Lawrence E. Lupien v. Harold W. Clarke

1The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-1132
___________
Simone R. Taylor, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Jo Anne B. Barnhart, Commissioner, *
Social Security Administration, *
*
Appellee. *
___________
Submitted: September 17, 2004
Filed: March 3, 2005
___________
Before COLLOTON, HEANEY, and HANSEN, Circuit Judges.
___________
COLLOTON, Circuit Judge.
Simone R. Taylor sought a writ of mandamus to compel the Social Security
Administration (“SSA”) to pay benefits to which she claims entitlement. The district
court 1 denied her motion. We affirm, although we note that an unexplored avenue of
possible relief for Taylor remains available.

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I.
Taylor was born in the United Kingdom in 1974 and remains a British citizen.
She was adopted by citizens of the United States – an American serviceman and his
wife – in the United Kingdom in 1984, and she moved to the United States with her
adoptive family that year. According to photocopied documents included in the
record, Taylor entered the United States on August 13, 1984. Her adoptive father
filed a “Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa,”
listing Taylor as a beneficiary. The petition was approved in September 1984, and
Taylor was thus classified as an “immediate relative” of a United States citizen. See
8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a).
The visa petition records the date that Taylor’s stay would expire as
“indefinite,” and states that “[b]eneficiary is in the United States and will apply for
adjustment of status to that of a lawful permanent resident in the office of the
Immigration and Naturalization Service at Kansas City, Missouri.” A “Notice of
Approval of Relative Immigrant Visa Petition,” dated October 19, 1984, and
completed by the Immigration and Naturalization Service in Kansas City, states that
Taylor’s adoptive father should “contact the above office for further information
concerning the beneficiary’s adjustment of status.” The record includes no evidence
concerning whether Taylor or anyone acting on her behalf ever applied for adjustment
of status.
On June 28, 1998, Taylor filed an application for disability insurance benefits
under Title II of the Social Security Act (“The Act”). Taylor’s application was
initially denied, but after a hearing, an administrative law judge (“ALJ”) found that
Taylor was disabled.
In November 1999, the SSA wrote to Taylor explaining that her application for
disability benefits had been approved, but that the SSA could not pay her benefits for

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any month in which she was not lawfully present in the United States. This letter
presumably was designed to implement a provision of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, which limits the eligibility of aliens for
benefits under the subchapter of the Social Security Act that governs disability
benefits. The statute provides that “[n]otwithstanding any other provision of law, no
monthly benefit under this subchapter shall be payable to any alien in the United
States for any month during which such alien is not lawfully present in the United
States as determined by the Attorney General.” 42 U.S.C. § 402(y) (emphasis added).
The November 1999 letter to Taylor explained that based on the information available
to the SSA, Taylor did not meet the lawful presence requirement.
Two months later, as a follow-up to the decision of the ALJ, the SSA sent a
second letter to Taylor seeking further information to establish the months in which
she worked during her period of disability. That letter also reminded Taylor that in
order to receive benefit checks, she must furnish the SSA with documents to show
that she was legally admitted to the United States.
Taylor responded in January 2000 with a legal memorandum to the SSA,
arguing that the restrictions on benefits for non-qualified aliens did not apply to her.
The record shows that in March 2000, the SSA explained to Taylor’s attorney that no
determination had been made regarding Taylor’s lawful presence in the United States,
and that Taylor must submit original immigration documents to demonstrate her
lawful presence.
A subsequent review of Taylor’s records by the SSA’s Office of Disability and
International Operations (“ODIO”) raised concern about whether she had engaged in
substantial gainful activity since the onset of her disability (which would render her
ineligible for benefits, 20 C.F.R. § 404.1520(b)), so on September 22, 2000, ODIO
requested that the SSA Appeals Council review the decision. The SSA sent Taylor
another letter explaining that it was suspending benefits pending further investigation

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of her earnings for 1997 through 1999 and proof of her citizenship or lawful presence.
The Appeals Council reopened the decision with respect to whether Taylor had
engaged in any substantial gainful activity from 1997 through 1999, and remanded
Taylor’s case to a different ALJ for consideration of that question.
ALJ James Stubbs sent Taylor a letter explaining the issues to be considered
at the second hearing. These issues did not include the question of Taylor’s lawful
presence in the United States. The ALJ invited Taylor to submit a written response
if she objected to the statement of issues. In response, Taylor submitted a
memorandum arguing that the restrictions on payments to non-qualified aliens did not
apply to her.
After a hearing to determine whether Taylor had engaged in substantial gainful
activity since the onset of her disability, the ALJ found that Taylor was disabled as
alleged, but engaged in substantial gainful activity for four months after the onset of
her disability. The ALJ did not make any findings on her lawful presence in the
United States.
Taylor then petitioned the district court in March 2003 for a writ of mandamus
compelling the Commissioner of Social Security to pay past-due benefits. The
district court granted the Commissioner’s motion to dismiss, finding that the SSA
acted in accordance with its procedures, that the decision of the ALJ did not entitle
Taylor to benefits because immigration requirements were not decidedly within the
purview of the ALJ, and that Taylor failed to show that she was lawfully residing in
the United States.
II.
The district courts have original jurisdiction over any mandamus action “to
compel an officer or employee of the United States or any agency thereof to perform

