end the Widow Penalty
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
. He lost his life that Mother's Day in 2006, but because of his heroism those two teenagers survived. So why is the San Francisco Beach Park now responding to Coats' ultimate sacrifice by deporting his wife Jacqueline Coats? U.S.
U.S. Army contractor Todd Engstrom of
Illinoisgave his life for his country when he was killed in , and now the federal government is telling his wife Diana she too must go. And so must Dahianna Heard of Iraq Florida, whose husband Jeffrey Heard was shot in the head by insurgents in . What will happen to their children? Iraq
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**
what I can tell, there wasn't much going on with this issue until Brent Renison and Michael Millender,
her attorneys in the
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
[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).
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
Osserritta Robinson, a citizen of
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
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
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
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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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