USA IMMIGRATION NEWS

District Courts in Florida, Maryland, Missouri and Texas Strike down the Widow Penalty

Monday, 12 October 2009

The 'widow penalty' is a very controversial issue in the immigration community; as a result several lawsuits have been brought against the government challenging the validity of the 'widow penalty' and have achieved success.

Under current immigration policy, widow(er)s and their children may apply for a green card if the widow(er)s can establish that they were married to their deceased spouse for at least two years prior to his/her death. This renders widow(er)s who were married to their U.S. citizen spouses for less than two years without a remedy to gain permanent residence through that relationship. Therefore, under the United States and Immigration Service's (USCIS) interpretation of the current regulatory scheme, if the U.S. citizen spouse dies before the USCIS adjudicates the marriage-based green card application, and if the marriage is less than 2 years old, the surviving spouse automatically ceases to be considered an "immediate relative" spouse resulting in the automatic termination of said pending green card application. This harsh result is commonly referred to as the 'widow penalty'.

Currently the U.S. circuit courts are split on the issue of the validity of the 'widow penalty'. To date only the first, sixth and ninth circuit have ruled that the death of a U.S. citizen spouse prior to the couple's second wedding anniversary and adjudication of a marriage-based green card application does not invalidate the green card application of the surviving spouse. Mainly, according to these courts, a person married to a U.S. citizen remains an "immediate relative" under the current regulatory definition even after their spouse's death prior to their second wedding anniversary. In September, district courts in Texas, Florida, Maryland and Missouri followed the circuit courts' decisions and found that the language of the statute did not automatically invalidate an individual's status as an "immediate relative" spouse of a U.S. citizen.

The statue in question, defining the term immediate relative reads:

"For purposes of this subsection, the term "immediate relatives" means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age. In the case of an alien who was the spouse of a citizen of the United States for at least 2 years at the time of the citizen's death and was not legally separated from the citizen at the time of the citizen's death, the alien (and each child of the alien) shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen's death but only if the spouse files a petition under section 204(a)(1)(A)(ii) within 2 years after such date and only until the date the spouse remarries. 3/ For purposes of this clause, an alien who has filed a petition under clause (iii) or (iv) of section 204(a)(1)(A) of this Act remains an immediate relative in the event that the United States citizen spouse or parent loses United States citizenship on account of the abuse."

At issue is whether the first and second sentence of this statute should be read together indicating, as the government has consistently maintained, that marriage-based applications for permanent residence should be automatically invalidated if the U.S. citizen spouse dies before the case is adjudicated and before the couple's second wedding anniversary. Alternatively, is the correct interpretation of the statute, as the plaintiffs in these lawsuits maintain, that the first sentence should be read independent of the second sentence? Meaning that the second sentence does not modify the first sentence and therefore, widow(er)s whose U.S. citizen spouses died before their second wedding anniversary are still "immediate relatives" under the statute.

In Robledo v. Chertoff, 08-cv-02581-AW (S.D. MD, 09/25/2009), the court decided in favor of the plaintiff stating:

"...this Court finds that the plain language of 8 U.S.C. § 1151(b)(2)(A)(i) does not automatically strip an alien, whose citizen spouse filed an I-130 petition but died before it was adjudicated, from classification as an "immediate relative" solely because the citizen died before the couple's second wedding anniversary."

In Hanford v. Napolitano, SA-08-CV-795-XR (W.D. TX, 9/18/09), the court ruled for the plaintiff. There, the plaintiff had previously entered the U.S. on a K-1 fiancée visa, and properly filed for adjustment of status, however, plaintiff's husband died prior to their second wedding anniversary resulting in the automatic termination of the application. The court held that:

"Plaintiff is entitled to adjustment of her legal status to that of permanent resident under the language of the statute because her legally filed application is a result of her marriage to the U.S. citizen who filed Form I-129F to obtain her nonimmigrant status."

The court reasoned in Hanford that the duration of underlying marriage was of no significance if the marriage proved to be legitimate and satisfied all other basic requirements of the application for permanent residence. The court also cited the first, sixth and ninth circuit courts' decisions in Taing v. Chertoff, 526 F. Supp. 2d 177, 187 (D. Mass. 2007), Lockhart v. Napolitano, 573 F.3d 251, 259 (6th Cir. 2009), and Freeman v. Gonzales, 444 F.3d 1031, 1041–42 (9th Cir. 2006), to support its ruling, highlighting that the term surviving spouse was included in the ordinary meaning of spouse.

Similarly, in MacLean v. Napolitano, 09-CV-14118-DLG (S.D. FL 09/24/09), the court ruled against the government finding that "the USCIS had no basis to revoke or terminate the petition prior to adjudicating it on the merits."

In an interesting turn of events, earlier this year U.S. Department of Homeland Security Secretary Janet Napolitano extended new interim relief, granting deferred action for widows affected by the 'widow penalty', and their unmarried children under 21 years of age. However, this deferred action would only serve to suspend removal proceedings and would not resolve a widow's underlying immigration status issues.

It is clear from the recent decisions from circuit and district courts around the country and the actions by Secretary Napolitano, granting interim relief, that the 'widow penalty' is a highly contested issue that is ripe for change. On June 11, 2009, the first step towards invalidating the 'widow penalty' was taken by Senators Menendez (D-NJ), Gillibrand (D-NY) and Leahy (D-VT) when they introduced the Orphans, Widows and Widowers Protection Act (S. 1427). If enacted the bill would amend the definition of "immediate relative" to include widow(er)s of U.S. Citizens who were married to their U.S. citizen spouse for less than two years. It remains to be seen whether Congress will adopt this or any regulation to put a conclusive end to the issue by amending the law and terminating the devastating 'widow penalty'.

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