By Gambian Outsider!
In my last article “Gambia National Anthem: A Reflection and Some Questions” I stated that my text article will be on President Barrow, Gambia’s very own “Political Animal.”! When I sent that article to some of the online newspaper editors to have it published, one of the editors wrote to me and told me that I was missing in action in the immigration issues facing those Gambians already deported and those who are waiting deportation. I wrote back and told him that I needed to do some research before I could write anything about the matter. Below you will find some of what I found out. Because I am trying to give readers a clear picture I have to start the article on some things that at first glance may seem unrelated to the issue of immigration and the real issue of Social Security benefits of the 2000 Gambians who are to be deported. So if a reader does not like the beginning of this article, please scroll down to “The Social Security Program” and start reading from there!
U.S. Will Deny Visas to Gambian Officials For Refusing To Take Back Deported Gambians. This was the headline of a news wire in the United States and it was published 5 October 2016. That article began by stating the following: The United States, responding to the refusal by The Gambia to accept some 2,000 Gambians the United States has been trying to deport, will deny visas to Gambian officials. DHS Secretary Jeh Johnson made the decision, which is only the second time the United States used the denial of visas to force a country to accept its deported citizens (President Bush used it in 2001 against Guyana).
So what the U.S. is doing it rare, but is not the first time. Had the former regime, the Jammeh administration, came to terms with the U.S. Government, the deportation of Gambians would have taken place a long time ago. I do not know the facts why those 2000 Gambians are being deported. There are many grounds for deportation. Immigration laws in the United States are exclusively Federal Law. Congress cannot pass federal legislation that requires states to execute it. That is a no no. Unlike most Americans and most Gambians in the United States for that matter, may believe, the doctrine of anti-commandeering prohibits the federal government from requiring states to execute federal law. In Prigg v. Pennsylvania (1842), Justice Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793. He said that it was a federal law, and the federal government ultimately had to enforce it. In New York v. United States (1992) the Supreme Court in the majority opinion delivered by Justice Sandra Day O’Connor agree with Prigg, stating that “As an initial matter, Congress may not simply “commandee[r]the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”
Congress may, however, provide funds to states with condition(s) attached. Those conditions may require states to perform certain acts that the States are not required to do. Take a look at the issue that the U.S. Federal Government is dealing with the so-called “Sanctuary Cities” and you get the idea. What is a Sanctuary City? It is a city (or county or state) that limits its cooperation with federal immigration enforcement agents in order to protect low-priority immigrants from deportation, while still turning over those who have committed serious crimes. Without knowing the facts in the individual cases of each of those 2000 Gambians who are to be deported, it is very difficult to say what is true and what is not.
Some Gambians both in the U.S. and at home have raised the issue of the Social Security payments that those being deported have paid over the years while living and working in the United States. Their argument is that those being deported should be paid those social security payments. It sounds fair right! But what exactly does the law say? First, the issue involves two government agencies: Department of Homeland Security –DHS (Immigration is under DHS.) and and Supplemental Security Income-SSI (Social Security.) In the U.S. some agencies are under some Departments and some are stand alone agencies. Social Security is a stand-alone agency meaning it is not under any Department. So here we have two different government agencies that operate under different rules and have totally different functions. Where two agencies somehow crossed paths, it gets messy. Both agencies, DHS-INS and SSI operate under Administrative Law. What is administrative law?
Administrative law is a body of laws that governs federal and state administrative agencies, as well as the procedures these agencies must follow when making determinations, ruling and rules. You have just read the definition and you have no clue what it is getting that. Look at the words I underlined! Let’s unpack it. “Body of laws that governs” which means, both federal and state agencies must operate under those laws, that each governmental agency is governed by certain laws, called administration laws. How about “Procedures” this means on official duties to the public, the particular agency must follow certain steps that are for the most part clearly defined. “Determination” the executive- function like when an agency makes decisions on a particular issue before it. “Ruling” this is telling you that each agency has a court-like function in which evidence may be taken and testimony heard and a ruling is made. “Rule” this is the legislative function or the rule-making function, similar to a legislative body. When Congress passes a law, the new legislation goes to an agency that in turn makes rules (which is like legislating) and the rules made by the agency are laws, believe it or not.
