SSR 87-12c: SECTION 202(n) OF THE SOCIAL SECURITY ACT (42 U.S.C. 402(n)) BENEFITS -- NONPAYMENT OF BENEFITS BECAUSE OF DEPORTATION

20 CFR 404.464 (a)

SSR 87-12c

Marcello v. Bowen, 803 F.2d 851 (5th Cir. 1986)

PER CURIAM:

Plaintiff appeals from the judgment of the district court granting

defendant's motion for summary judgment and dismissing plaintiff's

complaint. We affirm.

I.

Appellant, Carlos Marcello, was brought to the United States as a baby

and admitted as a legal resident in 1910. In 1938, Marcello was convicted

of violating the Marihuana Tax Act, 26 U.S.C. § 2591. At that time, such a

violation was not a ground for deportation but § 241(a)(11) of the 1952

Immigration and Nationality Act (INA), 83 U.S.C. § 1251(a)(11), made such

conviction at any time a ground for

deportation. [1] Proceedings to

effect Marcello's deportation were brought by the government based on the

aforementioned conviction, and an order of deportation was issued. The

order of deportation was appealed administratively. After Marcello had

exhausted his administrative remedies, he brought an action for a writ of

habeas corpus challenging the validity of the deportation order on various

grounds. The district court held that the deportation order was valid and

discharged the writ. United States ex rel. Marcello v.

Ahrens , 113 F. Supp. 22 (E.D.La. 1953). The Court of Appeals and the

United States Supreme Court affirmed. See Marcello v. Bonds , 349

U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1955) (affirming Marcello v.

Ahrens , 212 F.2d 830 (5th Cir. 1954)).

rder on various

grounds. The district court held that the deportation order was valid and

discharged the writ. United States ex rel. Marcello v.

Ahrens , 113 F. Supp. 22 (E.D.La. 1953). The Court of Appeals and the

United States Supreme Court affirmed. See Marcello v. Bonds , 349

U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1955) (affirming Marcello v.

Ahrens , 212 F.2d 830 (5th Cir. 1954)).

Six months after the Supreme Court found that Marcello was a deportable

alien, Marcello became an alien subject to supervision under 8 U.S.C. §

1252(d). [2] The terms of

Marcello's order of supervision included travel restrictions and reporting

requirements. Marcello's attorney objected that there was no kind of

notice provision regarding the effectuation of Marcello's deportation; he

wanted several days' notice of a pending physical removal of Marcello from

the United States. The Immigration and Naturalization Service (INS)

considered that objection, among others, and issued a modified order of

supervision in May, 1956. In its letter of explanation to Marcello's

attorney, the INS stated that there was no three-day notice provision

required of them and no such provision was included in the order of

supervision. On April 4, 1961, when Marcello reported to the INS under the

terms of his order of supervision, he was deported to Guatemala. Five or

six weeks later Marcello reentered the United States without being

lawfully admitted. Following Marcello's deportation, the Social Security

Administration received a Form I-157, Notice of Deportation, from the INS,

stating that Marcello was deported to Guatemala on April 4, 1961. The

Social Security Administration has never received from the INS a Form

G-337, Notice of Lawful Reentry After Deportation, concerning Marcello.

he United States without being

lawfully admitted. Following Marcello's deportation, the Social Security

Administration received a Form I-157, Notice of Deportation, from the INS,

stating that Marcello was deported to Guatemala on April 4, 1961. The

Social Security Administration has never received from the INS a Form

G-337, Notice of Lawful Reentry After Deportation, concerning Marcello.

Marcello filed his application for retirement insurance benefits on

February 14, 1975. The Social Security Administration found initially and

on reconsideration that Marcello had been deported to Guatemala on April

4, 1961, and that he had never thereafter been lawfully admitted to the

United States for permanent residence. Therefore, pursuant to § 202(n) of

the Social Security Act (SSA), 42 U.S.C. § 402(n), Marcello was not

entitled to retirement insurance benefits.

