit there. She is not able to take care of herself," he said. "Our idea was not just to keep her alive, we really try to give her a life."

Vijai's mother, Shakunthala, became a naturalized citizen in the mid-1990s. Vijai's only sibling, a 29-year-old sister named Indu Shree, was born in the U.S. Only Vijai is disabled among the four.

No oath exception in the law

To become citizens, naturalization applicants normally must be green card holders for at least five years, have no criminal record, should not have received long-term public assistance, and should pass an English language and civics test.

In 1994, Congress amended the nationality act to allow the INS to waive the language and civics tests for mentally and physically disabled people who prove through medical certificates that they are incapable of taking the tests.

But the amendment did not spell out an oath exception for the disabled.

Stephen Rosenbaum, an attorney for Protection and Advocacy Inc., a disabled-rights group in Oakland, California, argued that the oath waiver was implicit in the 1994 amendment, but the INS disagrees.

Rosenbaum and Martin said they believe Congress was not discriminating against disabled people. They said lawmakers overlooked waiving the oath requirement because there are so few cases where disability prevents the applicant from taking the oath.

It could be more than just a few, though. Rosenbaum said the INS internally quotes a figure of about 1,000 severely disabled people awaiting citizenship.

He said the INS has the leeway to waive the oath requirement on a case-by-case basis -- and no one would fault the agency.

He said the agency is mulishly adhering the letter of the law at the expense of humanity and compassion.

"These are folks who are not going anywhere else ... they are not a national security threat," he said. "So why are they making this a problem?"

Prior lawsuits over the issue

Rosenbaum cited three prior cases over the oath issue.

Sanc Chow v. Meissner, a class-action lawsuit filed in California in 1996, was dismissed after some provisions of an immigration amendment passed by Congress were implemented, leaving the oath issue unresolved.

A Hawaii case in July 1999, Wong v. INS, ended with the judge ruling for the INS in a dispute over whether the agency discriminates by requiring disabled people to take the oath when they clearly cannot.

The INS has appealed the decision in the third lawsuit, filed in Utah in July 1999, to the 10th U.S. Circuit Court of Appeals in Denver. The U.S. district judge presiding in Galvez-Letona v. Kirkpatrick ruled that the oath must be waived for a disabled Latin American applicant.

In Galvez-Letona, Attorney General Janet Reno clarified that the INS can only enforce the law, not make exceptions to it or amend it, said Matt Tallmer, spokesman for the American Immigration Lawyers Association in Washington.

"The law does not permit the INS to confer citizenship on an applicant over the age of 18 whose disability renders him incapable of personally understanding and satisfying the oath," Tallmer said, quoting from court documents.

The Rajans' mistake

Rajan said he brought the "INS hell" upon himself by failing to get his daughter naturalized before she turned 18. He said it was an oversight, adding that Vijai's citizenship was not as big a priority as caring for her medically.

According to attorney David Martin, "derivative" citizenship is usually granted to underage children as long as their names are on their parent's applications

Martin said as long as underage children's names are on the parents' applications, "derivative" citizenship normally is granted automatically.

Rajan said he began thinking of filing for his daughter's citizenship when she became well enough to be taken overseas on family vacations.

He recalled the family's experiences in Germany. He said the airport authorities promptly admitted him, his wife and Indu Shree because they have U.S. passports. But they wanted to see myriad documents for Vijai, such as a financial document and proof of health insurance.

"We said she's being put through the damn thing only because she does not have a U.S. passport. We don't want to go through this nonsense," Rajan said. "A U.S. passport, you don't believe how powerful it is. U.S. citizenship is valuable ... people look at U.S. citizens with awe and admiration."

Upon returning to the United States, the rest of the family would breeze through the immigration check, but the wheelchair-bound Vijai would be stuck in long lines behind other permanent residents.

The process was arduous for her because of her ailments. Cerebral palsy results in lack of motor skills due to problems during birth, muscular dystrophy is an inherited disease that debilitates muscles and Crohn's is an intestinal ailment. At present, none of the conditions can be cured.

Rajan said he seeks citizenship for his daughter because she is entitled to it, period.

"If a person has an identity, she always has a home," he said. "Otherwise, she is always like an oddball, she is like a pariah."

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