SSR 78-21c: SECTION 202(n) (42 U.S.C. 402(n)) NON-PAYMENT OF BENEFITS -- DEPORTATION -- CONSTITUTIONALITY

20 CFR 404.464

SSR 78-21c

MARTINEZ v. MATHEWS, IA Unempl. Ins. Rep. ¶ 15384 (C.A. 9-1977)

PER CURIAM:

Appellant, Macario Martinez, a native and citizen of Mexico, illegally

entered the United States in 1934 and resided here continually from 1934

to 1960. During this period he was employed, and contributions were made

on his behalf to the Social Security System. In 1960 he was convicted for

working without a passport and was subsequently deported. He was lawfully

readmitted to the United States in 1973. He was denied retirement

insurance benefits under Title II of the Social Security Act for the

period during which he was in Mexico under deportation. He was, however,

granted retroactive benefits for the period immediately preceding

deportation and payments were resumed upon his lawful reentry into this

country in March 1973. He challenges the denial of benefits during the

period of his deportation.

Jurisdiction of the district court was asserted pursuant to 28 U.S.C. §

1331 and 42 U.S.C. § 405(g). The issue raised is whether 42 U.S.C. §

402(h) which prohibits the payment of Social Security benefits to deported

aliens, is constitutional. The district court held that the prohibition is

constitutional. We affirm.

The issue appears to have been resolved in Flemming v. Nestor , 363

U.S. 603 (1960). There, the appellee became eligible for old-age benefits

in November 1955. In July 1956 he was deported for having been a member of

the Communist Party. Because this was one of the benefit-termination

deportation grounds under 42 U.S.C. § 402(h),8 his benefits were

terminated and notice given. He failed to obtain administrative reversal

of the decision and sought relief in the district court. That court held

the provision unconstitutional and the Secretary appealed directly

pursuant to 28 U.S.C. § 1252.

a member of

the Communist Party. Because this was one of the benefit-termination

deportation grounds under 42 U.S.C. § 402(h),8 his benefits were

terminated and notice given. He failed to obtain administrative reversal

of the decision and sought relief in the district court. That court held

the provision unconstitutional and the Secretary appealed directly

pursuant to 28 U.S.C. § 1252.

The Supreme Court held that 42 U.S.C. §

402(h) [1] did not deprive

appellee of an "accrued property right" in benefit payments such as would

make every defeasance of that right violative of the Due Process Clause of

the Fifth Amendment.

Appellant's suggestion that Flemming is no longer the law does not

find support in the Court's recent decisions. See Califano v.

Webster , 97 S.Ct. 1192 (1977); Califano v. Goldfarb , 430 U.S.

199 (1977); Mathews v. Diaz , 426 U.S. 67 (1976).

The judgment is AFFIRMED.

[1] Reference should be to

§402(n)(ED.)