Rescinded 1984
SSR 78-29: Section 202(n) (42 U.S.C. 402(n)) Nonpayment of Benefits—Due to Deportation Notification—Reopening of Determination
20 CFR 404.464 and 404.957
SSR 78-29
Payment of benefits to an individual is precluded under section 202(n) of the Social Security Act if the individual has been deported under certain paragraphs of section 241(a) of the Immigration and Nationality Act and the Secretary of HEW has been notified by the Attorney General that the individual has been so deported. Where the Social Security Administration (SSA) suspends payment of benefits pursuant to section 202(n) of the Act, after receiving a notice of deportation concerning an individual, and SSA is subsequently advised by the Immigration and Naturalization Service that the individual has not been deported under section 214(a) of the Immigration and Nationality Act, SSA's initial determination to stop payment may be reopened under section 404.957 of Social Security Regulations No. 4.
A question has been raised as to whether a wage earner's benefit payments may be resumed under section 202(n) of the Social Security Act if the Immigration and Nationality Service (after having sent a notice of deportation concerning the wage earner) subsequently advises that his deportation order was not executed "due to the appealing humanitarian factors in this case." Benefits for the wage earner were stopped effective November 1973 on the basis of a Notice of Deportation (Form I-157) from the Immigration and Naturalization Service which indicated that the wage earner was deported to Mexico on July 19, 1973.
Section 202(n)(1) of the Social Security Act provides, in pertinent part, that:
"[i]f any individual is . . . deported under [certain designated paragraphs] of section 241(a) of the Immigration and Nationality Act... no monthly benefit under . . . section [202] or section 223 shall be paid to such individual . . . for any occurring . . . after the month in which the Secretary is notified by the Attorney General that such individual has been so deported . . . ." Section 202(n) provides:
"As soon as practicable after the deportation of any individual under any of the paragraphs of section 241(a) of the Immigration and Nationality Act enumerated in paragraph (1) of this subsection, the Attorney General shall notify the Secretary of such deportation."
It would appear on the basis of the foregoing provisions that payment of benefits to an individual would be precluded under section 202(n) if two conditions exist: (1) the individual has been deported under the Immigration and Nationality Act[*] and (2) the Secretary has been notified by the Attorney General that the individual has been so deported. With respect to the first condition, the Social Security Administration is not empowered under section 202(n) of the Social Security Act to make independent findings as to whether an individual has been deported, but must accept the statement from the Immigration and Naturalization Service that the individual has been deported under a specified provision of the Immigration and Nationality Act. Nevertheless, when a question arises concerning the substance or effect of the notice from the Immigration and Naturalization Service, SSA would not be precluded from contacting the Immigration and Naturalization Service and developing further with them the question of the wage earner's deportation.
In the instant case, the letter from the Immigration and Naturalization Service dated April 24, 1974, raises a serious question as to whether the wage earner was deported under the Immigration and Nationality Act. It appears from the letter the wage earner did not physically depart from the United States under an effective, final order of deportation. Therefore, additional development with the Immigration and Naturalization Service would be necessary to determine if the original notice of deportation correctly reflected the occurrence of the wage earner's deportation. If as a result of such development the Immigration and Naturalization Service advises SSA that the wage earner has not been deported, SSA may reopen its initial determination to stop payments under section 404.957 of Social Security Administration Regulations No. 4. If, on the other hand, the Immigration and Naturalization Service states that the individual was deported under section 241(a) of the Immigration and Nationality Act as indicated in the original notice, then benefits may be resumed only under the criteria prescribed in section 202(n)(1), i.e., in the event the individual is thereafter lawfully admitted to the United States for permanent residence.
[*]A finding that the individual was within one of the specified classes of deportable aliens in section 214(a) of the Immigration Act would not be sufficient; the individual must have been "deported" under that subsection of the Immigration Act.