[Code of Federal Regulations]

[Title 24, Volume 1]

[Revised as of April 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 24CFR5.514]



[Page 69-72]

 

                 TITLE 24--HOUSING AND URBAN DEVELOPMENT

 

PART 5_GENERAL HUD PROGRAM REQUIREMENTS; WAIVERS--Table of Contents

 

           Subpart E_Restrictions on Assistance to Noncitizens

 

Sec.  5.514  Delay, denial, reduction or termination of assistance.



    (a) General. Assistance to a family may not be delayed, denied, 

reduced or terminated because of the immigration status of a family 

member except as provided in this section.

    (b) Restrictions on delay, denial, reduction or termination of 

assistance--(1) Restrictions on reduction, denial or termination of 

assistance for applicants and tenants. Assistance to an applicant or 

tenant shall not be delayed, denied, reduced, or terminated, on the 

basis of ineligible immigration status of a family member if:

    (i) The primary and secondary verification of any immigration 

documents that were timely submitted has not been completed;

    (ii) The family member for whom required evidence has not been 

submitted has moved from the assisted dwelling unit;

    (iii) The family member who is determined not to be in an eligible 

immigration status following INS verification has moved from the 

assisted dwelling unit;

    (iv) The INS appeals process under Sec.  5.514(e) has not been 

concluded;

    (v) Assistance is prorated in accordance with Sec.  5.520; or

    (vi) Assistance for a mixed family is continued in accordance with 

Sec. Sec.  5.516 and 5.518; or

    (vii) Deferral of termination of assistance is granted in accordance 

with Sec. Sec.  5.516 and 5.518.

    (2) Restrictions on delay, denial, reduction or termination of 

assistance pending fair hearing for tenants. In addition to the factors 

listed in paragraph (b)(1) of this section, assistance to a tenant 

cannot be delayed, denied, reduced or terminated until the completion of 

the informal hearing described in paragraph (f) of this section.

    (c) Events causing denial or termination of assistance--(1) General. 

Assistance to an applicant shall be denied, and a tenant's assistance 

shall be terminated, in accordance with the procedures of this



[[Page 70]]



section, upon the occurrence of any of the following events:

    (i) Evidence of citizenship (i.e., the declaration) and eligible 

immigration status is not submitted by the date specified in Sec.  

5.508(g) or by the expiration of any extension granted in accordance 

with Sec.  5.508(h);

    (ii) Evidence of citizenship and eligible immigration status is 

timely submitted, but INS primary and secondary verification does not 

verify eligible immigration status of a family member; and

    (A) The family does not pursue INS appeal or informal hearing rights 

as provided in this section; or

    (B) INS appeal and informal hearing rights are pursued, but the 

final appeal or hearing decisions are decided against the family member; 

or

    (iii) The responsible entity determines that a family member has 

knowingly permitted another individual who is not eligible for 

assistance to reside (on a permanent basis) in the public or assisted 

housing unit of the family member. Such termination shall be for a 

period of not less than 24 months. This provision does not apply to a 

family if the ineligibility of the ineligible individual was considered 

in calculating any proration of assistance provided for the family.

    (2) Termination of assisted occupancy. For termination of assisted 

occupancy, see paragraph (i) of this section.

    (d) Notice of denial or termination of assistance. The notice of 

denial or termination of assistance shall advise the family:

    (1) That financial assistance will be denied or terminated, and 

provide a brief explanation of the reasons for the proposed denial or 

termination of assistance;

    (2) That the family may be eligible for proration of assistance as 

provided under Sec.  5.520;

    (3) In the case of a tenant, the criteria and procedures for 

obtaining relief under the provisions for preservation of families in 

Sec. Sec.  5.514 and 5.518;

    (4) That the family has a right to request an appeal to the INS of 

the results of secondary verification of immigration status and to 

submit additional documentation or a written explanation in support of 

the appeal in accordance with the procedures of paragraph (e) of this 

section;

    (5) That the family has a right to request an informal hearing with 

the responsible entity either upon completion of the INS appeal or in 

lieu of the INS appeal as provided in paragraph (f) of this section;

    (6) For applicants, the notice shall advise that assistance may not 

be delayed until the conclusion of the INS appeal process, but 

assistance may be delayed during the pendency of the informal hearing 

process.

