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Appeals Council Awards SSI to Asylee

December 17, 2010

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Anne Callagy, an attorney with the Bronx office of the Legal Aid Society, convinced the Appeals Council to restore benefits to a claimant whose SSI had been terminated due to his immigration status.  Anne’s client had been legally residing in the United States on August 22, 1996, the effective date of Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which restricted the policy with respect to which non-citizens may receive SSI. In November of 2005, however, SSA suspended the client’s benefits, claiming that as an asylee, he was a “qualified alien” under PRWORA and only entitled to seven years of benefits.

The claimant, who was born in Yugoslavia, filed an application for asylum on August 17, 1992, which was not granted until May 15, 1998.  He had, however, been granted employment authorization on   September 8, 1992.  He applied for disability benefits in June 1998, alleging disability since 1993.  The Social Security Administration (SSA) approved his application in 1999, following an ALJ decision.

In 2008, following the suspension, Anne represented the claimant at his hearing.  The ALJ issued an unfavorable decision, ignoring evidence that the client had in fact been a “person residing under color of law” (PRUCOL) before the passage of PRWORA, which should have entitled him to continuing eligibility. 

Anne appealed to the Appeals Council and submitted additional evidence and argument.  The Appeals Council went through the evidence and the analysis of the criteria for "qualified aliens" and reversed the ALJ.  The Appeals Council held that because the claimant had applied for asylum status before the August 22, 1996 PRWORA cut-off date, he was not subject to the more limiting provisions of PRWORA.  Rather, he fell under an exception because he was lawfully residing in the United States before that date.  The Appeals Council decision gives a thorough analysis of PRWORA and its exceptions and cites the relevant regulations and POMS promulgated pursuant to PRWORA.  It is available as DAP #535.

As a result of Anne’s creative and tenacious advocacy, her client remains on SSI.


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