Most Gambians and Americans too, talk about the Separation of Power Doctrine. Yes, there is the “Separation Doctrine and it works great in theory and in some areas of government but under Administrative Law the separation doctrine is non-existent. Agencies perform Executive Functions, Judicial Functions and Legislative Functions. Most Gambians in the diaspora also talk a lot about “The Fourth Estate” which by the way, is regulated to an extent by administrative law. Administrative Law is the Fourth Branch of the Government. It is real and affects your lives whether you are sleeping or awake. Lol! Whether you drive or takes public transportation, administrative law affects you. You do eat right! And drink right! And Fly once in a while right! And Breathe right! And go to School or Graduated right! And may be you are Married right! Well guess what? Government agencies operating under administrative law touch all the things I have listed above. If you drive, Department of Motor Vehicle, DMV, have something for you. If you take public transportation the Department of Transportation have something for you. If you fly, Federal Aviation Administration, FAA, have something for you. You are human, so you do breathe, well the Environmental Protection Agency, EPA have something for you. Yes you eat too, Food and Drugs Administration, FDA under NIH have something for, and don’t for Department of Agriculture. The same goes for Immigration, Social Security, National labor Relation Board (NLRB), Federal Communication Commission, FCC and a host of other agencies. I think you get the idea. In American legal system, you will never find a more difficult and complex branch of the law than Administrative Law. One of my heroes, the late Supreme Court Justice, Justice Scalia used to say Administrative Law is not for sissies!
In the court-like functions of an agency called “Adjudication” you have a judge, Administrative Law Judge (ALJ). In the United States they are called Article 1 judges unlike Article 3 judges. Article 1 and Article 3 refer to Article 1 and Article 3 of the U.S. Constitution. Article 1 judges serve for a term and at the end of the term, it make not be renewed. For Article 3 judges, the term is lifetime. An Article 3 judge cannot be fired and his salary cannot be reduced. If an Article 3 judge has to be removed from office, he or she has to be impeached and then a 2/3 majority vote in the Senate. Article 3 judge include Federal District Court Judges, Federal Circuit Court Judges- the Appellate level or Middle level and of course Supreme Court Justices. Now let’s say Burr Saloum have an immigration issue, if an INS agent makes a determination against him, he can go in front of an Administration Law Judge and if the ALJ decide against him, he can first appeal at a Federal District Judge and the reason being the ALJ may be influenced because he is employed for a fixed terms and may act in a certain way because of the fear of not being re-appointed at the end of his or term, but a Federal District Judge does not have to fear that. If Burr Saloum loses at the District Court he can appeal to the Circuit Court level as of right and if he where to lose there, he can appeal to the United States Supreme Court but here, not of right, because it is discretionary, meaning the Supreme Court may choose to take the case or not by Writ of Certriorari. I have given you the federal process and most states mirror the federal process.
Of the 2000 Gambians that have been or are to be deported, who knows what level of the process each has reached. May be some do not have any grounds whatsoever and others do. So, one cannot talk about the issues facing them individually by making blanket statements. Some may be facing similar violations but that does not mean their cases are the same. There is always something different in each case. Let me turn to the Social Security issue.
THE SOCIAL SECURITY PROGRAM
The Social Security Program provides monthly cash benefits to qualified retired and disabled workers, their dependents, and survivors. Generally, a worker must have 10 years of Social Security-covered employment to be eligible for retirement benefits… Noncitizens (aliens) who work in Social Security-covered employment must pay Social Security payroll taxes, including those who are in the United States working temporarily and those working in the United States without authorization.