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a duty owed to the plaintiff.” 28 U.S.C. § 1361. “[T]he writ of mandamus is intended
to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief
and only if the defendant owes him a clear nondiscretionary duty.” Hatcher v.
Heckler, 772 F.2d 427, 432 (8th Cir. 1985). Stated differently, “[a] party seeking
issuance of a writ of mandamus must ‘have no other adequate means to attain the
relief he desires and [must show that his] right to issuance of the writ is clear and
undisputable.’” In re Mo. Dep’t of Natural Res., 105 F.3d 434, 436 (8th Cir. 1997)
(alteration in original) (quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35
(1980) (per curiam)).
Taylor argues that the SSA has a clear duty to pay her benefits under the Social
Security Act. Taylor acknowledges that an alien who is not a “qualified alien” within
the meaning of 8 U.S.C. § 1641 generally is ineligible to receive any federal public
benefits. 8 U.S.C. § 1611(a). Taylor observes, however, that this general rule “shall
not apply . . . to any benefit if nonpayment of such benefit would contravene an
international agreement described in section 233 of the Social Security Act.” 8
U.S.C. § 1611(b)(2). Taylor claims that the Agreement on Social Security Between
the Government of the United States of America and the Government of the United
Kingdom of Great Britain and Northern Ireland, Feb. 13, 1984, U.S.-U.K., T.I.A.S.
No. 11,086 (the “Agreement”), entitles her to benefit payments.
Section 233 of the Social Security Act authorizes the President to enter into
agreements establishing totalization arrangements between the United States social
security system and the social security system of a foreign country. 42 U.S.C.
§ 433(a). Such an agreement is not a treaty ratified by the United States Senate,
pursuant to Article II, Section 2 of the Constitution. Rather, the Act provides that
such an agreement shall become effective on the date specified in the agreement,
provided that the date occurs a sufficient period of time after the President transmits
the agreement to the Congress, and neither House of Congress has adopted a
resolution disapproving the agreement. 42 U.S.C. § 433(e)(2); but see INS v.

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Chadha, 462 U.S. 919 (1983). The declared purpose of these agreements is to
establish “entitlement to and the amount of . . . benefits based on a combination of an
individual’s periods of coverage under the [United States] social security system . . .
and the social security system of such foreign country.” 42 U.S.C. § 433(a).
In 1984, the United States entered into the Agreement on Social Security with
the United Kingdom. While Taylor never worked in the United Kingdom, and thus
does not require a totalization of periods of coverage under separate social security
systems, the authorizing statute also provides that “[a]ny such agreement may contain
other provisions which are not inconsistent with the other provisions of this
subchapter and which the President deems appropriate to carry out the purposes of
this section.” 42 U.S.C. § 433(c)(4). Taylor contends that one such “other
provision,” Article 3 of the Agreement, supports her claim to benefits. Article 3
provides:
[a] person who is or has been subject to the laws of one Party and who
resides within the territory of the other Party shall, together with his
dependants, receive equal treatment with nationals of the other Party in
the application of the laws of the other Party regarding the payment of
benefits.
Taylor argues that because she was born in the United Kingdom and was
subject to the laws of that country for the first ten years of her life, this provision
demands equal treatment for her – that is, she should be treated as a national of the
United States for purposes of Social Security benefits. She contends that because a
national of the United States with her disability would be entitled to benefits, she is
entitled to “equal” benefits under Article 3.
However the Agreement is interpreted and applied to Taylor’s situation, we
conclude that it does not afford Taylor a basis for mandamus relief. Even were the
Agreement interpreted as Taylor suggests, her claim for benefits faces another hurdle.

