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A small legal victory in the fight against The Widow Penalty

A decision in the case of Taing v. Chertoff was handed down Thursday.

LOWELL, MA - A federal court in Massachusetts ruled yesterday that the surviving spouse of an American citizen can proceed with her properly filed application for residency, despite the United States Citizenship and Immigration Services (USCIS) earlier ruling that she was stripped of the status of spouse when her husband died during lengthy administrative processing.

The Honorable William G. Young, United States District Judge, found that Mrs. Neang Chea Taing, a citizen of Cambodia who entered the country legally, had filed all the necessary paperwork required for legal residency together with her naturalized U.S. citizen husband. When her husband died, USCIS denied her application, stating that she was no longer a spouse, and commenced deportation proceedings against her. Her attorney, Tom Stylianos of Lowell, Massachusetts, filed a lawsuit in federal court seeking to set aside the unlawful determination.

This is just one victory. The federal government is likely to appeal Judge Young's decision as they have in a similar case which currently awaits a hearing in the 3rd Circuit Court of Appeals.

So what is going on here and why does the US government want to deport Mrs. Robinson and Mrs. Taing and over 100 other women like them? Are they illegal aliens? There is an obscure quirk in US Immigration law known as The Widow Penalty. Legal alien spouses of US citizens who are in the process of gaining permanent residency in the United States. Their spouse dies before their petition is completed, and now they face deportation.

I know something about the petition process from personal experience. First The orgainization Suviving Spouses against Deportation explainsthe stages involved for a foreign born spouse to gain permanent residency-

In order to understand, it helps to learn about the process of becoming a Lawful Permanent Resident through marriage to a United States citizen. When a U.S. citizen marries a non-citizen, he or she may file a petition for that person to receive "immediate relative" status and be processed for Lawful Permanent Resident (LPR) status. LPR status is commonly referred to as the "Green Card." The non-citizen spouse may either apply for an immigrant visa abroad at a U.S. consulate, or if already in the United States, may apply for "adjustment of status" and be processed without leaving the country. One common misconception is that spouses of U.S. citizens are applying for citizenship - a non-citizen who gains LPR status through a spouse must reside in the United States as a resident for three years before applying for citizenship. The immigration process often takes many months to complete.
Let me explain a little how a US citizen tries to bring their foreign born spouse legally to the United States. Take for instance my story.

I met my wife Leonita almost 20 years ago. Leonita was born in the Philippines and we met in that country. We were married in May 1989. Prior to our marriage, Leonita never set foot in the United States.

In June of 1989 I filed a Alien Relative petition aka the I-130 with INS. After processing in Dallas and Manila, including Leonita being interviewed at the US embassy, she successfully immigrated to the USA on December 17th 1989. That's incredibly quick by today's standards. An I-130 today takes a year at least. This often causes hardship for families have to live separately thousands of miles apart. Take for instance US servicemen who marry women from Germany, South Korea, and Japan every year. Often these military members have to leave their spouse and even children behind when they get orders to a new military station.

On arrival in the US, Leonita like other foreign born spouses of US citizens is considered a Conditional Permanet Resident(CPR), that's if the couple hasn't been married two years before their I-130 was done. So when Leonita arrived in the US she was CPR. Again I'll let SSAD explain.

The married couple files the paperwork, then waits for the government to process. During this waiting period, the non-citizen spouse may receive work authorization and travel permission. If an applicant is given resident status prior to the second wedding anniversary, the LPR status is called "conditional" and referred to as "Conditional Permanent Resident (CPR) status. CPR status is virtually the same as LPR status, with the condition that the couple file a simple form after two years attesting to the continuing validity of the marriage to remove the condition. If the marriage is no longer valid, the CPR has the option of proving that the marriage was terminated through divorce but was entered into in good faith, or show abuse, or that the citizen spouse has died. This is the case even if the marriage never reached the two year mark.
CPR status is used to prevent marriage fraud. Without doubt, there are people who marry just to get residency in the US. My wife was considered CPR, and worked during the two year time period. In December 1991 we applied to have that status removed. It was successful sometime in 1992 and soon after Leonita applied for citizenship. This she attained in January of 1994. We remain married to this day. Can you believe there is someone who can put up with me for 18 years?

Here's what happens if a US citizen dies before the CPR is removed from their spouse or the spouse's adjustment of status hasn't been completed.

With respect to the "widow penalty," the government takes the view that if the death occurs before the couple's applications are adjudicated (CPR status), even if the marriage is one day short of the two year wedding anniversary, the application can be denied because the applicant is no longer a "spouse."
The legal alien spouse can and will be deported. That is what happened to Carla Freeman.
On Wednesday, Freeman, whose fight against deportation by U.S. immigration officials has gained international attention, will return to Nelspruit, South Africa, to be with her aging parents. Both, she said, have been seriously ill.

