"Widow Penalty" Update

Widowed foreign-born spouses of U.S. citizens suffered a setback today from the Third Circuit, which ruled against Staten Island Ferry disaster widow Osserritta Robinson's request for a green card.  (Background on the "Widow Penalty" here and here.)  The dissenting judge didn't mince words:

Finally, it is inconceivable to me that Congress intended the alien's status to be contingent upon the amount of time that the executive department takes to process a timely and proper petition - a factor completely outside of the control of the alien. This interpretation creates an arbitrary, irrational and inequitable outcome in which approvable petitions will be treated differently depending solely upon when the government grants the approval. Nor do I believe that Congress intended to sanction the disregard that the department has shown towards persons like Osserritta Robinson. She has committed no crime. She is innocent of any misbehavior. She is a grieving widow and the lone parent of the Robinsons' U.S. citizen child. This same department whose delay or inaction forecloses Osserritta Robinson's chance of becoming an American, now so diligently pursues the avenues of her expulsion. It contends that the statute is ambiguous and then urges upon us the least reasonable and least humane alternative. My view, wholly in the margin, is that it is untoward of this nation of immigrants, we who have passed thorugh the portals of citizenship, to coldly and impassively slam the door behind us on innocent aspirants who dream to follow.

Robinson will appeal the panel's decision to the full Third Circuit, and possibly to the Supreme Court.

But Surviving Spouses Against Deportation organizers hope widows and widowers won't have to wait that long:

Secretary of Homeland Security Janet Napolitano announced today a wide-ranging action directive on immigration and border security, requiring specific department offices to review policies to address, among other things, widows and widowers of U.S. citizens! According to Secretary Napolitano:

Recent media accounts have highlighted the cases of widows and widowers of U.S. citizens who had petitioned for the alien spouse's immigration, but whose petitions were not adjudicated before the citizen spouse's death. Because of the death of the petitioning spouse, the petitions were denied. What are the regulatory, legislative, and litigation options that could be considered to immediately address the situation of these widows and widowers?

It seems clear that the Obama Administration and Secretary Napolitano take the widow penalty seriously, realize that the situation needs to be addressed immediately, and have put out the call to the immigration agencies to report back to her by February 20 with a final assessment. We are all very happy to see the responsiveness of the new Administration to this pressing issue affecting widows, widowers, their children and American families. The approach of the new Administration represents a welcome change, and we are very hopeful that Administration Officials will move the issue in a much needed positive direction.