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2The Attorney General delegated this function to the Commissioner of the
Immigration and Naturalization Service. See 8 C.F.R. § 2.1 (2003) (superseded by
68 Fed. Reg. 10923, Mar. 6, 2003). This function was then transferred to the Bureau
of Citizenship and Immigration Services in the Department of Homeland Security
when the Immigration and Naturalization Service was abolished by the Homeland
Security Act of 2003, Pub. L. No. 107-296 §§ 451(b)(5), 471(a), 116 Stat. 2135,
2196, 2205 (codified at 6 U.S.C. §§ 271(b)(5), 291(a) (2003)). Correspondingly, the
reference to the Attorney General in 42 U.S.C. § 402(y) is now deemed to refer to the
Secretary of Homeland Security. Pub. L. No. 107-296, Title XV, § 1517, 116 Stat.
2311 (codified at 6 U.S.C. § 557 (2002)).
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An Act of Congress passed subsequent to a treaty nullifies or supersedes the treaty
to the extent that the two conflict, see Breard v. Greene, 523 U.S. 371, 376 (1998)
(per curiam), and that same rule applies a fortiori to an international agreement that
lacks the constitutional status of a treaty. In 1996, as noted, federal law was amended
to provide that no monthly disability benefit “shall be payable to any alien in the
United States for any month during which such alien is not lawfully present in the
United States as determined by the Attorney General.” 42 U.S.C. § 402(y) (emphasis
added).2 Thus, Taylor’s eligibility for benefits ultimately turns not merely on the
U.S.-U.K. Agreement, but on whether she is or has been “lawfully present in the
United States” during any period of disability. We turn now to that question.
III.
The prohibition of § 402(y) on payment of benefits to an alien “not lawfully
present in the United States” dovetails with a pre-existing provision of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C.
§ 1611(b)(2). This statute establishes that the general prohibition on payment of
federal public benefits to an alien who is not “a qualified alien” does not apply to
disability benefits for “an alien who is lawfully present in the United States as
determined by the Attorney General.” Id. The federal regulations that implement the

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Personal Responsibility and Work Opportunity Reconciliation Act of 1996 explain
that:
For the purposes of section 401(b)(2) of Pub. L. 104-193 only, “an alien
who is lawfully present in the United States” means: . . . (2) an alien
who has been inspected and admitted to the United States and who has
not violated the terms of the status under which he or she was admitted
or to which he or she has changed after admission.
8 C.F.R. § 103.12(a)(2) (emphasis added).
This definition of an alien “lawfully present in the United States” provides a
potential avenue of relief for Taylor. Taylor was inspected and admitted to the United
States in 1984 as an immediate relative of a citizen of the United States. See 8 U.S.C.
§ 1151(b). The district court thought that her adoptive father’s petition for immediate
relative status was automatically revoked when Taylor reached age 21, pursuant to
8 C.F.R. § 205.1(a)(3)(i)(F), but the record does not appear to support that
conclusion. The automatic revocation occurs only if the alien reaches age 21 before
commencing her journey to the United States (which Taylor did not) or if the alien
reaches age 21 before a decision on a pending application for adjustment of status
becomes final (and there is no evidence in the record that Taylor ever applied for
adjustment of status). See 8 C.F.R. § 205.1(a)(3). Thus, it is possible that the petition
for immediate relative status was not revoked when Taylor reached age 21, but rather
– if the 1984 visa petition was “currently valid” as of her 21st birthday –
automatically converted to an approved petition for classification as an unmarried
daughter of a citizen of the United States, pursuant to 8 C.F.R. § 204.2(i)(2). See 8
U.S.C. § 1153(a)(1). In that case, Taylor may have been legally present throughout
her time in the United States.
While this possibility ultimately may provide Taylor with a basis for relief, she
has not raised this precise argument in the administrative process or in this litigation,

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3Taylor argues generally that she should be excused from the requirement of
exhausting the avenue of pursuing benefits through the SSA because to do so would
be futile. Her argument is based on an interrogatory answer from an SSA official,
which said that Taylor could not receive retroactive benefits for any month prior to
the first full month that she establishes lawful presence. The interrogatory answer
further explained, however, that if the Bureau of Citizenship and Immigration
Services of the Department of Homeland Security issues a determination that Taylor
had established lawful presence at a particular date in the past, then the SSA would
use that date as the beginning date for benefit payments, and would pay any past
disability benefits to which she was entitled. (Appellee’s App. at 26). Thus, if Taylor
can establish that she has been lawfully present in the United States since 1984 based
on the initial visa petition and an automatic conversion of the petition, the SSA’s
interrogatory answer does not preclude the possibility that the Commissioner would
award benefits retrospectively.
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and we conclude for two principal reasons that it is insufficient at this time to justify
a writ of mandamus. First, Taylor has not exhausted all other avenues that could
secure the requested relief. The record shows that the SSA has never reached a final
determination concerning Taylor’s lawful presence in the United States. The SSA
informed Taylor that she must produce original immigration documents to establish
her lawful presence. After Taylor submitted photocopies of documents, an SSA
representative explained the requirement of original documents to Taylor’s attorney
on March 7, 2000. But because Taylor apparently never furnished original
immigration documents, the SSA never reached a final determination on the crucial
issue of lawful presence. 3
The Program Operations Manual System, the SSA’s internal procedural
guidelines, explain that in order to receive benefits:
[A]n individual who is not a United States Citizen or a U.S. national and
is present in the U.S. must have authorization from INS to lawfully
remain in the U.S. SSA accepts evidence of alien status, in support of

