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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