The Widow’s Penalty: Fair Policy or Unjust Punishment

Kristin Wernig, Staff Writer

Jamaican immigrant Osserritta Robinson is bringing a different type of immigration fight to the U.S. Supreme Court.  Her goal:  to end the so called “widow’s penalty” that affects almost 200 immigrants.

Robinson, 31, of Mahwah, New Jersey, lost her American husband in the Staten Island Ferry crash in 2003.  Because the couple had only been married eight months when her husband died, immigration officials denied Robinson’s green-card application for permanent residence.1 Their basis was a United States law that, while aimed to crack down on sham marriages involving illegal immigrants, ends the green card eligibility of any immigrant whose citizen spouse dies before two years of marriage have elapsed.2 In 2007, a federal judge in Newark ruled that immigration officials were wrong, but that decision was overturned by the Third Circuit Court of Appeals in February of this year, holding that an immigrant who has been married to a U.S. citizen for less than two years upon the spouse’s death is not necessarily entitled to permanent status.3 The court noted that the holding was consistent with the core purpose of the U.S. family-based immigration policy: “the promotion of family unification for U.S. citizens and lawful permanent residents.”4

The widow penalty first appeared in the courts in the case of Piero v. INS.5 In that case, the Court of Appeals struck down a regulation that provided for immediate revocation of approval of an immigrant’s petition for nonquota status upon the death of the citizen spouse.6 The Piero case was the likely source of the “humanitarian reinstatement” regulations, wherein approved petitions could be reinstated.7 However, this left a loophole into which fell immigrant spouses whose citizen spouse died prior to approval of the petition.8 Federal court challenges to the effect of this loophole, dubbed the “widow’s penalty,” began in 2004 with the case of Freeman v. Gonzales.  Since then, numerous cases have been brought to the courts looking for an end to the widow’s penalty.  If the Supreme Court grants certiorari to Robinson, it could end the long-time penalty that has affected numerous alien widows and widowers that, having already suffered the tragic loss of their spouse, are forced to fight to stay in the United States.

For a U.S citizen to gain lawful permanent resident status for their immigrant spouse, he or she must file an I-130 petition with U.S. Citizen and Immigration Services (USCIS) on behalf of the spouse as an “immediate relative.”9 At the same time, or shortly thereafter, the immigrant spouse must file an I-485 application for the adjustment of his or her status to that of a person admitted for permanent residence.10 If the I-130 petition is approved, the immigrant spouse is eligible for the adjustment.11 The statute defines an “immediate relative” as 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.”12 The provision further provides that:

    an alien who was the spouse of a citizen of the United States for at least 2 years at the time of a citizen’s death . . . [shall] remain an immediate relative after the date of the citizen’s death but only if the spouse files [an I-130] petition . . . within 2 years after such date and only until the date the spouse remarries.13

It is this provision that has caused disagreement among the courts and is the basis for Robinson’s appeal.

Robinson and the District Court share the interpretation of the provision, that because the first sentence of the provision does not in any way qualify the term “spouse,” she remained a spouse after her husband’s death, and that the second sentence (the two-year marriage requirement) grants a separate right for widows to self-petition for visas rather than as a limitation on the definition of spouse.14 This interpretation, that the first and second sentences are independent and provide for “two different processes, such that one or the other applies – either the citizen spouse petitions, or if he dies without doing so, the alien widow may do so,”15 led a court in the Ninth Circuit to conclude that an alien whose citizen spouse died while her adjustment of status application was pending remained an immediate relative, despite being widowed after less than two years of marriage.16 Based on this interpretation, Robinson’s argument before the Supreme Court will be that the death of her husband did not affect her status as an immediate relative and therefore cannot provide the basis for the denial of her green-card application for permanent residence.

At first read, the statute seems to provide a two year marriage prerequisite to the maintenance of status.  Therefore the result reached by the Third Circuit would be correct.  However, it would not be the first time that a statute was interpreted in a slightly odd way so as to implement a public policy.  The same result may occur should the Supreme Court accept the Robinson case.  Hopefully, the Supreme Court will realize the need to address this issue, and realize the need for a public policy exception to the two year limit that allows these spouses to continue the application process as they normally would have had their spouse not died.  Because the application is still in the approval process in these situations, providing the exception for these spouses would not preclude the USCIS from denying applications that were the result of sham marriages, as was the purpose for the two limit.  Although the court claimed their holding was consistent with the core purpose of America’s family-based immigration policy, their holding has the opposite effect by  uprooting spouses and risking separating them from their children and families who may be citizens or legally entitled to live in the United States.  Providing the exception would actually be consistent with the policy, as it would prevent this division of the family unit that the widow’s penalty creates.

The effect of what some view as a flaw in the law is that almost 200 legal spouses of American citizens face automatic denial and threat of deportation when their spouses die during the processing of green card applications.  This result affects not only the spouse, but their children and families as well.  Hopefully, the Supreme Court will recognize the importance of this issue and finally put a long awaited end to the widow’s penalty.

______________________________

1 Kirk Semple, Losing a Partner, Losing a Foothold, N.Y. Times, Feb. 1, 2009, at A15.

2 Id.

3 Robinson v. Napolitano, 554 F.3d 358, 367 (3d Cir. 2009).

4 Id.

5 Piero v. INS, 397 F.2d 949 (2d Cir. 1968).

6 Id. at 950.

7 Surviving Spouses Against Deportation, Litigation to End the Widow Penalty, http://ssad.org/litigation.html (last visited Apr. 30, 2009).

8 Id.

9 8 U.S.C §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i) (2006).

10 § 1255(a) (2008).

11 Id.

12 § 1151(b)(2)(A)(i) (2006).

13 Id.

14 Robinson v. Napolitano, 554 F.3d 358, 362 (3d Cir. 2009).

15 Freeman v. Gonzales, 444 F.3d 1031, 1041 n.14, 1042 (9th Cir. 2006).

16 Id. at 1043.

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Filed under Immigration Law, Matrimonial Law

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