Outside the Beltway

Ending the Widow Penalty

Bill Jempty · Thursday, May 10, 2007 · 5 comments

A bizarre quirk in U.S. immigration law known as the “widow penalty” can effect the lives of legal resident aliens married to U.S. citizens. One such example is Khin Win Mauro, the wife of Donn Mauro. Mrs. Mauro just saw the drunken driver who killed Donn get sentenced to jail. Khin Win was married to Donn Mauro for eleven months. She could now lose much more than her husband.

A native of Burma, also known as Myanmar, she came to the United States as a foreign student, met and fell in love with Donn Mauro. At the time of his death, they had not been married long enough for her to qualify for permanent residency. Her application for permanent residency was denied and, as a result, Win could be deported.

She is one of at least 70 immigrant women in the United States caught in what they call the “widow penalty.”

What is the widow penalty? When a Conditional Permanent Resident’s U.S. citizen spouse dies, the surviving spouse faces the loss of CPR status and therefore could be deported. The organization Surviving Spouses against Deportation explains.

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.

My wife Leonita (born in Philippines) and I married on May 30, 1989. Our wedding took place on the island of Leyte. Prior to our marriage, Leonita had never stepped foot in the USA.

I filed the Alien Relative petition (I-130) around June 25th. Leonita arrived in the USA on December 17th. On arrival she was a CPR. That is very quick processing by today’s standards, and would have been even quicker if a coup attempt hadn’t taken place in Manila on Dec 1st, delaying Leonita’s embassy interview and departure date several days.

Today an alien relative petition will take a year to process or longer. Leonita and I applied for her mother in 1995, and while I don’t remember the exact length of time, the petition took somewhere in the vicinity of a year to complete. Nanay (Mother) arrived in the US in September of 1996.

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 successful was sometime in 1992 and soon after Leonita applied for citizenship. This she attained in January of 1994. We remain married to this day. (She has the patience of Job to put up with me.)

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.”

To help understand the effect of the widow penalty, read the story of Carla Freeman.

The gravestone belongs to Robert Glen Freeman, her late husband. “Li’l Bob,” it reads. “Lived, loved, laughed.” Born: November 1974. Died: February 2002. It doesn’t say anything about the struggle that followed.

Saturday morning, the 27-year-old widow knelt on the dry yellow leaves blanketing the grave, sobbing as Robert’s round, friendly face smiled back from a photo embedded above his name. The wind picked up, and the pine trees bent and sighed. A tiny U.S. flag sticking out of a flower pot began to dance. Carla Freeman shivered.

“I’m leaving,” she said, with a heavy South African accent. “But I will be back.”

She couldn’t promise when the next whispered conversation on the hillside will happen. It could be at least a decade before the U.S. government allows the West Linn woman to visit her husband’s grave again.

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.

Mrs. Freeman has since won an appeal of her case, but only after her deportation. In 2006, the 9th Circuit Court of Appeals made the following court decision, in the matter of Freeman v. Gonzales.

The Court held that Mrs. Freeman, who had filed all the necessary paperwork to become a lawful permanent resident together with her spouse, was not stripped of the status of a spouse of a United States citizen when her husband died prior to the couple’s second wedding anniversary. The Court determined that Mrs. Freeman remained an “immediate relative” of a United States citizen and was eligible for lawful resident status.

To this date the government hasn’t appealed this decision. Unfortunately the decision in Freeman vs. Gonzales only applies to residents of states and territories in the 9th Circuit’s jurisdiction.

Here in Florida we have the story, 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.

A final decision by ICE on Dahianna Heard hasn’t been made. She and other widows like her are at the mercy of ICE. Unless one of three things happen.

1- A private bill gets passed by Congress.

2- Section 516 of HR 1645 gets passed into law. A similar measure was passed by the Senate in 2006 but died in the House.

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.

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.

Lawprof blogger Shaun Martin writes, “Good to know that the INS is busy keeping our borders secure by making sure that we try to deport widows of U.S. citizens.” ICE is wasting resources pursuing these unnecessary deportations. It is time to end the widow penalty. Besides, can’t this country find room for Khin Win Mauro, Dahianna Heard and the very few other widows like them?

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Bill Jempty blogs at The Florida Masochist.