A hearing de novo before an administration law judge (ALJ) was held on

May 22, 1984. The ALJ, in its August 30, 1984, decision, found that

Marcello was not entitled to retirement insurance benefits under the SSA.

The Appeals Council denied Marcello's request for review of the hearing

decision. The ALJ decision therefore became the final decision of the

Secretary.

On March 28, 1986, the District Court for the Eastern District of

Louisiana, with a United States Magistrate presiding by consent of the

parties under 28 U.S.C. § 636(c), entered judgment in favor of the

Secretary and dismissed Marcello's complaint. The court found that it

could not reach the issue of whether Marcello's deportation was illegally

executed and that the Secretary was entitled to rely, in denying benefits

under § 202(n), upon the Notice of Deportation sent by the INS.

Consequently, the district court found that there was substantial evidence

to support the Secretary's decision that, under § 202(n), retirement

insurance benefits were not payable to Marcello. This appeal followed.

II.

ello's deportation was illegally

executed and that the Secretary was entitled to rely, in denying benefits

under § 202(n), upon the Notice of Deportation sent by the INS.

Consequently, the district court found that there was substantial evidence

to support the Secretary's decision that, under § 202(n), retirement

insurance benefits were not payable to Marcello. This appeal followed.

II.

Under 42 U.S.C. § 405(g), a court reviewing a decision of the Secretary

is limited to determining whether there was substantial evidence in the

record as a whole to support the

decision. [3] The court cannot

reweigh the evidence or substitute its judgment for that of the Secretary.

See, e.g., Cook v. Heckler , 750 F.2d 391, 392 (5th Cir. 1985); Jones v. Heckler , 702 F.2d 616, 620 (5th Cir. 1983). Substantial

evidence is "such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion." Jones , 702 F.2d at 620. Summary

judgment is a proper vehicle for weighing such a decision of the

Secretary. See Thomas v. Schweiker , 666 F.2d 999, 1001 n. 2 (5th

Cir. 1982). If the Secretary's decision is supported by substantial

evidence, the findings are conclusive and must be affirmed. See Richardson v. Perales , 402 U.S. 389, 390, 91 S.Ct., 1420, 1422, 28

L.Ed. 2d 842 (1971).

The district court, in reviewing the decision of the ALJ, noted that the

proceeding before the district court was limited to judicial review of the

Secretary's determination relative to the entitlement to Social Security

benefits, and that in its review, the court was limited to the

consideration of the pleadings and evidence contained in the

administrative record. See 42 U.S.C. § 405(g)

The district court, in reviewing the decision of the ALJ, noted that the

proceeding before the district court was limited to judicial review of the

Secretary's determination relative to the entitlement to Social Security

benefits, and that in its review, the court was limited to the

consideration of the pleadings and evidence contained in the

administrative record. See 42 U.S.C. § 405(g). In that regard, the court

noted that a Social Security proceedings is conducted without the

participation of the Attorney General or the INS and that the proceeding

does not afford to any part of the federal government the opportunity to

present evidence, other than a Notice of Deportation, on the issues

raised. Therefore, reasoned the district court, "an application for Social

Security benefits and the procedures provided by statute to contest the

denial of such benefits are not the appropriate means by which to

initially challenge the legality of the execution of a deportation." Marcello v. Heckler , E.D. La. 1986). The court went on to note

that:

Id . Since the district court found that it could not reach

Marcello's claim that the deportation was illegally executed, and after

reviewing the administrative record, the court found that the Secretary is

entitled to rely on the Notice of Deportation. Consequently, the court

found that there was substantial evidence to support the Secretary's

decision that retirement benefits were not payable to Marcello under §

202(n). The district court stated that the evidence clearly established

that, on April 4, 1961, Marcello was under an order of deportation

pursuant to 8 U.S.C. § 1251(a)(11), and that the validity of the order had

been upheld by the United States Supreme Court in Marcello v.

