end the Widow Penalty

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Update below - 12/20/07 10:58 EST

From the website of Surviving Spouses Against Deportation:


Marlin Coats didn't hesitate to jump in the water to try to save two drowning teens caught in a riptide at San Francisco Beach Park.  He lost his life that Mother's Day in 2006, but because of his heroism those two teenagers survived.  So why is the U.S. now responding to Coats' ultimate sacrifice by deporting his wife Jacqueline Coats?

U.S. Army contractor Todd Engstrom of Illinois gave his life for his country when he was killed in Iraq, and now the federal government is telling his wife Diana she too must go.  And so must Dahianna Heard of Florida, whose husband Jeffrey Heard was shot in the head by insurgents in Iraq.  What will happen to their children?

Because of a flaw in the law, women and men who entered this country legally are facing deportation when their spouses die during the lengthy administrative visa process.  There are scores of these cases across the country affecting women, mothers and children.

The "widow penalty" is an obscure interpretation of the Immigration and Nationality Act (INA) that puts widows or widowers of U.S. citizens at risk of deportation if they have not been married for at least two years and are waiting for an application for permanent residence (the "green card") to be approved.  I say it's an "interpretation" of the INA because several federal courts that have ruled on the issue have disagreed with U.S. Citizenship and Immigration Services' (USCIS) interpretation of the statute.  More on this below.

**contact your Senators and Congressional Representatives to end the widow penalty**

From what I can tell, there wasn't much going on with this issue until Brent Renison and Michael Millender, Oregon attorneys, litigated the case of Carla Freeman up to the Ninth Circuit Court of Appeals and won.  Carla Freeman, a dual citizen of South Africa and Italy, met Robert Freeman while temporarily working in the U.S. as an au pair.  They were married in February 2001 and she and her husband filed the papers later that year for her to get a green card.  He was killed in a car accident just before their first wedding anniversary.  The government finally got around to adjudicating her green card application in May 2004 and denied it on the basis that she had been stripped of "spouse" status when her husband died.  Freeman then left the country. 

Through her attorneys in the U.S., she appealed the government's decision and, in April 2006, the Ninth Circuit ruled in her favor (pdf), arguing that the government had wrongly construed the intent of Congress and the plain language of the statute in revoking Carla Freeman's status as a "spouse" when her husband was killed. 

It is instructive to note that if the government had approved the green card before her husband had died, Freeman would have been eligible to keep her green card and later become a citizen.  She would not have been hit with the widow penalty.  Or if she had been married for two years by the time of her husband's death, the penalty would not have applied.  The widow penalty only affects the narrow category of surviving spouses of U.S. citizens who were not yet married for two years at the time of the citizen spouse's death and whose green card applications had not yet been decided.  As the District Court of New Jersey noted in the recently decided Robinson case,

[the interpretation proffered by the government] yields strange results.  A prompt adjudication of the I-130 petition (before the citizen dies) will result in approval.  A delay in adjudication (until after the citizen dies) will result in a denial.  But a severe delay of two years, followed by citizen's death, will also result in an approval.  The Court cannot imagine that Congress intended the time of death combined with the pace of adjudication, rather than the petitioner's conscious decision to promptly file an I-130 petition, to be the proper basis for determining whether the alien qualifies as an immediate relative.

Robinson v. Chertoff, 2007 WL 1412284, at *5 (D.N.J. 2007) (No. 06-5702). 

Because of the confluence of the tragic death of Freeman's husband and administrative delay--both factors entirely outside of her control--she was denied legal status.  After the Ninth Circuit's ruling, the case was remanded back to USCIS, which basically ignored the ruling and denied the application again.  Now Freeman must either come back to the U.S. to litigate the case further in immigration court or be forever barred from the country. 

Osserritta Robinson, a citizen of Jamaica, married a U.S. citizen who was later killed in the Staten Island Ferry crash in 2003 while his wife's green card application was pending.  USCIS denied the application and Robinson filed suit against the government.  The federal court in the District of New Jersey ruled in Robinson's favor earlier this year.  The government is appealing the decision. 

