§ 20561. Limitations on Homeowners and Renters Property Tax Assistance.

(a) All eligibility requirements contained herein shall be applied without regard to the race, creed, color, gender, religion, or national origin of the individual applying for the public benefit related to Homeowners and Renters Property Tax Assistance.

(b) Pursuant to Section 411 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. No. 104-193 (PRWORA)), (8 U.S.C. s 1621), and notwithstanding any other provision of the Senior Citizens Homeowners and Renters Property Tax Law, aliens who are not qualified aliens, nonimmigrant aliens under the Immigration and Nationality Act (INA) (8 U.S.C. s 1101 et seq.), or aliens paroled into the United States under Section 212(d)(5) of the INA (8 U.S.C. s 1182(d)(5)) for less than one year, are not eligible to receive Homeowners and Renters Property Tax Assistance as set forth in Part 10.5 of the Revenue and Taxation Code. For purposes of this section, any assistance or payment provided under Part 10.5, Chapter 1, the Senior Citizens Homeowners and Renters Property Tax Law, is a State public benefit, as that term is used in Section 411 of PRWORA.

(c) A qualified alien is an alien who, at the time he or she applies for, receives, or attempts to receive a public benefit, is, under Section 431(b) and (c) of the PWRORA (8 U.S.C. s 1641(b) and (c)), any of the following:

(1) An alien who is lawfully admitted for permanent residence under the INA (8 U.S.C. s 1101 et seq.).

(2) An alien who is granted asylum under Section 208 of the INA (8 U.S.C. s 1158).

(3) A refugee who is admitted to the United States under Section 207 of the INA (8 U.S.C. s 1157).

(4) An alien who is paroled into the United States under Section 212(d)(5) of the INA (8 U.S.C. s 1182(d)(5)) for a period of at least one year.

(5) An alien whose deportation is being withheld under Section 243(h) of the INA (8 U.S.C. s 1253(h)) (as in effect immediately before the effective date of Section 307 of division C of Public Law 104-208) or Section 241(b)(3) of such Act (8 U.S.C. s 1251(b)(3)) (as amended by Section 305(a) of division C of Public Law 104-208).

(6) An alien who is granted conditional entry pursuant to Section 203(a)(7) of the INA as in effect prior to April 1, 1980. (8 U.S.C. s 1153(a)(7)) (See editorial note under 8 U.S.C. s 1101, “Effective Date of 1980 Amendment.”)

(7) An alien who is a Cuban or Haitian entrant (as defined in Section 501(e) of the Refugee Education Assistance Act of 1980 (8 U.S.C. s 1522 note)).

(8) An alien who meets all of the conditions of subparagraphs (A), (B), (C), and (D) below:

(A) The alien has been battered or subjected to extreme cruelty in the United States by a spouse or a parent, or by a member of the spouse's or parent's family residing in the same household as the alien, and the spouse or parent of the alien consented to, or acquiesced in, such battery or cruelty. For purposes of this subsection, the term “battered or subjected to extreme cruelty” includes, but is not limited to, being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence.

(B) There is a substantial connection between such battery or cruelty and the need for the benefits to be provided in the opinion of the Franchise Tax Board. For purposes of this subsection, the following circumstances demonstrate a substantial connection between the battery or cruelty and the need for the benefits to be provided:

1. The benefits are needed to enable the alien to become self-sufficient following separation from the abuser.

2. The benefits are needed to enable the alien to escape the abuser and/or the community in which the abuser lives, or to ensure the safety of the alien from the abuser.

3. The benefits are needed due to a loss of financial support resulting from the alien's separation from the abuser.

4. The benefits are needed because the battery or cruelty, separation from the abuser, or work absences or lower job performance resulting from the battery or extreme cruelty or from legal proceedings relating thereto (including resulting child support, child custody, and divorce actions) cause the alien to lose his or her job or to earn less or to require the alien to leave his or her job for safety reasons.

5. The benefits are needed because the loss of a dwelling or source of income or fear of the abuser following separation from the abuser jeopardizes the alien's ability to care for his or her children (e.g., inability to house, feed, or clothe children or to put children into day care for fear of being found by the abuser).