Bonds , 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107. Further, there was

substantial evidence that Marcello was, in fact, deported to Guatemala on

April 4, 1961, pursuant to the valid order of deportation

4, 1961, Marcello was under an order of deportation

pursuant to 8 U.S.C. § 1251(a)(11), and that the validity of the order had

been upheld by the United States Supreme Court in Marcello v.

Bonds , 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107. Further, there was

substantial evidence that Marcello was, in fact, deported to Guatemala on

April 4, 1961, pursuant to the valid order of deportation. Finally,

Marcello stipulated at the administrative hearing that there was no

evidence that he had been lawfully admitted to the United States for

permanent residence since his removal to Guatemala in 1961.

Marcello contends that the district court erred in finding that the

Secretary is entitled to rely upon the Notice of Deportation. Relieving

the Secretary of responsibility to consider circumstances other than the

fact or notice of deportation is, according to Marcello, at odds with the

purposes of § 202(n). He argues that an unlawfully executed deportation,

even if pursuant to a valid deportation order, is not a deportation as

contemplated by § 241 of the INA, 8 U.S.C. §

1251(a). [4] In Marcello's view,

the term "deported" in § 202(n) must be interpreted as recognizing the

difference between an illegal deportation and a legal deportation. To

adhere to the district court's conclusion that the Secretary can rely on

the Notice of Deportation would, according to Marcello "impute( ) upon

Congress an intent to breathe a meaning into the term 'deported' that

disregards the difference between illegal deportation and legal

deportation." According to Marcello, the Notice of Deportation is strictly

a ministerial act, issued irrespective of the legality of the execution of

the deportation order. Thus, according to Marcello, it bears little, if

any, weight on the issue of whether a person has been "deported," and it

does not alone constitute substantial evidence of deportation

een illegal deportation and legal

deportation." According to Marcello, the Notice of Deportation is strictly

a ministerial act, issued irrespective of the legality of the execution of

the deportation order. Thus, according to Marcello, it bears little, if

any, weight on the issue of whether a person has been "deported," and it

does not alone constitute substantial evidence of deportation. Further, he

argues that the district court's decision that he could not attack the

legality of his deportation in the context of this Social Security

proceeding was contrary to law and was an abuse of his right to

fundamental fairness.

III.

Section 202(n) of the SSA provides, in relevant part, that:

42 U.S.C. § 402(n). Section 241(a) provides for the deportation, upon the

order of the Attorney General, of any alien who at any time has been

convicted of violating a drug-related law or regulation.

In addressing questions under § 202(n), the Secretary does not, and by

his own policy statements must not, look behind the Notice of Deportation

to the circumstances surrounding its issuance. The Social Security Act

directs the Secretary to "adopt reasonable and proper rules and

regulations to regulate and provide for the nature and extent of the

proofs and evidence and the method of taking and furnishing the same" with

respect to claims for benefits under title II and title XVI of the SSA. 42

U.S.C. §§ 405(a) and 1383(d)(1). Congress has conferred on the Secretary

exceptionally broad authority to prescribe standards for applying certain

sections of the SSA. Schweiker v. Gray Panthers , 453 U.S. 34, 43,

101 S.Ct. 2633, 2639, 69 L.Ed.2d 460 (1981). Where the statute expressly

entrusts the Secretary with the responsibility for implementing a

provision of the Act by regulation, judicial review is limited to

determining whether the regulations promulgated exceed the Secretary's

statutory authority and whether they are arbitrary and capricious. Heckler v. Campbell , 461 U.S

453 U.S. 34, 43,

101 S.Ct. 2633, 2639, 69 L.Ed.2d 460 (1981). Where the statute expressly

entrusts the Secretary with the responsibility for implementing a

provision of the Act by regulation, judicial review is limited to

determining whether the regulations promulgated exceed the Secretary's

statutory authority and whether they are arbitrary and capricious. Heckler v. Campbell , 461 U.S. 458, 466, 103 S.Ct. 1952, 1956, 76