It's tough. And unfair, she said. She fell in love with a man, his family and his country. She complied with all the rules on the road to citizenship, starting with marrying Robert in 2001. But then her husband died in a car wreck, and she was ordered to leave.

Before they shackled and handcuffed Freeman in May, immigration officers explained that her husband's sudden death made her ineligible to be a citizen. They hadn't been married for two years, as federal law requires.

That article was written in 2004, and shortly afterwards Mrs. Freeman was deported to South Africa. Still a legal battle went on, she winning a temporary victory before the 9th Circuit Court. Unfortunately the spineless circuit court then wouldn't force CIS to consider Mrs. Freeman a spouse, her writ of mandamus being denied last Summer. Carla Freeman has now dropped her appeal, and is permanently barred from ever entering the United States again. Her only crime? Robert Freeman dying before his wife's CPR status was removed.

If I had died before Leonita had CPR removed, the same would have happened to her. The Widow Penaly is outrageous, and not even spouses who are parents to US citizens are exempt. Take the case of Dahianna Heard.

Dahianna and Jeffrey Heard often talked of their life after the war as a dream they would live together: buy a house, raise a family, travel abroad. But Jeffrey, a Casselberry contractor for a security company supporting U.S. troops in Iraq, was shot to death this spring during an ambush of his convoy near Fallujah.

Now his wife, a Venezuela native raising their 1-year-old son, faces possible deportation.

One reason: They hadn't been married long enough. She was three months short of the two years needed to satisfy immigration-law rules.

Other women facing deportation under The Widow Penalty include-

Diana Engstrom another wife of a contractor killed in Iraq.
Khin Win Mauro whose husband was killed by a drunk driver less than a year after their marriage.
Jackie Coats whose husband Marlin died trying to prevent three people from drowning.

Note- The Widow Penalty doesn't apply to spouses of US military personnel killed in action. However this hasn't occured without some glitches.

There also was some recent controversy involving the illegal alien wife of a US soldier missing in action in Iraq.

Also this quirk of immigration law, is based on an almost forty-year-old INS interpertation of the relevant statues. The original administrative decision being the Matter of Varela.

There are 100 more spouses like those I mentioned above. They all face deportation unless-

1- A private bill gets passed by Congress in each and one of these women's cases.

2- Something similiar to Section 516 of HR 1645 gets passed into law. A measure like it was passed by the Senate in 2006 but died in the House. Another attempt was made this year, but died with the rest of the Immigration Reform package last summer.

3- Other litigation still in US court system, extends the Freeman v Gonzales decision beyond the borders of the 9th Circuit Court of Appeals jurisdiction. Read this memo to understand how CIS officials are fighting this tooth and nail, including within the boundaries of the 9th circuit. Mike Aytes, a career immigration bureaucrat, believes he knows the law better than federal judges.

4- A victory in the class action lawsuit filed on behalf of these widows last August.

What I said last May still applies-

There is a valid reason to have immigration laws and requirements for people to attain residency and citizenship. I'm fully aware there are sometimes sham marriages done in order for people to get residency in this country.

In my humble opinion, though, the widow penalty is unfair and unjust. These men or women have done nothing wrong and unless ICE can prove otherwise, should not lose their U.S. residency. Their CPR status as a US citizen's legal spouse shouldn't end just because the person they married died.

Even in death a married person's rights and contractual obligations don't end entirely. Property ownership and custody of any children pass to the surviving spouse. There is the tax benefit of Qualifying Widow status which allows the surviving spouse to pay taxes as if they were Married filing jointly for several years after their husband or wife dies. Maybe most of all, debts owed by the couple or owed to the couple aren't ended by the death of one spouse. One could make the argument, and I certainly will, that the obligation the U.S. government owed to these widows if their spouse had lived to the end of the two year period, shouldn't be ended just because the U.S. Citizen spouse died.

This is a nation of 300 million people, of which over 10 million are illegal aliens. You'd think we have room for Khin Win Mauro, Dahianna Heard, Jacke Coats and the few other women and men like them.

As you can see, I feel very strongly The Widow Penalty is a travesty of justice. My hope is that if enough people learn of it, we can pressure our government or legislators to bring it to an end.


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Comments (16)

The reason for getting a gr... (Below threshold)
Michael:

The reason for getting a green card based on marriage is to be together with the spouse. If the spouse is dead, why should they get a green card? Which do they really care about anyway? If they really came to the US to be with their spouse and their spouse dies, logically you would think they want would go home. Unless they really didn't come here out of a genuine desire to be with their spouse. If I moved to another state to be with someone I loved and then subsequently they died, I would go back home. This seems obvious to me.