(C) The alien has an approved petition or has a petition pending which sets forth a prima facie case for:

1. status as a spouse or child of a United States citizen pursuant to clause (ii), (iii), or (iv) of Section 204(a)(1)(A) of the INA (8 U.S.C. s 1154(a)(1)(A)(ii), (iii) or (iv)),

2. classification pursuant to clause (ii) or (iii) of Section 204(a)(1)(B) of the INA (8 U.S.C. s 1154 a)(1)(B)(ii) or (iii)),

3. suspension of deportation and adjustment of status pursuant to section 244(a)(3) of the INA (8 U.S.C. s 1254) as in effect prior to April 1, 1997 [Pub. L. 104-208. sec. 501 (effective September 30, 1996, pursuant to sec. 591), Pub. L. 104-208. sec. 304 (effective April 1, 1997, pursuant to sec. 309): Pub. L. 105-33, sec. 5581 (effective pursuant to sec. 5582)] (incorrectly codified as “cancellation of removal under section 240A of such Act [8 USCS sec. 1229b] (as in effect prior to April 1, 1997)”,

4. status as a spouse or child of a United States citizen pursuant to clause (i) of Section 204(a)(1)(A) of the INA (8 U.S.C. s 1154(a)(1)(A)(i)) or classification pursuant to clause (i) of Section 204(a)(1)(B) of the INA (8 U.S.C. s 1154(a)(1)(B)(i)), or

5. cancellation of removal pursuant to section 240A(b)(2) of the INA (8 U.S.C. s 1229b(b)(2)).

(D) For the period for which benefits are sought, the individual responsible for the battery or cruelty does not reside in the same household or family eligibility unit as the individual subjected to the battery or cruelty.

(9) An alien who meets all of the conditions of subparagraphs (A), (B), (C), (D) and (E) below:

(A) The alien has a child who has been battered or subjected to extreme cruelty in the United States by a spouse or a parent of the alien (without the active participation of the alien in the battery or cruelty), or by a member of the spouse's or parent's family residing in the same household as the alien, and the spouse or parent consented or acquiesced to such battery or cruelty. For purposes of this subsection, the term “battered or subjected to extreme cruelty” includes, but is not limited to being the victim of any act or threatened act of violence including any forceful detention, which results or threatens to result in physical or mental injury. Rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence.

(B) The alien did not actively participate in such battery or cruelty.

(C) There is a substantial connection between such battery or cruelty and the need for the benefits to be provided in the opinion of the Franchise Tax Board. For purposes of this subsection, the following circumstances demonstrate a substantial connection between the battery or cruelty and the need for the benefits to be provided:

1. The benefits are needed to enable the alien's child to become self-sufficient following separation from the abuser.

2. The benefits are needed to enable the alien's child to escape the abuser and/or the community in which the abuser lives, or to ensure the safety of the alien's child from the abuser.

3. The benefits are needed due to a loss of financial support resulting from the alien's child's separation from the abuser.

4. The benefits are needed because the battery or cruelty, separation from the abuser, or work absences or lower job performance resulting from the battery or extreme cruelty or from legal proceedings relating thereto (including resulting child support, child custody, and divorce actions) cause the alien's child to lose his or her job or to earn less or to require the alien's child to leave his or her job for safety reasons.

5. The benefits are needed because the loss of a dwelling or source of income or fear of the abuser following separation from the abuser jeopardizes the alien's child's ability to care for his or her children (e.g., inability to house, feed, or clothe children or to put children into a day care for fear of being found by the abuser).

(D) The alien meets the requirements of subsection (c)(8)(C) above.

(E) For the period for which benefits are sought, the individual responsible for the battery or cruelty does not reside in the same household or family eligibility unit as the individual subjected to the battery or cruelty.

(10) An alien child who meets all of the conditions of subparagraphs (A), (B), and (C) below:

(A) The alien child resides in the same household as a parent who has been battered or subjected to extreme cruelty in the United States by that parent's spouse or by a member of the spouse's family residing in the same household as the parent and the spouse consented or acquiesced to such battery or cruelty. For purposes of this subsection, the term “battered or subjected to extreme cruelty” includes, but is not limited to, being the victim of any act or threatened act of violence including any forceful detention, which results or threatens to result in physical or mental injury. Rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence.

(B) There is a substantial connection between such battery or cruelty and the need for the benefits to be provided in the opinion of the Franchise Tax Board. For purposes of this subsection, the following circumstances demonstrate a substantial connection between the battery or cruelty and the need for the benefits to be provided:

1. The benefits are needed to enable the alien child's parent to become self-sufficient following separation from the abuser.