L.Ed.2d 66 (1983). Moreover, the courts defer to an agency's

interpretation of its own regulations. E.I. DuPont de Nemours & Co.

v. Collins , 432 U.S. 46, 54-55, 97 S.Ct. 2229, 2234, 53 L.Ed.2d 100

(1977). Courts accept the agency's interpretation if it is reasonable in

terms of the words of the regulations and the purposes of the statute,

even though, as an original matter, the court might have reached a

different conclusion. Deters v. Secretary of Health, Educ. &

Welfare , 789 F.2d 1181, 1184 (5th Cir. 1986); Baker v. Heckler ,

730 F.2d 1147, 1149 (8th Cir. 1984).

The Secretary's own regulations provide that:

20 C.F.R. 404.464 (emphasis added). Thus, once the Attorney General notifies the Secretary that a person was deported under one of the

listed sections of the INA, suspension of benefits is automatic.

The Program Operations Manual System (POMS) of the Social Security

Administration [5] evinces that

the Secretary's review of a deportation rests on the objective information

contained in the I-157 form. Section RS-02635.005 of the POMS provides:

orney General notifies the Secretary that a person was deported under one of the

listed sections of the INA, suspension of benefits is automatic.

The Program Operations Manual System (POMS) of the Social Security

Administration [5] evinces that

the Secretary's review of a deportation rests on the objective information

contained in the I-157 form. Section RS-02635.005 of the POMS provides:

In the Cumulative Bulletin of Social Security Rulings compiled by the

Agency, the Secretary has stated his inability to use any evidence besides

the Form I-157 in determining whether a person was deported for purposes

of the SSA. That ruling, SSR 78-29, deals with the question of whether a

wage earner's benefit payments may be resumed under § 202(n) of the SSA if

the INS (after having sent a Notice of Deportation concerning the wage

earner) subsequently advises that his deportation order was never

executed. After quoting from § 202(n) the ruling states:

Cumulative Bulletin of SSR's , SSR 78-29, at 44-45 (emphasis

added). [6]

Therefore, the Secretary, by his own regulations, which we find to be

within his statutory authority and which are not arbitrary and capricious,

relies on the Notice of Deportation in making § 202(n) determinations.

This is as it should be. As the district court properly recognized in

concluding that Marcello could not attack the legality of his deportation

in the context of his action challenging the denial of Social Security

benefits, Social Security proceedings are limited in scope and are not

appropriate fora to challenge the legality of the execution of a

deportation order. Moreover, given the fact that a decision on the

lawfulness of a deportation could arguably have effects reaching far

beyond the social security proceedings, see, e.g., United States v.

Utah Construction & Mining Co. , the district court's conclusion is

all the more justifiable. [7]

in scope and are not

appropriate fora to challenge the legality of the execution of a

deportation order. Moreover, given the fact that a decision on the

lawfulness of a deportation could arguably have effects reaching far

beyond the social security proceedings, see, e.g., United States v.

Utah Construction & Mining Co. , the district court's conclusion is

all the more justifiable. [7]

We note in this regard that "(t)he federal immigration laws are

exceedingly complex." Local 512, Warehouse & Office Workers v.

NLRB , 795 F.2d 705, 721 (9th Cir. 1986). The INA establishes a

comprehensive scheme and provides the basis for admission or exclusion of

aliens from the United States. See 8 U.S.C. §§ 1101-1503.

Administration of the INA is primarily the responsibility of the Attorney

General. See 8 U.S.C. § 1103; See also Local 512 , 795 F.2d

at 721; Dong Sik Kwon v. INS , 646 F.2d 909, 911 (5th Cir. 1981).