Michael doesn't see the tro... (Below threshold)
Mitchell:

Michael doesn't see the trouble this can lead to. It's not "obvious."

My wife is similarly situated. We have a 1 year old; they are close to my family and parents.

You're saying that my 1 year old should be deported because I died prematurely? Her Grandparents, then, would have very limited contact with her. This is an acceptable result??? I think not.

The person who comes here, LEGALLY, obeys the laws and takes citizenship here seriously, is not someone we should penalize. If they've been here a couple of years, their lives are pretty well rooted here, and kicking them out of the country, especially after the death of their spouse, is cruel, to say the least.

Don't mistake this issue for anything to do with illegal immigration. This is totally, completely different. You're playing around with serious people and their lives.

My wife would make a much better citizen than most of the citizens who were lucky enough to be born here, by the way.

The Trencado wing of the re... (Below threshold)
BarneyG2000:

The Trencado wing of the republican party will not rest until all aliens are removed to Gitmo whenever the citizen spouse dies regardless of the number of years resident or number of dependents born in the US.

Another useless post by Bar... (Below threshold)
Mitchell:

Another useless post by BarneyGoogle. Oh well, we'd expect no more.

Michael seems to know alot ... (Below threshold)

Michael seems to know alot about people he doesn't know and unlikely never will.

Why wouldn't these women want to stay? Moving to a new country demands alot of changes and putting things and people behind. Don't underestimate the sacrifice. They love their spouse, but at the same time leave other family and friends behind. They come here to the US and put down roots and make new friends and even new family.

Dahianna Heard has a one-year-old. She would like to raise him in the United States. Miss Saigon or Madame Butterfly may make nice drama, but mothers don't want to make that ultimate sacrifice. Especially after you child has lost one parent?

The more I read people's opposition to sensible and fair legal immigration policy, the more the anti-illegal crowd looks like a bunch of xenophobes. If you're not one of us get lost. I feel sorry for them.

Bill

Yes, my wife left some very... (Below threshold)
Mitchell:

Yes, my wife left some very nice friends. Well-educated, middle class folks in Managua, Nicaragua. She's not without means or a life.

I think alot of people have this vision of immigrants as all a bunch of free-loaders, or un-educated Mexicans. And that is completely not the way it is.

I think most legal immigrants who come here and are proud to be an American (most are) or want to be one (my wife would like to) exhibit some of the best in people, and their love of this country is very real. These are not "mail order brides." These are the types of people your forebears were when they came over 200, 100, 50 years ago.

None of us are here without immigration; unless we're native Americans.

Mitch, yet you support the ... (Below threshold)
BarneyG2000:

Mitch, yet you support the very same party that offers wife, and those like her, as sacrificial lambs.

The Democrats only offer he... (Below threshold)
Mitchell:

The Democrats only offer her dependancy, misery, low-aspirations, low-wages, so I'll take my chances with the Repubs.

No one I know in my party is anti-legal immigration. You've missed the distinction in this debate, again.

As long as they keep includ... (Below threshold)

As long as they keep including this measure as part of a much larger and more unsavory package, it will remain an uphill battle.

As this part of the legislation had such strong bi-partisan support there is no reason it shouldn't pass alone and on its own merits. But there are those in the House who keep pushing for items related to immigration which DO NOT have widespread support, and this is a good one to to attach to it and hang around the neck of Republicans because they won't swallow the Democrat's bitter pill offered along with the sugar.

Hence, we get Barney's sophomoric intimations, "Republicans hate these widows."

Barney, you are such a disingenuous, partisan little snerk.

"Mitch, yet you support ... (Below threshold)
LaMedusa:

"Mitch, yet you support the very same party that offers wife, and those like her, as sacrificial lambs."

Jeez, Barney! How come you never post stellar comments such as this on Wizbang Blue? Are you afraid that even they might find your generalized sensationalism a little bit over the top?

I am the attorney who has b... (Below threshold)

I am the attorney who has been handling these widow cases since 2004. I litigated Freeman v. Gonzales, and formed the non-profit advocacy group Surviving Spouses Against Deportation. I have spoken to over 100 widows, widowers and their families over the past three years. I now get one to two new calls per week from widows. I do this all pro bono, so I'm not getting paid. I feel strongly that this law is wrong, and that is why I have donated my time for this effort.

I believe this is a bi-partisan issue. In other words, members of both parties feel that this law is unjust, and would like to change it. Both parties have tried. Both parties, however, each have their own reasons for not wanting comprehensive immigration to go through. Mostly, it is fear and misunderstanding. I do not have time to go into this here, but suffice it to say if immigration experts were allowed to deal with immigration instead of Congress, it would be a better system. Better enforcement, better compliance, better options.