SPECIAL PAYMENT RULES FOR NONCITIZENS
Section 202(y) of the Social Security Act requires noncitizens in the United States to be lawfully present to receive benefits. That is the General Rule. Of course, there are exceptions to the general rule and I will get to them shortly. But, first, what does “lawfully present means”? An alien who is lawfully present in the United States includes:
(1) A “qualified alien” as defined by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA);
(2) An alien who has been inspected and admitted to the United States and who has not violated the terms of his status;
(3) An alien who has been paroled into the United States pursuant to Section 212(d)(5) of the act for less than one year, except: (i) Aliens paroled for deferred inspection or pending exclusion proceedings under Section 236(a) of the act; and (ii) Aliens paroled into the United States for prosecution pursuant to 8 C.F.R. Section 212.5(b)(3);
(4) An alien who belongs to one of the following classes of aliens permitted to remain in the United States because the Attorney General has decided for humanitarian or other public policy reasons not to initiate deportation or exclusion proceedings or enforce departure: (i) Alien currently in temporary resident status pursuant to Section 210 or 245(A) of INA; (ii) Aliens currently under Temporary Protected Status (TPS); (iii) this section deals with Cuban-Haitian entrants and does not concern us; (iv) Family Unity beneficiaries pursuant to Section 301 of P.L. 101-649, as amended; (v) Aliens currently under Deferred Enforced Departure (DED); (vi) Aliens currently in deferred action status pursuant to Service Operations Instructions; (vii) Aliens who are the spouse or child of a United States citizen whose visa petition has been approved and who have a pending application for adjustment.
(5) Applicants for asylum and applicants for withholding of removal under Section 241(b)(3) of the act or under the Convention Against Torture who have been granted employment authorization, and such applicants under the age of 14 who have had an application pending for at least 180 days.
An Alien may not be deemed to be lawfully present solely on the basis of the Service’s decision not to, or failure to, issue an Order to Show Cause or solely on the basis of the Service’s decision not to, or failure to, enforce and outstanding order of deportation or exclusion.
– Parole is a term in immigration law which means that the alien has been granted temporary permission to enter and be present in the United States. Parole does not constitute formal admission to the United States and parolees are required to leave when the parole expires, or if eligible, to be admitted in a lawful status.
– Who is a qualified alien under PRWORA (Under #1 above): PRWORA created the term “qualified alien,” a term which does not exist in immigration law, to encompass the different categories of noncitizens who were not prohibited by PRWORA from receiving federal public benefits. Qualified aliens (noted in P.L. 104-193 Section 431; 8 U.S.C. section 1641) are defined as:
(1) Legal Permanent Residents (an alien admitted for lawful permanent residence (LPRs);
(2) Refugees (an alien who is admitted to the United States under section 207 0f the Immigration and Nationality Act (INA);
(3) Asylum (an alien who is granted asylum under INA section 208);
(4) An alien who is paroled into the United States (under INA section 212 (d)(5)) for a period of at least one year;
(5) An alien whose deportation is being withheld on the basis of prospective persecution (under INA section 243 (h) or section 241(b)(3));
(6) An alien granted conditional entry pursuant to INA section 203(a)(7) as in effect prior to April 1, 1980; #7 does not concern us.
The Social Security Protection Act of 2004 (P.L. 108-203) requires an alien whose application for benefits is based on a Social Security Number (SSN) assigned January 1, 2004, or later to have work authorization at the time an SSN is assigned, or at some later time, to gain insured status under the Social Security Program. Aliens whose applications are based on SSNs assigned before January 1, 2004 may count all covered earnings toward insured status, regardless of work authorization status.
The general rule as stated above under Section 202(y) of the Social Security Act requires noncitizens in the United States to be “lawfully present” to receive benefits. If a noncitizen is entitled to benefits, but does not meet lawfully presence requirement, his/her benefits are suspended. I have already stated above what “lawfully presence” means. The bottom-line is that the Social Security Act does prohibit the payment of benefits to: individuals residing in certain countries; individuals confined to a jail, prison, or certain other public institutions for commission of a crime; most individuals removed from the United States (i.e., deported); aliens residing in the United States unlawfully; and in some cases, aliens residing outside the United States for more than six months.