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a claim for benefits, based on established legal principles governing the
rules of evidence. Only original, unexpired documents are acceptable.
POMS GN 00303.400(A) (emphasis added). The POMS provisions regarding
“Developing Lawful Presence of an Alien in the U.S.” state that “[t]he claimant must
submit an original document or a copy certified by the issuing agency,” and that “[a]
copy of a [Department of Homeland Security] document (rather than an original) is
not acceptable evidence of U.S. lawful presence.” POMS RS 00204.020(C)(1).
These directives reflect the SSA’s efforts to prevent document fraud, and to
implement the requirement of 42 U.S.C. § 402(y) that only persons lawfully present
in the United States are eligible for benefits. Under SSA procedures, the agency
cannot process an application without original immigration documents, and when
immigration documents appear to be genuine, the agency must verify the alien’s
immigration status with the Department of Homeland Security (DHS). See POMS RS
00204.020(C); POMS RM 00203.720(B). Consistent with section 402(y), which
provides that the Secretary of Homeland Security (formerly the Attorney General)
determines whether an alien is lawfully present, SSA procedures provide that the
DHS ultimately adjudicates lawful presence upon a referral from the Social Security
Administration. Id.; see also POMS RM 00203.735.
We have said that “the POMS are entitled to respect as publicly available
operating instructions for processing Social Security claims,” Reutter ex rel. Reutter
v. Barnhart, 372 F.3d 946, 951 (8th Cir. 2004) (internal quotation omitted), and we
see no reason why the SSA is not entitled to require original documentation before
making a determination on lawful presence in Taylor’s case. If Taylor expeditiously
provides the necessary original documents to the SSA, then we expect that the SSA
should promptly obtain a determination from the DHS on her immigration status,
including whether her adoptive father’s initial visa petition from 1984, together with
the automatic conversion provision of 8 C.F.R. § 204.2(i)(2), is sufficient to establish

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4If Taylor cannot locate the necessary original documents, she may file with the
United States Bureau of Citizenship and Immigration Services a Form I-102 for
replacement of her initial arrival documentation or Form I-90 to replace a lost
permanent resident card. Form I-90 also may be used to apply for a permanent
residence card based on a claim of automatically-converted status, and Form I-485
is used to apply for adjustment of status to permanent resident. All of these forms are
available at http://uscis.gov/graphics/formsfee/forms/index.htm. We express no view
on this record whether Taylor is entitled to any particular immigration status.
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that Taylor has been lawfully present in the United States since her entry.4 Because
Taylor has not exhausted this possible avenue of relief, however, she has not satisfied
one of the essential prerequisites for mandamus relief.
Second, we conclude that mandamus relief is not warranted at this time,
because we cannot say it is clear and undisputable that Taylor is lawfully present
based on her adoptive father’s initial visa petition. The immigration regulations
define an alien lawfully present in the United States as one “who has been inspected
and admitted to the United States and who has not violated the terms of the status
under which he or she was admitted.” 8 C.F.R. § 103.12(a)(2) (emphasis added). As
noted, the initial visa petition provided that Taylor would apply for adjustment of
status to that of a lawful permanent resident, thus presumably making such
application one of the “terms of the status under which . . . she was admitted.” There
is no evidence in the record that she ever made such an application. If she failed to
do so, then it may be that she violated the terms of the status under which she was
admitted, and so does not qualify as an alien “lawfully present in the United States”
within the meaning of the governing regulations. If she did apply, then it is
conceivable that her immediate relative status was revoked pursuant to 8 C.F.R.
§ 205.1(a)(3)(i)(F).
The POMS, moreover, set forth specific documentary evidence that is required
by DHS to establish lawful presence in the United States (including as a lawful