    (e) Appeal to the INS--(1) Submission of request for appeal. Upon 

receipt of notification by the responsible entity that INS secondary 

verification failed to confirm eligible immigration status, the 

responsible entity shall notify the family of the results of the INS 

verification, and the family shall have 30 days from the date of the 

responsible entity's notification, to request an appeal of the INS 

results. The request for appeal shall be made by the family 

communicating that request in writing directly to the INS. The family 

must provide the responsible entity with a copy of the written request 

for appeal and proof of mailing.

    (2) Documentation to be submitted as part of appeal to INS. The 

family shall forward to the designated INS office any additional 

documentation or written explanation in support of the appeal. This 

material must include a copy of the INS document verification request 

form G-845S (used to process the secondary verification request) or such 

other form specified by the INS, and a cover letter indicating that the 

family is requesting an appeal of the INS immigration status 

verification results.

    (3) Decision by INS--(i) When decision will be issued. The INS will 

issue to the family, with a copy to the responsible entity, a decision 

within 30 days of its receipt of documentation concerning the family's 

appeal of the verification of immigration status. If, for any reason, 

the INS is unable to issue a decision within the 30 day time period, the 

INS will inform the family and responsible entity of the reasons for the 

delay.

    (ii) Notification of INS decision and of informal hearing 

procedures. When the



[[Page 71]]



responsible entity receives a copy of the INS decision, the responsible 

entity shall notify the family of its right to request an informal 

hearing on the responsible entity's ineligibility determination in 

accordance with the procedures of paragraph (f) of this section.

    (4) No delay, denial, reduction, or termination of assistance until 

completion of INS appeal process; direct appeal to INS. Pending the 

completion of the INS appeal under this section, assistance may not be 

delayed, denied, reduced or terminated on the basis of immigration 

status.

    (f) Informal hearing--(1) When request for hearing is to be made. 

After notification of the INS decision on appeal, or in lieu of request 

of appeal to the INS, the family may request that the responsible entity 

provide a hearing. This request must be made either within 30 days of 

receipt of the notice described in paragraph (d) of this section, or 

within 30 days of receipt of the INS appeal decision issued in 

accordance with paragraph (e) of this section.

    (2) Informal hearing procedures--(i) Tenants assisted under a 

Section 8 covered program: For tenants assisted under a Section 8 

covered program, the procedures for the hearing before the responsible 

entity are set forth in:

    (A) For Section 8 Moderate Rehabilitation assistance: 24 CFR part 

882;

    (B) For Section 8 tenant-based assistance: 24 CFR part 982; or

    (C) For Section 8 project-based certificate program: 24 CFR part 

983.

    (ii) Tenants assisted under any other Section 8 covered program or a 

Public Housing covered program: For tenants assisted under a Section 8 

covered program not listed in paragraph (f)(3)(i) of this section or a 

Public Housing covered program, the procedures for the hearing before 

the responsible entity are set forth in 24 CFR part 966.

    (iii) Families under Housing covered programs and applicants for 

assistance under all covered programs. For all families under Housing 

covered programs (applicants as well as tenants already receiving 

assistance) and for applicants for assistance under all covered 

programs, the procedures for the informal hearing before the responsible 

entity are as follows:

    (A) Hearing before an impartial individual. The family shall be 

provided a hearing before any person(s) designated by the responsible 

entity (including an officer or employee of the responsible entity), 

other than a person who made or approved the decision under review, and 

other than a person who is a subordinate of the person who made or 

approved the decision;

    (B) Examination of evidence. The family shall be provided the 

opportunity to examine and copy at the individual's expense, at a 

reasonable time in advance of the hearing, any documents in the 

possession of the responsible entity pertaining to the family's 

eligibility status, or in the possession of the INS (as permitted by INS 

requirements), including any records and regulations that may be 

relevant to the hearing;