Senator Bill Nelson (D-FL) introduced legislation to eliminate the widow penalty, but it has stalled in Congress, as has all other immigration legislation. 

In August 2007, Renison and Los Angeles attorney Alan Diamante filed a class action lawsuit on behalf of surviving spouses affected by the widow penalty.  The case is still in the early stages of litigation, but has the potential to effectively overturn the widow penalty in the U.S.  However, the government is trying to get the class action dismissed--the judge has not yet ruled on that motion and the result of the case is uncertain.

In November 2007, USCIS issued a memo in which it agreed to apply the decision of the Ninth Circuit within the bounds of the Ninth Circuit only, instituting a regional policy in what is supposed to be a federal area of the law.  Currently, if your spouse is killed and you happen to live in Alaska, Arizona, California, Idaho, Guam, Hawaii, the Northern Marianas, Nevada, Montana, Oregon, or Washington, you can still stay in the U.S. if you can prove your marriage was the real deal.  If you happen to live in another state, tough luck.  This policy makes a mockery of the idea of a nationally applicable immigration policy. 

Just last week, another surviving spouse won her case against the government in a decision handed down by the District Court of Massachusetts, Taing v. Chertoff.  The court cited favorably the Ninth Circuit Freeman case and the Robinson case from New Jersey.  So that makes three recent federal court decisions that have ruled against the government's interpretation of the relevant immigration law.  

It may sound as though all a surviving spouse whose green card application is denied by USCIS has to do is file a lawsuit and then he/she will be fine.  It is not that easy, though, to sue the government in federal court.  Many surviving spouses don't have much money and certainly couldn't afford to pay a private attorney to litigate their case in federal court, including any appeals.  And because USCIS has fought the courts tooth and nail on this issue, even a win in federal court doesn't guarantee a favorable outcome, as Carla Freeman knows well. 

All Renison and SSAD are asking is that immigration adjudicators be permitted to make decisions about whether to grant a green card to a surviving spouse on a case-by-case basis, after first determining that the marriage was bona fide.  There is already an established process for making these decisions when a conditional green-card holder (one who was not yet married for two years before the green card was issued) is widowed before her green card becomes permanent.  In such a case, the conditional resident surviving spouse files a waiver along with documentary evidence of the good faith of the marriage and USCIS makes a decision to approve or deny, reviewable by an immigration judge in immigration proceedings.  Why not simply extend that process to cover surviving spouses who have filed for the green card but have not yet received a decision?  The government doesn't seem to have a good answer to this question. 

A Google search on the widow penalty turned up a Wizbang post on the issue by Bill Jempty that has apparently not yet been posted to the main page, showing that this is an issue that cuts across traditional political lines.  I'll link to the post here in an update once it goes up on the site.  [Update 12/20/07 10:58 EST: Here is the link.] Also check out this conservative think tank that supports ending the penalty.  And you can watch some of the surviving spouses affected by the penalty on the Mike and Juliet show here and here.

Most importantly, find out here how you can contact your elected officials to push for an end to the widow penalty.

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» this American life: the Widow Penalty from Citizen Orange

Brent Renison, the Oregon attorney who has been working tirelessly to eliminate the nonsensical "widow penalty," appeared recently on NPR's "This American Life" with Ira Glass.  You can check it out here (scroll through to nearly the halfway mark ... Read More

3 Comments

yave begnet said:

Thanks for the update, Bill.

milly said:

my friend and his wife had a car accident, his wife died and he still in the hospital with a broken back and broken ribs, he's suffering fisical and emotional; they just got married on august and bought their house making many plans like having a baby next month!..also they just put all the documentation in uscis for him for his status here in usa.

all what Im doing is pray for my friend because I know his wife is taking care of him next to god..and praying for people to understaind that losing a person that you love is enough suffer than just point with your hand and say "your application is denied you have to leave usa"...god please give them heart and understanding to all this people that even they said they are doing their job I know they can change it and do a diference in their lives!

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This page contains a single entry by David Bennion published on December 16, 2007 10:46 PM.

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