PAUL C. HUCK, District Judge
THIS CAUSE is before the Court on Plaintiff's Motion for Relief from Order, filed March 31, 2004 [DE #37]. In that Motion, Plaintiff Ernesto Nodarse requests relief from this Court's March 3, 2004 Order for mistake or inadvertence as to two findings in that Order. First, Nodarse states he did not, in his pleadings or at oral argument, agree that an "applicant must be the `subject of removal proceedings' at the time of his SSI application in order to qualify as a Cuban/Haitian entrant" under § 501(e)(2)(ii) of the Refugee Education Assistance Act of 1980 ("REAA"). Second, Nodarse asks that the Court relieve him of its finding that he is not entitled to a reopening of his first, March 1999 supplemental security income ("SSI") application, arguing he did not request reopening of that application and that the Court has, therefore, inappropriately "made a decision outside the adversarial issues presented to the court by the parties." Above the Belt, Inc. v. Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). For the reasons set out below, the Court grants the motion in part, denies it in part, and further clarifies its prior ruling.
In his objections to the magistrate judge's Report and Recommendation, Nodarse asked this Court to consider whether he was entitled to indefinite SSI under § 501(e)(2)(ii), claiming he was a Cuban/Haitian entrant on August 22, 1996, and was disabled at the time he applied for benefits. Nodarse argued that he should have qualified as a Cuban/Haitian entrant for the period from 1990-2001 because he was in deportation proceedings under an Order to Show Cause and Notice of Hearing from January 26, 1990, the date of that order, until January 24, 2001, the date he adjusted to lawful permanent resident status. The Defendant countered that an individual must presently be in removal proceedings at the time he applies for benefits in order to qualify under § 501(e)(2)(ii), and that Nodarse was not in removal proceedings on February 8, 2001, the filing date of the SSI application that is the subject of this appeal. In his response to the Defendant's objections, Nodarse stated that "[t]he Plaintiff agrees that an alien must, on the date in question, be subject to removal proceedings in order to be classified as a Cuban/Haitian entrant." However, Nodarse argued that "the date in question" should be March 29, 1999, the filing date of his first SSI application, rather than February 8, 2001. In its Order, the Court stated that Nodarse had agreed that "an applicant must be the `subject of removal proceedings' at the time of his SSI application in order to qualify as a Cuban/Haitian entrant" under § 501(e)(2) of the REAA. Therefore, to the extent that the Court's and Nodarse's statements are inconsistent, Nodarse is relieved of this Court's representation as to his above-quoted concession. Nonetheless, the Court continues to agree with Defendant's position that an applicant must presently be in removal proceedings at the time of the SSI application being appealed to this Court in order for § 501(e)(2) to apply. Accordingly, the Court affirms its conclusion that, as of February 8, 2001, when Plaintiff filed his second SSI application, which is the only one properly on appeal here, he did not qualify as a Cuban/Haitian entrant under § 501(e)(2) of the REAA because he was a lawful permanent resident and was not in removal proceedings on that date.
Nodarse's second request for relief is denied. Petitioner's argument for entitlement to indefinite SSI eligibility requires, in part, a finding that he was in deportation proceedings on August 22, 1996, and, therefore, was a Cuban/Haitian entrant and qualified alien on that date. However, this Court found that it could not substantively address that argument because doing so would require reopening Nodarse's March 1999 SSI application. This is because the Social Security Administration made factual and legal findings that Nodarse was not a Cuban/Haitian entrant, meaning that he was not granted the status of Cuban/Haitian entrant at the time he entered the country and that he was not in removal proceedings at the time of that application. Moreover, in considering his second, February 8, 2001 SSI application, the Administrative Law Judge did not find sufficient grounds for reopening the earlier application and declined to do so. Any determination by this Court as to whether Nodarse was in deportation proceedings on August 22, 1996, would require reversal of the Social Security Administration's determination on the merits of his 1999 SSI application. Because this Court can only review final social security decisions if a compliant is filed within sixty days of the date that the decision becomes final or if the Social Security Administration extends that time for appeal or reopens a prior application while considering a subsequent one, see March 2, 2004 Order at 11-12, the Court found it does not have jurisdiction to reconsider factual and legal findings made upon Nodarse's first application. Thus, although Plaintiff states that he did not request a reopening of his earlier application, his request that he be found to be a Cuban/Haitian entrant who was lawfully residing in the United States on August 22, 1996, would necessarily require reopening that 1999 application, which this Court is not permitted to do in this case.
Although the Court noted in its statement of facts that Nodarse and his family were put into deportation proceedings at the time of the denial of his request for asylum, that statement is, essentially, a quote from the January 26, 1990 Denial of Request for Asylum, which states that the attached Order to Show Cause "plac[es] you (and any members of your family included on your asylum request) under deportation proceedings." However, this Court's indirect quotation of that statement does not constitute a finding that Nodarse was in removal proceedings on August 22, 1996, "effectively . . . meaning [Nodarse] was a Cuban Haitian entrant on August 22, 1996." As discussed below, the Social Security Administration apparently found that Nodarse was not a Cuban/Haitian entrant because he was not in deportation proceedings at the time of his first SSI application, and the Court will not disturb that finding.
Since Nodarse argues that he was in removal proceedings from 1990-2001, and since there is no evidence of any change in status during that period, the Social Security Administration's finding as to Nodarse's status on the date of his March 1999 application also constitutes a finding as to his status on August 22, 1996.
However, because the parties represented that this Court's Order is likely to be appealed to the Eleventh Circuit, the Court makes perfectly clear for purposes of any such appeal that the Order should not be taken as a finding regarding whether Nodarse was in deportation proceedings or was lawfully in the United States on August 22, 1996. Further, the Court's March 3, 2004 Order should not prevent reconsideration of the merits of this issue by the Social Security Administration. To the extent that that agency has discretion to reconsider its prior factual and legal determinations, nothing in this Court's March 3, 2004 Order would preclude that agency from revisiting this issue on further proceedings on this application or pursuant to a subsequent application.
Nodarse also challenges the Court's "finding" in footnote 5 of its March 3 Order that an immigrant who is in deportation proceedings cannot be lawfully residing. However, the statements in that footnote were merely speculative and did not constitute a ruling on the merits. Although the Court expressed doubt that an alien can be deportable and legally residing at the same time, that footnote concludes with the express holding that "the Court declines to rule on this issue since the question is not properly before it for the reasons stated below."
In conclusion, because the Court's finding that it cannot reopen the 1999 application was necessary in order for the Court to explain why it cannot reach Nodarse's substantative argument, the Court disagrees that there was a misunderstanding as to the nature of the relief sought in this matter. The Court therefore restates its finding that it does not have jurisdiction to find that Nodarse is entitled to non-time limited SSI benefits since such a determination, on Plaintiff's legal theory, would necessarily require that it impermissibly review determinations made in the prior SSI application. Accordingly, the Court denies the petitioner's second request for relief from the Court's March 3, 2004 Order, and fully affirms the conclusions of that Order.
DONE AND ORDERED.