TN 4 (06-04)

A. Introduction

This subchapter discusses removal (formerly deportation) under section 202(n) or section 223 of the Social Security Act and their effect on Non- U.S. citizens (Aliens) applying for or receiving title II benefits. The Department of Homeland Security (DHS), formerly the Immigration and Naturalization Service, deports certain aliens from the United States in accordance with the provisions of the Immigration and Nationality Act (INA) effective September 1954. Generally, aliens are removed for immigration offenses (e.g., failure to comply with visa requirements, remaining in the United States past the time allotted), for the commission of crimes worthy of imprisonment, for engagement in terrorist activities, etc. The removal of a deportable alien (formerly referred to as "deportation") or, in certain limited situations, the removal of an inadmissible alien may result in nonpayment of benefits under title II of the Social Security Act (herein referred to as the Act). (It may also affect Supplemental Security Income payments and Special Veterans Benefits as indicated RS 02635.001E.)

B. Background

Effective April 1, 1997, amendments to the INA combined the previously separate U.S. exclusion and deportation processes into one comprehensive removal process. For proceedings beginning on that date, aliens are removed as inadmissible (similar to the old exclusion process) or removed as deportable (similar to the old deportation process).

P.L 108-203, the Social Security Protection Act of 2004 (SSPA), enacted March 2, 2004, amended the deportation provisions of the Act (section 202(n)) to conform to the 1997 INA amendments. As a result, the deportation provisions were extended to apply to aliens removed as deportable under INA section 237(a) and to aliens removed as inadmissible under INA section 212(a)(6)(A) on grounds of illegal entry into the United States. (Aliens who are removed as inadmissible under other paragraphs of INA section 212(a) are not subject to suspension under section 202(n). See RS 02635.001C.). The section 202(n) amendments also eliminated the exception to the nonpayment provisions that previously applied to aliens deported or removed on grounds of smuggling other aliens into the United States. (See RS 02635.001D.1. regarding “final charge code “1E”.)

C. Definitions

The term "deportation" or "removal" as used in this section refers to a formal process where an order of deportation or removal is issued and a hearing is held before an Immigration Judge. Generally, deportation or removal occurs when the order is carried out and the alien is physically expelled from the United States, (See RS 02635.015E.2. - RS 02635.015E.3.) except under final order of deportation or removal on grounds of participating in Nazi persecution or committing crimes of genocide. (See exceptions RS 02635.001D.2.)

The term removal (or remove or removed person) is used to refer to any of the following situations:

• The deportation of an alien under section 241(a) of the old INA (proceedings initiated prior to April 1, 1997);

• The removal of an alien as deportable under section 237(a) of the amended INA (proceedings initiated April 1, 1997 or later);

• The removal of an alien as inadmissible on grounds of illegal entry into the United States under section 212(a) (6) (A) of the amended INA. (This applies to removals reported by DHS to SSA on March 3, 2004 or later). See NOTE in RS 02635.005B.2. and in RS 02635.015E.4.).

D. Policy - Impact on Title II Beneficiaries

1. Effect on Payments to the Number Holder

Section 202(n)(1) or section 223 of the Act prohibits the number holder (NH) on a Social Security record from receiving his or her title II retirement and/or disability benefits when SSA receives notice from DHS that the NH has been deported or removed from the United States under any of the sections of the INA that are listed in the definitions in RS 02635.001C.

DHS routinely sends SSA reports of removals under those INA sections; SSA maintains such reports on the SSA Disability, Railroad, Alien and Military Service (DRAMS) file under the general category “Alien Deportation Information.” (See RS 02635.005B.)

EXCEPTIONS: Some NH’s are exempt from suspension of their title II benefits if their removal was ordered on the basis of certain grounds. (Grounds for removal are included in coded format on the removal reports from DHS. They are displayed as “Final Charge Codes” on the DRAMS record. See RS 02635.005B.2.). A NH can continue to receive his/her retirement or disability benefits if the Final DHS Charge Code on DRAMS shows one of the following codes:

• “03”, “08”, “09”, “13”, “1C”, or

• “1E”—but only in cases where the “DATE RCVD IN SSA” as shown on DRAMS is before March 3, 2004. The Social Security Protection Act of 2004 amended section 202(n) to eliminate the exemption from title II benefit suspension that previously applied to NHs removed under final charge code “1E”. This change is effective for removals reported by DHS to SSA after the date of enactment, which was March 2, 2004.

IMPORTANT: The exceptions in this section do not protect removed NHs from suspension of their retirement or disability benefits (if warranted) under section 202(t) of the Act (see RS 02610.000) or under section 202(y) of the Act should they return to the United States after removal and fail to meet the lawful presence requirements. (See RS 00204.000). Also, the exceptions do not protect removed NHs from loss of their Supplemental Security Income (SSI) payments. (See RS 02635.001E.4.)

2. When Suspension Begins

Retirement or disability benefits are not payable to the NH beginning with the month after the month SSA receives notice of his or her removal from the Secretary of Homeland Security, DHS or the Attorney General. Note that the Office of the Attorney General is over the Department of Justice (DOJ) which houses the Office of Special Investigations (OSI). DHS electronically discloses information to SSA regarding individuals who have been deported from the United States. SSA will use this information to conduct matches against Title II and Title XVI claims systems and to update the Disability, Railroad, Alien and Military Service(DRAMS) database (see RS 02635.005B.). However, notice can also be sent from the office of the U.S. Attorney General (DOJ) including an Immigration Judge or the Office of Special Investigations (OSI). See RS 02635.015E. when notice of deportation or removal comes from a source other than DHS and there is no supporting DRAMS record.

