HUD Handbook 4350.3 § 8-7

Immigration Status

        A.       Applicability

                 As stated in paragraphs 3-12 F. and 4-31 A., the restriction on assistance to
                 noncitizens applies to all properties covered by this handbook, except the
                 following:

                 1.         Section 221(d)(3) BMIR properties;

                 2.         Section 202 PAC;

                 3.         Section 202 PRAC; and

                 4.         Section 811 PRAC.

        B.       When Assistance Must Not Be Terminated

                 An owner must not terminate assistance on the basis of ineligible immigration
                 status of a family member if:

                 1.         The primary (automated) and secondary (manual) verification search of any
                            immigration documents that were submitted in time has not been
                            completed by the DHS;

                 2.         The family member for whom required evidence has not been submitted
                            has moved from the assisted dwelling unit;

3.         The family member who is determined not to have eligible immigration
                            status following DHS verification has moved from the assisted dwelling unit;

                 4.         The DHS appeals process under 24 CFR 5.514(e) has not been concluded
                            (see subparagraph C below);

                 5.         Assistance is prorated in accordance with 24 CFR 5.520;

                 6.         Assistance for a mixed family is continued in accordance with 24 CFR
                            5.516 and 24 CFR 5.518; or

                 7.         Deferral of termination of assistance is granted in accordance with 24 CFR
                            5.516 and 24 CFR 5.518.

        C.       Termination of Assistance When Unable to Establish Citizenship or Eligible
                 Immigration Status

                 1.         When an owner is unable to establish citizenship or eligible immigration
                            status of family members, as discussed in paragraph 8-5 E, assistance to a
                            tenant cannot be terminated until the completion of an informal hearing.

                 2.         Within 30 days of a DHS appeal decision or a notice from the owner
                            terminating assistance, a tenant may request that the owner provide a
                            hearing. The hearing procedures are outlined below.

                            a.     The tenant must be provided a hearing before any person(s)
                                   designated by the owner, 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.     The tenant must be provided the opportunity to examine and copy,
                                   at the tenant's expense and at a reasonable time in advance of the
                                   hearing, any documents in the possession of the owner pertaining
                                   to the tenant’s eligibility status, or in the possession of the DHS (as
                                   permitted by DHS requirements), including any records and
                                   regulations that may be relevant to the hearing;

                            c.     The tenant must be provided the opportunity to present evidence
                                   and arguments in support of eligible immigration status. Evidence
                                   may be considered without regard to admissibility under the rules of
                                   evidence applicable to judicial proceedings;

                            d.     The tenant must be provided the opportunity to argue against
                                   evidence relied upon by the responsible entity and to confront and
                                   cross-examine all witnesses on whose testimony or information the
                                   owner relies;

                            e.     The tenant must be entitled to be represented by an attorney, or
                                   other designee, at the tenant’s expense, and to have such person
                                   make statements on the tenant’s behalf;

f.     The tenant must be entitled to arrange for an interpreter to attend
                                   the hearing, at the expense of the tenant, or owner, as may be
                                   agreed upon by the two parties; and

                            g.     The tenant must be entitled to have the hearing recorded by
                                   audiotape (a transcript of the hearing may, but is not required to, be
                                   provided by the owner).

                 3.         The owner must provide a written final decision, based solely on the facts
                            presented at the hearing, to the tenant within 14 days of the date of the
                            informal hearing. The decision must also state the basis for the
                            determination. As with the notice, the decision must be in an accessible
                            form if being provided to a tenant with a disability.

                 4.         A decision against a tenant member issued in accordance with the
                            requirements listed above does not preclude the tenant from exercising the
                            right, which may otherwise be available, to seek redress directly through
                            the judicial procedures.

                 5.         The owner must retain for a minimum of 5 years the following documents
                            that may have been submitted by the tenant or provided to the owner as
                            part of the DHS appeal or the informal hearing process:

                            a.     The application for financial assistance;

                            b.     The form completed by the tenant for income re-examination;

                            c.     Photocopies of any original documents (front and back), including
                                   original DHS documents;

                            d.     The signed verification consent form;

                            e.     The DHS verification results;

                            f.     The request for an DHS appeal;

                            g.     The final DHS determination;

                            h.     The request for an informal hearing; and

                            i.     The final informal hearing decision.

        D.       Termination of Assistance When a Tenant Allows an Ineligible Individual to
                 Reside in a Unit

                 If the owner terminates assistance based on a determination that a tenant has
                 knowingly permitted another individual who is not eligible for assistance to reside
                 (on a permanent basis) in the unit:

1.       Such termination must be for a period of not less than 24 months; and

                2.       This provision does not apply to a tenant if, when calculating any proration
                         of assistance provided for the family, the individual’s ineligibility was known
                         and considered.