2. The benefits are needed to enable the alien child's parent to escape the abuser and/or the community in which the abuser lives, or to ensure the safety of the alien child's parent from the abuser.

3. The benefits are needed due to a loss of financial support resulting from the alien child's parent's separation from the abuser.

4. The benefits are needed because the battery or cruelty, separation from the abuser, or work absences or lower job performance resulting from the battery or extreme cruelty or from legal proceedings relating thereto (including resulting child support, child custody, and divorce actions) cause the alien child's parent to lose his or her job or to earn less or to require the alien child's parent to leave his or her job for safety reasons.

5. The benefits are needed because the loss of a dwelling or source of income or fear of the abuser following separation from the abuser jeopardizes the alien child's parent's ability to care for his or her children (e.g., inability to house, feed, or clothe children or to put children into a day care for fear of being found by the abuser).

(C) The alien child meets the requirements of subsection (c)(8)(C) above.

(d) For purposes of this section, “nonimmigrant” is defined the same as in Section 101(a)(15) of the INA (8 U.S.C. s 1101(a)(15)).

(e) For purposes of establishing eligibility for Homeowners and Renters Property Tax Assistance under Part 10.5, Chapter 1, of the Revenue and Taxation Code, all of the following shall apply:

(1) The applicant must declare himself or herself to be a citizen of the United States, a qualified alien under subsection (c), a nonimmigrant alien under subsection (d), or an alien paroled into the United States for less than one year under Section 212(d)(5) of the INA (8 U.S.C. s 1182(d)(5)). The applicant shall declare that status in a claim for homeowner's or renter's assistance Form 9000 or 9000R in such manner and form as the Franchise Tax Board may prescribe. This form shall contain a declaration under penalty of perjury, which must be executed by the applicant. The Franchise Tax Board may require any other evidence, documents or information from the applicant it deems relevant as may be necessary to carry out the provisions of PRWORA, this Section and Part 10.5 of the Revenue and Taxation Code, as well as to verify information and declaration(s) set forth in the Form 9000 or 9000R.

(2) If requested by the Franchise Tax Board, the applicant must present documents of a type acceptable to the Immigration and Naturalization Services (INS) which serve as reasonable evidence of the applicant's declared status. The Franchise Tax Board may identify acceptable documents within forms and instructions.

(3) The Franchise Tax Board may compare and verify information and documents, including declared status, with information and documents obtained by any other Federal, state or local governmental agency, department or administrative body as it determines necessary to accomplish the purposes of PRWORA, and this verification shall serve as reasonable evidence of the alien's declared immigration status. If an applicant has been verified by another Federal, state or local governmental agency, department or administrative body to be a United States citizen or qualified alien, nonimmigrant alien under the Immigration and Nationality Act (INA) (8 U.S.C. s 1101 et seq.), or an alien paroled into the United States under Section 212(d)(5) of the INA (8 U.S.C. s 1182(d)(5)) for less than one year, the Franchise Tax Board, upon receipt or confirmation of that determination from the other agency, department or administrative body, may, in its discretion, rely on that determination for establishing eligibility of that applicant under PRWORA with respect to Homeowners and Renters Property Tax Assistance. For purposes of this Section, a state agency shall have the same meaning as set forth in paragraph (2) of subdivision (b) of Section 11346.3 of the Government Code.

(4) Where authorized by the INS and following a determination of the Franchise Tax Board to use INS, the documentation presented by an alien as reasonable evidence of the alien's declared immigration status shall be submitted to the INS for verification through the Systematic Alien Verification for Entitlements (SAVE) system procedures as follows:

(A) Unless the primary SAVE system is unavailable for use, the primary SAVE system verification shall be used to access the biographical/immigration status computer record contained in the Alien Status Verification Index maintained by the INS when the Franchise Tax Board elects to utilize the INS to verify documentation and alien status with respect to any alien. The Franchise Tax Board may utilize another state agency as an intermediary to obtain information from the INS to verify the status of any alien who claims to be a qualified alien and who presents an INS-issued document that contains an alien registration or alien admission number.

