SSR 78-29: Rescinded 1984

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:

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.

l 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.