Marcello v. Bowen, 86-3338

• Decision Date: 03 November 1986
• Docket Number: No. 86-3338,86-3338
• Citation: 803 F.2d 851
• Parties: , Unempl.Ins.Rep. CCH 17,081 Carlos MARCELLO, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 851

803 F.2d 851

15 Soc.Sec.Rep.Ser. 250, Unempl.Ins.Rep. CCH 17,081

Carlos MARCELLO, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services,

Defendant-Appellee.

No. 86-3338

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Nov. 3, 1986.

Mark A. Mancini, Washington, D.C., for plaintiff-appellant.

John Volz, U.S. Atty., Nancy Nungesser, Asst. U.S. Atty., New Orleans, La., Patrick A. Hudson, Principal Regional Counsel, Social, Valerie Olds, Atty., Security Disability Litigation Branch, Dept. of Health & Human Services, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before ALVIN B. RUBIN, RANDALL and PATRICK E. HIGGINBOTHAM, Circuit Judges.

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. Sec. 2591. At that time, such a violation was not a ground for deportation but Sec. 241(a)(11) of the 1952 Immigration and Nationality Act (INA), 8 U.S.C. Sec. 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)).

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. Sec. 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.

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 Sec. 202(n) of the Social Security Act (SSA), 42 U.S.C. Sec. 402(n), Marcello was not entitled to retirement insurance benefits.

A hearing de novo before an administrative 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. Sec. 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 Sec. 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 Sec. 202(n), retirement insurance benefits were not payable to Marcello. This appeal followed.

II.

Under 42 U.S.C. Sec. 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. Sec. 405(g). In that regard, the court noted that a Social Security proceeding 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:

a decision as to lawfulness of a deportation may have collateral estoppel effects which reach far beyond the question of Social Security benefits. The resolution of the deportation issue should, therefore, be based on a fully and fairly developed factual record in the proper case with proper parties. Absent a final decision in such a case that a deportation was invalid and restoring the claimant to the status held prior to the deportation, the Secretary of Health and Human Services must be able to rely on information received from the INS which indicates that the claimant has, in fact, been deported and the Court in reviewing the Secretary's decision pursuant to 42 U.S.C. Sec. 405(g) must affirm that decision if supported by substantial evidence.

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 Sec. 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. Sec. 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 Sec. 202(n). He argues that an unlawfully executed deportation, even if pursuant to a valid deportation order, is not a deportation as contemplated by Sec. 241 of the INA, 8 U.S.C. Sec. 1251(a). ⁴ In Marcello's view, the term "deported" in Sec. 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....