Okocha v. Berryhill , 693 F. App'x 37 ( 2017 )

16-3432-cv
Okocha v. Berryhill
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
6th day of July, two thousand seventeen.
PRESENT:
DENNIS JACOBS,
PIERRE N. LEVAL,
REENA RAGGI,
Circuit Judges.
_____________________________________
BASIL OKOCHA,
Plaintiff-Appellant,
v. 16-3432
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,1
Defendant-Appellee.
_____________________________________
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Acting Commissioner Nancy A. Berryhill is automatically
substituted for former Commissioner Carolyn Colvin as
Defendant.
FOR PLAINTIFF-APPELLANT: BASIL OKOCHA, pro se, Bronx, NY.
FOR DEFENDANT-APPELLEE: JOHN E. GURA, JR. (Christopher
Connolly, on the brief),
Assistant United States Attorney,
for Joon H. Kim, Acting United
States Attorney for the Southern
District of New York, New York,
NY.
Appeal from a judgment of the United States District Court
for the Southern District of New York (Cott, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Basil Okocha, pro se, sought review of a final
decision of the Commissioner of Social Security
(“Commissioner”) determining that Okocha was no longer entitled
to Supplemental Security Income (“SSI”) benefits based on his
immigration status. The magistrate judge determined that
substantial evidence supported the decision of the
administrative law judge (“ALJ”), and granted the
Commissioner’s motion for judgment on the pleadings. We assume
the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
We review de novo a district court’s judgment on the
pleadings. Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010).
When the judgment upholds a benefits determination by the
Commissioner, the Court conducts a de novo review of the
administrative record “to determine whether there is
substantial evidence supporting the Commissioner’s decision
and whether the Commissioner applied the correct legal
standard.” Id. (internal quotation marks omitted). The
substantial evidence standard means that “once an ALJ finds
facts, we can reject those facts only if a reasonable factfinder
would have to conclude otherwise.” Brault v. Soc. Sec. Admin.,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (internal
quotation marks omitted).
2
Non-citizens face certain restrictions when applying for
federal public benefits, including SSI. Generally, “qualified
aliens,” including permanent residents and political asylees,
are not eligible for SSI. 8 U.S.C. §§ 1612(a)(1), (a)(3)(A);
see 8 U.S.C. § 1641(b) (defining “qualified alien”). However,
aliens who are granted political asylum are eligible for
benefits for the limited period of seven years after that date.
8 U.S.C. § 1612(a)(2)(A)(ii). They enjoy an extra two years
of benefits under the SSI Extension for Elderly and Disabled
Refugees Act of 2008, Pub L. No. 110-328. Id., §
1612(a)(2)(M)(i)(I)-(II). Okocha did not challenge the ALJ’s
conclusion that he obtained political asylum in February 2002.2
Accordingly, Okocha was eligible for SSI until 2011, nine years
after the grant of asylum. Thus, barring any exception, the
Commissioner did not erroneously remove Okocha’s SSI benefits
in March 2011.
Notwithstanding his arguments to the contrary, Okocha fits
none of the exceptions under § 1612(a)(2). Primarily, Okocha
relies on § 1612(a)(2)(F)(i), which permits otherwise
ineligible aliens to receive certain government benefits, such
as SSI, if they resided in the United States on August 22, 1996
and are disabled or blind.3 8 U.S.C. § 1612(a)(2)(F)(i).
Okocha did not arrive to the United States until 2001. He
argues that his benefits should continue due to his receipt of
food stamps. However, this is a misreading of
§ 1612(a)(2)(F)(ii). That section permits a qualified alien
to receive food stamps if he “is receiving benefits or
assistance for blindness or disability (within the meaning of
section 3(j) of the Food Stamp Act of 1977[)].” 8 U.S.C.
§ 1612(a)(2)(F)(ii). Because the benefit at issue here is SSI,
2
As Okocha admits, his challenge to the ALJ’s decision
consisted of arguing that his disability status exempted him
from the general rule that permanent residents are ineligible
for SSI. He never challenged the finding that he obtained
asylum in February 2002.
3
Okocha mistakenly cites 8 U.S.C. § 1612(F)(II), which does not
exist. In context, it is clear that he is referring to
§ 1612(a)(2)(F)(i)-(ii).
3
§ 1612(a)(2)(F)(ii) is irrelevant. Okocha also argues that the
date restriction in § 1612(a)(2)(F)(i) applies only to Medicare
applicants. This too is incorrect. Section 1612(a)(2)(F)(i)
applies to SSI. See 8 U.S.C. §§ 1612(a)(2)(F)(i), (a)(3)(A).
We have considered all of Okocha’s remaining arguments and
find them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
4