We have so far been unable to separate our issue (the widow penalty) from the general immigration debate, because no one will allow an immigration provision to be considered alone anymore. There are very limited exceptions, but I believe they are a result of paid lobbying. All we have are a bunch of mothers-in-law and grandmothers calling the Senators, pleading that their daughters-in-law and grandchildren be allowed to stay with the family. While this is helpful, it is nothing compared to a well funded lobbying effort. So, if you really care about this issue, then put your voice to the effort and call Congress!

As for the comment raised by Michael, above, I think it is a misunderstanding to view the process of legally adjusting to permanent resident as solely to benefit the U.S. citizen spouse. Marriage is a commitment. It carries with it the establishment of a life together, the founding of relationships with family and friendships in the community. The loss of a spouse is one of the most stressful events one can ever experience, and has been studied by psychologists extensively. Through my numerous discussions with over 100 grieving spouses, I have come to understand something about this loss. It is extremely important in the grieving process to have people around you who can sympathize with your loss and share that loss. That must be the family who cared about your spouse - your in laws. They too have lost a loved one, and can empathize with the void that is created. That relationship between mother-in-law and daughter-in-law is key to the grieving process. To strip that away, and to deny the family the ability to stay together following a tragedy is simply a travesty of justice that I will not stand for in my lifetime.

Well said, Brent. I inform... (Below threshold)
Mitchell:

Well said, Brent. I informed my wife of all this yesterday, since we didn't realize the risks pending adjusting her immigration status. Luckily, her time is soon, and she'll have no problem, because she's a model immigrant, law-abiding (and a conservative, too! Can't wait to get her registered to vote).

Thanks for your efforts, Brent. These folks deserve our support, and it's a shame our government fights this so hard, yet is complacent when it comes to enforcing the law against illegal immigrants.

Essentially, the good immigrants are punished, the bad get a pass. This is upside down to any thoughtful person.

I think one day this will change. We need good immigrants, and we need to show respect to people who come here legally, live according to our laws and ways, and cherish what it means to be an American. This should be encouraged, not punished.

Mitchell,Your wife... (Below threshold)

Mitchell,

Your wife sounds like mine. Leonita is a registered Republican, as is her mother and sister. Nanay we petitioned to come to the US, Leonette came to the country on a work visa(She's a nurse). Nanay became a citizen in 2003 and Leonette in 2006.

One thing that bugs me is the lumping of legals with illegals. It gets done way too often. Mark Steyn and Pat Buchanan have both done it. The later may not be surprising, but Steyn should know better than lumping nurses in with farmworkers, hotel maids and plumbers. Just one of the many reasons I don't like that columnist.

Bill

Zero tolerance until employ... (Below threshold)
RA:

Zero tolerance until employers are severely punished for hiring ALL illegals. Until then send them all back.

I'm a little late to the pa... (Below threshold)

I'm a little late to the party, but I actually found this post through a google search last week before it went up on the main page and tried to post the following comment unsuccessfully:

Great post. I think this is a problem that most people, regardless of their general views about immigration, can agree should be remedied.

One minor quibble. This area of the law is a bit confusing, and I can see how SSAD's description of the law you've pasted above could be misinterpreted.

Once someone becomes a conditional permanent resident (CPR) based on marriage to a U.S. citizen, the conditional green card will expire two years after it is granted unless the couple files another form showing they are still married. Congress instituted this requirement as another check against marriage fraud. However, if the U.S. citizen spouse dies before the two years is up, the CPR can file a waiver and still retain permanent resident status. The instructions to the government form that must be filed by the CPR explain this (p. 1, pdf">http://www.uscis.gov/files/form/I-751instr.pdf">pdf).

There is a separate 2-year requirement that leads some spouses of U.S. citizens into the "marriage penalty" trap. The marriage penalty applies if a U.S. citizen marries a non-citizen and files for a green card for his/her spouse, but then passes away before the conditional green card is granted and before they have been married for two years. (Note here that in this case the surviving spouse is not yet a CPR.) The government interprets the Immigration and Nationality Act to say that in such a case, the surviving spouse no longer qualifies for a green card and, in many cases, must be deported. The Ninth Circuit and federal courts in New Jersey and Massachusetts have disagreed with the government's interpretation of the statute.

So, in short, a CPR won't get hit with the widow penalty, but a surviving spouse who has never been granted even a conditional green card will get hit with the penalty. In my view, USCIS is really out on a limb here with its interpretation. I think the widow penalty's days are numbered.

Bill, I smiled when you use... (Below threshold)
Paul:

Bill, I smiled when you used the Tagalog word for mother as a term of endearment for your mother-in-law.




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