SSR 68-45: SECTION 202(n)(1). -- BENEFITS -- NONPAYMENT OF BENEFITS BECAUSE OF DEPORTATION

20 CFR 404.365

SSR 68-45

H, the deceased worker, was born in the United States and was taken to

Mexico by his parents in 1937. He returned to the United States in 1955.

In 1956 he was deported to Mexico, under section 241(a)(1) of the

Immigration and Nationality Act (8 U.S.C. 1251(a)(1)). His deportation

resulted from a finding that he had voted in the 1946 presidential

election of Mexico and that he had thereby expatriated himself under the

provisions of section 401(e) of the Nationality Act of 1940, 54 Stat.

1168. After his death, his survivors who were aliens residing in Mexico

led application for social security benefits based on his earnings

record.

Section 202(n)(1) of the Social Security Act, as pertinent here,

provides:

Thus under the facts here, section 202(n)(1) would, because of H's

deportation, preclude payment of benefits under title II of the Social

Security Act to the survivors of H, based on his earnings record. However,

the question has been raised as to whether H could be considered not to

have been expatriated and hence not subject to deportation, in view of the

recent decision of the United States Supreme Court in Afroyim v.

Rusk , 387 U.S. 253 (1967).

In the Afroyim case, supra, Mr. Afroyim, who was born in Poland,

emigrated to the United States and became a naturalized citizen in 1926.

He went to Israel in 1950 and in 1951 he voluntarily voted in an election

for the Israeli Knesset, the legislative body of Israel. In 1960, when he

applied for renewal of his United States passport, the Department of State

refused to grant it. It was held that he had lost his American

citizenship, as required by section 401(e) of the Nationality Act of 1940,

(reenacted as section 349(a)(5) of the Immigration and Nationality Act of

1952, 8 U.S.C. section 1431(a)(5)), which states that a United States

citizen shall lose his nationality by "voting in a political election in a

foreign state." Mr

ent of State

refused to grant it. It was held that he had lost his American

citizenship, as required by section 401(e) of the Nationality Act of 1940,

(reenacted as section 349(a)(5) of the Immigration and Nationality Act of

1952, 8 U.S.C. section 1431(a)(5)), which states that a United States

citizen shall lose his nationality by "voting in a political election in a

foreign state." Mr. Afroyim claimed that section 401(e), supra, violated

the Due Process Clause of the Fifth Amendment and section 1, clause 1, of

the Fourteenth Amendment to the

Constitution. [1] On the basis of

the Fourteenth Amendment, the Supreme Court held that the Government did

not have the power to deprive an individual of his citizenship as a result

of his voting in a foreign political election and that section 401(e),

supra, insofar as it attempted to do so, was unconstitutional.

The question presented therefore is what effect does the Afroyim decision have on the expatriation and deportation of the worker herein. In Norton v. County of Shelby , 118 U.S. 425 (1886), the Supreme Court

held that "an unconstitutional Act is not a law. . . [I]t is in legal

contemplation, as inoperative as though it had never been passed." See

also, Chicago, Indianapolis and Louisville Railway Company v.

Hackett , 228 U.S. 559 (1913). Absent special exigencies (for instance,

those involved in certain aspects of the enforcement of the criminal law),

we believe the Supreme Court would continue to apply the doctrine of Norton . In Adkins v. Children's Hospital , 261 U.S. 525

as inoperative as though it had never been passed." See

also, Chicago, Indianapolis and Louisville Railway Company v.

Hackett , 228 U.S. 559 (1913). Absent special exigencies (for instance,

those involved in certain aspects of the enforcement of the criminal law),

we believe the Supreme Court would continue to apply the doctrine of Norton . In Adkins v. Children's Hospital , 261 U.S. 525

(1923), the Supreme Court held that the minimum wage law of the District

of Columbia was unconstitutional. In West Coast Hotel Co. v.

Parish , 300 U.S. 379 (1937), the court upheld the constitutionality of

the minimum wage law of the State of Washington and specifically overruled Adkins . In considering the effect of the Supreme Court's decision

in West Coast Hotel Co. v. Parish , supra, on the District of

Columbia minimum wage law, the Attorney General, in 39 Op. Atty. Gen.

(1937) pp. 22, 23, stated that "if a statute be declared unconstitutional

and the decision so declaring it be subsequently overruled the statute

will then be held valid from the date it became effective." In West

Coast Hotel Co. , the Supreme Court overruled a prior decision which

held a statute to be unconstitutional, and the statute was applied as if

the prior (overruled) decision had never existed. While the converse of

this situation is involved in Afroyim , the result would be

comparable. Afroyim overruled a prior decision, Perez v.

Brownell , 356 U.S. 44 (1958), which had upheld the constitutionality

of section 401(e) of the Nationality Act. When Afroyim later

declared that section 401(e) was unconstitutional, it would follow that

that provision should be considered "as inoperative as though it had never

been passed" and the prior decision finding it constitutional as though it

had never existed.

cision, Perez v.

Brownell , 356 U.S. 44 (1958), which had upheld the constitutionality

of section 401(e) of the Nationality Act. When Afroyim later

declared that section 401(e) was unconstitutional, it would follow that

that provision should be considered "as inoperative as though it had never

been passed" and the prior decision finding it constitutional as though it

had never existed.

In the light of the foregoing, H's expatriation and deportation must be

considered invalid. Accordingly, section 202(n)(1), supra, is not

applicable and benefits may be paid to his survivors, provided they

otherwise meet the requirements for entitlement under the Act.

[1] The Fourteenth Amendment,

section 1, clause 1, provides:

"All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States * * *."