Cal. Code Regs. tit. 25 § 5806

Current through Register 2024 Notice Reg. No. 45, November 8, 2024

Section 5806 - Definitions

The following definitions shall apply to this chapter:

(a) "Alien" means any person not a citizen or national of the United States.

(b) "Applicant" means a person applying for a public benefit subject to this chapter. "Applicant" does not include a partnership or a corporation.

(c) "Department" means the California Department of Housing and Community Development.

(d) "Enforcement Agency" means the department or, for purposes of the Employee Housing regulations (Chapter 1, Subchapter 3, beginning with § 600), an enforcement agency as defined in § 17007 of the Health and Safety Code, or, for purposes of the Mobilehome Parks regulations (Chapter 2, Subchapters 1 and 2, beginning with § 1000), an enforcement agency as defined in § 18207 of the Health and Safety Code.

(e) "INA" means the Immigration and Nationality Act (8 U.S.C. § 1101et seq.).

(f) "INS" means the United States Immigration and Naturalization Service.

(g) "Nonimmigrant" means the same as in Section 101(a)(15) of the INA (8 U.S.C. § 1101 (a)(15)).

(h) "PRWORA" means the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. No. 104-193, 8 U.S.C. § 1621).

(i) "Public Benefit" means any of the following:

(1) A permit to operate employee housing, including a permit renewal, multiple year permit or a conditional permit, obtained under Employee Housing regulations, Article 4 of Chapter 1 of this Division, beginning with § 631;

(2) A permit to operate a mobilehome park or special occupancy park, obtained under Mobilehome Parks Act regulations, Chapter 2 of this Division, beginning with § 1000;

(3) A certification by the Department of a design approval agency, quality assurance agency, or quality assurance inspector, obtained under Factory-Built Housing regulations, Subchapter 1 of Chapter 3 of this Division, beginning with § 3000;

(4) A certification by the department of a design approval agency, quality assurance agency, or quality assurance inspector, obtained under Manufactured Housing regulations, Article 5 of Subchapter 2 of Chapter 3 of this Division, beginning with § 4850.

(5) An occupational license, temporary permit, instructor approval, or 90-day certificate issued by the department to a manufacturer, dealer, distributor, salesperson, 90-day certificate holder, course provider, or instructor, obtained under Manufactured Housing Sales, Occupational Licensing and Education regulations, Subchapter 1 of Chapter 4 of this Division, beginning with § 5000, or Subchapter 2 of Chapter 4 of this Division, beginning with § 5300.)

(j) "Qualified Alien" means an alien who, at the time he or she applies for, receives, or attempts to receive a public benefit, is, under Section 431(b) of the PRWORA (8 U.S.C. § 1641(b)), any of the following:

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

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

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

(4) An alien who is paroled into the United States under Section 212(d)(5) of the INA (8 U.S.C. § 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. § 1253(h)) (as in effect immediately before the effective date of section 307of Public Law 104-208) or Section 241(b)(3) of such Act (8 U.S.C. § 1251(b)(3)) (as amended by Section 305(a)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. § 1153(a)(7)). (See editorial note under 8 U.S.C. § 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. § 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) In the opinion of the enforcement agency there is a substantial connection between such battery and cruelty and the need for the benefits to be provided. 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 alien requires medical attention or mental health counseling, or has become disabled, as a result of the battery or extreme cruelty.

6. 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 a day care facility for fear of being found by the abuser).

7. The benefits are needed to alleviate nutritional risk or need resulting from the abuse or following separation from the abuser.

8. The benefits are needed to provide medical care during a pregnancy resulting from the abuser's sexual assault or abuse of, or relationship with, the alien and/or to care for any resulting children.

9. Where medical coverage and/or health care services are needed to replace medical coverage or health care services the alien had when living with the abuser.

(C) The alien has been approved 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. § 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. § 1154 (a) (1) (B) (ii) or (iii));

3. suspension of deportation pursuant to § 244(a)(3) of the INA (8 U.S.C. § 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. 1229 b] (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. § 1154 (a) (1) (A)(i) or classification pursuant to clause (i) of Section 204 (a)(1)(B) of the INA (8 U.S.C. § 1154 (a) (1) (B)(i)), or

5. cancellation of removal pursuant to section 240(b)(2)(A) of the INA (8 U.S.C. § 1229(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) In the opinion of the enforcement agency, there is a substantial connection between such battery or cruelty and the need for the benefits to be provided. 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 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 alien's child requires medical attention or mental health counseling, or has become disabled, as a result of the battery or extreme cruelty.

6. 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 facility for fear of being found by the abuser).

7. The benefits are needed to alleviate nutritional risk or need resulting from the abuse or following separation from the abuser.

8. The benefits are needed to provide medical care during a pregnancy resulting from the abuser's sexual assault or abuse of, or relationship with, the alien's child and/or to care for any resulting children.

9. Where medical coverage and/or health care services are needed to replace medical coverage or health care services the alien's child had when living with the abuser.

(D) The alien meets the requirements of subsection (j)(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) In the opinion of the enforcement agency there is a substantial connection between such battery or cruelty and the need for the benefits to be provided. 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 alien child's parent requires medical attention or mental health counseling, or has become disabled, as a result of the battery or extreme cruelty.

6. 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 facility for fear of being found by the abuser).

7. The benefits are needed to alleviate nutritional risk or need resulting from the abuse or following separation from the abuser.

8. The benefits are needed to provide medical care during a pregnancy resulting from the abuser's sexual assault or abuse of, or relationship with, the alien child's parent and/or to care for any resulting children.

9. Where medical coverage and/or health care services are needed to replace medical coverage or health care services the alien child's parent had when living with the abuser.

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

(k) "Unqualified Alien" means an alien who is not a qualified alien.

Cal. Code Regs. Tit. 25, § 5806

1. New section filed 3-20-98 as an emergency; operative 4-6-98 (Register 98, No. 12). A Certificate of Compliance must be transmitted to OAL by 8-4-98 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 8-4-98 as an emergency; operative 8-4-98 (Register 98, No. 32). A Certificate of Compliance must be transmitted to OAL by 12-2-98 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 8-4-98 order, including amendment of subsections (j)(9)(D) and (j)(10)(C) and redesignation of former subsection (j)(10)(D) as subsection (k), transmitted to OAL 12-1-98 and filed 1-14-99 (Register 99, No. 3).

Note: Authority cited: Sections 17003.5, 17020, 18015, 18020, 18300, 19990 and 19991.3, Health and Safety Code; and Section 15376, Government Code. Reference: 8 U.S.C. Sections 1621, 1641 and 1642; Sections 17003.5, 17020, 18015, 18020, 18300, 19990 and 19991.3, Health and Safety Code; and Section 15376, Government Code.