Generally, the date SSA receives notice of removal from DHS is reflected on the SSA DRAMS file under “DATE RECD IN SSA” (see RS 02635.005B.2.). If there is no date shown after “DATE RECD IN SSA”, use the month after the date of removal from the United States as the date RECD IN SSA.

EXAMPLE: The DRAMS file DATE RECD IN SSA is June 15. The month of suspension is July which is the month after the month the notice was received.

EXAMPLE: The DRAMS file does not list the DATE RECD IN SSA. DATE DEPORTED is June. SSA should have received notice in July. Suspension begins in August. Two months after the date NH was deported.

If SSA receives notice of the NH's removal before his/her entitlement to retirement or disability benefits, suspension begins with the first month of entitlement unless lawful admission for permanent residence has been granted subsequent to the removal and before entitlement.

EXCEPTION: Section 202(n)(3) prohibits payment of retirement and/or disability insurance benefits to NHs who effective November 10, 1988 or later are placed under a final order of deportation or removal on grounds of participating in Nazi persecution or committing crimes of genocide. (DRAMS will show a final charge code of ‘19' or '4D' to denote such grounds.) Unlike other removal situations, the NH in these cases need not have been physically removed for suspension to apply. Benefits are not payable beginning with the month after the month SSA is notified by the Attorney General of the final deportation or removal order (even though the NH may have never left the United States). IMPORTANT: The Translation and Priority Work Unit (TPWU) in the office of International Operations (OIO) should be contacted before any action is taken on cases in which DRAMS shows a final charge code of "19 or 4D."

3. When Suspension Ends

Once the NH is subject to nonpayment of benefits on account of removal from the United States, payment cannot be reinstated until he or she is granted lawful admission for permanent residence (LAPR) in the United States subsequent to the removal. Under the removal provisions, benefits may be resumed with the first month during any part of which LAPR status is granted. However, applicability of the lawful presence provisions under section 202(y) of the Act (see RS 00204.000) should be considered when resuming benefits to a removed NH on the basis of his/her LAPR status.

The lawful presence provisions apply beginning with the first full calendar month a beneficiary is in the United States. If a previously removed NH is granted LAPR status in a month during which he or she is also required to meet the lawful presence requirements, the NH must be granted LAPR status on the first day of the month or the NH must have lawful presence status in another category prior to attaining LAPR status in order to qualify for payment in the month LAPR status is granted.

EXAMPLE: A previously removed NH returns to the United States as LAPR on June 15. The NH cannot have his title II benefits resumed until July since he does not meet the lawful presence requirement for the entire month of June. However, if LAPR status is granted on June 1, benefits can be resumed in June. In this case, we assume that LAPR status has been granted for the entire day of June 1 and, therefore, that the lawful presence requirements are met for the entire calendar month of June.

IMPORTANT: Lawful presence status in a category other than LAPR is not sufficient for resumption under the removal provisions. (See GN 00303.440B. for the evidence required to establish LAPR.)

4. Effect on Payments to Dependents or Survivors

Title II dependent or survivor benefits on a removed NHs record cannot be paid under the removal provisions for any month in which the following conditions are met:

1. The NH's benefits are suspended under section 202(n) or section 223 of the Act (or would have been suspended had the NH been alive); and

2. The dependent or survivor is an alien; and

3. The dependent or survivor was outside the United States at any time during the month--even if the absence was only for part of a day.

NOTE: Benefits payable to alien dependents and survivors are not affected by their own removal however they are subject to section 202(t) or section 202(y) of the Act (see RS 02610.000).

5. Maximum and Minimum Provisions

Dependent or survivor benefits payable to other beneficiaries entitled on the NH's earnings record are not adjusted when one or more beneficiaries are suspended on the basis of the NH's removal. This is because nonpayment due to removal is neither a deduction nor a termination event.

6. Effects of Employment on Benefits

Benefits to dependents are not affected by the employment or self-employment of a NH whose title II benefits are suspended under the removal provisions, however the work activity of the spouse, child, or survivor beneficiary may affect his or her own benefits under the annual earnings or foreign work test.

E. Policy - Impact of Removal on Other Benefits

1. Lump Sum Death Benefit

The lump sum death payment (LSDP) is not payable on the record of a NH who dies in or after the month SSA receives notice of his or her removal under conditions requiring the suspension of title II retirement or disability benefits.

EXCEPTION: The LSDP can be made if the NH was granted LAPR status at any time after the removal through the month of death.

2. Hospital Insurance and Supplemental Medical Insurance Coverage

Removal has no effect on the entitlement of these programs. A NH whose benefits we suspended because of removal from the United States retains entitlement to Medicare coverage, if any, under Part A and Part B. However, Medicare generally does not cover health services obtained outside the United States.

NOTE: Medicare will not pay claims when the date of service is equal to or later than the date of deportation on the MBR.

3. Supplemental Security Income (SSI) Payments

Benefits under the SSI program are not subject to suspension under the provisions of section 202(n). However, failure to meet the SSI eligibility requirements involving alien and/or U.S. residence status as a result of the removal requires suspension of SSI benefits. (This is discussed in SI 02301.225.)

4. Special Veterans Benefits (SVB)

Individuals who are removed from the United States are prohibited from receiving SVB payments under section 804 of the Social Security Act. (See VB 00205.205.)