There are three exceptions to the general rule and here they are: (1) Social Security Insurance or Pension System Countries Exception; (2) Treaty Obligation Countries Exception; and Totalization Agreement Countries Exception. Let’s take the exceptions one by one:
(1) Social Security Insurance or Pension System Countries: Under this exception, an alien may receive benefits outside the United States if he/she is a citizen of a country that has a social insurance or pension system that pays benefits to eligible U.S citizens residing outside that country (a “social insurance country”). This means, if a U.S. citizens was working in the Gambia and pays into the Social Security System and later moved back to the U.S. and is able to receive benefits from Gambia Social Security because of the payments he made into the system while living and working in The Gambia, the United States will do the same to a Gambian similarly situation. The following countries meet the “social insurance or pension system” exceptions: Antigua and Barbuda, Argentina, Austria, Bahamas, Barbados, Belgium, Belize, Bolivia, Brazil, Burkina Faso, Canada, Chile, Colombia, Costa Rica, Cyprus, Czechoslovakia, Denmark, Dominica Republic, Ecuador, El Salvador, Finland, France, Gabon, Grenada, Guatemala, Guyana, Iceland, Ivory Coast, Jamaica, Liechtenstein, Luxemburg, Malta, Mexico, Monaco, Netherland, Nicaragua, Norway, Panama, Peru, Philippines, Poland, Portugal, San Marino, Spain, St. Christopher and Nevis, St. Lucia, Sweden, Switzerland, Trinidad and Tobago, Trust Territory of the Pacific Islands (Micronesia), Turkey, United kingdom, Western Samoa, Yugoslavia, Zaire. Yes, I know what you are thinking Lol! Go ahead and yell at the top of your lungs and hit that punching bag a few times if that will make you feel better. Lol!
(2) The Treaty Obligation Countries Exception: These are the countries where the U.S. entered into a treaty with other countries and the citizens of the respective countries are able to receive social security benefits outside the country in which they worked and paid social security. These are the countries: Germany, Greece, Ireland, Israel, Italy, Japan, and the Netherlands. I am sure you guys are beginning to see a pattern here. Lol!
(3) The Totalization Agreement Countries Exception: Here alien workers and alien dependents/survivors may receive payments while living outside of the United States if they are a citizen or resident of a country with which the United States has a totalization agreement. Section 233 of the Social Security Act authorizes the president to enter into a totalization agreement with a foreign country to coordinate the collection of payroll taxes and the payment of benefits under each country’s Social Security system for workers who split their careers between the two countries. For example, without a totalization agreement, an individual who is sent by a U.S. company to work in a foreign country (and his or her employer) must contribute to the Social Security systems in both countries, resulting in dual Social Security coverage and taxation based on the same earnings. So to avoid that dual Social Security coverage and taxation, you have the emergence of Totalization Agreements. Not bad right! Here are the countries the U.S. have Totalization Agreements with. The numbers in brackets is the year such agreements were entered into: Australia (2002); Austria (1991); Belgium (1984); Canada (1984); Chile (2001); Finland (1992); France (1988); Germany (1979); Greece (1994); Ireland (1993); Italy (1978); Japan (2005); South Korea (2001); Luxemburg (1993); Netherlands (1990); Norway (1984); Portugal (1989); Spain (1988); Sweden (1987); Switzerland (1980); United Kingdom (1985/1988); Mexico (2004). Yes, I do not need to say anything. You guys are smart enough to figure it out. Lol!
Both Gambians in the diaspora and at home need to under this obvious fact, unless you become active by either forming your own political parties or organizations to have political clout nothing will change. If Gambians in the U.S. had an organization and contributed (in money or kind) to some Senator’s campaign or a member of the House of Representative to have the interests of Gambians in American represented, what is happening to those 2000 Gambians being deported might not have happened. But try organizing Gambians to build something that may be for their own good and very few will show up. Without political clout in a democracy you are just a pawn to be played with. When there is ALD Gambians from all over the place show up, when there is 4TH of July Gambians from all over show up. Now what can all those gatherings do for those 2000 Gambians who are being deported? Those mullahs (monies) you have been paying to attend those ALDs, 4th of July parties, to Youssou Ndure and whoever could have been invested in political organizations and used to get influence and protection, but unfortunately Gambians would rather run their mouths and mostly talk about things that they are absolutely clueless about. In 27 years of living here in the States, I have been to one ALD and that was after living in the States for ten years. I have never been to Atlanta and I have no business going there. Lol!
To those Gambians being deported, I say take heart and when you get home, settle down as quickly as you can and start organizing to take back your country. If you get home and sit in a corner and do nothing you will have no one to blame but yourselves. Get involve in the political process and take back your country. Organize, build grass root organizations and get those morons out of there. Two thousand of you can make great differences. Your government was not there for you when you needed it, so what are you going to do about it? You are smart and 2000 strong and saw first hand how your own government has failed you. There is a golden opportunity, I say, carpe diem!