Widow Penalty Still in Place; Obama Could End It

Brent Renison of Surviving Spouses Against Deportation (SSAD) appeals to Secretary Napolitano and the Obama administration to utilize available administrative procedures to put an end to the practice of deporting surviving spouses of U.S. citizens.

Today, USCIS is deporting the widows of American citizens, automatically and without exception, where the death of the American spouse occurred before lengthy administrative visa processing could be completed. This practice is illegal and unnecessary.

The USCIS claims it cannot approve an application for permanent residence (a green card) when a spouse is killed before the bureaucracy acts on the couple's residency application - no exceptions. According to the current Administration, it all depends on the timing of the bureaucracy, not the legitimacy of the marriage. Administrative delay and the happenstance of a death are the reasons USCIS treats these cases differently. Without an administrative policy change, or a technical amendment to the immigration law, USCIS will continue to compound the loss of these surviving spouses, making them face deportation, lose employment authorization, and cope with separation from family members and the home they made with their American spouses. This injustice is not required by current law, and should be halted immediately.

On November 23, 2008, CBS "60 Minutes" exposed the Widow Penalty to a national audience in a segment hosted by Bob Simon entitled "For Better or For Worse - A Loss of Love and Country." As Bob Simon reported in the "60 Minutes" segment, "Raquel, like all the other widows 60 Minutes met, had entered the U.S. legally. Still, immigration has been rejecting requests for permanent residence if the American spouse died before they had their immigration interview to prove their marriage was based on love. But the government can take months - sometimes more than a year - to schedule that interview. Raquel's mother-inlaw, Linda, says Raquel shouldn't be penalized because the bureaucracy didn't move fast enough. ‘They were doing things legally. They filed the right papers. They filed them in a timely manner. Things were not processed in a timely manner. And they're, and then my son died. This was not something that you can foresee,' Linda says." (Source: CBS News, "60 Minutes": http://www.cbsnews.com/stories/2008/11/21/60minutes/main4625729.shtml) We urge the administration to recognize, as a number of Courts have recognized, that a spouse does not cease to be a spouse when the American spouse dies during routine bureaucratic processing of an immigration benefit. See Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006); Taing v. Chertoff, 2007 U.S. Dist. LEXIS 911411 (D. Mass 2007), appeal docketed, No. 08-1179 (1st Cir. Feb. 11, 2008); Lockhart v. Chertoff, 2008 U.S. Dist. LEXIS 889 (D. Ohio 2008), appeal docketed, No. 08-1179 (6th Cir. 2008). Additionally, other lawsuits have begun to be filed around the country, costing taxpayers money and wasting scarce government resources. Hanford v. Chertoff, Civ. No. SA-08-CA-0795 (XR) (W.D. Texas, Sept. 25, 2008); Kells v. Chertoff, No. 08-CV-1582-CAS (E.D. Missouri, Oct. 14, 2008); Robledo v. Chertoff, No. AW-08-CV-2581 (D. Maryland, Oct. 2, 2008); Gorovets v. Chertoff, No. 08-10094 (LAP) (S.D.N.Y., Nov. 20, 2008); McKoy v. Chertoff, No. 08-3274 (DKC) (D. Md., Dec. 4, 2008).

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Yet a simple administrative remedy is at hand. We urge the Secretary to rescind the Memorandum issued by Mike Aytes, Associate Director of Domestic Operations, USCIS, on November 8, 2007 - and issue a new Memorandum implementing the Freeman decision nationwide and abolishing the unnecessary and unlawful requirements of the Aytes Memorandum being challenged in a class action lawsuit. See Hootkins v. Chertoff, No. 07-05696 (CAS) (C.D. Cal., filed August 30, 2007) (challenging the substitute affidavit of support requirements and humanitarian reinstatement requirements as unlawful and ultra vires). Because no current regulations are implicated in this type of case, the Secretary has the option of issuing a Memorandum that makes changes to the Adjudicator's Field Manual.

A preferable option, however, would be for the Secretary to publish a precedent decision with the concurrence of the Attorney General, pursuant to 8 CFR § 1003.1(h)(2)(i), and file the decision for publication as a precedent in future proceedings. The decision could designate a case currently in removal proceedings, such as Mrs. Maria Paula Robledo (see Robledo v. Chertoff, No. AW-08-CV-2581 (D. Maryland, Oct. 2, 2008). Additionally, because the fiancée adjustment procedure differs from those who enter legally on other visas, the Secretary should also designate a case in which the applicant initially entered as a K-1 fiancee and married the petitioner, such as Mrs. Gwendolyn Hanford (see Hanford v. Chertoff, Civ. No. SA-08-CA-0795 (XR) (W.D. Texas, Sept. 25, 2008). Both the Hanford case and the Robledo case have received final administrative denials, and both are in removal proceedings. The Secretary's decision for publication should adopt the reasoning of the Court in Freeman and reject the reasoning of the Court in Robinson.

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Despite the administrative changes outlined above, there are nevertheless cases that merit consideration in which the petition was never filed on behalf of the alien spouse or child. One example is Jacqueline Coats, a Kenyan citizen whose American husband Marlin died off of San Francisco Beach Park while trying to rescue two drowning teenage boys. He died on Mother's Day 2006, and had signed all the paperwork to petition for Jacqueline to become a permanent resident days before, but due to his death he was not able to complete the filing. He has been hailed as a hero, and received the highest Coast Guard Medal of Honor, but now his surviving spouse faces deportation. There is also Dorota Lamoree, a Polish citizen whose husband was employed as a police officer with the Rio Visa police force in California. While driving home from work he was struck head-on by a vehicle occupied by teenagers who tried passing a semi-truck in a no-passing zone. He died without having filed the petition, but had hired a lawyer at the cost of $5,000 to initiate the process before he died. Current statutes only allow a self-petition by the surviving spouse if the marriage had existed for at least two years at the time of the citizen spouse's death. Because of the humanitarian nature of these cases, legislation has been introduced that would end the Widow Penalty for non-petitioning spouses. Bi-partisan legislation introduced in the 110th Congress, H.R. 6034 and S.3369, would have put the unfair practice of deporting widows of American citizens to rest once and for all. The bill sponsors have indicated a desire to reintroduce these bills in the 111th Congress, and I ask that the Administration consider future efforts to enact this important legislation.