    (C) Presentation of evidence and arguments in support of eligible 

status. The family shall be provided the opportunity to present evidence 

and arguments in support of eligible status. Evidence may be considered 

without regard to admissibility under the rules of evidence applicable 

to judicial proceedings;

    (D) Controverting evidence of the responsible entity. The family 

shall be provided the opportunity to controvert evidence relied upon by 

the responsible entity and to confront and cross-examine all witnesses 

on whose testimony or information the responsible entity relies;

    (E) Representation. The family shall be entitled to be represented 

by an attorney, or other designee, at the family's expense, and to have 

such person make statements on the family's behalf;

    (F) Interpretive services. The family shall be entitled to arrange 

for an interpreter to attend the hearing, at the expense of the family, 

or responsible entity, as may be agreed upon by the two parties to the 

proceeding; and

    (G) Hearing to be recorded. The family shall be entitled to have the 

hearing recorded by audiotape (a transcript of the hearing may, but is 

not required to, be provided by the responsible entity).

    (3) Hearing decision. The responsible entity shall provide the 

family with a written final decision, based solely on



[[Page 72]]



the facts presented at the hearing, within 14 days of the date of the 

informal hearing. The decision shall state the basis for the decision.

    (g) Judicial relief. A decision against a family member, issued in 

accordance with paragraphs (e) or (f) of this section, does not preclude 

the family from exercising the right, that may otherwise be available, 

to seek redress directly through judicial procedures.

    (h) Retention of documents. The responsible entity shall retain for 

a minimum of 5 years the following documents that may have been 

submitted to the responsible entity by the family, or provided to the 

responsible entity as part of the INS appeal or the informal hearing 

process:

    (1) The application for financial assistance;

    (2) The form completed by the family for income reexamination;

    (3) Photocopies of any original documents (front and back), 

including original INS documents;

    (4) The signed verification consent form;

    (5) The INS verification results;

    (6) The request for an INS appeal;

    (7) The final INS determination;

    (8) The request for an informal hearing; and

    (9) The final informal hearing decision.

    (i) Termination of assisted occupancy. (1) Under Housing covered 

programs, and in the Section 8 covered programs other than the Section 8 

Rental Certificate, Rental Voucher, and Moderate Rehabilitation 

programs, assisted occupancy is terminated by:

    (i) If permitted under the lease, the responsible entity notifying 

the tenant that because of the termination of assisted occupancy the 

tenant is required to pay the HUD-approved market rent for the dwelling 

unit.

    (ii) The responsible entity and tenant entering into a new lease 

without financial assistance.

    (iii) The responsible entity evicting the tenant. While the tenant 

continues in occupancy of the unit, the responsible entity may continue 

to receive assistance payments if action to terminate the tenancy under 

an assisted lease is promptly initiated and diligently pursued, in 

accordance with the terms of the lease, and if eviction of the tenant is 

undertaken by judicial action pursuant to State and local law. Action by 

the responsible entity to terminate the tenancy and to evict the tenant 

must be in accordance with applicable HUD regulations and other HUD 

requirements. For any jurisdiction, HUD may prescribe a maximum period 

during which assistance payments may be continued during eviction 

proceedings and may prescribe other standards of reasonable diligence 

for the prosecution of eviction proceedings.

    (2) In the Section 8 Rental Certificate, Rental Voucher, and 

Moderate Rehabilitation programs, assisted occupancy is terminated by 

terminating assistance payments. (See provisions of this section 

concerning termination of assistance.) The PHA shall not make any 

additional assistance payments to the owner after the required 

procedures specified in this section have been completed. In addition, 

the PHA shall not approve a lease, enter into an assistance contract, or 

process a portability move for the family after those procedures have 

been completed.



[61 FR 13616, Mar. 27, 1996, as amended at 61 FR 60539, Nov. 29, 1996; 

64 FR 25731, May 12, 1999]