(B) In any of the following cases, the secondary SAVE system verification procedure may be used to forward copies of original INS documents evidencing an alien's status as a qualified alien, as a nonimmigrant alien under the INA, or as an alien paroled into the United States under Section 212(d)(5) of the INA (8 U.S.C. s 1182(d)(5)) for less than one year:

1. The primary SAVE system is unavailable for verification following the determination of the Franchise Tax Board to utilize the INS to verify documentation.

2. A primary check of the Alien Status Verification Index instructs the Franchise Tax Board to “institute secondary verification.”

3. The document presented indicates immigration status but does not include an alien registration or alien admission number.

4. The Alien Status Verification Index record includes the alien registration or admission number on the document presented by the alien but does not match other information contained in the document.

5. The document is suspected to be counterfeit or to have been altered.

6. The document includes an alien registration number in the A60 000 000 (not yet issued) or A80 000 000 (illegal border crossing) series.

7. The document is a fee receipt from INS for replacement of a lost, stolen, or unreadable INS document.

8. The document is one of the following: an INS Form I-181b notification letter issued in connection with an INS Form I-181 Memorandum of Creation of Record of Permanent Residence, an Arrival-Departure Record (INS Form I-94) or a foreign passport stamped “PROCESSED FOR I-551, TEMPORARY EVIDENCE OF LAWFUL PERMANENT RESIDENCE” that INS issued more than one year before the date of application for Homeowners and Renters Property Tax Assistance.

(5) Where verification is not accomplished as set forth in Subsections (3) or (4) above, if the documents presented do not on their face reasonably appear to be genuine or to relate to the individual presenting them, the government entity that originally issued the document shall be contacted for verification. With regard to naturalized citizens and derivative citizens presenting certificates of citizenship and aliens, the INS is the appropriate government entity to contact for verification. The Franchise Tax Board, or any party with which it may rely upon for assistance in complying with this Section and PRWORA, shall request verification by the INS by filing INS Form G-845 with copies of the pertinent documents provided by the applicant with the local INS office. If the applicant has lost his or her original documents, or presents expired documents or is unable to present any documentation evidencing his or her immigration status, the applicant shall be referred to the local INS office to obtain documentation.

(6) If the INS advises that the applicant has citizenship status or immigration status which makes him or her a qualified alien, a nonimmigrant alien under the INA, or alien paroled for less than one year under section 212(d)(5) of the INA, the INS verification shall be accepted. If the INS advises that it cannot verify that the applicant has citizenship status or an immigration status that makes him or her a qualified alien, a nonimmigrant alien under the INA, or an alien paroled for less than one year under section 212(d)(5) of the INA, benefits shall be denied and the applicant notified pursant to the regular procedures of his or her rights to appeal the denial of benefits under the Senior Citizens Homeowners and Renters Property Tax Law.

(7) Provided that the alien has submitted a completed claim for homeowner's or renter's assistance Form 9000 or 9000R signed under penalty of perjury, eligibility for Homeowners and Renters Property Tax Assistance shall not be denied, reduced or terminated while the status of the alien is verified. State employees may review documents pertaining to citizenship.

(8) The Franchise Tax Board, in its discretion with respect to any applicant, may accept photocopies of documents pertaining to declared alienage or citizenship.

(f) Pursuant to Section 434 of the PRWORA (8 U.S.C. s 1644), where the Franchise Tax Board reasonably believes that an alien is unlawfully in the State based on the failure of the alien to provide reasonable evidence of the alien's declared status, after an opportunity to do so, said alien shall be reported to the Immigration and Naturalization Service.

(g) Any applicant who is determined to be ineligible pursuant to subsection (b) and (e) or who was made eligible for Homeowners and Renters Property Tax Assistance whose services are terminated, suspended, or reduced pursuant to subsections (b) and (e), is entitled to a hearing, pursuant to Section 20645 of the California Revenue and Taxation Code.

HISTORY

1. New section filed 3-20-98 as an emergency; operative 4-1-98 (Register 98, No. 12). A Certificate of Compliance must be transmitted to OAL by 7-30-98 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 3-20-98 order, including amendment of subsection (c)(8)(B)4., transmitted to OAL 7-7-98 and filed 8-18-98 (Register 98, No. 34).

Note

Note: Authority cited: Sections 19503, 20642 and 20645, Revenue and Taxation Code. Reference: Sections 20541, 20561 and 20645, Revenue and Taxation Code; and 8 U.S.C. ss 1621, 1641 and 1642.