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5Taylor also argues that because ALJ Stubbs decided in September 2002 that
she is entitled to disability benefits, and made no mention of her immigration status,
the Commissioner is bound by that decision to award benefits. See 42 U.S.C.
§ 405(h) (decisions following hearings are binding). The second ALJ’s hearing,
however, was conducted upon remand from the Appeals Council for the limited
purpose of reconsidering a previous determination concerning disability. We agree
with the district court, moreover, that a decision on Taylor’s immigration status is not
within the purview of the ALJ. As discussed, the authority to determine whether
Taylor is lawfully present in the United States for purposes of receiving Social
Security benefits is assigned by statute to another agency. 42 U.S.C. § 402(y).
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permanent resident), see POMS RS 00204.205, GN 00303.440, and it is not clear that
Taylor can furnish this documentation. On the other hand, if there is flexibility in the
regulations, then there may be good reason under the circumstances of this case for
the DHS to consider finding that Taylor’s 1984 visa petition and entry documents are
sufficient to establish her lawful presence. The Department of Homeland Security
and the Commissioner have had no opportunity to address these points in the
administrative process, and given the absence of evidence regarding whether Taylor
applied for adjustment of status, or the implications of a failure to do so under the
immigration laws, we do not believe Taylor’s right to benefits based on her adoptive
father’s initial petition is clear and undisputable.5
The judgment of the district court is affirmed.
HEANEY, Circuit Judge, dissenting.
I respectfully dissent. It is difficult to understand why this case was not
resolved before it reached our court. The Social Security Administration (SSA)
determined that Taylor has been continually disabled since October 2, 1997. She
suffers from multiple sclerosis, which is recognized by the SSA as a severe
impairment. As a result of this impairment, she sometimes has difficulty walking,
lifting or handling objects, and experiences pain, dizziness, loss of coordination and

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6It is not clear why Taylor’s counsel has been unable to assist her in obtaining
these documents, clarifying her immigration status, or referring her to someone better
able to do so.
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impaired memory. Taylor is unable to work or support her children because of her
impairment. Before the onset of her disability, Taylor worked and paid into social
security for eight years, thus qualifying her for benefits. Having found that Taylor
is entitled to benefits, the SSA contends that it may not pay benefits to any person
who cannot demonstrate that she is lawfully present in the United States. 42 U.S.C.
§ 402(y). The SSA has not suggested that Taylor has committed any crime, entered
the country illegally, or is not lawfully present in the United States. The SSA even
concedes that if Taylor were currently residing outside of the United States, her
benefits could be paid pursuant to an agreement between the United States and the
United Kingdom.
Taylor was adopted by United States citizen parents when she was ten years old
and lawfully admitted to the country in 1984. Taylor married a United States citizen,
and is the mother of two United States citizen children. She has resided in the United
States continually since 1984, and has worked and reported earnings from 1990 to
1997, the onset of her disability. Despite her myriad connections to the country, the
SSA states that Taylor has not produced documents showing her lawful presence.6
The majority has laid out a path for Taylor to follow. As it notes, Taylor may
be lawfully present. She has produced documents showing that she was lawfully
admitted to the country, and the record reveals no clear violation of the terms of her
status. It is possible that Taylor could easily procure the necessary original
documents.
After a careful review of the record and the regulations cited by the parties
during the course of this litigation, I am convinced that Taylor must obtain proper

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7One form of proper documentation would be a current Form I-551 Permanent
Resident Card, commonly known as a green card.
8Taylor’s current disability may present an obstacle to obtaining current
documents because she is not currently employed. This creates a "Catch-22" for
Taylor if she cannot get documents because she is now disabled, and she is unable to
get her social security benefits because she cannot get immigration documents. In my
view, Taylor should not be caught in this catch.
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documentation 7 from the Department of Homeland Security (DHS). POMS RS
00204.025(B)(1). This court cannot determine whether Taylor should receive such
documents, but in all candor, I see no reason why they should not be promptly
issued.8 Careful consideration should be given to the effective date because Taylor’s
benefits will be limited to those due after the date the document is issued. In light of
Taylor’s many connections to the United States, the DHS must have a very strong
reason for not making her lawful presence retroactive to at least October 2, 1997. I
part from the majority in that I would provide Taylor with an opportunity to obtain
the requested writ of mandamus if she presents this documentation to the district
court. Because the only impediment to Taylor’s receiving benefits is her inability to
establish her lawful presence in the United States, I would hold that she is entitled to
benefits, and to the writ, if she produces appropriate documentation. If Social
Security continues to refuse to make the required disability benefit payments to
Taylor, the district court should issue the writ of mandamus requiring the SSA to pay
the disability benefits. I would therefore remand this matter to the district court with
direction to issue the writ of mandamus if Taylor obtains appropriate documentation
verifying her lawful presence within a reasonable period of time.
______________________________

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