20 CFR 404.365
H, the deceased worker, was born in the United States and was taken to Mexico by his parents in 1937. He returned to the United States in 1955. In 1956 he was deported to Mexico, under section 241(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1251(a)(1)). His deportation resulted from a finding that he had voted in the 1946 presidential election of Mexico and that he had thereby expatriated himself under the provisions of section 401(e) of the Nationality Act of 1940, 54 Stat. 1168. After his death, his survivors who were aliens residing in Mexico led application for social security benefits based on his earnings record.
Section 202(n)(1) of the Social Security Act, as pertinent here, provides:
Thus under the facts here, section 202(n)(1) would, because of H's deportation, preclude payment of benefits under title II of the Social Security Act to the survivors of H, based on his earnings record. However, the question has been raised as to whether H could be considered not to have been expatriated and hence not subject to deportation, in view of the recent decision of the United States Supreme Court in Afroyim v. Rusk, 387 U.S. 253 (1967).
In the Afroyim case, supra, Mr. Afroyim, who was born in Poland, emigrated to the United States and became a naturalized citizen in 1926. He went to Israel in 1950 and in 1951 he voluntarily voted in an election for the Israeli Knesset, the legislative body of Israel. In 1960, when he applied for renewal of his United States passport, the Department of State refused to grant it. It was held that he had lost his American citizenship, as required by section 401(e) of the Nationality Act of 1940, (reenacted as section 349(a)(5) of the Immigration and Nationality Act of 1952, 8 U.S.C. section 1431(a)(5)), which states that a United States citizen shall lose his nationality by "voting in a political election in a foreign state." Mr. Afroyim claimed that section 401(e), supra, violated the Due Process Clause of the Fifth Amendment and section 1, clause 1, of the Fourteenth Amendment to the Constitution. On the basis of the Fourteenth Amendment, the Supreme Court held that the Government did not have the power to deprive an individual of his citizenship as a result of his voting in a foreign political election and that section 401(e), supra, insofar as it attempted to do so, was unconstitutional.
The question presented therefore is what effect does the Afroyim decision have on the expatriation and deportation of the worker herein. In Norton v. County of Shelby, 118 U.S. 425 (1886), the Supreme Court held that "an unconstitutional Act is not a law. . . [I]t is in legal contemplation, as inoperative as though it had never been passed." See also, Chicago, Indianapolis and Louisville Railway Company v. Hackett, 228 U.S. 559 (1913). Absent special exigencies (for instance, those involved in certain aspects of the enforcement of the criminal law), we believe the Supreme Court would continue to apply the doctrine of Norton. In Adkins v. Children's Hospital, 261 U.S. 525 (1923), the Supreme Court held that the minimum wage law of the District of Columbia was unconstitutional. In West Coast Hotel Co. v. Parish, 300 U.S. 379 (1937), the court upheld the constitutionality of the minimum wage law of the State of Washington and specifically overruled Adkins. In considering the effect of the Supreme Court's decision in West Coast Hotel Co. v. Parish, supra, on the District of Columbia minimum wage law, the Attorney General, in 39 Op. Atty. Gen. (1937) pp. 22, 23, stated that "if a statute be declared unconstitutional and the decision so declaring it be subsequently overruled the statute will then be held valid from the date it became effective." In West Coast Hotel Co., the Supreme Court overruled a prior decision which held a statute to be unconstitutional, and the statute was applied as if the prior (overruled) decision had never existed. While the converse of this situation is involved in Afroyim, the result would be comparable. Afroyim overruled a prior decision, Perez v. Brownell, 356 U.S. 44 (1958), which had upheld the constitutionality of section 401(e) of the Nationality Act. When Afroyim later declared that section 401(e) was unconstitutional, it would follow that that provision should be considered "as inoperative as though it had never been passed" and the prior decision finding it constitutional as though it had never existed.
In the light of the foregoing, H's expatriation and deportation must be considered invalid. Accordingly, section 202(n)(1), supra, is not applicable and benefits may be paid to his survivors, provided they otherwise meet the requirements for entitlement under the Act.
 The Fourteenth Amendment, section 1, clause 1, provides:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States * * *."
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