Deportation proceedings are within the exclusive control of the INS and

the Attorney General. See Kiron , 646 F.2d at 915-16; Local

512 , 795 F.2d at 721. Determination of immigration matters, then, is

not the responsibility of those charged with the task of administering the

Social Security system and is not appropriate in the context of an action

challenging the denial of Social Security benefits. Cf. Local 512 ,

795 F.2d at 721. Accordingly, since an attack on the legality of the

deportation is not appropriate in a Social Security proceeding, the

Secretary must be able to rely on the Notice of Deportation in making a §

202(n) determination.

IV.

Because we find that there was substantial evidence to support the

Secretary's decision that Marcello is not entitled to payment of Social

Security benefits, the judgment of the district court is

AFFIRMED.

[1] Section 241(d), 8 U.S.C.

§1251(d), made the provisions of §241(a) retroactive.

Secretary must be able to rely on the Notice of Deportation in making a §

202(n) determination.

IV.

Because we find that there was substantial evidence to support the

Secretary's decision that Marcello is not entitled to payment of Social

Security benefits, the judgment of the district court is

AFFIRMED.

[1] Section 241(d), 8 U.S.C.

§1251(d), made the provisions of §241(a) retroactive.

[2] 8 U.S.C. §1252(d) provides

that: "Any alien, against whom a final order of deportation . . . has been

outstanding for more than six months, shall, pending his eventual

deportation, be subject to supervision . . . prescribed by the Attorney

General."

[3] This standard of review is

the same in both the district court and the court of appeals. Where the

"appeal is taken from a district court's rendition of summary judgment in

favor of the Secretary, the circuit court's review must be made

independently of the determinations made by the district court, and

without the assumption that the district court acted correct." Thomas

v. Schweiker , 666 F.2d 999, 1001 n. 2 (5th Cir. 1982) (citing Olson

v. Schweiker , 663 F.2d 593 (5th Cir. 1981)).

[4] Section 1251 provides, in

relevant part, that: (a) Any alien in the United States . . . shall, upon

the order of the Attorney General, be deported who --

* * * * *

[5] The Program Operations

Manual System does not change existing policy, law, or regulation. It

clarifies general terms of the Social Security Act and regulations. See Powderly v. Schweiker 704 F.2d 1092, 1096-98 (9th Cir. 1983).

ion 1251 provides, in

relevant part, that: (a) Any alien in the United States . . . shall, upon

the order of the Attorney General, be deported who --

* * * * *

[5] The Program Operations

Manual System does not change existing policy, law, or regulation. It

clarifies general terms of the Social Security Act and regulations. See Powderly v. Schweiker 704 F.2d 1092, 1096-98 (9th Cir. 1983).

[6] Marcello contends that the

Secretary should have sought additional development here. However, in the

present case, there is no question that Marcello physically departed from

the United States under an effective, final order of deportation. Marcello

testified that he physically left the United States and went to Guatemala

pursuant to that order. Marcello further conceded that he has never been

thereafter lawfully admitted to the United States for permanent residence.

Consequently, no further development would have been justified.

[7] Marcello relies on United

States v. Mendoza-Lopez , 781 F.2d 111 (8th Cir. 1985) in arguing that

he should have been allowed to attack the legality of his deportation. Mendoza-Lopez involved an alleged violation of 8 U.S.C. §1326 which

makes it a criminal offense for deported aliens to reenter the United

States without authorization. In that case, the Eighth Circuit allowed the

defendants to collaterally attack their deportation orders on the ground

that they were denied due process at the deportation hearing. We must

reject Marcello's argument for two reasons. First, unlike the §1326 action

at issue in Mendoza-Lopez , this is not a criminal proceeding.

Second, this circuit has not allowed collateral attacks of deportation

orders, even in the §1326 context. See United States v. De La

Cruz-Sepulveda , 656 F.2d 1129 (5th Cir. 1981); United States v.

Gonzalez-Parra , 438 F.2d 694 (5th Cir.), cert. denied , 402 U.S.

1010, 91 S.Ct. 2196, 29 L.Ed.2d 433 (1971).